# Shivprasad v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 371
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** Matters Under Article 227 No. 1732 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivprasad-v-state-of-u-p-ors-45954
- **Pages:** 10

## Headnote

A. Procedural Law The Indian Forest Act,
1927 - Sections 4, 6, 9, 11, 17, 20 -
Service of notice - The Court find that the
appellate court failed to consider any of
the reasons cited by the petitioner in
approaching the authority which was
caused due to non service of notice to the
petitioner or by posting at prominent
place in the village. The disputed plot was
not identified. The notification was also
372 INDIAN LAW REPORTS ALLAHABAD SERIES
not publicized by beat of drum. In absence
of any publicity of notice, the petitioner
was unaware about the proceedings under
Section 4 of the Act of 1927. (Para 15)
B. These rights of the appellant, which are
pending adjudication in appeal under the Indian
Forest
Act,
1927,
cannot
under
any
circumstance be defeated by issuance of
notification dated 09.07.2016 under Section 20
of the Indian Forest Act, 1927. The proposition
that the remedy of appeal, would stand
extinguished upon publication of notification
under Section 20 of the Act runs counter to the
scheme of the Act, which zealously protects the
rights of the forest people. The rights of the
petitioner and forest people, protected under
the Act, are too valuable, to be undermined in
such manner which is contrary to the Act. (Para
23, 24)
This right of appeal is a substantive one and is
in the nature of a vested right. The right of
appeal cannot be fettered or taken away, unless
diluted or abrogated by express provision or
necessary implication in the statute. (para 25)
Writ Petition Allowed. (E-10)

List of cases cited: -

## Text

9 All. Shivprasad Vs. State of U.P. & Ors.
371
It was hedged in with some limitations
prior to the amendment made to Section 48
of the Act, introduced vide U.P. Act no.3 of
2002, in the form of Explanation (3). Under
the unamended law also, their Lordships of
the Supreme Court approved the principle
that where the findings are perverse or not
supported by evidence, it would be the duty
of the Deputy Director to examine the
entire case. This was held in Sheo Nand
(supra), to which allusion has been made
above. Now under the amended provisions
of Section 48, very wide powers have been
conferred on the Deputy Director to decide
all questions of fact and law recorded by
any subordinate Authority. He has also
been
conferred
with
the
power
to
appreciate
any
oral
or
documentary
evidence. Indeed, the enlarged powers
under Section 48, conferred on the Deputy
Director, vide U.P. Act no.3 of 2002,
retrospectively w.e.f. November 10, 1980,
make for a most non-conventional kind of
revisional jurisdiction. But, the statute
ordains it to be so. It is the duty of this
Court to give full effect to the amended
provisions of Section 48, read with
Explanation (3). The amended provisions
of Section 48 (as amended vide U.P. Act
no.3 of 2002) read:

"In Section 48 of the principal
Act, after explanation (2) the following
explanation shall be inserted, namely:--

"Explanation
(3).--The
power
under
this
section
to
examine
the
correctness, legality or propriety of any
order includes the power to examine any
finding, whether of fact or law, recorded by
any subordinate authority, and also includes
the power to re-appreciate any oral or
documentary evidence."."

40. In view of the wide amplitude of
powers exercised by the Deputy Director of
Consolidation, no exception can be taken to
the findings recorded by him on a plausible
evaluation of the evidence on record - both
documentary and oral.

41. In view of what has been held
above, this Court finds no force in this writ
petition. It fails and is, accordingly,
dismissed.

42. All interim orders made are
hereby vacated and all pending interim
relief applications stand rejected.

43. There shall be no order as to costs.
----------
(2020)09ILR A371
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Matters Under Article 227 No. 1732 of 2020
(Civil)

Shivprasad ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Sri Yogesh Kumar Mishra

Counsel for the Opposite Party:
C.S.C.

A. Procedural Law The Indian Forest Act,
1927 - Sections 4, 6, 9, 11, 17, 20 -
Service of notice - The Court find that the
appellate court failed to consider any of
the reasons cited by the petitioner in
approaching the authority which was
caused due to non service of notice to the
petitioner or by posting at prominent
place in the village. The disputed plot was
not identified. The notification was also
372 INDIAN LAW REPORTS ALLAHABAD SERIES
not publicized by beat of drum. In absence
of any publicity of notice, the petitioner
was unaware about the proceedings under
Section 4 of the Act of 1927. (Para 15)
B. These rights of the appellant, which are
pending adjudication in appeal under the Indian
Forest
Act,
1927,
cannot
under
any
circumstance be defeated by issuance of
notification dated 09.07.2016 under Section 20
of the Indian Forest Act, 1927. The proposition
that the remedy of appeal, would stand
extinguished upon publication of notification
under Section 20 of the Act runs counter to the
scheme of the Act, which zealously protects the
rights of the forest people. The rights of the
petitioner and forest people, protected under
the Act, are too valuable, to be undermined in
such manner which is contrary to the Act. (Para
23, 24)
This right of appeal is a substantive one and is
in the nature of a vested right. The right of
appeal cannot be fettered or taken away, unless
diluted or abrogated by express provision or
necessary implication in the statute. (para 25)
Writ Petition Allowed. (E-10)

List of cases cited: -

1. Hardayal Vs. D.J. & ors.. 1972 ALJ 649

2. Garikapati Veeraya Vs N. Subbiah Choudhry &
ors. AIR 1957 SC 540 (followed)

3. Dilwar Singh Vs The Gram Samaj & ors. AIR
1973 All 411 (followed)

4. Gopi Singh & ors Vs. Deputy Director of
Consolidation Bulandshahr & ors. 1967 ALJ 439
(followed)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The petitioner took out the
proceedings under Section 9/11 of the
Indian Forest Act, 1927 objecting to the
declaration of the disputed land as
"reserved forest" under Section 4 of the
Indian Forest Act, 1927. The proceedings,
registered in the year 2013 under Section
9/11 Indian Forest Act, 1927, registered as
Misc. Case no. 1564 of 2013 (Shiv Prasad
Vs Forest Department) before the Forest
Settlement Officer, Obara, Sonebhadra,
were rejected by order dated 28.06.2016.
The petitioner carried the said order in
appeal under Section 17 of the Indian
Forest Act, 1927, registered as Misc. Civil
Appeal No. 92 of 2016 (Shiv Prasad Vs.
Forest Department) before the learned
Additional District Judge, Anpara at Obara,
District-Sonebhadra.
The
appeal
was
dismissed by order dated 22.03.2018.

2. The petitioner has assailed the
order dated 28.06.2016 passed by the
Forest Settlement Officer, Sonebhadra as
well as the order dated 22.03.2018 passed
by the learned appellate court in this
petition.

3. Sri Yogesh Kumar Mishra, learned
counsel for the petitioner submits that the
authority of first instance and learned
appellate court have erred in law by taking a
hyper technical view in the matter of
limitation where rights of most substantive
nature are involved. Further, the impugned
orders have misread the statute and the
learned courts below acted contrary to law.
He relies on the law laid down by this Court
in the case of Hardayal Vs. District Judge
and others, reported at 1972 ALJ 649.

4. Per contra, the learned Standing
Counsel submits that the period of limitation
for filing of objections had expired. The
inordinate delay could not have been
condoned. The objections of the petitioner
were rightly rejected by the authorities below.

5. Heard learned counsel for the
parties.
9 All. Shivprasad Vs. State of U.P. & Ors.
373

6. The Forest Settlement Officer in
the judgment and order dated 28.06.2016
has set forth these reasons for rejecting the
objections filed by the petitioner. The last
date for submission of objections was
31.07.1987. The objections were tendered
by the petitioner after an inordinate delay in
the year 2013. The objections were found
to be barred by limitation and vitiated by
laches. Consequently, the objections were
dismissed on grounds of delay and laches
alone.

7. The learned appellate court made
these findings of facts. The disputed lands
are ancestral property of the petitioner. The
appellant (plaintiff / petitioner) has been in
possession over the disputed plots of land,
since the time of his ancestors. The land
was used for residential purposes as well
for agricultural activities. The appellant
(plaintiff / petitioner) was not aware of the
notification proceedings, which caused in
the delay in taking objections under the
Indian Forest Act, 1927, before the
competent authority. The learned appellate
court noticed that the petitioner had
tendered his objections, before the Forest
Settlement
Officer,
Sonebhadra
on
28.06.2016.

8. The notification under Section 20
of the Indian Forest Act, 1927 was
published on 09.07.2016. The learned
appellate court found that the appellant
(plaintiff / petitioner) had registered his
objections/case, prior to the publication of
the gazette under Section 20 of the Indian
Forest Act, 1927. However, by virtue of
publication of the gazette, the land has
already been declared as "reserved forest".
The learned appellate court opined, that it
did not possess the jurisdiction to amend,
change or annul the notification. After land
was declared as "reserved forest", the
learned appellate court ceased to possess
the jurisdiction to entertain the appeal. On
this foot the appeal was dismissed.

9. At this stage, a consideration of the
scheme of the Act and authorities in point
would be apposite. Section 4 of the Indian
Forest
Act,
1927
contemplates
a
notification by the State Government to
constitute the land as "reserved forest
land". The provision speaks thus:

"4.
Notification
by
State
Government.-(1) Whenever it has been
decided to constitute any land a reserved
forest, the State Government shall issue a
notification in the Official Gazette-

(a) declaring that it has been
decided to constitute such land a reserved
forest;

(b) specifying, as nearly as
possible, the situation and limits of such
land; and

(c)
appointing
an
officer
(hereinafter called "the Forest Settlementofficer") to inquire 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 or in or over any forest-produce, and
to deal with the same as provided in this
Chapter.

Explanation.-For the purpose of
clause (b), it shall be sufficient to describe
the limits of the forest by roads, rivers,
ridges or other well-known or readily
intelligible boundaries.

(2) The officer appointed under
clause
(c)
of
sub-section
(1)
shall
ordinarily be a person not holding any
forest-office
except
that
of
Forest
Settlement-officer.

(3) Nothing in this section shall
prevent
the
State
Government
from
appointing any number of officers not
374 INDIAN LAW REPORTS ALLAHABAD SERIES
exceeding three, not more than one of
whom shall be a person holding any forestoffice except as aforesaid, to perform the
duties of a Forest Settlement-officer under
this Act."

10. Objections to such notification
and claims of aggrieved persons are
examined under Section 6 of the Act which
is reproduced hereunder:

"6.
Proclamation
by
Forest
Settlement-officer.-When a notification has
been issued under section 4, the Forest
Settlement-officer shall publish in the local
vernacular in every town and village in the
neighbourhood of the land comprised
therein, a proclamation-

(a) specifying, as nearly as
possible, the situation and limits of the
proposed forest;

(b) explaining the consequences
which, as hereinafter provided, will ensue
on the reservation of such forest; and

(c) fixing a period of not less than
three months from the date of such
proclamation, and requiring every person
claiming any right mentioned in section 4
or section, 5 within such period either to
present to the Forest Settlement-officer a
written notice specifying or to appear
before him and state, the nature of such
right and the amount and particulars of the
compensation (if any) claimed in respect
thereof."

11. Section 9 protects the extinction
of the rights of persons, who have instituted
objections before the notification under
Section 20 of the Act, is published. The
provision being relevant to the controversy
is reproduced hereunder:

"9. Extinction of rights.-Rights in
respect of which no claim has been
preferred under section 6, and of the
existence of which no knowledge has been
acquired by inquiry under section 7, shall
be
extinguished,
unless
before
the
notification under section 20 is published,
the person claiming them satisfies the
Forest Settlement-officer that he had
sufficient cause for not prefer-ring such
claim within the period fixed under section
6."

12. Section 17 of the Act provides for
the remedy of appeal against the orders
passed under Sections 11, 12, 15 an 16 of
the Act.

"17. Appeal from order passed under
section 11, section 12, section 15 or section 16.-
Any person who has made a claim under this Act,
or any Forest-officer or other person generally or
specially empowered by the State Government in
this behalf, may, within three months from the date
of the order passed on such claim by the Forest
Settlement-officer under section 11, section 12,
section 15 or section 16, present an appeal from
such order to such officer of the Revenue
Department of rank not lower thanthat of a
Collector, as the State Government may, by
notification in the Official Gazette, appoint to hear
appeals from such orders:

Provided
that
the
State
Government
may
establish
a
Court
(hereinafter called the Forest Court)
composed of three persons to be appointed
by the State Government, and when the
Forest Court has been so established, all
such appeals shall be presented to it."

13. The proceedings attain finality
after publication under section 20 of the
Act which states so:

"20. Notification declaring forest
reserved.-(1) When the following events
have occurred, namely:-
9 All. Shivprasad Vs. State of U.P. & Ors.
375

(a) the period fixed under section
6 for preferring claims have elapsed and all
claims (if any) made under that section or
section 9 have been disposed of by the
Forest Settlement-officer;

(b) if any such claims have been
made, the period limited by section 17 for
appealing from the orders passed on such
claims has elapsed, and all appeals (if any)
presented within such period have been
disposed of by the appellate officer or
Court; and

(c) all lands (if any) to be
included in the proposed forest, which the
Forest Settlement-officer has, under section
11, elected to acquire under the Land
Acquisition Act, 1894 (1 of 1894), have
become vested in the Government under
section
16
of
that
Act,
the
State
Government shall publish a notification in
the Official Gazette, specifying definitely,
according to boundary-marks erected or
otherwise, the limits of the forest which is
to be reserved, and declaring the same to
be reserved from a date fixed by the
notification.

(2) From the date so fixed such
forest shall be deemed to be a reserved
forest."

14. The narrative shall now be
reinforced by authorities in point. This
Court
in
Hardayal
(supra)
upon
comprehensive consideration of the scheme
of the Indian Forest Act, 1927, held that
Section 6 of the Indian Forest Act, 1927
cannot be equated within a period of
limitation fixed under the Limitation Act :

"6. Section 7 of the Act, casts a
duty on the Forest Settlement Officer to
investigate, enquire into, and find out the
claims of every person as far as possible
whether or not he has filed a claim within
the period fixed in the proclamation issued
under Section 6. This indicates that it is
open to the Forest Settlement Officer to
accept the claim to a right in the land
whether or not the person concerned has
preferred it within the period fixed in the
proclamation. According to Section 9 of the
Act, rights in respect of which no claim has
been preferred under Section 6 and of the
existence of which no knowledge has been
acquired by the Enquiry Officer under
Section 7, shall be extinguished unless
before the notification under Section 20 is
published, the person claiming them
satisfies the Settlement Officer that he had
sufficient cause for not preferring such
claim within the period fixed under Section
6. This section clearly indicates that the
Forest Settlement Officer retains the
jurisdiction to enquire into and accept a
claim to any right in the land sought to be
included in the proposed reserved forest,
right upto the time a notification under
Section 20 is published. A claimant who
could not approach the Forest Settlement
Officer within the period fixed in the
proclamation under Section 6 can still
persuade him to look into their claims after
satisfying him that he had sufficient cause
for not preferring it within that period. Law
nowhere requires that this satisfaction has
to be recorded or that the claimant should
explain his inability to prefer the claim
earlier by means of a formal application
praying for condonation of delay.

7. It is significant to note that the
claim mentioned in Section 6 can be made
either by way of a notice in writing or
orally. Section 9 merely provides that if a
claim is made beyond the period mentioned
in the proclamation issued under Section 6
it can be entertained by the Forest
Settlement Officer provided he is satisfied
that there was sufficient cause for not
preferring it within the period fixed in
Section 6. There is no reason to think that
376 INDIAN LAW REPORTS ALLAHABAD SERIES
the claim at the stage of Section 9 can also
not be made in either of the two ways. If the
Settlement Officer can proceed to enquire
into an oral claim, there is no reason to
think that the Legislature contemplated that
the explanation offered by the claimant for
not preferring the claim within the period
fixed under Section 6 should be given by
means
of
a
formal
application
for
condoning the delay in preferring it.
Provisions or Section 9 would be fully
complied with if the claimant orally
explains the reason for his not preferring
the claim earlier and the Forest Settlement
Officer entertains the claim after, being
satisfied by that explanation. The law does
not require that this satisfaction must be
recorded in writing. Although it would be
much better if in such cases, the Forest
Settlement Officer makes some sort of
record to indicate that he was so satisfied,
but if no such record is made it would not
necessarily mean that the claim has been
entertained without the Forest Settlement
Officer being satisfied that there was
sufficient cause for not preferring it within
the time fixed in the proclamation issued
under Section 6 of the Act. Normally, in a
case where such a claim has been
entertained it should be presumed that an
explanation for the delay was given by the
claimant and the same was accepted by the
Forest Settlement Officer."

15. The Forest Settlement Officer in
the order dated 28.06.2016 has noticed the
objection of the petitioner. The petitioner
specifically
objected
that
the
forest
department had not served the notice upon
him, nor was any notice posted at
prominent public places in the village. The
disputed plots were never identified. The
notification was also not publicized by beat
of drum. In absence of publicity of the
notice, the petitioner could derive no
knowledge of the proceedings under
Section 4 of the Indian Forest Act, 1927.

16. In the objections under Section
9/11 of the Indian Forest Act, 1927 before
the Forest Settlement Officer, Sonebhadra
the petitioner also categorically stated that
he resides in a far flung and remote village.
The order dated 28.06.2016 shows that the
Forest Settlement Officer, Sonebhadra did
not consider any of the reasons for the
delay cited by the petitioner in approaching
the authority. There is nothing in the record
to establish that the reasons canvassed by
the petitioner for the delay, were disputed
with material facts and evidence.

17. The petitioner is a poor villager,
residing in a far flung and remote village. By
stating that adequate publicity was not given to
the notification under Section 4, due to which
he could not get knowledge of the same, he
discharged his burden of proof. The burden
thereafter lay upon the forest authorities, to
dispute the reasons for delay with material facts
and cogent evidence. The department on its
part, merely took a vague ground before the
Forest Settlement Officer, Sonebhadra, that the
disputed land is under the management of the
Forest Department. However, no credible
documentary evidence has been tendered to
establish the aforesaid fact. The manner and
material to publicize the notification to reach
poor villagers in remote areas was not brought
in the record.

18. In the light of this narrative, this
Court finds that the Forest Settlement
Officer in its order dated 28.06.2016, erred
in law by neglecting to consider the reasons
taken by the petitioner for the delay caused
in instituting the proceedings.

19. The learned appellate court while
considering the issue of condonation of
9 All. Shivprasad Vs. State of U.P. & Ors.
377
delay, did not redeem the gross illegality
committed by the Forest Settlement Officer.
The learned appellate court also completely
neglected to consider the grounds for the
delay, in instituting the proceedings.
Moreover, the learned appellate court also
returned
contradictory
findings.
The
appellate court held that the appellantpetitioner was not a party in the earlier
proceedings, but relied on the same to non
suit the petitioner.

20. Upon perusal of the judgments of the
court below and also the records of the case,
this Court feels that the grounds for delay were
sufficient and liable to be condoned. These
grounds were not adequately contested by the
authorities, in the proceedings before the courts
below. In order to curtail litigation, this court
deems it appropriate to condone the delay in the
facts of this case. The trial court shall consider
the matter without going into the issue of delay.

21. The second issue, which arises
from the finding of the appellate court that
it is divested of its jurisdiction, after the
notification, shall now be considered.

22. The perusal of Section 17 of the
Indian Forest Act, 1927 discloses that there
is no fetter on the appellate powers as
observed by the learned appellate court.
The learned appellate court misdirected
itself in law, by finding that the publication
of a notification under Section 20 of the
Indian Forest Act, 1927 would divest it of
its appellate powers. The appeal was
preferred much prior to the publication of
the notification dated 09.07.2016, issued by
the State Government under Section 20 of
the Indian Forest Act, 1927.

23. The remedy of statutory appeal is
a substantive remedy. Moreso, in this case
where the rights of a section of the
citizenry, which is residing in abject
conditions in remote areas, and primarily
surviving on agriculture or living off the
land. This remedy of appeal cannot be
rendered
illusory,
by
a
restrictive
interpretation of the statute, as was done by
the learned appellate court. The rights of
the
appellant,
which
are
pending
adjudication in appeal under the Indian
Forest Act, 1927, cannot under any
circumstance be defeated by issuance of
notification under Section 20 of the Indian
Forest Act, 1927. The proposition that the
remedy
of
appeal,
would
stand
extinguished
upon
publication
of
notification under Section 20 of the Indian
Forest Act, 1927, runs counter to the
scheme of the Act, which zealously protects
the rights of the forest people.

24. The basic premise of the judgment
of the learned appellate court, may be
tested from other angles as well. A
notification under Section 20 of the Indian
Forest Act, 1927 during pendency of the
proceedings before the Forest Settlement
Officer, or before the learned appellate
court cannot cause the extinction of the
rights of the petitioner. There is no fault of
the
petitioner.
The
adjudicatory
proceedings pending, either before the
authority of the first instance, or the
appellate authority, cannot be simply
terminated or pre-empted by a notification
under Section 20 of the Indian Forest Act,
1927. The rights of the petitioner and forest
people, protected under the Act, are too
valuable, to be undermined in such manner
which is contrary to the Act.

25. There is good authority, which
holds appeal to be a continuation of the
suit, or proceedings of first instance. In an
appeal the entire lis is brought before the
appellate court. The appellate court can
378 INDIAN LAW REPORTS ALLAHABAD SERIES
interdict the findings of fact and law
rendered by the trial court. The right of
appeal is a substantive one and is in the
nature of a vested right. The right of appeal
cannot be fettered or taken away, unless
diluted or abrogated by express provision
or necessary implication in the statute. In
this case no such limitation on the right of
appeal exists.

26. The scope of right of appeal, was
pronounced authoritatively by the Hon'ble
Supreme Court in Garikapati Veeraya Vs.
N.Subbiah
Choudhry
and
others,
reported at AIR 1957 SC 540 by stating
thus:

"From the decisions cited above
the following principles clearly emerge:

(i) That the legal pursuit of a
remedy, suit, appeal and second appeal are
really but steps in a series of proceedings
all connected by an intrinsic unity and are
to be regarded as one legal proceeding.

(ii) The right of appeal is not a
mere matter of procedure but is a
substantive right.

(1) A.I.R. 1954 Mad. 543.

(2) I.L.R. 1955 Bom. 530.

(3) A.I.R. 1955 Bom. 332; 57
Bom. L.R. 304.

(iii) The institution of the suit
carries with it the implication that all rights
of appeal then in force are preserved, to the
parties thereto till the rest of the career of
the suit.

(iv) The right of appeal is a
vested right and such a right to enter the
superior court accrues to the litigant and
exists as on and from the date the lis
commences and although it may be actually
exercised when the adverse judgment is
pronounced such right is to be governed by
the law prevailing at the date of the
institution of the suit or proceeding and not
by the law that prevails at the date of its
decision or at the date of the filing of the
appeal.

(v) This vested right of appeal
can be taken away only by a subsequent
enactment, if it so provides expressly or by
necessary intendment and not otherwise."

27. This Court in Dilwar Singh Vs.
The Gram Samaj and others reported at
AIR 1973 All 411 also defined the nature
of right of appeal.

28. In Dilawar Singh (supra), the
Division bench of this Court recorded the
tenure-holder (Smt. Tulsa) and had taken
proceedings under the Consolidation of
Holdings Act.

29. The Consolidation Officer upheld
the claim of one Dilawar Singh (the applicant
before this Court) while rejecting the case of
the
contesting
parties.
The
contesting
respondents preferred an appeal under the
Consolidation of Holdings Act, which came to
be allowed by the learned appellate court,
namely, Settlement Officer (Consolidation).
The order of the learned appellate court /
Settlement Officer (Consolidation) was taken
in revision on 12th December, 1963. Before
the revision was filed, a notification under
Section
52
of
the Act
bringing
the
consolidation operations to a close was issued
on 7th December, 1963. The revision was
dismissed on the foot that after notification
under Section 52 of the Act, the revision could
not be entertained.

30. The learned Division Bench in
Dilawar Singh (supra) defined the breadth
of rights of the parties in an appeal, second
appeal or revision in these terms.

"A proceeding whether initiate ed
through a suit or an application embraces
9 All. Shivprasad Vs. State of U.P. & Ors.
379
within its ambit all the rights available to a
party by way of appeals, second appeals or
revisions."

31. Thereafter, on high authority
regarding the ambit of appellate rights the
learned Division Bench in Dilawar Singh
(supra) held thus:

"Applying this principle it has to
be held that on the filing of a claim or
objection before the Consolidation Officer,
certain rights vested in a party to take the
proceeding to the superior authorities. That
right could not be taken away by a
subsequent
enactment
unless
it
was
expressly or by necessary implication so
provided. There is nothing in Section 52 of
the Act which either expressly or by
necessary implication takes away that
right."

32. A situation which is closer to the
facts of this case had arisen before this
Court in Gopi Singh and others Vs.
Deputy
Director
of
Consolidation
Bulandshahr and others, reported at 1967
ALJ 439. Even at the time the objections
were on the foot before the authority of the
first instance, namely, the Consolidation
Officer, a notification under Section 52 of
the Consolidation of Holdings Act, was
published on 22nd May, 1965. The order
passed by the Consolidation Officer was
carried in appeal after the publication of the
notification under Section 52 of the Act.
The Deputy Director (Consolidation) in
revision held that the appeal was not
maintainable in view of the notification
under Section 52 of the Consolidation of
Holdings Act which pre-date the appeal.

33. In such factual backdrop this
Court in Gopi Singh (supra) found the
appeal to be maintainable despite prior
publication of notification under Section 52
of the Consolidation Holdings Act bringing
the consolidation proceedings to a final
terminus by holding :

"The
term
'proceedings'
in
Section 52 (2) has, in my opinion, been
used in that comprehensive sense to include
the
entire
series
of
proceedings
commencing from the one which is initiated
before the Consolidation Officer and
including that taken in the appeal Court.
When an appeal is instituted the proceeding
which commenced in the trial Court
continues. The appeal does not initiate a
fresh proceeding. On the institution of the
appeal the proceedings which have become
dormant on the decision by the trial Court,
revive and remain pending. The only
difference being that it is now pending in a
different Court, namely, the Court of
appeal."

34. It was further observed:

"The word 'cases' in the phrase 'cases
of writs filed under the Constitution', in Subsection (2) will include orders passed by higher
Courts of appeal including the Supreme Court.
Thus, Sub-section (2) is designed to preserve and
make effective orders passed by any one or more
of the hierarchy of Courts established under the
Act, irrespective of whether the proceeding was
pending in any particular Court or in any Court
subordinate thereto, on the date of issue of the
notification in Sub-section (1)."

We are in agreement with the
view taken in the aforesaid case."

35. These authorities apply to the
facts of the case and shall govern the fate of
the order of the learned appellate court.

36. The notification issued during the
pendency of the appeal, did not divest the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
learned appellate court of its jurisdiction to
deal with the appeal on its merits. The
learned appellate court erred in law by
dismissing the appeal, on the foot that the
jurisdiction of the learned appellate court
ceased to exist, after the notification was
issued by the State Government on
09.07.2016.

37. The order dated 28.06.2016
passed by the respondent No.2/Forest
Settlement Officer, Sonebhadra as well as
the order dated 22.03.2018 passed by the
learned Additional District Judge, Anpara
at Obara, District-Sonebhadra are arbitrary
and illegal and liable to be set aside and are
set aside.

38. The petition is allowed.

39. The matter is remitted to the
Forest Settlement Officer, Sonebhadra for a
fresh consideration in the light of the above
said directions.

40. The possession of the petitioner
having arazi No. 536 ka, Area 4-0-0 bigha
situated in village- Parsoi, Pargana-Agori,
Tehsil-Robertsganj,
District-Sonebhadra,
shall not be disturbed till a decision of the
Forest Settlement Officer, Sonebhadra. The
petitioner shall use the land only for
agricultural,
forestry
and
residential
purposes till the aforesaid decision.
----------
(2020)09ILR A380
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2020

BEFORE

THE HON'BLE ALI ZAMIN, J.

Matters Under Article 227 No. 1944 of 2020
(Criminal)
Mohammad Ashfaq ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri Abhishek

Counsel for the Respondent:
G.A.

A. Article 227 - The petitioner's is the owner
of the truck which was stolen and its engine was
tampered. The application of the petitioner to
release the vehicle was rejected on the ground
that the FIR lodged by the police it is mentioned
that the registration number, engine number,
chasis number are illegible. The High Court
observed that the courts below have not
considered that chasis number mentioned in the
FIR tallies with chasis number mentioned in
registration certificate as well as both the courts
below also have not considered that no fruitful
purpose will be served if the vehicle is kept at
the police station. (Paras 4,8)

Writ Petition Disposed of. (E-10)

List of Cases cited: -

1. Sundarbhai Ambalal Desai Vs St. of Guj.
(2002) 10 SCC 283: 2003 (46) ACC 223
(followed)
(Delivered by Hon'ble Ali Zamin, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A. for the State
and perused the material available on
record.

2. This petition under Article 227 of
the Constitution of India has been filed by
the
petitioner
for
setting
aside
the
impugned orders dated 30.04.2019 and
19.02.2019, passed by learned Session
Judge, Meerut in Revision No.91 of 2019
and Additional C.J.M., Court No.3, Meerut,
in Case Crime No.0555 of 2018, u/s 411,
414, 420, 467, 468, 471 IPC, P.S. Kithor,