# M/S Ajay Kumar v. State of U.P. & Ors. 1304 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 3 ILRA 1303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Writ C No. 27391 of 2019
- **Bench:** Sudhir Agarwal, Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-ajay-kumar-v-state-of-u-p-ors-1304-indian-law-reports-allahabad-series-44661
- **Pages:** 13

## Headnote

A. Admistrative Law - Review - Indian
Forest Act, 1927- Section 4, 5 & 20 -
Additional District Judge has power of
review-State Government to implementdecisions given by Additional District
Judge-in Appeals and review.

B. Once order passed-treating disputed
land as 'Reserved Forest'-only activity
for
forest
purpose
permitted.
Once
notification u/s 4 issued-various rights
on such land barred u/s 5.

Held: - The injunction under Section 5 cannot
be diluted or done away by any administrative
decision by State Government. By virtue of
Section 5, no right can be acquired by any
person in respect to a land notified under
Section 4. (Para 26)

C. Absence of notice u/s 20 - State
Government not empowered to treat
disputed land to belong to the Revenue
Department.

Held: -the restriction under section 5 of Act,
1927 is applicable in respect of the land
notified under section 4 and it has nothing to
do with notification under Section 20 (Para 28)

Writ Petition dismissed (E-9)

List of cases cited: -

## Text

_Characters 0–39,756 of 42,511. This is a partial read: ask again with offset=39756 for what follows._

3 All. M/S Ajay Kumar Vs. State of U.P. & Ors.
1303
also be taken note of that as per the
provisions
under
Section
4A
compensation is to be paid as soon as it
falls due. In this regard reference may be
had to the judgment in the case of Pratap
Narain Singh Deo Vs. Srinivas Sabata
and Ors.15, wherein it was held that
compensation becomes payable on the
date of the accident and not on the date of
determination of the amount thereof. The
relevant
observations
made
in
the
judgment are as follows:-

"7. Section 3 of the Act deals
with
the
employer's
liability
for
compensation. Sub-section (1) of that
section, provides that the employer shall
be liable to pay compensation if "personal
injury is caused to a workmen by accident
arising out of and in the course of his
employment". It was not the case of the
employer that the right to compensation
was taken away under Sub-section (5) of
Section 3 because of the institution of a
suit in a civil court for damages, in
respect of the injury, against the employer
or any other person. The employer
therefore become liable to pay the
compensation as soon as the aforesaid
personal injury was caused to the
workmen
by
the
accident
which
admittedly arose out of and in the course
of the employment. It is therefore futile to
contend that the compensation did not fall
due until after the commissioner's order
dated May 6, 1968 under Section 19.
What the section provides is that if any
question arises in any proceeding under
the Act as to the liability of any person to
pay compensation or as to the amount or
duration of the compensation it shall, in
default of agreement, he settled by the
commissioner..

8. It was the duty of the
appellant, under Section 4A(1) of the Act,
to pay the compensation at the rate
provided by Section 4 as soon as the
personal injury was caused to the
respondent.."

28. Counsel appearing for the
petitioner has not been able to dispute the
facts of the case and also the legal position,
as referred to above, and has not been able to
point out any material error or irregularity in
the order passed by the Employees
Compensation
Commissioner/Assistant
Labour Commissioner U.P. Gorakhpur
rejecting the recall application so as to
warrant interference in exercise of powers in
writ jurisdiction under Article 226 of the
Constitution of India.

29. The writ petition lacks merit and
is accordingly dismissed.

30. It is however made clear that this
Court has not adjudicated on the merits of
the claim which has been allowed by the
Employees Compensation Commissioner in
proceedings under the E.C.Act, 1923 and the
dismissal of the writ petition would not
preclude the petitioner from taking recourse
to other remedies which may be available to
it under law.
----------

(2019)11ILR A1303

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Writ C No. 27391 of 2019

M/S Ajay Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Devbrat Mukherjee

Counsel for the Respondents:
C.S.C.

A. Admistrative Law - Review - Indian
Forest Act, 1927- Section 4, 5 & 20 -
Additional District Judge has power of
review-State Government to implementdecisions given by Additional District
Judge-in Appeals and review.

B. Once order passed-treating disputed
land as 'Reserved Forest'-only activity
for
forest
purpose
permitted.
Once
notification u/s 4 issued-various rights
on such land barred u/s 5.

Held: - The injunction under Section 5 cannot
be diluted or done away by any administrative
decision by State Government. By virtue of
Section 5, no right can be acquired by any
person in respect to a land notified under
Section 4. (Para 26)

C. Absence of notice u/s 20 - State
Government not empowered to treat
disputed land to belong to the Revenue
Department.

Held: -the restriction under section 5 of Act,
1927 is applicable in respect of the land
notified under section 4 and it has nothing to
do with notification under Section 20 (Para 28)

Writ Petition dismissed (E-9)

List of cases cited: -

1. Banwasi Seva Ashram Vs St. of U.P. & ors.
(1986) 4 SCC 753

2.Ved Prakash Garg & ors. i.e. Writ Petition
No. 29546 of (2003)
3.Ravindra Kumar Singh & ors. Vs Additional
District & Sessions Judge, Anpara & ors.,
(2007) (9) ADJ 251 (distinguished)
4. Smt. Pyari Devi Vs St. of U.P. & ors. AIR
(2004) All. 70
5. T.N. Godavarman Thirumulkpad Vs UOI,
(1997) 2 SCC 267

(Delivered by Hon'ble Sudhir Agarwal, J.
& Hon'ble Dinesh Kumar Singh -I, J.)

1. Heard Sri Devbrat Mukherjee,
learned counsel for petitioner and learned
Standing Counsel for State of U.P. and its
Authorities.

2. This Writ Petition under Article 226
of Constitution of India has been filed by sole
petitioner, M/s Ajay Kumar, a Proprietary
Firm of which Ajay Kumar Sharma is the
proprietor. Relief sought in the present
petition is to issue a writ of certiorari quashing
order dated 27.07.2019, (Annexure No. 1 to
Writ Petition) which is an order passed by
Regional Forest Officer, Dala Range, Obra
Forest
Range
Division,
Sonbhadra
(hereinafter referred as "RFO") on a
representation of petitioner dated 30.04.2019
which was submitted pursuant to order of this
Court dated 24.04.2019 passed in Writ
Petition
No.
24530
of
2018.
The
Representation has been rejected by RFO.

3. Facts, in brief, as borne out from
averments made by petitioner in petition
as also the documents appended thereto
are that there is a 'Crusher' plant
established in Arazi No. 4478, Village,
Billi,
Markundi,
Tehsil
Robertsganj,
District Sonbhadra.

4. In respect of Arazi No. 4478 (M),
Area 2-0-0, one Ravindra Kumar Singh
filed
an
application
before
Forest
Settlement Officer (hereinafter referred as
"F.S.O.) registered as Case No. 243 of
1993. F.S.O. vide order dated 19.08.1993
recommended for exclusion of 2-0-0 area
of plot no. 4478 (M) from the proposal of
'Reserve Forest'.
3 All. M/S Ajay Kumar Vs. State of U.P. & Ors.
1305

5. Appeals against said order were
taken Suo Moto by Additional District
Judge, Obra, Sonbhadra, pursuant to
Supreme Court's judgement in Banwasi
Seva Ashram Vs. State of U.P. and
others (1986) 4 SCC 753. In para 10 (2)
and (3), Supreme Court had given
directions as under:-

"(2) In regard to the lands
notified under Section 4 of the Act, even
where no claim has been filed within the
time specified in' the notification as
required under Section 6(c) of the Act,
such claims shall be allowed to be filed
and dealt with in the manner detailed
below:

I.
Within
six
weeks
from
December 1, 1986, demarcating pillars
shall be raised by the Forest Officers of
the State Government identifying the
lands covered by the notification under
Section 4 of the Act. The fact that a
notification has been made under Section
4 of the Act and demarcating pillars have
been raised in the locality to clearly
identify the property subjected to the
notification shall be widely publicized by
beat of drums in all the villages and
surrounding areas concerned. Copies of
notices printed in Hindi in abundant
number will be circulated through the
Gram
Sabhas
giving
reasonable
specifications of the lands which are
covered by the notification. Sufficient
number of inquiry booths would be set up
within the notified area so as to enable
the people of the area likely to be affected
by the notification to get the information
as to whether their lands are affected by
the notification, so as to enable them to
decide whether any claim need be filed.
The Gram Sabhas shall give wide
publicity to the matter at their level,
Demarcation, as indicated above, shall be
completed by January 15, 1987. Within
three
months
therefrom,
claims
as
contemplated under Section 6(c) shall be
received as provided by the statute.

II. Adequate number of record
officers shall be appointed by December
31, 1986. There shall also be five
experienced Additional District Judges,
one each to be located at Dudhi, Muirpur,
Kirbil of Dudhi Tehsil and Robertsganj
and Tilbudwa of Robertsganj Tehsil. Each
of these Additional District Judges who
will be spared by the High Court of
Allahabad, would have his establishment
at one of the places indicated and the
State shall provide the requisite number
of assistants and other employees for
their efficient functioning. The learned
Chief Justice of the Allahabad High Court
is requested to make the services of five
experienced Additional District Judges
available for the purpose by December
15, 1986 so that these officers may be
posted at their respective stations by the
first of January, 1987. Each of those
Additional District Judges would be
entitled to thirty per cent of the salary as
allowance during the period of their
work. Each Additional District Judge
would work at such of the five notified
places that would be fixed up by the
District
Judge'
of
Mirzapur
before
December 20, 1986. These Additional
District Judges would exercise the powers
of the Appellate Authority as provided
under Section 17 of the Act.

III. After the Forest Settlement
Officer has done the needful under the
provisions of the Act, the findings with
the requisite papers shall be placed
before the Additional District Judge of
the area even though no appeal is filed
and the same shall be scrutinized as if an
appeal has been taken against the order
of the authority and the order of the
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional District Judge passed therein
shall
be
taken
to
be
the
order
contemplated under the Act.

3. When the Appellate Authority
finds that the claim is admissible, the
State Government shall (and it is agreed
before us) honour the said decision and
proceed to implement the same. Status
quo in regard to possession in respect of
lands covered by the notification under
Section 4 shall continue as at present
until the determination by the appellate
authority and no notification under
Section 20 of the Act shall be made in
regard to these lands until such appellate
decision has been made."

(Emphasis added)

6. Appeal was registered as Appeal
No. 1324 of 1993 and decided vide order
dated 30.09.1994. Case No. 243 of 1993
of Ravindra Kumar Singh was considered
in para 36 of Appeal No. 1324/1993 and it
reads as under:-

^^36- vihykUrxZr okn la[;k 243
@ 93 esa vUrjfufgr Hkw[k.M la[;k 4478 d fe
@ 20&0&0 ij johUnz dqekj flag }kjk vkifRr
dh x;h vkSj dgk x;k fd bl ij mldk yscj
gVesV vkfQl] edku vkfn fLFkr gSA jkT;
ljdkj dh vuqefr ls dk;Z dj jgk gS ftls
/kkjk 4 dh foKfIr ls i`Fkd fd;k tk;A ou
foHkkx dh rjQ ls vkifRr dh x;h fd jkT;
ljdkj dh lEifRr gS nwljk dksbZ bldk ekfyd
ugha gks ldrkA jkT; ljdkj dh vuqefr ls
fd;s x;s dk;Z ij vf/kdkj ugha fn;k tk
ldrkA ou laj{k.k vf/kfu;e ykxw gSA vkifRr
[kkfjt gksus ;ksX; gS i{kksa dks lk{; dk volj
fn;k x;kA vkosnd us 1987 ls [kuu dk;Z
djus dk izek.k i= fn;k vkSj [kfut vuqKk i=
fnukad 12-03-1992 dk izLrqr fd;k gSA ou
cUnkscLr vf/kdkjh us Hkwfe dk fujh{k.k fd;k
vkSj ekSf[kd lk{; dk ifj'khyu fd;k blds
ifj.kke Lo:i 2&0&0&0 Hkwfe dks iwoZor jkT;
ljdkj esa cus jgus ds vkns'k ds lkFk bl okn
dk fuLrkj.k fd;kA**

"36. Objection has been raised
by Shri Ravindra Kumar on land no.
4478 Ka Mi./20-0-0 mentioned in the suit
no. 243 of 1993 under appeal, stating
that his labour hutment office, house etc.
are situated thereon and that he is
working with the permission of the State
Government and that the same may
please be excluded from the notification
issued u/s 4. Objection has been raised on
behalf of the forest department saying
that nobody else cannot be the owner of
the same as it belongs to the State
Government. A right cannot be vested just
on the basis of the work undertaken by
permission of the State Government.
Forest (Conservation) Act is applicable.
The objection is liable to be rejected. The
parties were afforded the opportunity to
adduce evidences. The applicant has
produced a certificate for doing mining
work since 1987 as also a licence for
mining dated 12.03.1992. The Forest
Settlement Officer inspected the land
and perused the oral evidence; and
thereafter, disposed of this case with the
order that 2-0-0-0 land be retained with
the State Government as was earlier."

(Emphasis added)

(English translation by Court)

7. Findings are recorded by
appellate authority in paragraph 56 to 61.
It confirmed order of F.S.O. Thereafter
Review Applications were filed by Forest
Department. Review Application relating
to Ravindra Kumar Singh in Appeal No.
1324 of 1993 was numbered as 234 of
1997, Forest Department Vs. Ravindra
Kumar Singh and Others. This Review
Application
along
with
others
was
3 All. M/S Ajay Kumar Vs. State of U.P. & Ors.
1307
accepted and allowed vide judgement
dated 31.05.2003. Operative part of order
reads as under:-

^^ou foHkkx }kjk izLrqr dh x;h
lHkh mijksDr iquksZfopkj ;kfpdk;sa Lohdkj dh
tkrh gSaA i{kdkj ds }kjk izLrqr iqukZfopkj
;kfpdk la[;k&37@2002 ,oa 198@ 2002
[kfjt dh tkrh gSA lHkh iqukZfopkj ;kfpdkvksa
ds le{k lHkh vihyksa esa ikfjr fu.kZ; vkLr
fd;s tkrs gSaA mijksDr lHkh ou foHkkx }kjk
izLrqr iquksZfopkj ;kfpdk;sa ,oa i{kdkj }kjk
izLrqr iquksZfopkj ;kfpdk la[;k&37@2002 ,oa
198@2002 esa vafdr Hkw[k.M dks /kkjk 4 Hkkjrh;
ou vf/kfu;e ds vUrxZr lqjf{kr ou cuk;s
tkus ds izLrko esa lfEefyr fd;s tkus dk
vkns'k fn;k tkrk gSA bl fu.kZ; dh ewy izfr
fjO;w ;kfpdk la[;k 158@97 ou foHkkx cuke
lq[kUnj mik/;k; esa j[kh tk; 'ks"k ;kfpdkvksa esa
bldh izfr j[kh tk;A**

"All
the
aforesaid
review
petitions
presented
by
the
forest
department are allowed. Review Petition
Nos. 37/2002 and 198/2002 presented by
the party are dismissed. Judgements
passed in all appeals under challenge in
all the review petitions are set aside. The
piece of land mentioned in all the review
petitions
presented
by
the
forest
department and also in the review
petition nos. 37/2002 and 198/2002
presented by the party, is ordered to be
included in the proposal for constituting
it a reserved forest under section 4 of the
Indian Forest Act. The original copy of
this judgement be kept with the Review
Petition No. 158/97 Forest Department
Vs Sukhander Upadhyay and its copies be
kept with the remaining petitions."
(Emphasis Added)

(English translation by Court)

8. Ravindra Kumar Singh, being
aggrieved by judgment and order dated
31.05.2003, whereby review application
was allowed by Additional District Judge,
Obra, filed Writ Petition No. 41578 of
2007. One Ved Prakash Garg and Others
(Appeal No. 45 of 94 and Review
Application No. 227 of 1997) also
challenged order dated 31.05.2003 in
Writ Petition No. 29546 of 2003 (Ved
Prakash
Garg
and
others
Vs.
Additional District and Sessions Judge
and Others). Writ Petition filed by Ved
Prakash Garg and others i.e. Writ Petition
No. 29546 of 2003 was allowed vide
judgement dated 14.2.2006 and operative
part of judgement reads as under:-

"In view of the facts that the
State government has itself taken a
decision that the land in question should
be treated as land belonging to the
Revenue
Department
of
the
State
Government on which mining operations
should be permitted as was being done
earlier. It is directed that the applications
for renewal of the mining leases of the
petitioners shall be considered and
decided by the respondent no. 3 in
accordance with law production of a
certified copy of this order before the said
respondent.

With the aforesaid directions,
this writ petition stands allowed and the
order dated 31.05.2003 is quashed. There
shall be no order as to costs."

(Emphasis added)

9. It may be noticed at this stage that
before learned single judge, Sri S.M.A.
Quazmi, Additional Advocate General
appearing on behalf of State made a
statement that Additional District Judge
had no power of review of its own order.
Similarly, Sri Shashi Nandan, learned
Senior Advocate appearing on behalf of
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners stated that during pendency of
Writ Petition, mining lease of the
petitioners
have
expired
and
their
applications for renewal were pending
before Additional District Magistrate and
he may be directed to decide the same at
the
earliest.
The
judgement
dated
14.02.2006, therefore, was passed by
learned Single Judge in the backdrop of
the above statements of Additional
Advocate General appearing for the State
and learned Senior Counsel appearing for
petitioners, Ved Prakash Garg and Others.

10. Ravindra Kumar Singh in his
Writ Petition No. 41578 of 2007 claimed
extension of benefit of the judgement
dated 14.02.2006 passed in Writ Petition
No. 29546 of 2003. However his Writ
Petition came to be decided by a learned
Single Judge (Hon'ble Ashok Bhushan, J.
as His Lordship then was) and vide
judgement and order dated 4.10.2007,
Writ
Petition
was
dismissed.
The
judgment
is
reported
as
Ravindra
Kumar
Singh
and
Others
Vs.
Additional District and Sessions Judge,
Anpara and Others, 2007 (9) ADJ 251.
We propose to discuss this judgment in
detail at a later stage.

11. State Government following
judgment dated 14.02.2006 passed in Writ
Petition No. 29546 of 2003, issued a
Government Order dated 18.09.2008
informing Principal Conservator of Forest
that land under the aforesaid judgement
belongs to Revenue Department of
Government and would not come within
the category of "Forest Land".

12. Petitioner claimed that Crusher
plant was established at Gata No. 4478,
area 2 bighas. It was purchased by
petitioner from Ravindra Kumar Singh,
about 10 years back and since then, he is
operating the said Crusher Plant.

13. RFO issued notice dated
16.05.2018 informing that Arazi no. 4478
is a "Forest Land" and no commercial or
non forest activities can be carried out
thereon, therefore, petitioner must remove
his Crusher plant and vacate the said land.
The plant of petitioner was also seized on
the same day in purported exercise of
power under Sections 5/26/52 of Indian
Forest Act, 1927 (hereinafter referred to
be as "Act, 1927").

14. Notice dated 16.5.2018 as also
seizure, was challenged by petitioner in
Writ Petition No. 24530 of 2018 which
was allowed vide judgement and order
dated 24.04.2019 on the ground that no
show cause notice or opportunity was
given, therefore, RFO was directed to
pass fresh order after giving opportunity
of hearing to petitioner. The judgement
dated 24.04.2019 reads as under:-

"Heard
Shri
Devbrat
Mukherjee, learned counsel for the
petitioner and the learned standing
counsel for the respondents.

The petitioner in the writ
petition is seeking quashing of the notice
dated 16.5.2018 whereby the petitioner's
Crusher plant has been sealed under
section 52 of the Indian Forest Act, 1927.

It is pointed out that in the
identical matter a writ petition no. 23756
of 2018 (M/s Ballia Sita Stone Products
and another Vs. State of U.P. and others)
was
filed
challenging
the
same
Notification dated 16.5.2018 and the said
writ petition was allowed by this court
vide judgment and order dated 19.7.2018
and
the
impugned
notices
dated
16.5.2018 and 25.5.2018 were quashed
3 All. M/S Ajay Kumar Vs. State of U.P. & Ors.
1309
and the respondent was directed to pass a
fresh order in the matter after affording
opportunity of hearing to the petitioners.

Learned counsel for the parties
do not dispute that the controversy in the
present writ petition is identical to that of
writ petition no. 23756 of 2018 and in this
writ petition also no opportunity of
hearing was given to the petitioner before
sealing his Crusher plant.

In this view of the matter, we
quash
the
impugned
notice
dated
16.5.2018 and direct the respondent no.
3-Forest Range Officer, Dala Range,
Dala District Sonbhadra to re-examine
the matter and pass appropriate orders in
accordance with law within three months
from the date of receipt of the certified
copy of this order.

The
writ
petition
stands
allowed."

(Emphasis added)

15.

Petitioner
communicated
aforesaid judgement to RFO vide letter
dated 29.04.2019. Thereafter impugned
order has been passed by RFO holding
that in respect of Arazi No. 4478 matter
has already been decided by this Court in
Ravindra Kumar Singh and Others Vs.
Additional District Judge and others
(Supra) and that judgement has become
final, hence, land in question on which
'Crusher plant' is being run, has to be
dealt with according to the aforesaid
judgement.

16. Sri Devbrat Mukherjee, learned
counsel for petitioner, contended that
Arazi No. 4478 was notified only under
Section 4 of Act, 1927 and no notification
under Section 20 of Act, 1927 has been
issued till date, therefore, land in question
cannot be treated to be a 'Forest land'.
Respondent no. 3 while passing impunged
order and treating the land in dispute as
'Forest' land has committed manifest
error.
He
placed
reliance
on
the
judgement of this Court in Ved Prakash
Garg
and
Others
Vs. Additional
District Judge and Others (Supra) and
said that judgement in Ravindra Kumar
Singh and Others Vs. Additional
District Judge and others (Supra) is per
incuriam and cannot hold the field on the
question, whether land in dispute is a
'Forest Land' or not. He also pointed out
that against the judgement in Ved
Prakash
Garg
(Supra),
State
Government preferred Special Appeal
Defective No. 63 of 2018, and same was
dismissed on the ground of laches, vide
order dated 2.02.2018 since appeal was
filed after 11 years and 320 days. State
Government then filed Special Leave
Petition (Civil) Diary No. 33675 of 2018
and Supreme Court, after condoning
delay, dismissed Special Leave Petition
vide order dated 22.11.2018. Since
judgment of learned Single Judge in Ved
Prakash Garg and Others (Supra) has
become final upto Supreme Court,
therefore, it is binding upon respondents
and it was not open to RFO to take a
different view in the matter. He submitted
that
unless
final
notification
under
Section 20 is issued declaring disputed
land as "Reserve Forest", merely on the
basis of Section 4 notification, land in
dispute cannot be treated to be "Reserve
Forest Land", hence, functioning of
Crusher Plant of petitioner can not be
stopped. He also submitted that Forest
(Conservation) Act, 1980 (hereinafter
referred to as "Act, 1980") is not
applicable to land in dispute; respondents
cannot take advantage of their own
wrong; RFO has not applied its mind;
impugned order has been passed with
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
malafide and illegally; no opportunity has
been given to petitioner of being heard
before passing impugned order and,
therefore, he prayed that impugned order
is liable to be set-aside.

17. The above facts we have
discussed in detail for the reason that in
the Writ Petition, facts have not been
pleaded in a whole-some, chronological
manner. There is a complete jumbling and
confusion which has been sought to be
created so as to seek shelter under the
judgment of this Court in Ved Prakash
Garg (Supra) and to avoid the judgment
in Ravindra Kumar Singh and Others
Vs. Additional District Judge and
others (Supra) which was in respect of
this very land which is subject matter of
this Writ Petition on which petitioner is
running 'Crusher Plant' having been
purchased from Ravindra Kumar Singh.
Since judgment in Ravindra Kumar
Singh and Others Vs. Additional
District Judge and others (Supra) is in
respect of land in dispute, therefore, it is
inter-se parties as petitioner stands in the
shoes of Ravindra Kumar Singh and this
judgment is binding upon him.

18. The first submission that the
judgment in Ravindra Kumar Singh
and Others Vs. Additional District and
Sessions Judge (supra) is per incuriam
has no substance inasmuch as the
judgment has attained finality between
the parties i.e. Ravindra Kumar Singh and
State of U.P. and petitioner having
purchased 'Crusher Plant' standing on the
disputed land from Ravindra Kumar
Singh, he has entered into the shoes of
Ravindra Kumar Singh and, therefore the
above
judgment
is
binding
upon
petitioner also. Moreover the judgment in
Ravindra Kumar Singh and Others Vs.
Additional District and Sessions Judge
(Supra) has already considered earlier
Single Judge judgment in Ved Prakash
Garg (Supra) and therefore, it cannot be
said that it is per incuriam. We find that
learned
Single
Judge
in
Ravindra
Kumar
Singh
and
Others
Vs.
Additional District and Sessions Judge
(Supra) has relied on an earlier Division
Bench Judgment in Smt. Pyari Devi Vs.
State of U.P. and others AIR 2004 All.
70.

19. In Smt. Pyari Devi Vs. State of
U.P. and others (Supra), the facts were
that she was granted a mining lease of
sand for excavating minor minerals.
Lease
was
executed
by
District
Magistrate, Sonbhadra in respect of Plot
no. 246/1 to the extent of an area of 10
acres situated in Village, Gurdha, Tehsil
Robertsganj, District Sonbhadra. Lease
was executed for a period of three years
in accordance with the provisions of U.P.
Minor Mineral (Concession) Rules, 1963
(hereinafter referred to as "Rules 1963").
Smt. Pyari Devi commenced mining
operation
but
vide
order
dated
29.06.2002, mining operation of 11
persons including Smt. Pyari Devi was
prohibited. The order passed by District
Magistrate referred to order of Additional
District
Judge
dated 03.06.2002
in
Review Application No. 2810 of 1992
directing
for
constituting
'Reserved
Forest' in Plot No. 246/1, area 453 bighas
and 17 biswas under Section 4 of Act,
1927. The Division Bench was also
having a Special Appeal filed by one
Bhairao Ram challenging judgement
dated 4.10.2002 passed by learned Single
Judge in Writ Petition No. 29926 of 2002
dismissing the same which has also arisen
from similar orders as were passed by
Additional District Judge and District
3 All. M/S Ajay Kumar Vs. State of U.P. & Ors.
1311
Magistrate in the case of Smt. Pyari Devi
and in that Special Appeal, an incidental
question arose as to whether appeal was
maintainable or not since it had arisen
from the order of learned Single Judge
wherein order of Additional District
Judge
was
challenged.
Counsel
of
Bhairao Ram contended that Additional
District Judge had no jurisdiction to
review appellate order and therefore,
review order was without jurisdiction.
This question was also considered by
Division Bench in Smt. Pyari Devi Vs.
State of U.P. and others (Supra).
Considering merits of the matter, Division
Bench, noticed factual background that
State Government issued a notification
dated 09.04.1969 published in U. P.
Gazette dated 21.06.1969 under Section
4(1) of Act, 1927 declaring that it has
been decided to constitute the land, as
detailed in notification, as 'Reserved
Forest'; the Notification included Plot No.
716 area 485 bighas and 15 biswas (out of
which Plot No. 246/1 area 453 bighas and
17 biswas was carved out). A Writ
Petition was filed before Supreme Court
as Public Interest Litigation claiming that
Adiwasis and other backward people
using forest land as their habitat and
means of livelihood will be deprived if
State Government is permitted to declare
entire land as 'Reserved Forest'. Therein
various
directions
were
issued
by
Supreme Court.

20. The scheme of Act, 1927 is that
whenever State Government decides to
constitute any land, a 'Reserved Forest', it
shall issue a notification in official gazette
specifying the situation and limits of such
land and also appointing an officer named
'F.S.O.' to enquire into and determine the
existence, nature and extent of any rights
alleged to exist in favour of any person in
or over any land comprised within such
limits. This notification is contemplated
under Section 4(1) of Act 1927. Section 6
of Act, 1927 contemplates that F.S.O.
shall publish in local vernacular, in every
town and village of neighborhood,
specifying the situation and limits of
proposed forest, expanding consequences
and fixing a period and requiring every
person claiming any right mentioned in
section 4 or Section 5 of Act, 1927 within
such period either to present to F.S.O. a
written notice or to appear before him and
state nature of such right. Section 7
contemplates an enquiry by F.S.O. The
F.S.O. is supposed to pass an order under
Section 11(2) regarding claim made by a
person. Section 12 deals with the rights of
pasture or to forest produce and under
Section 15, an order is to be passed which
may ensure continued exercise of rights
so admitted. Section 17 contemplates an
appeal against the order of F.S.O.

21. On Plot No. 246/1 Mahendra
Singh and Rajendra Singh, sons of
Bhupendra Singh had filed an objection
staking their claim to be part of the
aforesaid plot i.e. Area 26 bighas 8
biswas. This was allowed by F.S.O. and
he recommended their land to be
excluded from 'Reserved Forest' in view
of directions of Supreme Court in
Banwasi Sewa Ashram Vs. State of U.P.
(Supra).
Additional
District
Judge
considered those orders of F.S.O in appeal
and initially appeal was decided in favour
of Mahendra Singh and Rajendra Singh
but on a Review Application of State
Government, the order was recalled and
decided in favour of State directing that
Plot
No.
246/1
be
reserved
for
constituting 'Reserved Forest'. This Court
while considering validity of review order
of Addl. District Judge, said once
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional District Judge passed an order
for treating disputed land as 'Reserved
Forest', no activity other than forest
purpose could have been carried out on
such land and for this purpose, provisions
of Act, 1980 come into play. Court relied
on a Supreme Court judgement in T.N.
Godavarman Thirumulkpad Vs. Union
of India, (1997) 2 SCC 267 wherein it
was held that all on going non forest
activities within any forest in any State
throughout the country without prior
approval of Central Government must
cease. The said direction was given on
12.12.1996. Thus, Court said that State
Government was obliged to stop all non
forest activities in any forest area. Since
petitioners, Smt. Pyari Devi and Bhairao
Ram were claiming right to carry on
operations on the land which was directed
to be constituted 'Reserved Forest' by the
order of Additional District Judge, such
claim could not have been admitted as it
was and it would have been contrary to
the provisions of Act, 1980 and also
directions given by Supreme Court in
T.N.
Godavarman
Thirumulkpad
(Supra).

22. Court also considered a
submission that petitioners, Smt. Pyari
Devi and Bhairao Ram, were not party
before F.S.O. and Additional District
Judge and held that those were the
proceedings under Special Act giving
right to the party to the proceeding on
different stages and a person who was not
party at any stage cannot be allowed to
challenge order passed in those special
proceedings. The two petitioners were
lessee from State Government and cannot
claim higher rights from the lessor i.e.
State
Government
which
has
not
challenged order of Additional District
Judge in respect of Plot No. 246/1.

23. The Division Bench also
considered the argument that Additional
District Judge had no power of review. It
found that Supreme Court in Banwasi
Sewa Ashram (Supra) has clearly
directed State Government to implement
decisions given by Additional District
Judge in appeals as well as in review. The
argument that the Additional District
Judge could not have entertained review
was contrary to directions given by the
Supreme Court, hence rejected. The
relevant observations made by Division
Bench in Smt. Pyari Devi Vs. State of
U.P. and others (Supra) reads as under:-

"The argument of counsel for
the appellant is in the teeth of the
aforesaid
direction
and
cannot
be
accepted. The judgments of the Apex
Court are binding for all courts under
Article 141 of the Constitution of India."

24. The Division Bench therefore
upheld order of Additional District Judge
passed
in
Review
Application
on
03.06.2002. The relevant extract of the
judgement upholding the said order, reads
as follows:

"From
the
foregoing
discussions, the judgment of Additional
District Judge dated 3rd June, 2002
cannot
be
said
to
be
without
Jurisdiction. The Additional District
Judge while passing the order dated 3rd
June, 2002 was within his jurisdiction
and the said jurisdiction was exercised by
the appellate Court in exercise of
Jurisdiction conferred under Forest Act
which is Central Act referable to Entry 17
A of the Concurrent List. The judgment
dated
3rd
June,
2002
which
was
challenged in the writ petition being a
judgment passed by a Court in exercise of
3 All. M/S Ajay Kumar Vs. State of U.P. & Ors.
1313
jurisdiction under Central Act, the special
appeal is clearly barred under ChapterVIII, Rule 5 of the Rules of the Court and
the submission of counsel for the
appellant that present special appeal is
maintainable cannot be accepted."

25. Learned Single Judge in
Ravindra Kumar Singh and Others Vs.
Additional District and Sessions Judge
(supra), when was confronted with
another Single Judge Judgment in Ved
Prakash Garg (Supra), said in para 14
of the judgment, as follows:

"14. Much emphasis has been
laid
by
learned
Counsel
for
the
petitioners on the subsequent judgment
of the learned Single Judge in Ved
Prakash Garg's case (supra) in which the
learned Single Judge in view of the stand
taken by the State quashed the order or
review as being without jurisdiction. The
judgment in the said case cannot help the
petitioners in the present case due to
following two reasons:

(a) The attention of the learned
Single Judge in Ved Prakash Garg's case
(supra) was not invited to the earlier
Division Bench in Smt. Pyari Devi's case
(supra), which categorically laid down
that Additional District Judge has power
of review. It is relevant to note that
judgment in Pyari Devi's case was with
regard to same notification under
Section 4 of the Forest Act in which
notification
the
land
on
which
petitioners claimed right of mining lease
was also included. The Division Bench
judgment having held that Additional
District Judge had power of review was a
binding precedent and the judgment
given by learned Single Judge without
noticing the said judgment cannot be
followed as good precedent.

(b) Learned Single Judge in Ved
Prakash Garg's case (supra) has decided
the the case on the basis of concession
made by the learned Advocate General at
the bar that the Additional District Judge
has no power to review its own order. The
judgment was thus, in fact, based on
concession given by the learned Advocate
General to the effect that Additional
District Judge has no power of review.
The decision is based only on the said
statement and does not lay down any
ratio to be laying down any ratio or
precedent to be followed."

 (Emphasis added)

26. Court also held that though in
Ved Prakash Garg and Others (Supra),
review order dated 31.05.2003 was setaside but that would not apply in all the
cases and would be confined to cases
which were before learned Single Judge
in Ved Prakash Garg and others and
would not be applicable to Ravindra
Kumar Singh. Court also said that once
notification under Section 4 is issued,
various rights on such land are barred by
section 5, to be exercised, and it is a kind
of injunction regarding accrual of rights
after issue of notification under Section 4.
Court said that Section 5 contemplates
that no rights shall be acquired in or over
the land comprised in a notification under
Section 4 except by succession or under a
grant or a contract made or entered into or
on behalf of Government or some persons
in whom such rights were vested when a
notification was issued. The injunction
under Section 5 cannot be diluted or done
away by any administrative decision by
State Government. By virtue of Section 5,
no right can be acquired by any person in
respect to a land notified under Section 4.
Court also dealt with the argument that
notification under section 20 has not been
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
issued, therefore, no restriction can be
placed and said, in para 22 of the
judgement, that even if notification under
Section 20 of Act, 1927 has not been
issued, Section 5 of Act, 1927 would
operate by virtue of notification under
Section 4 and land included in Section 4
Notification cannot be said to be a land in
which non forest activities i.e. mining
operation
be
permitted
as
per
observations of Supreme Court in T.N.
Godavarman Thirumulkpad (Supra). It
also held that once an order has been
passed by Additional District Judge under
Section 17 as an appellate authority, State
Government has no power to alter the
said decision by taking an administrative
decision. In para 28 of the judgement,
Court also considered the submission that
so long as notification under Section 20 is
not issued, State Government was entitled
to take the land as not belonging to Forest
department but to Revenue department
and said that after issue of notification
under Section 4, Section 5 comes into
play and prohibition of accrual of any
right operate after issue of notification
under Section 4, hence no decision can be
taken by State Government contrary to
section 5 of Act, 1927. Mere fact that
notification under Section 20 has not been
issued,
would
not
empower
State
Government to take an administrative
decision to treat disputed land included
under Section 4 as land, belong to
Revenue Department or to permit mining
in the said land. No such power is
conferred upon State Government even if
no notification under Section 20 has been
issued. Para-28 of the judgment is quoted
for ready reference as under:

"28. The last submission of the
petitioners that Section 20 notification
having not been issued, the State
Government was fully entitled to treat the
land as land not belonging to the Forest
Department and the same as belonging to
the Revenue Department. As noted above,
after issuance of notification under
Section 4, Section 5 comes into play and
prohibition of accrual of any right
operate after issuance of notification
under Section 4. The issue as to whether
the
State
Government
by
any
administrative
decision
can
take
a
decision contrary to Section 5 of the
Forest Act has already been discussed
above.
The
fact
that
Section
20
notification has not yet been issued does
not empower the State Government to
take an administrative decision to treat
the land included in notification under
Section 4 as a land belonging to the
Revenue
Department
or
to permit
mining in the said land. Thus non
issuance of notification under Section 20
of the Forest Act does not empower the
State
Government
to
take
any
administrative decision to permit any
mining operation in the land included in
the notification under Section 4 of the
Forest Act."

 (Emphasis
added)

27. Thus, in respect of land in
dispute, it is admitted that Notification
under Section 4 was already issued and
thus Section 5 became operative. Counsel
for petitioner admits that the land in
question belong to Ravindra Kumar Singh
who has already lost the matter before
this Court and his writ petition has been
dismissed while judgment of appellate
authority i.e. Additional District Judge
allowing review of the State Government
has been affirmed and become final.

28. Petitioner's counsel submits that
he has not purchased land from Ravindra
3 All. Residents Welfare Association Vs. State of U.P. & Ors.
1315
Kumar Singh and it is only 'Crusher
Plant, which was already operating for the
last more than 10 years and he has not
purchased land at all.