# State of U.P. and another v. Arjun Singh-(Dead represented by LRs)and others

- **Citation:** (2011) 1 ILRA 306
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-14
- **Case number:** Writ Petition No. 5789 (M/S) of 1984
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-another-v-arjun-singh-dead-represented-by-lrs-and-others-41882
- **Pages:** 4

## Text

306 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
matter. Yet on medical ground unfortunate
circumstances can happen and in the
present case counsel for the petitioner has
submitted that he was suffering from blood
pressure and heart ailment and suddenly he
went home.

7. Under the circumstances, the
Court feels that it is a fit case where
application
should
be
allowed.
Accordingly, the order of dismissal of the
writ petition dated 7.5.2010 as well as the
order dated 3.9.2010 dismissing the
application for recall of dismissal order
are hereby recalled.

8. The petition is restored to its
original number. However, the petitioner
shall pay a sum of Rs.1000/- to the
opposite party by the next date.

9. List in the next cause list.

10. It is made clear that restoration
of this petition will not mean that the
lower courts are barred in any manner
from
proceeding
in
the
matter
in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Writ Petition No. 5789 (M/S) of 1984

State of U.P. and another ...Petitioners
Versus.
Arjun Singh-(dead represented by Lrs)
and others

 ....Respondents

Indian
Forest
Act-Section-4-against
notification of Forest Act-objection filedalleging themselves as Bhumidhar-on
basis of Patta granted under section 3(4)
of U.P. Land Utilization Act-from record
clear that land in question never
subjected to cultivation.-except Jungle
and Jhari on spot as per inspection
Report-neither can be 'Sirdar' nor even
deposited land revenue-hence can be
termed
as
Bhumidhar-contrary
view
taken be courts below beyond recordwholly perverse suffers from serious
illegalities-not sustainable.

Held: Para 10 and 11

I have gone through the impugned
orders passed by the courts below. It is
not in dispute that the predecessors of
the respondents were given 'Patta' of the
land in question for cultivation under the
provisions of the U.P. Land Utilisation
Act, 1947. The land was never cultivated
and lessee failed to fulfill the purpose for
which it was given to them under the
aforesaid Act. The cultivation was never
done
and
no
proof
of
the
actual
cultivatory possession was established.
In Khatauni 1361F, column no.8 total
land in dispute has been shown not only
as uncultivated land but also as 'Banjar'.
During inspection, most part of the land
in dispute was found uncultivated or
waste land.

It is relevant to point out that the
predecessors
of
the
contesting
respondents, on abolition of zamindari,
can be a 'sirdar' under Section 19 of the
U.P. Zamindari Abolition & Land Reforms
Act. However, there is no documentary
evidence that answering respondents
ever
deposited
the
prescribed
land
revenue for the purposes of becoming
'Bhumidhar'.The appellate court also
erred in not considering the fact that no
documentary evidence was produced by
Arjun Singh/Balram Singh to establish
that the land in dispute was ever
cultivated
by
them.
Therefore,
the
finding of the learned lower appellate
court about the cultivatory possession is
beyond the record. In view of the fact
that
Ram
Gupta
never
acquired
bhumidhari rights according to law and,
therefore,
the
alleged
sale
deeds
1 All] State of U.P. and another V. Arjun Singh-(Dead represented by LRs)and others
307
transferring the land to the purchasers
cannot be said to be a valid deed and as
such no legal rights were created in
favour of alleged purchasers.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Case called out. Counsel for the
contesting respondent is not present. This
case pertains to the year 1984 and is quite
old. It is listed in hearing list. On number
of occasions, the case was listed but could
not be heard due to non-cooperation of
the Counsel.

2. Heard Counsel for the petitioner.

3. From the perusal of record, it
comes out that the State Government
had
issued
a
notification
dated
11.10.1952 whereby land of village
Makanpur measuring about 100 acres
was given under the control of Forest
Department. Subsequently, the Forest
Department of the State Government
issued a notification under Section 4 of
the Indian Forest Act, dated 5.3.1966
for constituting the aforesaid land as
reserved forest. Thereafter a notification
under Section-6 of the Act was issued.
The contesting respondents, belatedly,
filed objections under Section 6/9 of the
Act against the aforesaid notification. In
the objection of Smt. Rani Jasbir Singh
(since
deceased
and
her
interest
represented by Kr Arjun Singh) it was
said that she was the Bhumidhar of plot
no. 59/1 measuring 29 Acres while
respondent-Balram
Singh
claimed
sirdari rights on plot no. 58/1. Their
contention was that since the time of the
land having been transferred to them,
they had been coming down in actual
physical and cultivatory possession of
the said land.

4. The Forest Settlement Officer,
Lakhimpur framed following issues:-

1.Whether
the
objector
was
Bhumidhar of the land in suit?

2.Whether the land could be notified
u/s 4 of the Indian Forest Act?

3.To what relief, the objector is
entitled?

4.Whether the objection is within
time? If not whether there existed sufficient
ground for condoning the delay?

5. As the issue no. 4 was answered in
negative by the Forest Settlement Officer,
the objections so preferred by the contesting
respondents were rejected. The appeal
preferred against the said order dated
4.3.1974 was also dismissed on 27.8.1974.
Legal heirs of Smt. Jasbir Kaur filed a writ
petition no. 1599 of 1974 before this Court
and this Court while setting aside the
aforesaid
orders
dated
4.3.1974
and
27.8.1974, directed the Forest Settlement
Officer to consider the matter afresh in
accordance with law and in the light of the
observations made in the judgment.

6. The Forest Settlement Officer
recorded a finding that the contesting
respondents are Bhumidhars and they are
entitled to get the compensation and
allowed the objections in part vide order
dated 14.8.1982. The said judgment was
assailed by the state of U.P. and the
Divisional Forest Officer North-Kheri in
appeals before the District Judge. The
District vide judgment and order dated
31.7.1984 confirmed the findings and
arrangement made by the Forest Settlement
Officer.
308 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

7. Hence the petitioners have filed
the instant writ petition.

8. It has been argued that the
findings recorded by both the courts
below are wholly erroneous and perverse.
There was no zamindari with respect to
the land in dispute and thus U.P.
Zamindari & Land Reforms Act had no
application to it, hence the question of
Shri Ram Gupta or the other private
respondents as Bhumidhar does not arise.
The courts below committed material
irregularity in not considering the fact that
the land had been allotted to Shri Ram
Gupta under Section 3(4) of U.P. Land
Utilization Act for cultivation but Shri
Ram Gupta had never cultivated the land
hence the alleged allotment had no
bearing particularly on the date of vesting
when
the
disputed
land
remained
uncultivated and continued to exist as
Banjar, Jungle and Jhari. The learned I
Addl. District Judge also erred in holding
that the opposite party was in cultivatory
possession which is not in conformity
with the inspection report of the Forest
Settlement officer.

9. In the counter affidavit filed by the
contesting respondent it has been stated that
the evidence on record fully established the
fact that the land was not 'Banjar' and on the
date of vesting the land did not vest in the
State since the land being the holding of the
respondents and their predecessors, no
question could arise for notifications under
Section 4 and 6 of the Act. The land is
neither 'Banjar' nor 'Jungle' or 'Jhari' nor it
was so at the time of vesting. The land did
not vest in the State of U.P. on 1.7.1952 and
as such no forest land could could be
constituted under the Forest Act. Therefore,
the impugned orders are perfectly justified
and legal.

10. I have gone through the
impugned orders passed by the courts
below. It is not in dispute that the
predecessors of the respondents were
given 'Patta' of the land in question for
cultivation under the provisions of the
U.P. Land Utilisation Act, 1947. The land
was never cultivated and lessee failed to
fulfill the purpose for which it was given
to them under the aforesaid Act. The
cultivation was never done and no proof
of the actual cultivatory possession was
established. In Khatauni 1361F, column
no.8 total land in dispute has been shown
not only as uncultivated land but also as
'Banjar'. During inspection, most part of
the land in dispute was found uncultivated
or waste land.

11. It is relevant to point out that the
predecessors
of
the
contesting
respondents, on abolition of zamindari,
can be a 'sirdar' under Section 19 of the
U.P.
Zamindari
Abolition
&
Land
Reforms Act. However, there is no
documentary evidence that answering
respondents ever deposited the prescribed
land
revenue
for
the
purposes
of
becoming
'Bhumidhar'.The
appellate
court also erred in not considering the fact
that no documentary evidence was
produced by Arjun Singh/Balram Singh to
establish that the land in dispute was ever
cultivated by them. Therefore, the finding
of the learned lower appellate court about
the cultivatory possession is beyond the
record. In view of the fact that Ram Gupta
never
acquired
bhumidhari
rights
according to law and, therefore, the
alleged sale deeds transferring the land to
the purchasers cannot be said to be a valid
deed and as such no legal rights were
created in favour of alleged purchasers.
1 All] Shri Ram and others V. D.D.C.,Allahabad and others
309

12. In view of the above, the
findings recorded by both the courts
below are perverse and suffers from
serious legal infirmities. Accordingly, the
impugned judgment dated 31.7.1984 and
31.5.1982 are hereby set-aside.

13. Both the writ petitions stands
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN,J
THE HON'BLE A.P. SAHI,J

Civil Misc. Writ Petition No. 8512 of 2008

Shri Ram and others
 ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Allahabad and others. ..Respondents

Counsel for the Petitioner:
Sri G.K. Maurya
Sri Ramesh Rai

Counsel for the Respondents:
Sri R.S. Chaudhary
Sri R.P. Kanaujia
Sri V.B. Srivastava
Sri V.K. Singh (A.A.G.)
Sri V.K. Chandel
S.C.

U.P. Consolidation of Holdings Act, 1953Section-49-A-Principle of Estoppels and
acquiescence-whether
permissible
during consolidation operation ? Held-
'yes' but a person can not be debar from
filling objection on assumption of bar of
Section
49-A-contrary
to
ambit
of
Section 8,9 and 9-A of special enactment
Law laid down in Jagdeo Case as relied
by learned Single Judge-held-no good
law.

Held: Para 36, 46 and 52

The Act, 1953 is a special Act. The
scheme as delineated by Section 5 and 9
clearly
contemplates
all
disputes
pertaining to rights and interest in the
land
were
to
be
adjudicated
by
consolidation authorities and pending
dispute before other courts stands
abated to the consolidation courts. The
Act, 1953 thus provides a forum and
opportunity for adjudication of claim
relating to land. The scheme of the Act,
1953,
does
not
indicate
that
it
contemplate any express or implied bar
with regard to filing of an objection of
any kind. When the provision of the Act,
1953
specifically
provides
filing
of
objections by any interested person
reading any implied bar on the principle
of estoppel and acquiescence to an
objection to be filed by a person whose
name
is
not
recorded
cannot
be
accepted.

The bar under Section 49, does not
come
into
play
in
context
of
consolidation proceedings itself. Section
49, cannot be read as containing any
bar with regard to raising an objection
under Section 9 or Section 9A of the Act,
1953. For consolidation proceedings
which are under way no facet of Section
49 of the Act is attracted.

We are unable to subscribe to the above
view. No public policy can be found out
which does not permit a person to seek
reversal
of
the
state
of
affairs
continuing for scores of years, if he has
a right to do so. The view of the learned
Single Judge "that a certain but some
what erroneous state of affairs is better
than almost correct but uncertain state
of affairs" can also not be approved. A
person who has a right to a property
which right he has neither abandoned
nor relinquished can be claimed even
after a lapse of considerable period,
provided the claim is not barred by any
law of limitation.