State of U.P. vs Special Judge and Others

Bharati Sapru, J.—Heard learned Standing Counsel for the petitioner State.

This matter has been listed several times but learned Counsel for the Gram Sabha Shri Anuj Kumar has never cared to appear. Today also, in the revised list, he has not cared to appear. Learned Counsel Shri S. Ram, whose name is shown in the cause list has also not cared to appear on behalf of respondent No.3. This writ petition is filed by the State, being aggrieved by the order passed by the appellate authority dated 26.9.98. The appeal was filed by the petitioner being aggrieved by the order dated 16.8.91.

The facts of the case are that the land in dispute is alleged to be Forest Land in Mauja Bojh belonging to Block Chakiya in District Varanasi. Originally, the Forest Land in dispute belonging to the Kashi Naresh. In the year 1949 the estate of Kashi Naresh merged with the Government of U.P. under the Agreement dated 5.9.1949 and according to the terms of the Agreement, the forest of Banaras State in block Chakia also vested with the State of U.P.

The petitioner''s case is that the State of U.P. issued a notification on 24.9.54 u/s 4 of the Indian Forest Act, whereby the petitioner of the Forest land was mentioned in the said notification and this notification, according to the petitioner, included Mauja Bojh. That once the notification was made in the year 1954, the position continued to do so until the year 1988 when a Pradhan of the Gram Sabha Bojh filed Claim Petition No. 543 of 1988 u/s 6/9 of the Indian Forest Act, before the Court of the Forest Settlement Officer, Chakia, Varanasi. The claim raised by the Pradhan of the said Gram Sabha was that the land as mentioned in Schedule A and B of this petition u/s 6/9 of the Indian Forest Act, belonging to the Gram Sabha, as the same had been settled under the provisions of Section 117 of the U.P.Z.A. & L.R. Act.

The Forest Department contested the case and firstly took an objection that the claim was highly time barred and had been filed after a period of 34 years and, therefore, was clearly barred by the provisions of Section 9 of the Indian Forest Act. The petitioner further took an objection that the Gram Sabha Bojh, who filed the Claim Petition did not produce any notification or any other cogent evidence to show that the land had vested with Gram Sabha. The petitioner further submitted before the Forest Settlement Officer that a notification has been issued u/s 4 of the Act in favour of the petitioner State and the Gram Sabha took no objection to the notification.

It is the petitioner''s case that the Forest Settlement Officer did not prepare any scale map showing the boundaries of the plot, which were occupied by the members of the Gram Sabha Bojh and proceeded to decide the case on the basis of its own personal knowledge and allowed the petition filed by the Gram Sabha in part. The Forest Settlement Officer ordered that some plots of the land which has been mentioned as Schedule B of the Claim Petition filed by the Grama Sabha, were to be exempted from the purview of the forest land and, therefore, set aside the notification in respect of those plots.

Aggrieved by the order of the Forest Settlement Officer, the petitioner filed an appeal u/s 117 of the Act. During the course of the appeal, the appellate authority has recorded that the Grama Sabha did not even cared to appear and the order of the District Judge has been passed ex-parte in favour of the Grama Sabha. It is the contention of the learned Counsel for the State that the appellate authority has simply repeated and reiterated the stand taken by the Forest Settlement Officer and has not applied its mind to the facts and circumstances of the case and has failed to consider the specific objection raised on behalf of the petitioner State in the appeal.

Firstly, learned Counsel has argued that no scale map was prepared by the Forest Settlement Officer and no specific boundaries of the plots in dispute were determined by the Forest Settlement Officer, even though plots in Schedule B of the claim were excluded from the purview of the Forest Land by the impugned order. Learned Counsel for the State has vehemently argued that although the entire order of the trial court as well as of the appellate court was based on the fact that the land had vested in the Grama Sabha by virtue of notification u/s 47 of the U.P.Z.A & L.R. Act, no notification was placed either before the first authority or before the appellate authority.

Secondly, learned Counsel for the petitioner has argued that undisputedly the notification u/s 4 of the Indian Forest Act was published on 24.9.54 in the Gazette and, therefore, the Pradhan of the Grama Sabha could not state that he had no notice or knowledge of the special notification and, therefore, it was beyond the powers of the Forest Settlement Officer, Varanasi to condone the delay of 34 years in filing the claim petition u/s 6/9 of the Indian Forest Act. Learned Counsel has argued that there is no justification, however, in condoning the delay of about 34 years.

I have heard learned Counsel for the petitioner State at length and I have also pursued the records.

The contention of learned Counsel for the petitioner that there was no evidence or documents u/s 117 of the U.P.Z.A. & L.R. Act before both the courts below to show that the land was actually notified by the Grama Sabha Bojh. Mere mention of the fact that the land was notified u/s 117 of the U.P.Z.A. & L.R. Act Act was not good enough for the authorities below to form an opinion that there was actually a notification u/s 117 of the U.P.Z.A. & L.R. Act by which the land had been notified in favour of the Gram Sabha and the entire orders of the authorities below are based on a presumed fact that there was actually a notification u/s 117 of the U.P.Z.A. & L.R. Act by which the land in dispute was notified for the Grama Sabaha. On the other hand, the courts below has completely ignored the notification issued u/s 4 of the Indian Forest Act by which the Forest land belonging to the erstwhile Raja of Banaras stood in the state of U.P. The map appended to the notification included the portion of Mauja Bojh in Chakia. The very fact that the Grama Sabha had not cared to appear at the appellate stage as well as before this Court even though it has filed a counter affidavit, shows that the Grama Sabha has lost interest in the matter. However, in the facts and circumstances of the case, I deem it appropriate to remand the matter back to the Forest Settlement Officer to determine the plots in dispute by way of scale map, which are to be included in the forest area or excluded from the forest area in favour of the Grama Sabha. He will specifically examine whether or not there was any notification u/s 117 in existence, on the basis of which the Grama Sabha had set-up its entire claim. The matter on remand will be decided by the Forest Settlement Officer within a period of six months from the date a certified copy of this order is being placed before it.

Status quo as on today will be preferred by both parties till decision afresh. The impugned orders dated 16.8.91 and 26.9.98 are set aside.

The writ petition is, thus, disposed of.