# Ram Prasad v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 767
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-09
- **Case number:** Writ C No. 41929 of 2018
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prasad-v-state-of-u-p-ors-47263
- **Pages:** 11

## Headnote

A. Civil Law - Permission for transfer of
land - Indian Forest Act, 1927 - Section 4 -
U.P. Revenue Code 2006 - Section 98 -
Forest Conservation Act, 1980 - Section 2 -
The State cannot deprive the petitioner of
his rights over the land in dispute merely
because it has chosen not to implement
the directions issued by this Court 24
years ago. This Court finds itself unable to
either sustain or countenance the impugned
decision which is merely the result of the State
768 INDIAN LAW REPORTS ALLAHABAD SERIES
having failed to constitute the Committee even
though more than two decades have passed. It
can only be described as an unjustified and
incomprehensible state of slumber and inertia
on the part of the State. It cannot be permitted
to deprive the privilege accorded to the petitioner
by S. 98 of the Code solely on the ground that the
High-Powered Committee has not taken a decision
and that too when the State has itself chosen not
to constitute that Committee for the past twentyfour years. (Para 17)

B. There was no explicit restraint on
transfer entered at all. The only two
restraints that were placed was in respect
of cutting of trees and damage to "forest
land". The Court fails to appreciate how the
aforesaid injunction could eclipse the rights
conferred on the petitioner by S. 98 of the
Code. (Para 18, 19)

The Court has deliberately placed emphasis on
the phrase "forest land" as used by the learned
Judge while deciding Jai Ram (infra). The
landholding of the petitioner did not
remain forest land once it came to be
excluded from the proposed reserved
forest by virtue of the order passed by the
FSO. The FSO while passing that order has
clearly noted that the land was agricultural and
was being tilled by the petitioner and the
respondents. The order of the FSO to that
extent became final in the later course of
litigation. (Para 20)

C. In any case, review was clearly not
maintainable since as, Village Patwadh
was not covered by the order of 10 May
1991 or 4 October 1993 passed in Banwasi
(infra). The 1927 Act did not confer any
independent power on the authorities to
undertake a substantive review. The review
could have thus been entertained solely if it
could have been sustained by the directions of
the Supreme Court. (Para 8, 21)

The "special review" which was permitted by
the Supreme Court by its order of 10 May
1991 was itself restricted to the 17 villages
which were mentioned in that order and
Village Patwadh was not part of the villages
identified. (Para 7)

D. In petitioner's case adjudicatory process
had already come to an end. Once the
adjudication in accordance with the procedure
formulated in Banwasi came to a conclusion and
attained
finality,
nothing
further
essentially
remained to be considered or decided by the HighPowered Committee. (Para 22, 24)

Writ petition allowed. (E-3)

Precedent followed:

## Text

7 All. Ram Prasad Vs. State of U.P. & Ors.
767
are
ultra
vires Article
21
of
the
Constitution
is
concerned,
that
is
completely misconceived because fishery
lease is obtained not merely to earn a
livelihood for survival but for profits,
inasmuch as it has a commercial value.
The commercial value of the fishery lease
cannot be denied and the mere fact that
there are more claimants than one for the
lease in issue lends credence to its
commercial
potential.
The
bidding
process commences only when there are
more eligible claimants than one. As the
bidders are all of the same class, and they
bid keeping in mind the commercial
interest that the proposed lease would
serve, they are free to submit their bids as
per their financial capacity. Hence, we are
of the considered view that neither the
impugned
Rule
nor
the
impugned
Section(s) or the impugned condition of
the advertisement violates Article 21 of
the Constitution of India.

16. The challenge laid to the
impugned provisions on the ground that
they violate Article 19 (1) (g) of the
Constitution is equally misconceived as
they do not place unreasonable restriction
on the right to carry on any business,
trade or occupation. They only put a
procedure in place for acquiring a
business interest from the State which by
no means can be termed arbitrary or
unreasonable.

17. A feeble attempt was made by
the learned counsel for the petitioner to
demonstrate that the onerous condition
defeats the very purpose enshrined in
sub-rule (5) of Rule 57 of the Rules, 2006
but as we have noticed that the impugned
condition applies only when there is
settlement by auction when there are
more claimants than one in the same
class, it cannot be said that the impugned
condition defeats the object set out by
sub-rule (5) of Rule 57 of the Rules,
2016.

18. For all the reasons stated above
and by keeping in mind that the petitioner
participated
in
the
bidding
process
without a demur, we are of the considered
view that the petitioner has not made out
a case for interference. The petition lacks
merit and is hereby dismissed.
----------
(2021)07ILR A767
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ C No. 41929 of 2018

Ram Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Shukla

Counsel for the Respondents:
C.S.C., Sri Saurabh Kumar

A. Civil Law - Permission for transfer of
land - Indian Forest Act, 1927 - Section 4 -
U.P. Revenue Code 2006 - Section 98 -
Forest Conservation Act, 1980 - Section 2 -
The State cannot deprive the petitioner of
his rights over the land in dispute merely
because it has chosen not to implement
the directions issued by this Court 24
years ago. This Court finds itself unable to
either sustain or countenance the impugned
decision which is merely the result of the State
768 INDIAN LAW REPORTS ALLAHABAD SERIES
having failed to constitute the Committee even
though more than two decades have passed. It
can only be described as an unjustified and
incomprehensible state of slumber and inertia
on the part of the State. It cannot be permitted
to deprive the privilege accorded to the petitioner
by S. 98 of the Code solely on the ground that the
High-Powered Committee has not taken a decision
and that too when the State has itself chosen not
to constitute that Committee for the past twentyfour years. (Para 17)

B. There was no explicit restraint on
transfer entered at all. The only two
restraints that were placed was in respect
of cutting of trees and damage to "forest
land". The Court fails to appreciate how the
aforesaid injunction could eclipse the rights
conferred on the petitioner by S. 98 of the
Code. (Para 18, 19)

The Court has deliberately placed emphasis on
the phrase "forest land" as used by the learned
Judge while deciding Jai Ram (infra). The
landholding of the petitioner did not
remain forest land once it came to be
excluded from the proposed reserved
forest by virtue of the order passed by the
FSO. The FSO while passing that order has
clearly noted that the land was agricultural and
was being tilled by the petitioner and the
respondents. The order of the FSO to that
extent became final in the later course of
litigation. (Para 20)

C. In any case, review was clearly not
maintainable since as, Village Patwadh
was not covered by the order of 10 May
1991 or 4 October 1993 passed in Banwasi
(infra). The 1927 Act did not confer any
independent power on the authorities to
undertake a substantive review. The review
could have thus been entertained solely if it
could have been sustained by the directions of
the Supreme Court. (Para 8, 21)

The "special review" which was permitted by
the Supreme Court by its order of 10 May
1991 was itself restricted to the 17 villages
which were mentioned in that order and
Village Patwadh was not part of the villages
identified. (Para 7)

D. In petitioner's case adjudicatory process
had already come to an end. Once the
adjudication in accordance with the procedure
formulated in Banwasi came to a conclusion and
attained
finality,
nothing
further
essentially
remained to be considered or decided by the HighPowered Committee. (Para 22, 24)

Writ petition allowed. (E-3)

Precedent followed:

1. Banwasi Sewa Ashram Vs St of U.P. & ors.,
(1986) 4 SCC 453 (Para 4)

2. St. of U.P. Vs. A.D.J., Anpara & ors., 2019
(10) ADJ 771 (Para 5)

3. Ram Prasad Vs. A.D.J., Anpara, Sonbhadra,
Writ Petition No. 26422 of 1994 (Para 11)

4. Jai Ram & anr. Vs. St. of U.P., Writ Petition
No. 25505 of 1994 (Para 11)

Present
petition
assails
order
dated
06.10.2018, passed by Additional District
Magistrate,
Sonebhadra,
refusing
permission to the petitioner to sell a part
of his land holding.

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
petitioner, Sri Saurabh Kumar who appears
for respondent Nos. 5 to 11 and Sri
Birendra Pratap Singh learned Standing
Counsel for the State respondents.

2. The petitioner claims to be the
bhumidhar over plot No. 961/1. The
aforesaid plot is situated in Village Patwadh
Tehsil Robertsganj District Sonbhadra and
forms part of a belt of land falling south of
the Kaimur Range. According to the
petitioner the plot admeasures 10 Bighas 9
biswa. The petition challenges an order
dated 06 October 2018 passed by the third
respondent refusing permission to the
petitioner to sell a part of his land holding.
7 All. Ram Prasad Vs. State of U.P. & Ors.
769
That permission was sought by the
petitioner who belongs to the Scheduled
Castes in light of the provisions made in
Section 98 of the U.P. Revenue Code
20061. Section 98 of the Code reads thus:

"98. Restrictions on transfer
by
bhumidhars
belonging
to
a
scheduled caste- [(1) Without prejudice
to the provisions of this Chapter, no
bhumidhar belonging to a scheduled caste
shall have the right to transfer, by way of
sale, gift, mortgage or lease any land to a
person not belonging to a scheduled
caste,
except
with
the
previous
permission of the Collector in writing :

Provided that the permission by
the Collector may be granted only when-

(a) the bhumidhar belonging to
a scheduled caste has no surviving heir
specified in clause (a) of sub-section (2)
of Section 108 or clause (a) of Section
110, as the case may be; or

(b) the bhumidhar belonging to
a scheduled caste has settled or is
ordinarily residing in the district other
than that in which the land proposed to be
transferred is situate or in any other State
for the purpose of any service or any
trade, occupation, profession or business;
or

(c) the Collector is, for the
reasons prescribed, satisfied that it is
necessary to grant the permission for
transfer of land.

(2) For the purposes of granting
permission
under
this
section,
the
Collector may make such inquiry as may
be prescribed.]"

3.

Before
proceeding
further,
however, it would be apposite to step
back and sketch the backdrop in which
the controversy would have to be
decided.

4. It would be relevant to recollect
that this vast tract of land falling south of
the Kaimur Range in District Sonbhadra
formed subject matter of proceedings
before the Supreme Court in Banwasi
Sewa Ashram v. State of U.P. And
Others2. This celebrated judgment took
up the grievance of numerous traditional
forest dwellers, members of the SC/ST
communities who had been in possession
of the said land for decades and were
being evicted or deprived of their right to
cultivate their land consequent to the
inclusion of this vast area in various
notifications issued under section 4 of the
Indian Forest Act, 19273. In order to
safeguard their rights and to ensure that a
fair and transparent process of settlement
was undertaken, the Supreme Court
proceeded
to
formulate
a
special
procedure for the trial and disposal of
claims. Departing from the statutory
mechanism inbuilt and laid in place by
the 1927 Act, it provided that all claims
of landholders and persons found in
possession would firstly be decided by
the Forest Settlement Officers4. Their
decisions were thereafter to be placed
before designated courts of Additional
District Judges by way of suo moto
appeals. The Additional District Judges
were to examine and scrutinize the
decisions of the FSO and after hearing
the landholders or persons found to be in
possession dispose of those appeals. The
decisions rendered by the Additional
District Judges were in terms of the
directions issued by the Supreme Court
liable to be treated as final and to be
recognised as orders contemplated under
the 1927 Act.
770 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The salient orders which were
passed by the Supreme Court in the
aforesaid matter were noticed in great
detail by this Court in State of U.P. Vs.
ADJ Anpara and others5. The extracts of
that decision are reproduced hereinbelow:-

"4. The case before the Supreme
Court proceeded further and ultimately
after taking into consideration the reports
of the Commissioners submitted to it and
the peculiar facts of the case as appearing
before it, it framed detailed directions for
the consideration and disposal of claims
that were to be raised. Those directions as
embodied in its detailed decision of 20
November 1986 rendered on that petition
read thus:

"(1) So far as the lands which
have already been declared as reserved
forest under Section 20 of the Act, the same
would not form part of the writ petition and
any direction made by this Court earlier,
now or in future in this case would not
relate to the same. In regard to the lands
declared as reserved forest, it is, however,
open to the claimants to establish their
rights, if any, in any other appropriate
proceeding. We express no opinion about
the maintainability of such claim.

(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
publicised 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 Robersganj 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 January 1, 1987. Each of those
Additional District Judges would be
entitled to 30 per cent of the salary as
7 All. Ram Prasad Vs. State of U.P. & Ors.
771
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 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."

5. It becomes pertinent to note that
the Supreme Court at the very outset clarified
that the directions as framed would have no
application to land which had already come
to be included in a final notification issued
under Section 20 of the 1927 Act. The
directions consequently stood confined to
land notified under Section 4 and in respect
of which settlement proceedings had not
concluded. The detailed directions framed
inter alia provided for survey and settlement
operations being undertaken by the FSO's in
accordance with the statutory obligations
placed under the 1927 Act, the appointment
of adequate number of survey officials, the
publication of notices in the area of the
proposal of the Government to create a
reserved forest and the establishment of
special courts manned by Additional District
Judges
to
facilitate
the
process
of
adjudication of claims. The Supreme Court,
in
a
significant
departure
from
the
adjudicatory procedure otherwise provided
for under the 1927 Act, provided that all
orders that may come to be passed or made
by the FSO's would be mandatorily placed
for the consideration and scrutiny of the
Additional District Judges concerned and
treated as suo moto appeals. It was further
provided that the decision taken by the
Additional District Judges on these suo moto
appeals shall be taken to be the final orders as
contemplated under the 1927 Act. The special
procedure was evolved principally to protect
the interests of the large number of tribals and
traditional forest dwellers who otherwise
were handicapped in seeking legal redress for
protection of their rights by virtue of their
social status.

6. It would also be relevant to
advert to another order passed on 8 February
1989 in Banwasi Sewa Ashram, where the
Supreme Court held that land which had been
included in a notification issued under
Section 4 of the 1927 Act, would also be
subject to the rigours of Section 2 of the
Forest Conservation Act, 1980 which had in
the meantime been promulgated. The Court
takes note of this order since it would be of
some significance while evaluating the
correctness of the submissions which were
advanced. "

6. During the course of trial of claims
in accordance with the procedure evolved
by the Supreme Court, various complaints
772 INDIAN LAW REPORTS ALLAHABAD SERIES
came to be made with regard to the manner
in which they had been tried and disposed
of. These complaints appear to have been
made both by landholders as well as the
Forest Department. It would be pertinent to
note that the 1927 Act conferred no power
of
substantive
review
on
authorities
constituted thereunder. However taking
notice of those complaints, the Supreme
Court formulated a methodology of a
"special review" in respect of certain
category of cases. This Court in State of
U.P. noted the position as it emerged from
the directions of the Supreme Court in this
regard in the following terms:-

"8. In the meanwhile, the Supreme
Court while in seisin of proceedings in
Banwasi Sewa Ashram took note of various
complaints that were made with respect to the
manner in which settlement proceedings had
moved forward. It took note of the
complaints made both by landholders as well
as the Forest Department of apparent and
patent errors having been committed by the
FSO's in the disposal of claims. Bearing those
complaints in mind, on 10 May 1991 it
passed the following order:

"... It appears that there have been
taken some instances where decisions have
been taken but they required to be reviewed.
Both the parties, counsel for the parties
agrees, that review can be filed within 30
days from today and if so filed the plea of
limitation shall not avail...."

9. The complaints with respect to
settlement proceedings were yet again
noticed by it in its order dated 16 February
1993, when it proceeded to frame the
following additional directions:

"4.
The
reports
of
the
Commissioners (January 1, 1993) and of
Justice Loomba reveal that there have been
some errors whereby rights of non-occupants
have been recorded without on-the-spot
inspection, hearings and to the prejudice of
the actual occupants on the spot. The
Commissioners and Justice Loomba have
identified 17 forest villages in this respect
which are as under:

1. Chattarpur

2. Goetha

3. Jaampani

4. Dhuma

5. Sukhra

6. Supachuan

7. Naudiha

8. Madhuvan

9. Karhiya (Dudhi)

10. Nagwa

11. Gulaljharia

12. Kudri

13. Ghaghri

14. Kirbil

15. Sagobaandh

16. Jarha

17. Bailhathhi

Agreeing with the Reports of the
Commissioners, Justice Loomba and the
contentions of Mr. Rajiv Dhawan, learned
counsel for the petitioner, we direct that
special review be undertaken in the above
17 villages only in respect of those cases
where there are complaints from the
individuals and the errors are patent on the
record. The Forest Department shall also be
at liberty to ask for special review in the
cases pertaining to the above villages
where according to the Department records
have not been correctly prepared."

10. On 4 October 1993, the
Supreme Court was apprised by the
Department of Forest that various orders
passed by the Forest Settlement Officer and
the Additional District Judges merited
review and reconsideration. Dealing with
that prayer it entered the following
observations in its order of 4 October 1993:

"......He seeks directions from this
court for the review of those cases. The
7 All. Ram Prasad Vs. State of U.P. & Ors.
773
forest department may bring those cases to
the notice of the Additional District Judge,
who
shall
consider
those
cases
in
accordance with law....."

11. These three orders are also of
significant import since the 1927 Act
otherwise did not confer any right of a
substantive review on the adjudicatory
authorities constituted under that enactment.
The State in purported exercise of the liberty
granted by these orders preferred a petition
for review before the Additional District
Judge. That review petition has been
dismissed on 24 May 1994. It is in the above
backdrop that the instant writ petition came to
be preferred challenging the orders passed by
the Additional District Judge originally as
well as on the review petition preferred
thereafter. "

7. It becomes pertinent to note that the
"special review" which was permitted by the
Supreme Court by its order of 10 May 1991
was itself restricted to the 17 villages which
were mentioned in that order. It must be
stated that Village Patwadh, to which the
present writ petition relates, was not part of
the villages identified in that order.

8. The order of 4 October 1993 which
was subsequently passed in Banwasi noted
the contentions of the Forest Department
alone and provided that in case it chose to
prefer further petitions for review, such
applications
would
be
considered
in
accordance with law. Significantly and in
contrast to its order of 10 May 1991, the
Supreme Court
desisted
from passing
directions for review petitions being filed or
entertained.

9. Having set forth the backdrop in
which the issues which arise in this writ
petition
would
be
liable
to
be
considered, the Court reverts to the facts of
the present case.

10. The FSO disposed of the claim of
the petitioner by an order appended at
Annexure-1 to the writ petition. The FSO
while
passing
the
aforesaid
order
essentially excluded the land holding of the
petitioner from the proposed reserved
forest. However, while doing so he also
proceeded to enter upon a dispute inter se
the petitioner and respondent Nos. 5 to 11
insofar as the extent of their individual
rights over the plot in question was
concerned. The FSO in his order proceeded
to record that the private respondents were
found to be in possession of 10 Bigha 9
Biswa whereas the petitioner was in
possession of 3 Bigha 15 Biswa. In the suo
motu appeal which was taken against that
decision, the Additional District Judge by
his judgment of 16 January 1992 upheld the
decision of the FSO to the extent that it
excluded the land of the petitioner from the
proposed reserved forest. However insofar
as the extent of inter se land holding was
concerned, the Additional District Judge
returned
a
finding
that
the
private
respondents would have rights over 10
Bigha 10 Biswa of the plot whereas the
petitioner would have rights over 3 Bigha
and 15 Biswa of land. Pursuant to the
aforesaid order of the Additional District
Judge, the Assistant Records Officer made
consequential changes and entries in the
relevant revenue record by his order of 23
September 1992.

11. The private respondents thereafter
appear to have filed a review application
against the order passed by the Additional
District Judge. That review came to be
774 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed by a cryptic order passed by the
Additional District Judge on 08 May 1994.
The petitioner assailed the aforesaid order
by way of a writ petition being Ram
Prasad Vs. Additional District Judge
Anpara, Sonbhadra6. In the meanwhile,
another petition came to be preferred titled
Jai Ram and another Vs. State of U.P.7.
That petition alongwith various connected
matters fell for decision before a learned
Judge of the Court who after noticing the
rival submissions disposed of the batch of
writ petitions in the following terms

"In view of the joint submissions
made by the learned Standing Counsel and
learned counsel for the petitioners and on
perusal of the writ petition and annexures,
and in view of the decision of the Hon'ble
Apex Court in similar types as reported in
A.I.R. 1987 S.C. Page 374, this writ
petition is finally disposed of with the
directions that the State Government may
constitute
a
High
Power
Committee
consisting of a retired High Court Judge
and two senior Government officers, wither
in active service or retired, within a span of
four months from today and if such a
committee is constituted the petitioners
may be allowed to be represented by
lawyers having atleast seven years practice
at the expenses of State Government's fund
meant for legal aid if such a Committee is
constituted and the matter be allocated
before
that
Committee
by
proper
notifications etc. However, petitioners are
hereby restrained to cut any tree standing
on the disputed lands but the petitioners
will have the right to cultivate the land
without causing any damage to the Forest
land till the decisions given by the said
High Power Committee. The impugned
order is, thus, stands quashed and that the
dispute is to be decided by the High Power
Committee which may be constituted by
the State Government within the specified
time as directed above."

12. Following Jai Ram, the writ
petition preferred by the petitioner here
came to be disposed on 20 October 1997 in
the following terms: -

"The writ petition is disposed of
in the light of judgment rendered by
Hon'ble Mr. Justice R.N. Ray in the case of
Jai Ram Vs. State of U.P. in writ petition
No. 25505 of 1994."

13. To complete the narration of facts
it may be noted that although the High
Powered Committee in terms of the
directions issued in Jai Ram was to be
constituted within 4 months from the date
when
that
decision
was
rendered,
undisputedly, the State has not complied
with that direction till date even though
more than two decades have passed.

14. As things stood thus, the
petitioner moved an application on 23
December
2017
seeking
grant
of
permission to sell a part of the land holding
which stood recorded in his name pursuant
to the original judgment of the Additional
District Judge rendered on 16 January
1992. The application for permission has
been refused simply on the ground that
since the High-Powered Committee which
was directed to be constituted in terms of
the directions issued by this Court has yet
to take a decision, the petitioner cannot be
permitted to sell any part of his land
holding.

15. Having noted the long and
torturous journey that this litigation has
traversed, the Court now proceeds to
consider the validity of the stand taken by
7 All. Ram Prasad Vs. State of U.P. & Ors.
775
the respondents as it stands reflected from
the impugned order.

16. At the very outset the Court is
constrained to observe that the stand struck
by the State is not only patently arbitrary
but also wholly iniquitous for the following
reasons.

17. Firstly, the State cannot deprive the
petitioner of his rights over the land in
dispute merely because it has chosen not to
implement the directions issued by this Court
24 years ago. This Court finds itself unable to
either sustain or countenance the impugned
decision which is merely the result of the
State
having
failed
to
constitute
the
Committee even though more than two
decades have passed. No plausible or valid
explanation was proffered by the learned
Standing Counsel for what can only be
described
as
an
unjustified
and
incomprehensible state of slumber and inertia
on the part of the State. It cannot be permitted
to deprive the privilege accorded to the
petitioner by Section 98 of the Code solely on
the ground that the High-Powered Committee
has not taken a decision and that too when the
State has itself chosen not to constitute that
Committee for the past twenty-four years.
The second respondent has exhibited a
complete lack of compassion, empathy and
sensitivity when he chooses to not even admit
that the High-Powered Committee has yet to
be constituted by the State. He then proceeds
to non-suit the petitioner with the ludicrous
and wholly irrational observation that he has
failed to lead any evidence to establish
whether he had submitted any claim before
the nonexistent Committee.

18. Secondly, the final directions
issued
in
Jai
Ram
restrained
the
landholders
specifically
only
from
felling standing trees. The injunction which
was incorporated reads thus: - "However
petitioners are hereby restrained to cut any
trees standing on the disputed lands but the
petitioners will have the right to cultivate
the land without causing any damage to the
forest land till the decisions given by the
High Powered Committee."

19. As is evident, there was no
explicit restraint on transfer entered at all.
The only two restraints that were placed
was in respect of cutting of trees and
damage to "forest land". The Court fails to
appreciate how the aforesaid injunction
could eclipse the rights conferred on the
petitioner by Section 98 of the Code.

20. Thirdly, the Court has deliberately
placed emphasis on the phrase "forest land" as
used by the learned Judge while deciding Jai
Ram. As noted hereinabove, the landholding of
the petitioner did not remain forest land once it
came to be excluded from the proposed
reserved forest by virtue of the order passed by
the FSO. The FSO while passing that order has
clearly noted that the land was agricultural and
was being tilled by the petitioner and the
respondents. It had thus ceased to answer to the
description of "forest land" even if one were to
test it on the anvil of Section 2 of the Forest
Conservation Act, 1980. The order of the FSO
to that extent was upheld by the Additional
District Judge in his judgment rendered on 16
January 1992. The order of 8 May 1994
reversing the aforesaid decision came to be set
aside when the earlier writ petition preferred by
the present petitioner came to be disposed of on
20 October 1997.

21. While the order on the review
petition already stands set aside, it may be
776 INDIAN LAW REPORTS ALLAHABAD SERIES
additionally noted that it, in any case, was
clearly not maintainable since as noted in
the earlier parts of this decision, Village
Patwadh was not covered by the order of
10 May 1991 or 4 October 1993 passed in
Banwasi. The 1927 did not confer any
independent power on the authorities to
undertake a substantive review. The review
could have thus been entertained solely if it
could have been sustained by the directions
of the Supreme Court.

22. Fourthly, it must be stated that Jai
Ram proceeded on the basis that an
adjudicatory process in respect of rights and
claims was yet to be completed. It was
perhaps in that context that the learned Judge
directed the constitution of a High-Powered
Committee. However, as was noticed in the
introductory parts of this judgment, the
principal order passed in Banwasi conferred
finality on orders passed by the Additional
District Judges in suo moto appeals. Once
those appeals came to be decided, the
curtains clearly came down and a closure
rendered subject to the limited window of
review which flowed from the orders of 10
May 1991 and 4 October 1993. Jai Ram and
the directions there for matters being referred
to a High-Powered Committee, thus, can only
be recognised as governing those cases and
claims which had yet to be decided and
disposed of in accordance with the special
procedure evolved by the Supreme Court in
Banwasi. In the petitioner's case that
adjudicatory process had already come to an
end. Once the aforesaid adjudication in
accordance with the procedure formulated in
Banwasi came to a conclusion and attained
finality, nothing further essentially remained
to be considered or decided by the HighPowered Committee.

23. That then leaves the Court to
notice and consider the dispute inter se the
petitioner and the private respondents
which was raised in respect of the land in
question.
According
to
the
private
respondents, the petitioner while applying
for permission to alienate, seeks to transfer
land in excess of his share. It may at the
outset be clarified that while considering
the present writ petition, this Court is
essentially called upon to rule on the
validity of the impugned order passed by
the third respondent. It is really not
concerned nor is it called upon to enter any
definitive or conclusive findings with
regard to the extent of land holding of the
petitioner and the private respondents. This
more so since that dispute stands settled by
virtue of the decisions rendered by the FSO
and the Additional District Judge. The
order passed on review already stands set
aside in light of the order passed on the
earlier writ petition preferred by the present
petitioner following the decision in Jai
Ram. The adjudication undertaken in
accordance with the procedure formulated
by the Supreme Court in Banwasi has thus
lent a quietus and finality to the aforesaid
dispute. All that is left to be ascertained is
whether the claim of the petitioner is in
accord with the findings returned in those
proceedings. Those decisions bind both the
petitioner
as
well
as
the
private
respondents.

24. In view of the aforesaid
discussion, this Court is of the firm opinion
that it was not open for the third respondent
to defer consideration of the grant of
permission merely because the State had
itself failed to implement the judgment of
this Court in Jai Ram. In any case, the
rights of the petitioner and the private
respondents already stood settled in light of
the orders passed by the FSO and the
Additional District Judge. The principal
order in Banwasi of 20 November 1986
7 All. Chitra @ Bebi Vs. State of U.P. & Anr.
777
mandated finality being accorded to the
adjudication which was undertaken in
accordance with the procedure enunciated
by the Supreme Court. There was thus in
such cases no further requirement of the
matter being considered by a HighPowered Committee. As found by this
Court, the directions in Jai Ram can only
be recognised as applying to those matters
where an adjudication in accordance with
the directions issued in Banwasi were yet
to be finalized or had remained pending.
No direction or order of the Supreme Court
in Banwasi required or mandated a further
scrutiny
or
review
of
a
completed
adjudication process.

25. For all the aforesaid reasons, the
writ petition is allowed. The impugned order
dated 06 October 2018 is hereby quashed.
The matter shall stand remitted to the third
respondent who shall consider and decide the
application of the petitioner afresh and in
accordance with the observations made
hereinabove. The third respondent upon remit
shall ensure that the process of consideration
is concluded and final orders passed within 1
month of the presentation of a duly
authenticated copy of this order. The Court
leaves it open to the third respondent to grant
an opportunity of hearing to the private
respondents also. However, the rights of
parties inter se shall be liable to be considered
and
decided
in
accordance
with
the
observations made in this judgment.
----------
(2021)07ILR A777
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.
Application U/S 482 Cr.P.C. No. 316 of 2020

Chitra @ Bebi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Atul Kumar, Sri Deepak Dubey, Sri M.J.
Akhtar, Ms. Udita Upadhyay, Sri Imran
Khan, Sri V.M. Zaidi (Senior Adv.)

Counsel for the Opposite Parties:
A.G.A., Sri Amit Daga

Code of Criminal Procedure, 1973 -
Section 482 - An absurd and incredible
prosecution,
that
is
virtually
persecution of an innocent person,
ought to be undone by the High Court
in whatever proceedings, a patent
abuse of process of comes to its notice.
Here, as said above, this Court has no
manner of doubt that the impugned
prosecution
giving
rise
to
these
proceedings against the applicant, is a
patent abuse of process of court,
founded on incredible allegations.

It is settled law the inherent powers
conferred upon the High Court ought to be
exercised in order to secure the ends of
justice, wherever it is found that the
criminal
proceedings
are
manifestly
attended with malafides, are incredible
and amount to an abuse of the process of
the Court. (Para 15, 16, 17)

Criminal
application
accordingly
allowed. (E-2)

Judgements/ Case law relied upon:-

1. Sanjay Kumar Rai Vs St. of U.P & anr.,
2021 SCC OnlineSC 367.

(Delivered by Hon'ble J.J. Munir, J.)

The impugned proceedings arise from
Case Crime No. 224 of 2019, under