# Mohd. Naimuddin & Ors v. D.D.C. Barabanki

- **Citation:** (2020) 1 ILRA 583
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-08
- **Case number:** Consolidation No. 3438 of 1981
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-naimuddin-ors-v-d-d-c-barabanki-45694
- **Pages:** 10

## Headnote

C.S.C.

A. Petitioner's father's a name mutatedlease granted by Zamindar-negotiation
for constituting the land as reserve
forest-lessee acquired first - status of
hereditary tenant-later when UPZALR
584 INDIAN LAW REPORTS ALLAHABAD SERIES
was enforced-of sirdar-case filed u/s.8Petition restored-remanded.

Writ Petition allowed in part. (E-8)

## Text

1 All. Mohd. Naimuddin & Ors. Vs. D.D.C. Barabanki
583
summary inquiry as to the nature and extent
of the penalty to be imposed on the
delinquent employee and in the course of the
inquiry, if the authority is of the opinion that the
offence is too trivial or of a technical nature it
may refuse to impose any penalty in spite of the
conviction. The disciplinary authority has the
undoubted power after hearing the delinquent
employee and considering the circumstances of
the case to inflict any major penalty on the
delinquent employee without any further
departmental inquiry, if the authority is of the
opinion that the employee has been guilty of a
serious offence involving moral turpitude and,
therefore, it is not desirable or conducive in the
interests of administration to retain such a
person in service. In Sushil Kumar Singhal vs.
Regional Manager, Punjab National Bank,
2010 (8) SCC 573 (Paras-24 and 25), Hon'ble
Supreme Court explained the meaning of the
words 'moral turpitude' to mean anything
contrary to honesty, modesty or good morals.

14. Thus, in view of the law laid
down by Hon'ble Supreme Court in the
cases of Tulsiram Patel (supra), T.R.
Chellapan (supra) and Shankar Das
(supra),
and
two
Division
Bench
judgments of this court in Shyam Narain
Shukla (supra) and Sadanand Mishra
(supra), it can safely be concluded that
while
removing
the
petitioner
from
service, the respondents were bound to
consider the conduct of the petitioner,
which has led to his conviction in the
session trial. This was the condition
precedent for the competent authority to
acquire jurisdiction to impose punishment
of removal from service. However, the
impugned order is unfortunately silent and
does not show consideration of conduct of
the petitioner which has led to his
conviction in the S.T. No.178 of 2005. It
was necessary for the respondents, while
passing the impugned order, to consider
the conduct of the petitioner leading to his
conviction and then to decide what
punishment is to be inflicted upon him.
This has not been done by the respondent
No.2 while removing the petitioner from
service. Therefore, the impugned order
cannot be sustained and is hereby quashed.

15. For all the reasons afore-stated,
the writ petition is allowed. Matter is
remitted back to the Senior Superintendent
of Police, Jhansi to pass an order afresh, in
accordance with law, within one month
from the date of presentation of a certified
copy of this order. In the event, the
petitioner is reinstated in service, he shall
be entitled to all consequential benefits
and shall also be entitled to arrears of
salary only for the period he actually
worked.
----------
(2020)1ILR 583

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2020

BEFORE
THE HON'BLE RAJAN ROY, J.

Consolidation No. 3438 of 1981

Mohd. Naimuddin & Ors. ...Petitioners
Versus
D.D.C. Barabanki ...Respondent

Counsel for the Petitioners
Smt. Maya Bhatta, Hargur Charan, M.A.
Siddiqui

Counsel for the Respondent:
C.S.C.

A. Petitioner's father's a name mutatedlease granted by Zamindar-negotiation
for constituting the land as reserve
forest-lessee acquired first - status of
hereditary tenant-later when UPZALR
584 INDIAN LAW REPORTS ALLAHABAD SERIES
was enforced-of sirdar-case filed u/s.8Petition restored-remanded.

Writ Petition allowed in part. (E-8)

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Shri Aftab Ahmad, learned
counsel for the petitioners, Shri Jagdish
Prasad Maurya, learned Additional Chief
Standing Counsel and Shri Dileep Pandey,
learned Standing Counsel for the State.

2. This writ petition was filed in the year
1981 challenging an order dated 25.02.1981 by
which revision of the petitioners under Section
48 of the U.P. Consolidation of Holdings Act,
1953 (hereinafter referred to as ''the Act, 1953')
was rejected. Another order dated 30.04.1981
has been challenged which had been passed by
D.D.C. on the review application filed by the
petitioners rejecting the same on the ground
that he did not have any power of review.

3. In the year 1996 the writ petition
was amended and order dated 30.12.1958
passed by the Deputy Commissioner,
Barabanki on the appeal of the State
Government under Section 17 of the
Indian Forest Act, 1927 (hereinafter
referred to as ''the Act, 1927') as applicable
to the State of U.P. was sought to be
challenged by way of an amendment
which was allowed by this Court on
17.10.1996, however, during the course of
argument today Shri Aftab Ahmad,
learned
counsel
for
the
petitioners
submitted that this order has already been
declared to be without jurisdiction by this
Court in the earlier proceedings bearing
Writ Petition No. 917 of 1972; Mohd.
Mohinuddin Vs. State of U.P. and Ors.
decided on 16.04.1975 which has not been
put to challenge by the State and has
attained finally, therefore, he does not
want to press this part of the relief relating
to the validity of the order dated
30.12.1958.

4. In view of the above, this part of
the relief claimed in the writ petition is not
pressed.

5. From the records and during the
course of arguments it comes out that
according to the petitioners, their father
was granted a Lease which was registered
on 31.07.1951 by the Zamindar in respect
of certain Gatas of land including Gata No.
1447/1 and 1448/1. In pursuance to the
aforesaid Lease, proceedings for mutation
were initiated and Mutation Court vide
order dated 30.05.1952 ordered mutation
of the name of petitioners' father in respect
of the Gatas in respect of which Lease was
granted by the Zamindar. According to the
petitioners, based on the aforesaid order
the name of petitioners' father came to be
recorded in Khatauni of 1359 Fasli and
remained so recorded till 1366 Fasli. It is
worthwhile to mention that the Lease
dated 31.07.1951 is referable to 1359
Fasli, as, the Fasli year starts from 1st of
July. There is not much of a dispute in this
regard. On 11.10.1955 a notification was
issued under Section 4 of the Indian Forest
Act, 1927, by virtue of which Gatas
bearing No. 1447/1 and 1448/1, which,
according to the petitioners, was leased out
in their favour by the Zamindar and
consequently was recorded in their name
vide order of the Mutation Court dated
30.05.1952, were declared that the said
land apart from the other land mentioned
in
the
notification
had
been
decided/proposed to be constituted a
Reserved Forest. Accordingly, a proposal
was put-forth. By the same notification, a
copy of which is annexed as Annexure No.
19 to the rejoinder affidavit of the
1 All. Mohd. Naimuddin & Ors. Vs. D.D.C. Barabanki
585
petitioners, the Sub-Divisional Officer of
Sub-Division concerned was appointed as
Forest Settlement Officers under Section
1(o) of Section 4 of the Act, 1927 and
Additional
Commissioner,
Lucknow
Faizabad Division was empowered to hear
appeals
from
orders
of
the
Forest
Settlement Officers. According to the
petitioners, their father had filed objections
under Section 6 of the Act, 1927 before
the Forest Settlement Officer i.e. the SubDivisional Officer concerned of District-
Barabanki, although, learned counsel for
the State says that no such objection was
filed. Be that as it may, the Court finds
that under Section 7 of the Act, 1927 read
with Section 9 thereof, even if, no claim is
made under Section 6 by filing an
objection. Forest Settlement Officer could
ascertain
from
the
records
of
the
Government and evidence of any person
likely to be acquainted with the same,
regarding
the
existence
of
rights
mentioned in Section 4 and Section 5
thereof and could acquire knowledge of
existence of such rights in an inquiry
under Section 7 as is mentioned in Section
9. The records of earlier proceedings
especially the judgment of this Court dated
16.04.1975 rendered in Writ Petition No.
917 of 1972; Mohd. Mohinuddin Vs. State
of U.P. and Ors. clearly disclose the
aforesaid facts and also that the Forest
Settlement Officer accepted the claim of
the petitioners under Section 6 of the Act,
1927. There is some dispute about the date
of this order. The Writ Court's judgment
refers to it as order dated 31.08.1959.
There is a letter/order of the SubDivisional
Officer,
Fatehpur
dated
22.09.1958 with reference to letter of the
Divisional Forest Officer, Gomti Rapti
Afforestation Division, Lucknow which is
annexed with the rejoinder affidavit. The
said document says that the land bearing
Plot No. 1447-A/1 measuring 79 bighas,
14 biswas and 6 biswansis, and Plot No.
1448-A/1 measuring 13 bighas 14 biswas
i.e. total of 95 bighas, 8 biswas and 6
biswansis were the sirdari plots of Shri
Mohinuddin and were wrongly notified for
being taken by the Forest Department, and
a correction had been ordered to be made
in the village records accordingly. The
reference in the said letter that a correction
had been ordered to be made in the village
records
accordingly,
is
obviously
a
reference to the earlier order dated
31.08.1958 which has been referred in the
judgment of the Writ Court. In the same
letter it is mentioned that remaining area
of 32 bighas, 7 biswas and 4 biswansis of
1447-A/2, and 116 bighas of Plot No.
1448-A/2 i.e. a total of 140 Bighas and 17
Biswa has been ordered to be recorded in
the name of Forest Department obviously
by the earlier order dated 31.08.1958
which is referred in the judgment dated
16.04.1975. After mentioning this fact the
Divisional
Forest
Officer
has
been
requested by the Forest Settlement Officer
to take action for issuance of revised
notification by the Government. This
document has not been denied by the
Official opposite parties inspite of three
counter affidavits having been filed by
them in this writ petition. Moreover, these
facts are clearly borne out from the earlier
judgment dated 16.04.1975 as referred
above. These facts are also mentioned in
the orders of the Consolidation Authority.

6. Now, what comes out from the
records is that against the order dated
31.08.1958 passed by the Sub-Divisional
Officer the State Government filed an
appeal before the Deputy Commissioner,
who allowed the same vide his order dated
30.12.1958 a copy of which is also
annexed along with the aforesaid rejoinder
586 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavit of the petitioners. The order very
categorically states that it is being passed
in Case No. 2 of 1958. The order of the
Deputy Commissioner refers that it is a
revisional application, although, it must
have been an appeal as no revision is
prescribed under the Act, 1927 against
order of the S.D.O./ Forest Settlement
Officer. Nevertheless, it goes on to say
that the same has been filed by the
Divisional Forest Officer, Gomti Rapti
Afforestation Division, Lucknow against
the order dated 31.07.1958 passed by the
Sub-Divisional Officer, Fatehpur. Here
again in the judgment of the Writ Court
the order by the S.D.O. who was the
Forest Settlement Officer is mentioned as
dated 31.08.1958 but in the order of the
Deputy Commissioner it is mentioned as
31.07.1958 but there is no doubt as to what
the proceedings were. The proceedings
were from an order by which certain lands,
which were included in the notification
under Section 4 of the Act, 1927, were
released by the Settlement Forest Officer
in favour of the petitioners obviously in
exercise of powers under Section 11(2)(i)
of the Act, 1927 and this fact has found
mentioned in all the judgments referred
hereinabove. The Deputy Commissioner
set-aside the order of the S.D.O., Fatehpur
with the direction that the land noted
above shall remain the property of the
Forest Department as before. According to
the petitioners, this order of the Deputy
Commissioner
dated
30.12.1958
was
challenged by filing an application with
reference to Section 22 of the Act, 1927
before the State Government which had
been bestowed with revisional powers in
this regard. In this regard learned counsel
for the petitioners invited the attention of
the Court to a communication from the
State
Government
dated
24.09.1959
mentioning the receipt of an application
dated 27.08.1959 which was said to be
under consideration. According to the
learned
counsel
for
the
petitioners
reference therein to the application is in
fact a reference to the revision filed by the
petitioners' father, although, he says that
copy of the revision is not available.
However, he invites the attention of the
Court to the order of the Deputy Director
of Consolidation wherein the statement of
the Officials of the Forest Department,
who were parties before him, has been
recorded that against the order of the
Deputy Commissioner dated 30.12.1958 a
revision was pending consideration before
the State Government which according to
him is a corroboration of his assertion as
aforesaid as also of the letter of the
Government dated 24.08.1959.

7. Be that as it may, it is this order of
the
Deputy
Commissioner
dated
30.12.1959 which found favour with the
Consolidation Officer, the Settlement
Officer, Consolidation and ultimately the
Deputy Director of Consolidation, who,
vide
their
orders
dated
12.01.1970,
13.10.1971 and 14.02.1972, rejected the
objections/claim of the petitioners for
striking off the entry in basic year
Khatauni which was in favour of the
Forest Department in respect of the land in
dispute,
as,
according
to
all
these
consolidation Courts the said order had
attained finality between the parties. The
matter came up to this Court as stated
earlier by means of Writ Petition No. 917
of 1972 which was filed by the petitioners'
father and this Court found that the order
of
the
Deputy
Commissioner
dated
30.12.1958 which had been passed under
Section 17 of the Act, 1927 and which
formed the basis for the orders impugned
before the Writ Court which was passed
by the Consolidation Officer, was without
1 All. Mohd. Naimuddin & Ors. Vs. D.D.C. Barabanki
587
jurisdiction
and
accordingly,
it
was
declared as being without authority of law.
Though, the Writ Court in its judgment
dated 16.04.1975 did not give reasons as
to why it found it to be so, the reasons are
not far to see as in the notification under
Section 4 of the Act, 1927 itself, as
mentioned earlier, the State Government
exercising its powers had notified the
Additional
Commissioner
Lucknow
Faizabad
Division
as
the
authority
competent to hear the appeal. The
Additional Commissioner was an Officer
higher
in
rank
than
the
Deputy
Commissioner, therefore, it appears the
Court held it to be so. It is true that the
order of the Deputy Commissioner was not
directly under challenge before the Writ
Court, but, then, it is equally true that
orders of the Consolidation Officers were
based on the order of the Deputy
Commissioner
which
apparently
was
without jurisdiction, therefore, the Writ
Court declared it to be so obviously to do
substantial justice between the parties and
as an order passed without jurisdiction is a
nullity
in
the
eyes
of
law.
Most
importantly, the State never challenged the
judgment dated 16.04.1975, therefore, the
said
judgment
has
attained
finality
between
the
parties
and
the
findings/conclusions drawn therein can not
be assailed by the State nor have they been
sought to be assailed in these proceedings.

8. This Court while hearing this writ
petition on the earlier occasions had asked
the State Government vide order dated
28.08.2019, inter alia, as to whether
against the order of the Sub-Divisional
Officer which was in favour of the
petitioners, any proceedings were taken by
the
Forest
Department
before
the
competent
Authority/Court
under
the
Indian Forest Act, 1927 after the decision
of
the
Deputy
Commissioner
dated
30.12.1958 had been held to be without
jurisdiction by this Court in the earlier
round of litigation vide its judgment dated
16.04.1975, if so, what was the result
thereof,
but
inspite
of
sufficient
opportunity the State neither filed any
affidavit
answering
the
queries
nor
produced any document in this regard. As
such on 03.01.2020 this Court passed the
following order:-

"In spite of the order dated
28.8.2019, the relevant records have not
been produced before this Court and every
time opportunity is being sought as is
evident from the subsequent orders also,
therefore, adverse inference is to be drawn
against the concerned opposite parties
whenever the matter is taken up.

List/ put up on 7.1.2020."

9. Even today, neither any affidavit
has been filed nor any attempt has been
made to answer the queries made in the
order dated 28.08.2019. In this view of the
matter, adverse inference is drawn against
the State, and it is accordingly inferred that
the order of the Sub-Divisional Officer
which was in favour of the petitioners as
noticed by this Court in the earlier
judgment dated 16.04.1975 and which was
challenged
before
the
Deputy
Commissioner whose order was declared
to be without jurisdiction, were never
challenged before any higher forum.

10. It is not out of place to mention
that till date no notification has been
issued under Section 20 of the Act, 1927
declaring the aforesaid Gatas bearing No.
1447/1 and 1448/1 as reserved forest land
so as to confirm the proposal under
Section 4. It is also true as informed by
Shri Maurya, learned Additional Chief
588 INDIAN LAW REPORTS ALLAHABAD SERIES
Standing Counsel that inspite of order of
the S.D.O./Forest Settlement Officer and
his
letter
dated
22.09.1958
referred
hereinabove the notification under Section
4 has not been revised but this is
immaterial
for
the
reason
that
an
adjudication by the Forest Settlement
Officer and the Court even if it has not
been complied by the State Government
will hold the field and the notification will
be
treated
to
have
been
modified
accordingly in terms of the statutory orders
passed by the competent authority and the
order of the Writ Court dated 16.04.1975.

11. Vide judgment dated 16.04.1975
the Writ Court interfered with the order of
the Deputy Director of Consolidation on
the ground that the main basis of the order
was the illegal and void order passed by
the Deputy Commissioner, accordingly,
the Writ Court remanded the matter back
to the Deputy Director of Consolidation
for consideration of the revision afresh
with the observation that he shall see as to
whether
the
Lease
granted
by
the
Zamindar in favour of the petitioners had
been acted upon or not and whether the
land continued to be a forest. It was also
observed that if necessary, the Deputy
Director of Consolidation may remand the
case to the Consolidation Officer for
taking evidence on this point. The petition
of the petitioners' father was accordingly
allowed and the order of the D.D.C. dated
14.02.1972 was set-aside.

12. After remand the Deputy
Director of Consolidation considered the
matter afresh. It however so happened that
for some reason the original copies of
documents including lease etc. which were
filed by petitioners' father were taken back
by him and after remand the same could
not be filed again. When confronted the
learned
counsel
for
the
petitioners
submitted that this was on account of fact
that the petitioners' father died on
07.02.1979. Thereafter, the petitioners
who are his sons got substituted in his
place but they were not aware of the fact
that the original documents had been taken
back by their father. In this scenario the
Deputy Director of Consolidation found
that the Lease, though, it had been filed by
the petitioners had been taken back and
had not been filed again inspite of several
dates being fixed in the matter. He also
found that possession of the petitioners
was not proved, although, in his order he
has mentioned that during ''partal' they
were found to be in possession and had
also paid rent firstly to the Zamindar and
thereafter to the Government. For these
reasons he has dismissed the revision of
the petitioners and his order is impugned
before this Court.

13. Now, before this Court the
petitioners have filed copy of the Lease
etc. and have also offered an explanation
for not filing the same before the D.D.C.
as aforesaid.

14. It is also not out of place to
mention that all these documents which
could not be filed before the D.D.C. were
subsequently filed along with a review
application which was dismissed on the
ground that the D.D.C. did not have any
power to review his order, as already
stated.

15. Now, after hearing the learned
counsel for the parties and perusing the
records what comes out is that the order of
the Deputy Commissioner, which was the
basis for denying the claim of the
petitioners by the Consolidation Courts,
has
been
declared
to
be
without
1 All. Mohd. Naimuddin & Ors. Vs. D.D.C. Barabanki
589
jurisdiction by this Court way back on
16.04.1975 in the earlier writ petition and
the said judgment has attained finality and
there is no other order passed by any other
higher authority or Court which may have
set-aside the order of the Sub-Divisional
Officer/First Settlement Officer which was
admittedly in favour of the petitioner
having been passed under the Act, 1927,
even though a copy of it is not on record of
this writ petition and has not been
produced by the State inspite of order of
this
Court
dated
28.08.2019
and
05.09.2019 which compelled the Court to
pass the order dated 03.01.2020 regarding
adverse inference as already referred
earlier. This factual scenario is unrebutted.

16. Though, copy of the Lease is on
record this Court in exercise of its writ
jurisdiction under Article 226 of the
Constitution of India is not empowered to
appreciate evidence and record findings of
fact based thereon, especially, as the
language of the Lease is not very clear.

17. It is also not in dispute that based
on the order of the Sub-Divisional Officer,
who was the Forest Settlement Officer as
per Notification dated 11.10.1955, the
name of the petitioners' father was entered
in the revenue records in respect of Gatas
No. 1447/1 and 1448/1 in 1359 Fasli i.e.
the Khatuani prepared in the year of
vesting and it continued to be so recorded
till 1363 Fasli or 1366 Fasli. It is also not
in dispute that the land in dispute was
recorded as forest land in favour of the
Forest Department of the Govt. of U.P.
only because of the order of the Deputy
Commissioner dated 30.12.1958 which has
already been declared void vide judgment
dated 16.04.1975. Thus, as far as basic
year entry in favour of the Forest
Department in respect of the land in
dispute referred hereinabove is concerned,
the same was susceptible to challenge
unless there was any other factual and
legal basis to sustain it, but, the Deputy
Director of Consolidation while passing
the impugned judgment on 25.02.1981 has
failed to consider this aspect of the matter.
He was greatly persuaded by the fact that
the Lease, which was initially filed by the
petitioners, was not on record. The
circumstances in which the Lease could
not be filed have already been dealt with
hereinabove. The copy of the Lease is on
record of the writ petition. Had the Lease
been on record then the D.D.C. would
have had an occasion to consider relevant
aspects
of
the
matter
as
referred
hereinabove, which he has not considered.

18. It is not the case of the State that
the land in dispute had vested in the State
in view of Section 4 read with Section 6 or
any other provision of the Act, 1950. The
case of the State throughout has been that
the land was declared to be reserved forest
land under Section 4 and it came to be
recorded in the name of the Forest
Department based on the order of the
Deputy Commissioner dated 30.12.1958
which as stated earlier was declared to be
void by this Court way back in 1975.

19. The land in dispute was recorded
in the name of Forest Department only
after
passing
of
the
order
dated
30.12.1958.

20. In view of the above discussion,
the matter requires reconsideration by the
D.D.C. The first question to be considered
by the D.D.C. is the basis for recording the
land as Forest Land in the eyes of law.
Assuming he finds absence of any factual
and legal basis this by itself would not
entitle the petitioners to get their name
590 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded in respect thereof and an
adjudication would be required with
regard to their entitlement based on the
alleged Lease issued by the Zamindar, the
mutation order passed thereafter and also
the points considered by this Court in its
earlier judgment dated 16.04.1975 as to
whether the said Lease was acted upon.
The question which would fall for
consideration is as to what rights accrued
to the petitioners, if at all such a Lease was
executed and mutation order had been
passed in terms of the U.P. Zamindari
Abolition and Land Reforms Act, 1952.
Whether at all any rights accrued or the
land in question vested in the State under
Section 4 read with Section 6 of the said
Act, 1952 or Whether the land was even
otherwise liable to be recorded as Forest
Land under the Act, 1927 as per law. This
aspect of the matter has not been examined
by the Consolidation Officer, S.O.C. and
the Deputy Director of Consolidation. In
this context it is relevant to refer to Section
8 of the Act, 1950 so as to avoid further
confusion, complication and multiplicity
of litigation in this regard. Section 8 of the
Act, 1950 reads as under:-

"8. Contract entered into after
August 8, 1946, to become void from the
date of vesting.- Any contract for grazing
or gathering of produce from land or the
collection of forest produce or fish from
any forest or fisheries entered into after
the eighth day of August, 1946, between an
intermediary and any other person in
respect of any private forest, fisheries, or
land lying in such estate shall become void
with effect from the date of vesting.

Summary.-
Any
contract
between an intermediary and any other
person made after the 8th day of August,
1946, shall become void from the date of
vesting, if it provides for :

(a) grazing,

(b) gathering of produce from
land lying in the estate so vested,

(c) the collection of forest
produce from any private forest, and

(d) fish from any fisheries."

21. During the course of arguments a
query was put by the Court as to whether
the Lease by the Zamindar, who was an
intermediary within the definition of the
term under the Act, 1950, in favour of the
petitioners' father was hit by Section 8, no
satisfactory reply could be given by either
of the parties, however, the Court finds
that there is a Division Bench judgment of
this Court reported in 1960 RD 337;
Raghunath Singh and Anr. Vs. State of
U.P. and Anr. wherein it has been held
that Section 8 is not attracted in the case of
Leases of land where the purpose of the
lease is to use the land for the purpose of
agriculture. A lease of land for the purpose
of cultivation which confers on the lessee
not merely a right in the land but also the
right to exclusive possession of the land
and to turn it to cultivation, is not a
transaction covered by Section 8. Hence,
where the land was agricultural purpose
the lessee acquired at first a status of
hereditary tenant and later when the U.P.
Zamindari Abolition and Land Reforms
Act was enforced of Sirdar of the lands
therein transferred. Relevant extract of the
said judgment is quoted herein below:-

"In our opinion Section 8 is not
attracted in the case of leases of land
where the purposes of the leases is to use
the land for the purpose of agriculture,
horticulture,
pisciculture
etc.
It
is
sometimes unavoidable that in the process
of using the land for these purposes
reclamation also is done and what is
known as forest produce is collected or
1 All. Mohd. Naimuddin & Ors. Vs. D.D.C. Barabanki
591
removed in the process. Land must be
cleared of unwanted growth to turn it
usefully to agriculture etc. The mere fact
that these operations are necessarily
involved in making the land agriculture
worthy will not take away from the
transaction their true nature as leases of
land. A contract for the collection of forest
produce must in order that it may be such
a transaction be contract essentially for
the collection etc. of the produce. It will
not be such a contract if the removal etc.
of the forest has to be done to make the
land agriculture worthy- the object and
purpose of the lease. In the instant case,
admittedly the leases were for using the
land for purpose of agriculture and
horticulture etc. As a matter of fact the
lessees were also entered as hereditary
tenants of the lands and later after the
abolition of zamindaris as sirdars. They
have been paying the land revenue also
assessed on them to the Government. It is
not possible in these circumstances to hold
that the leases were contracts for the
collection of forest produce. The contract
referred to in Section 8 does not
contemplate
the
conferment
on
the
promises any right in or over land, it, on
the other hand, merely refers to the right
to collect forest produce or to perform
certain acts over the land. A lease of land
for the purpose of cultivation which
confers on the lessee not merely a right in
the land but also the right to exclusive
possession of the land and to turn it to
cultivation, is not a transaction covered by
Section 8. It is not possible under the
circumstances to accept that the leases in
favour of the petitioners were void under
Section 8 of the U.P. Zamindari Abolition
and Land Reforms Act. Being leases for
agriculture purposes the lessees acquired,
at first the status of hereditary tenants and
later when the Zamindari Abolition and
Land Reforms Act was enforced of sirdars
of the lands therein transferred."

22. On a bare perusal of Section 8 of
the Act, 1950 what comes out is that any
contract between an intermediary and any
other person made after the 8th day of
August, 1946 which is the date on which
the
United
Provinces
Legislative
Assembly
resolved
to
abolish
the
zamindari system in principle, shall
become void from the date of vesting, if it
provides for :

"(a) grazing,

(b) gathering of produce from
land lying in the estate so vested,

(c) the collection of forest
produce from any private forest, and

(d) fish from any fisheries."

23. None of the Courts below have
considered as to whether the Lease in
question would be hit by Section 8,
therefore, this discussion has been made
only to throw some light on the legal
position in this regard so that while
reconsidering the matter, as, this Court
proposes to remand it back to the D.D.C.,
this aspect shall also be kept in mind along
with the inter play of other provisions of
the Act, 1950 by which new tenures were
sought to be created. The concept of
Adhiwasi was also introduced in the Act,
1950 sometimes in 1952 which will also
have to be kept in mind. The relevant dates
will
have
to
seen
in
the
matter,
chronologically.

24. Learned counsel for the State was
asked as to the status of the revision
alleged to have been filed by the
petitioners but he stated that on account of
lapse of time it is not possible to trace out
the same and is not available.
592 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In view of the above discussion,
the order of the Deputy Director of
Consolidation is accordingly set-aside.
The revision of the petitioners shall stand
restored once again. The petitioners and
the opposite parties shall put in appearance
before
the
Deputy
Director
of
Consolidation on 10.02.2020. Thereafter,
the proceedings shall be held keeping in
mind the observations made hereinabove
and also the observations made by the
Writ Court earlier vide its judgment dated
16.04.1975.

26. The petitioners claim to have
filed the Lease and other documents
before the D.D.C. along with the review
application. If the same are available on
record the same shall be taken into
consideration. Otherwise it shall be
open for the petitioners to again file the
said documents if the occasion so
requires.

27. It is however, made clear that the
claim of the petitioners which is to be
considered, shall be restricted to only two
Gatas bearing No. 1447/1 and 1448/1, as,
it is only these two Gatas regarding which
claim was raised by the petitioners' father
in the consolidation proceedings in the
first place, in his objections, a copy of
which has been filed with the counter
affidavit.

28.

The
Deputy
Director
of
Consolidation shall make an earnest
endeavour to complete the proceedings,
after remand, within a period of one year
from the date of submission of a certified
copy of this order before him.

29. The writ petition is allowed in
part in the aforesaid terms.
----------
(2020)1ILR 592

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE MRS. YASHWANT VARMA, J.

Writ C. No. 2372 of 1989

Harish Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Bhushan, Dr. G.S.D. Mishra, Sri
H.N. Pandey, Sri H.N. Sharma, Sri Karuna
Srivastava, Sri Ramesh Chandra Singh, Sri
S.K. Srivastava

Counsel for the Respondents:
C.S.C., Sri Shiv Pratap Singh Rathore

A. The U.P. Imposition of Ceiling on Land
Holdings Act 1960 - Section 5(6) - while
determining the ceiling area of a tenure
holder any transfer of land made after 24
January 1971 which but for the transfer
would have been declared as surplus
shall be ignored and not taken into
account - Notices under Section 10(2) - '
will' which is a testamentary document
comes into effect only upon the death of
the testator - 'will' by virtue of its
intrinsic
character
is
naturally
"ambulatory" - revocable during the
lifetime of the testator - A 'will' in its
fundamental terms merely embodies a
disposition of property which is to take
effect after the death of the deceased -
held - 'will' by its very nature is distinct
from a 'transfer' - tenure holder failed to
establish that 'transfer' falls within the
ambit of clause (b) of the Proviso to
section 5(6) - impugned orders passed by
the Prescribed Authority and Additional
Commissioner quashed. (Para 7, 8 & 11)

It is clear on a holistic reading of sub section
5(6) that transfers made after the cutoff date