# State of U.P v. The A.D.J. Sonbhadra & Ors

- **Citation:** (2020) 1 ILRA 1080
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-13
- **Case number:** Writ C No. 22837 of 2002
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-the-a-d-j-sonbhadra-ors-44983
- **Pages:** 13

## Headnote

A. Indian Forest Act, 1927 - Section 4 -
Notification
by
state
government
-
Section 5 - Bar of accrual of forest-rights
- U.P. Zamindari Abolition and Land
Reforms Act, 1950 - Section 131-A -
Bhumidhari rights in gaon sabha or state
government land in certain circumstances
- Limitation Act, 1963 - Section 5 -
Respondent
having
no
evidence
to
establish a right to possess or to work the
land as may have existed prior to 4 July
1970 when the plots in question came to
be included in the proposed reserved
forest - The respondent asserted a right
over the land only from 1978 - Neither
any evidence , nor any proof referred to
by the Forest Settlement Officer in order
to
establish
a
right
of
cultivatory
possession
being
exercised
by
the
respondent from prior to the issuance of
the notification under Section 4 - Barred
by
Section
5
of
the
1927
Act.
-
Respondent not entitled for benefit under
Section 131-A of U.P.Z.A. and Land
Reforms Act, 1950. (Para 23)

The dispute relates to Plot included in a
notification issued by the State under Section 4
of the Indian Forest Act, 1927 on 4 July 1970 -
Once the notification under Section 4 of the
1927 Act came to be issued on 4 July 1970, the
statutory restraint comprised in Section 5 of
that Act also applied - Section 5, it becomes
important to recall, prohibits the acquisition of
rights in or over land comprised in a Section 4
notification except by way of succession, grant,
or contract in writing made by the Government
- Section 131-A as is evident does not override
or eclipse the prohibition put in place by
Section 5 of the 1927 Act - to accord a
harmonious construction upon Section 131-A of
the 1950 Act bearing in mind Section 5 of the
1927 Act, it must be interpreted to extend at
best to land held in cultivatory possession from
prior to the issuance of the notification under
Section 4. (Para 22 & 24)

Held: - No rights could have either accrued,
stood created or been acquired after the
notification under Section 4 came to be issued
and the land stood included in the proposed
reserved forest. The claim of the respondent
barred by Section 5 of the 1927 Act. No relief
was liable to be granted to the private
respondent under Section 131-A of U.P.
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
Zamindari Abolition and Land Reforms Act,

## Text

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1 All. Kul Bhushan Virmani & Ors. Vs. Rajya Krishi Utpadan Mandi Parishad U.P. & Ors. 1081
time, the respondents were obliged to execute
the sale deed in his favour without demanding
any additional sale consideration.

35. Accordingly, a writ in the nature
of mandamus is issued to the respondents
to execute the sale deed of house No. MH14 situate in Pallaupuram, Phase-II,
Meerut in favour of the petitioner on the
terms and conditions of the allotment letter
dated 19.08.1996 and 04.09.1996 without
demanding any additional amount other
than that mentioned in the allotment letters
most expeditiously preferably within a
period of two months from the date a copy
of this order is produced before them.

36. The Writ Petition is allowed with
no order as to costs.
----------
(2020)1ILR 1080

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE YASHWANT VARMA, J.

Writ C No. 22837 of 2002

State of U.P. ...Petitioner
Versus
The A.D.J. Sonbhadra & Ors.
 ...Respondents

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
Sri B.K. Srivastava, Sri R.C. Srivastava, Sri
R.V. Chaudhary, S.C.

A. Indian Forest Act, 1927 - Section 4 -
Notification
by
state
government
-
Section 5 - Bar of accrual of forest-rights
- U.P. Zamindari Abolition and Land
Reforms Act, 1950 - Section 131-A -
Bhumidhari rights in gaon sabha or state
government land in certain circumstances
- Limitation Act, 1963 - Section 5 -
Respondent
having
no
evidence
to
establish a right to possess or to work the
land as may have existed prior to 4 July
1970 when the plots in question came to
be included in the proposed reserved
forest - The respondent asserted a right
over the land only from 1978 - Neither
any evidence , nor any proof referred to
by the Forest Settlement Officer in order
to
establish
a
right
of
cultivatory
possession
being
exercised
by
the
respondent from prior to the issuance of
the notification under Section 4 - Barred
by
Section
5
of
the
1927
Act.
-
Respondent not entitled for benefit under
Section 131-A of U.P.Z.A. and Land
Reforms Act, 1950. (Para 23)

The dispute relates to Plot included in a
notification issued by the State under Section 4
of the Indian Forest Act, 1927 on 4 July 1970 -
Once the notification under Section 4 of the
1927 Act came to be issued on 4 July 1970, the
statutory restraint comprised in Section 5 of
that Act also applied - Section 5, it becomes
important to recall, prohibits the acquisition of
rights in or over land comprised in a Section 4
notification except by way of succession, grant,
or contract in writing made by the Government
- Section 131-A as is evident does not override
or eclipse the prohibition put in place by
Section 5 of the 1927 Act - to accord a
harmonious construction upon Section 131-A of
the 1950 Act bearing in mind Section 5 of the
1927 Act, it must be interpreted to extend at
best to land held in cultivatory possession from
prior to the issuance of the notification under
Section 4. (Para 22 & 24)

Held: - No rights could have either accrued,
stood created or been acquired after the
notification under Section 4 came to be issued
and the land stood included in the proposed
reserved forest. The claim of the respondent
barred by Section 5 of the 1927 Act. No relief
was liable to be granted to the private
respondent under Section 131-A of U.P.
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
Zamindari Abolition and Land Reforms Act,
1950. (Para 23 & 25)

Writ Petition allowed. (E-7)

List of cases cited: -

1.Banwasi Sewa Ashram Vs. State of U.P. and Others

2.Smt. Rinki Vs. State of U.P. And Others

3.State of U.P. And Another Vs. The A.D.J.
Sonbhadra And Ors.

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

1. Heard Sri Sanjay Goswami, the
learned Additional Chief Standing Counsel
on behalf of the petitioners assisted by Sri
Birendra
Pratap
Singh,
the
learned
Standing Counsel and Sri B.K. Srivastava,
learned Senior Counsel who appeared on
behalf of the private respondents.

A.
THE
PRELIMINARY
OBJECTION

2.

The
respondents
take
a
preliminary
objection
to
the
maintainability of the instant writ petition,
which is noted as under. Sri Srivastava
refers to the decision rendered by the
Supreme Court on 20 November 1986 in
Banwasi Sewa Ashram Vs. State of U.P.
and
Others
and
to
the
following
observations as entered therein to submit
that
the
State
had
unambiguously
conceded to accepting the decisions
rendered by the Additional District Judges
[ADJ] in accordance with the procedural
framework evolved. Reference in this
respect
is
made
to
the
following
observation as entered in that decision:-

"10.

(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....."

3. According to Sri Srivastava, the
directions as framed clearly debar the State
from assailing the orders passed by the ADJ
in suo moto appeal. In view thereof, it was his
contention that the instant writ petition could
not be maintained. Sri Srivastava further
refers to the fact that the Supreme Court had
in that order itself recorded that parties were
agreed that if a claim were ultimately to be
established
before
the
authorities,
an
appropriate title deed would be issued to the
claimants. Sri Srivastava also refers to the
liberty granted by the Supreme Court to
parties to move it for directions as and when
necessary. Referring then to the subsequent
order of 18 July 1994 passed in Banwasi
Sewa Ashram, Sri Srivastava draws the
attention of the Court to the directions
contained therein to the effect that the
Revenue Secretary of the State was to
implement the decisions rendered by the
various ADJ's. In the backdrop of the
observations as made and contained in the
aforementioned two orders, it was submitted
that the State was clearly estopped from
assailing the orders passed by the ADJ's |and
that consequently the writ petitions at their
behest must be held to be not maintainable.

4. It was also in that backdrop
submitted that the tenor of the orders
passed by the Supreme Court and referred
to above, amounted to a debarment and
ouster of the jurisdiction of this Court
under Article 226 of the Constitution and
that consequently any disputes that were to
arise subsequently could be subjected to
challenge only before the Supreme Court.

5. Sri Srivastava then drew the
attention of the Court to an application
1 All. State of U.P. Vs. The A.D.J. Sonbhadra & Ors.
1083
purported to have been made by the State
respondents before the Supreme Court on
15 February 2018 in which the following
prayers are made:

"(a) declare null and void all
such orders passed after 18.07.1994 by the
Forest Settlement Officer and Additional
District Judge;

(b) set aside the orders passed in
favour of NTP, NCL, UPSEB and others
by the Forest Settlement Officer and
Additional District Judge as being illegal;

(c) set aside such orders in
which the claim has already been
adjudicated and fresh claims for the same
land are being made by third parties;

(d) set aside the orders in which
the
Forest
Settlement
Officer
and
Additional District Judge have declared
the land to be Jungle, Jhadi, Nadi and to
be part of the proposed reserved Forest
but have been illegally declared as Banjar
and thereafter pattas given in favour of
third parties;

(e) restrain the Forest Settlement
Officer, Sonebhadra and Additional and
Additional District Judge, Anpara at Obra
from entertaining any fresh claims;

(f) direct the Forest Settlement
Officer,
Sonebhadra
and
Additional
District Judge, Anpara at Obra to dispose
of the pending claims, appeals within one
week from the passing of the orders of this
Hon'ble Court.

(g) Direct the Forest Settlement
Officer Sonebhadra (Dy. Collector/SDM)
prepare a proposal order u/s 20 to be
handed over to the concerned DFO;

(h) PASS such other and further
order as this Hon'ble Court may deem just
and proper in the premises of this case."

6. Referring to the prayers as
contained in that application, it was
contended that since a general declaration
with regard to the invalidity of all orders
passed post 18 July 1994 has been sought,
the present petition is liable to be
dismissed on this score also since it is not
permissible for the State to seek and
pursue two parallel remedies.

7. Referring to the judgment
rendered by a Full Bench of this Court in
Smt. Rinki Vs. State of U.P. And
Others, it was lastly submitted that the
Constitution
binds
all
Courts
and
authorities to act in aid of the Supreme
Court in light of the provisions made in
Articles 141 and 144 of the Constitution.
Referring to the principles laid down and
recognized by the Full Bench in that
decision, it was submitted that no Court
can ignore or fail to comply with the
directions that are issued by the Supreme
Court. He refers to the position in law as
encapsulated in paragraphs 32, 34 and 36
of that decision which read thus:

"32. Failure to comply with the
direction of Hon'ble Supreme Court has
always been deprecated. In this regard,
reference may be had to paragraph 9 of the
judgment in the case of Bharat Earth
Movers v. Commissioner of Income Tax,
Karnataka, (2000) 6 SCC 645, which is
extracted herein below:

"9. Before parting, we would
like to observe that when this appeal came
up for hearing on 24.3.1999 we felt some
difficulty in proceeding to answer the
question arising for decision because the
orders of the authorities below and of the
Tribunal did not indicate how the leave
account was operated by the appellants
and the leave salary provision was made.
To appreciate the facts correctly and in
that light to settle the law we had directed
the Income Tax Appellate Tribunal to
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
frame a supplementary statement of case
based on books of account and other
relevant contemporaneous records of the
appellant which direction was to be
complied with within a period of six
months. The hearing was adjourned sine
die. After a lapse of sixteen months the
matter was listed before the Court on
20.7.2000.
The
only
communication
received by this Court from the Tribunal
was a letter dated 20th June, 2000 asking
for another six months time to submit the
supplementary statement of case which
prayer being unreasonable, was declined.
Under Section 258 of the Income Tax Act,
1961, the High Court or the Supreme
Court have been empowered to call for
supplementary statement of case when
they find the one already before it not
satisfactory. Article 144 of the Constitution
obliges all authorities, civil and judicial,
in the territory of India to act in aid of the
Supreme Court. Failure to comply with the
directions of this court by the Tribunal has
to be deplored. We expect the Tribunal to
be more responsive and more sensitive to
the directions of this Court. We leave this
aspect in this case by making only this
observation."

34. We may also notice that
Government of India Act, 1935 under
Section 210 (1) also had a provision
similar to Article 144 of the Constitution
of India. Section 210 (1) of Government of
India Act, 1935 is reproduced below:-

"210. Enforcement of decrees
and orders of Federal Court and orders as
to discovery, etc- (1) All authorities, civil
and judicial, throughout the Federation,
shall act in aid of the Federal Court".

36. The principle of law as
embodied in Article 141 and 144 of the
Constitution of India as discussed by
Hon'ble
Supreme
Court
in
the
aforementioned judgments does not leave
any scope whatsoever for either this Court
or for any authority in the State
Government not to act in accordance with
the directions contained in any judgment
or order passed by Hon'ble Supreme
Court. Any act by any authority in
derogation and even in contravention of an
order passed by Hon'ble Supreme Court
cannot be approved of on any count or for
any reason whatsoever."

8. Refuting those contentions, Sri
Goswami, the learned Additional Chief
Standing
Counsel,
submits
that
the
directions contained in the order of 20
November 1986 itself clearly provided that
the orders passed by the ADJ's would be
contemplated to be orders made under the
provisions of the Indian Forest Act, 1927.
In that backdrop, it was submitted that the
State was neither injuncted nor estopped
from assailing the orders so passed. He
further submitted that the jurisdiction of
the Court under Article 226 of the
Constitution was neither specifically nor
by intendment excluded. It was also his
submission that the power of judicial
review as conferred on this Court has been
recognised as part of the basic structure of
the Constitution. It was submitted that the
constitutional jurisdiction as conferred on
the Court cannot be understood to have
been intended to be excluded by any of the
orders passed by the Supreme Court in
Banwasi Sewa Ashram.

9. Sri Goswami further submits that
it clearly does not lie in the mouth of the
respondents to allege an infraction of the
directions framed by the Supreme Court
bearing in mind the fact that they
themselves chose to invoke the jurisdiction
of the concerned Forest Settlement Officer
and ADJ in stark violation of the
timeframe stipulated therein. According to
1 All. State of U.P. Vs. The A.D.J. Sonbhadra & Ors.
1085
Sri Goswami, strict timelines had been
stipulated by the Supreme Court which
were liable to be scrupulously adhered to
and as the facts of the instant case itself
would evidence, a highly belated claim
was entertained and allowed in clear
violation of the procedure prescribed by
the Supreme Court.

10. Dealing then with the ambit of the
application made by the State on 15 February
2018, it was submitted that the reliefs as
framed therein cannot be read without
reference to the context in which they were
framed. Sri Goswami submitted that the State
is faced with a situation where despite closure
of proceedings and the Supreme Court
mandating that no further claims can be
entertained or ruled upon, the Forest
Settlement Officers continue to entertain
claims and are doing so even now. According
to Sri Goswami, even though the Supreme
Court had directed that the Courts of the ADJ's
be wound down, they are continuing to
function and are being approached with claims
which are raised and laid belatedly and in any
case beyond the time frame as mandated in the
orders passed in Banwasi Sewa Ashram. It
was his submission that the application which
is referred to is not intended to be an action on
the part of the State to invoke the jurisdiction
of the Supreme Court to go into the individual
correctness of orders but to lay down as a rule
whether the continued exercise of jurisdiction
by the Forest Settlement Officers and the
ADJ's is valid in law or not.

11. Having noticed the submissions
addressed on the preliminary objection
that was raised, the Court now proceeds to
deal with the same as under.

12. At the very outset, it becomes
pertinent to note that as this Court reads
the directions issued by the Supreme Court
and embodied in the first decision of
Banwasi Sewa Ashram rendered on 20
November 1986, it fails to find any vestige
of an intendment to denude this Court of
its constitutional jurisdiction conferred by
Article 226 of the Constitution. It would
firstly be apposite to note the backdrop in
which the directions as contained in the
order of 20 November 1986 came to be
passed.
The
Supreme
Court
was
principally moved by way of a Letter
Petition that sought to highlight the
injustices being meted out on tribals and
traditional forest dwellers residing in that
region whose rights of possession over
land was being violated without the due
process of law being adhered to. It was
principally concerned with a violation of
their rights and the position in which they
stood placed in light of their social and
economic backwardness. It was faced with
the spectre of their traditional rights to
dwell in forest and to use its produce that
was being overlooked and disregarded by
virtue of those lands being included in a
proposed reserved forest without a valid
enquiry being undertaken. The Supreme
Court also took into consideration the
various reports submitted before it which
established that their right to object to the
proposed inclusion of their lands had been
woefully disregarded in violation of the
procedure prescribed under the 1927 Act.
It was in that backdrop that they proceeded
to frame directions evolving a unique
process for adjudication of claims. As was
observed by this Court in its decision
rendered in State of U.P. And Another
Vs. The A.D.J. Sonbhadra And Ors., the
directions as framed by the Supreme
Court, evidenced a departure from the
statutory procedure otherwise stipulated
and contemplated under the 1927 Act. In
that sense, the directions as issued
constituted the fountainhead and the sole
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of the procedure that was liable to be
followed by the Forest Settlement Officers
for the purposes of disposal of claims.
These directions insofar as they stand
embodied in the decision rendered on 20
November 1986 set forth a time frame for
submission of objections and their disposal
by the Forest Settlement Officers. In a
significant departure from the procedure
otherwise prescribed under the 1927 Act,
the orders of the Forest Settlement
Officers were directed to be placed before
the concerned ADJ's by way of what was
described to be suo moto appeals. The said
safeguard appears to have been essentially
put into place to ensure that the orders and
decisions as made by the Forest Settlement
Officers were duly scrutinized by a trained
and accomplished judicial authority before
being conferred with the attributes of a
valid adjudication undertaken under the
1927 Act. It was in that backdrop that it
was provided that the orders of the ADJ's.
would be entitled to be viewed as orders
passed under the Act.

13. However, the Court finds no
observation entered or made either in the
order dated 20 November 1986 or of 18
July 1994, which may even remotely tend
to indicate or establish the intent of the
Supreme Court to oust the jurisdiction of
this Court conferred by Article 226 of the
Constitution.
The
debarment
of
the
jurisdiction of this Court to exercise the
power of judicial review cannot be lightly
assumed especially since that power itself
has been recognised as being part of the
basic structure of our Constitution. The
question whether the jurisdiction of this
Court conferred by Article 226 of the
Constitution stands ousted and barred and
whether the State is estopped from
challenging the orders passed by the ADJ's
are in fact separate and distinct issues.
Learned senior counsel appearing for the
contesting
private
respondent
clearly
appears to incorrectly assume that they are
intermingled.
Bearing
in
mind
the
constitutional attributes imbued upon
Article 226, the respondents were liable to
discharge a heavy burden and scale a high
standard in order to establish its ouster.
This they have woefully failed to do. In
any case, from the directions as framed in
Banwasi Sewa Ashram, the Court finds
itself
unable
to
countenance
this
contention. The plea raised in this respect
is consequently rejected.

14. Turning then to the issue of
estoppel, the Court notes that while the
Supreme Court may have observed that the
officers of the State Government would be
bound to implement the decisions rendered
at the end of the adjudicatory process and
honour the same, this Court finds itself
unable to read those observations as
estopping the State from assailing orders
passed by the ADJ's if the peculiar facts
and circumstances of particular cases so
warranted and necessitated. This more so
when the orders are assailed on the ground
of having been made in violation of those
directions themselves. The Court bears in
mind the principal submission addressed
on behalf of the petitioners who assert that
the settlement procedure evolved was
never intended to be an unending process
or one which was to continue in
perpetuity. According to the respondents,
contrary to the unambiguous command of
the Supreme Court prescribing strict time
lines for conclusion of the settlement
process, highly belated claims like the one
presented by the private respondent were
entertained thus constituting a violation of
those directions itself. In the considered
view of this Court, the concession as given
before the Supreme Court cannot possibly
1 All. State of U.P. Vs. The A.D.J. Sonbhadra & Ors.
1087
be stretched to even those cases and
situations where the provisions made in
Banwasi Sewa Ashram are themselves
violated. The Court also bears in mind the
orders passed in Banwasi Sewa Ashram
on 10 May 1991, 16 February 1993 and 4
October 1993 when the Supreme Court
itself
permitted
a
reopening
and
reconsideration of adjudications made by
ADJ'S by permitting parties to move the
authorities by way of review and special
review. These orders also clearly establish
that finality was not accorded to the first
round
of
adjudication
which
was
concluded pursuant to the order of 20
November
1986.
These
orders
in
unambiguous terms conferred a right upon
parties to seek review where orders were
found to suffer from patent and manifest
errors. The plea of estoppel is thus turned
down.

15. Insofar as the liberty accorded to
parties to move the Supreme Court even
after the writ petition had been finally
disposed of is concerned, suffice it to note
that the same stood restricted to the need
to move that Court "for directions..". The
liberty so accorded clearly did not
envisage individual adjudications being
subjected to challenge before the Supreme
Court only. The argument therefore that
the State was estopped or that the orders
passed in Banwasi Sewa Ashram denude
it of the right to assail individual
adjudications cannot be countenanced.

16. That leaves the Court to deal with
the application which is stated to have
been made by the State and in which a
declaration is sought to the effect that all
orders passed by the Forest Settlement
Officers and ADJ's post 18 July 1994 be
declared null and void. As was rightly
submitted by Sri Goswami the prayer so
addressed cannot be viewed or appreciated
without bearing in mind the backdrop in
which the application itself came to be
made. The background facts which appear
to have compelled and constrained the
State to move the Supreme Court in 2018
in respect of a matter which had attained
closure in 1994 is evident from the
following pleadings as taken in that
application:

"(x) In compliance of the Order
of this Hon'ble Court dated 18.07.1994,
the
Ld.
ADJ,
Anpara
(at
OberaSonbhadra),
was
to
function
till
30.09.1994. However, new applications of
individuals who claim to have rights to the
land for which Section 4 Notification of
the Indian Forest Act, 1927 has been
issued, are still being decided by the Forest
Settlement
Officer,
Sonbhadra
and
Appeals against the said decisions are still
being admitted and adjudicated upon by
the
Ld.
ADJ,
Anpara
(at
OberaSonbhadra). Under these circumstances,
the Applicant Departmentis aggrieved by
the impossibility of issuing Notification
under S. 20 of the Indian Forests Act,
1927.

(xi) These applications that are
being filed at this belated stage are being
filed by 3rd Parties that have no lineage as
Tribals and the same are being filed with
the motive of staking a claim to land that
is not rightfully theirs. The applicant is
filing once such example of Shri Ramji
Mishra who admittedly is a resident of
Bihar as would be evident from the letter
dated 02.08.2016 which shows that Shri
Ramji Mishra worked as Fuse-man in the
Division since 02.04.1986 to 31.01.2003
and was a permanent resident of village
and post office Bharoli Via Shahpur Pahi-
Shahabad
District
Ara
Bihar.
True
translated copy of the order dated
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
27.08.1990
passed
by
the
Forest
Settlement Officer, Sonbhadra and true
translated copy of the order dated
23.02.1993 passed by the Additional
District Judge and true translated copy of
the letter dated 02.08.2016 are annexed
and marked as ANNEXURE: A-4 (Page
36 to 40 ), ANNEXURE: A-5 (Page 41 to
43 & ANNEXURE: A-6 (Page 44)
respectively.

(xii)
Similarly
the
Forest
Settlement Officer has given propriety
rights to Northern Coal Fields Ltd. (NCL),
NTPC and UPSEB and others for about
450 hectares. The applicant is annexing a
chart giving some of the details of land
given to NCL as well as NTPC are
annexed and marked as ANNEXURE: A7 (Page 45 to 49). The applicant is also
annexing the translated copy of the order
of the Forest Settlement Officer in case
No.6044 NCL Vs. Forest Department
dated 07.08.1990 and true translated copy
of the order dated 22.04.1992 passed by
the Additional District Judge Sonbhadra in
Case No.2955/1990 are annexed and
marked as Annexure: A-8 (Page 50 to 51)
& ANNEXURE A-9 (Page 52 to 53)
respectively.
7. With regard to 3rd Parties filing claims
and the same being adjudicated in their
favour by the Forest Settlement Officer
and
the
Ld.
ADJ,
the
Applicant
Department would like to point out the
example of one Ramji Mishra to whom
3.3050 hectares of forest land has been
awarded in terms of various orders by the
Forest Settlement Officer and confirmed
by the Additional District Judge. Ramji
Mishra is a resident of Bihar who worked
as a Fuse man with the UP Jal Vidyut
Nigam for the period 02.04.1986 to
31.01.2003. He has so far been awarded
3.3050 hectares of Forest Land in terms of
various orders of the FSO and Ld. ADJ. It
is also pertinent to point out that in CRL
MP
16269/2009,
the
Applicant
Department,
had
pointed
out
approximately 60 such outsiders who have
been awarded various tracts of land from
the Forest Land for which Section 4
Notification had been issued."

17. From the averments taken in that
application, it is manifest that what has
driven the State to move the Supreme
Court is a continued entertainment of
objections
by
the
Forest
Settlement
Officers and the ADJ's much after and
beyond the dates prescribed had elapsed
and the time frames as stipulated in the last
order of the Supreme Court. The State
refers to the order dated 18 July 1994 to
submit that in terms of this order the
Special Courts of ADJ's were to function
only till 30 September 1994 and it was
assessed
that
all
proceedings
for
adjudication and settlement of claims
would have come to an end by then.
Despite much time having elapsed even
after the said date the State asserts in that
application that the jurisdiction of the
Forest Settlement Officers and ADJ"s is
being continually invoked in respect of
matters which should have been rendered
finality in light of the orders passed. It has
referred to various cases and instances
where the jurisdiction of the Forest
Settlement
Officers
and
ADJ's
was
invoked as late as in 2016. On a holistic
reading of the application, it is therefore
clear that what has compelled the State
ostensibly to move the Supreme Court is
to bring a closure to the entire process of
settlement which was to have concluded in
light of the directions as contained in the
order of 18 July 1994. The application in
essence appears to call upon the Supreme
Court to clarify and declare whether the
settlement process was envisaged to be a
1 All. State of U.P. Vs. The A.D.J. Sonbhadra & Ors.
1089
continuing and ongoing process or one
which was to terminate once the deadline
framed by the Supreme Court was
reached. The application does not appear
to call upon the Supreme Court to go into
individual facts or the correctness or
otherwise of individual orders passed by
the Forest Settlement Officers and ADJ's

18. In view of the above and for all
the reasons assigned hereinabove, the
preliminary
objection
fails
and
is
negatived.

B. ON MERITS

19. This petition challenges the
orders dated 8 May 1997, 12 March 1999,
29 February 2000 and 11 April 2001
passed by the State respondents. The
dispute itself relates to Plot Nos. 439 and
448 which were included in a notification
issued by the State under Section 4 of the
1927 Act on 4 July 1970. The private
respondent is stated to have filed objection
to the inclusion of these plots on 30 April
1997. This objection was entertained by
the Forest Settlement Officer despite the
specific objection of the State that the
same was not maintainable having been
made beyond the timelines as fixed by the
Supreme Court. It was further asserted by
the State in those objections that the land
had been rightly included in the proposed
reserved forest since it was covered by
trees and shrubs and the land was clearly
not of a cultivable character. Those
objections were overruled by the Forest
Settlement Officer by his order of 8 May
1997 on the ground that the respondent
had proved being in possession of the plots
from 1385 Fasli (corresponding to the
English calendar year of 1978). On this
score as well as by extending the benefits
of Section 131-A of the U.P. Zamindari
Abolition and Land Reforms Act, 1950
the claim of the private respondent was
allowed
and
directions
framed
for
exclusion of the two plots from the
proposed reserved forest. The aforesaid
order was affirmed by the Additional
District Judge in suo moto appeal in terms
of the judgment rendered on 12 March
1999. The State thereafter appears to have
made applications for review and special
review which also came to be dismissed
and which orders also are assailed in the
instant writ petition.

20. Before this Court, Sri Goswami,
the learned Additional Chief Standing
Counsel appearing for the State, contends
that there was no occasion for the Forest
Settlement Officer to have entertained the
objections in 1997 in respect of land that
had been included in a notification issued
under Section 4 decades earlier in 1970.
He submitted that the delay has been
cursorily
condoned
by
the
Forest
Settlement
Officer
alluding
to
the
provisions made in Section 5 of the
Limitation Act, 1963 and by only
observing that sufficient cause existed for
condonation of delay. According to Sri
Goswami, the manner in which delay has
been condoned clearly flies in the face of
the peremptory directions issued by the
Supreme
Court
and
the
timeframe
stipulated in the various orders passed in
Banwasi Sewa Ashram. It was submitted
that despite clear directions having been
issued by the Supreme Court for closure of
all settlement and adjudicatory processes
by 30 September 1994, the Forest
Settlement Officer proceeded to entertain
objections preferred by the petitioner in
clear violation of the directions of the
Supreme Court. It was further submitted
that neither the Forest Settlement Officer
nor the Additional district Judge rely upon
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
any evidence, which may have established
that the nature and character of the land
was such that it did not merit inclusion in a
proposed reserved forest. According to Sri
Goswami,
the
entire
process
of
adjudication was based solely upon an
alleged inspection stated to have been
undertaken in 1997 and in any case the
Forest Settlement Officer does not place
reliance on any material which may have
established that in 1970 when the Section
4 Notification was issued, the land did not
fall within the genre and category of land
which was liable to be included under
Section 4 of the 1927 Act. Sri Goswami
also refers to the provisions made in
Section 5 of the 1927 Act to submit that
there could have been no acquisition of
rights post the issuance of the Notification
issued under Section 4. According to Sri
Goswami, the ADJ also committed a
manifest error in proceeding to affirm and
endorse the decision entered by the Forest
Settlement Officer.

21. The Court firstly notes that the
Forest Settlement Officer appears to have
proceeded under a misconception that the
provisions of Section 5 of the Limitation
Act, 1963 applied. As was noticed in the
earlier parts of this order as well as the
detailed judgment rendered in State of
U.P., the procedure for adjudication of
rights was governed exclusively by the
provisions made by the Supreme Court in
Banwasi Sewa Ashram. It was the
procedure that was evolved by the
Supreme Court there which governed the
trial of claims. There was consequently no
occasion for the Forest Settlement Officer
to place reliance upon the provisions made
in Section 5 of the 1963 Act. The Court
additionally
notes
that
the
private
respondent
proffered
no
plausible
explanation for having failed to invoke the
jurisdiction of the Forest Settlement
Officer prior to 1997 in respect of a
notification that was issued in 1970. The
respondent also did not participate in the
settlement process which ensued pursuant
to the directions issued in Banwasi Sewa
Ashram.

22. The Court further finds that the
nature and character of the land which was
alluded to by the State in its objection has
also not been appreciated. This principally
since the Forest Settlement Officer appears
to have based his decision solely on the
inspection which was carried out many
decades after the Notification under
Section 4 had been issued. It has thus
clearly erred in failing to consider this
aspect
which
was
crucial
for
the
adjudication to be recognised as valid in
law. As is further evident from a reading
of the order impugned, the Forest
Settlement Officer bases the grant of relief
to the respondent solely on the fact that
she had been in possession from 1385
Fasli. That clearly could not have been
determinative since what alone would
have been of relevance would be the rights
which parties claimed to exist and as
inhering in them on the date when the
Section 4 Notification had come to be
issued. Dealing with the impact of Section
5 of the 1927 Act and the bar to accrual of
rights, this Court in State of U.P. observed
thus:

"Viewed from the angle of the
provisions engrafted in the 1927 Act, the
Court notes that once the notification
under Section 4 of the 1927 Act came to
be issued on 4 July 1970, the statutory
restraint comprised in Section 5 of that Act
also applied. Section 5, it becomes
important
to
recall,
prohibits
the
acquisition of rights in or over land
1 All. State of U.P. Vs. The A.D.J. Sonbhadra & Ors.
1091
comprised in a Section 4 notification
except by way of succession, grant or
contract
in
writing
made
by
the
Government. Section 131 A as is evident
does not override or eclipse the prohibition
put in place by Section 5 of the 1927 Act.
In order, therefore, to accord a harmonious
construction upon Section 131A of the
1950 Act bearing in mind Section 5 of the
1927 Act, it must be interpreted to extend
at best to land held in cultivatory
possession from prior to the issuance of
the notification under Section 4..."

23. It is relevant to note that the
respondent does not refer to any evidence
to establish a right to possess or to work
the land as may have existed prior to 4
July 1970 when the plots in question came
to be included in the proposed reserved
forest. The respondent asserted a right
over the land only from 1978. No evidence
appears to have been placed nor is any
such proof referred to by the Forest
Settlement Officer in order to establish a
right of cultivatory possession being
exercised by the respondent from prior to
the issuance of the notification under
Section 4. Even before this Court no
evidence or material was either alluded or
referred to which could have possibly been
read as operating in favour of the
respondent. No rights could have either
accrued, stood created or been acquired
after the notification under Section 4 came
to be issued and the land stood included in
the proposed reserved forest. The claim of
the respondent must resultantly be held to
be barred by Section 5 of the 1927 Act.

24. Insofar as the extension of
benefits under Section 131-A is concerned,
this Court had an occasion to deal with the
scope and ambit of that provision in some
detail in State of U.P. where after
ultimately analyzing the provisions made
under the 1950 Act as well as the Forest
Conservation Act, 1980 and the various
orders passed by the Supreme Court, it
recognized and laid down the legal
position to be as under:

"That then takes the Court to
deal with the submission addressed in the
backdrop of Section 131-A of the 1950
Act.
Section
131-A
was
initially
promulgated by way of Ordinance No. 7 of
1987. It was ultimately introduced in the
statute by virtue of U.P. Act 14 of 1987.
Section
131A
principally
extends
protection to those persons who were
found to be in cultivatory possession of
land in the portion of District Mirzapur
South of the Kaimur Range prior to 30
June 1978 and confers on such individuals
the status of a bhumidhar with non
transferable rights on such land. Whether
this provision would be sufficient to
safeguard the asserted interest of the
private respondent is the issue that
consequently
falls
for
determination.
While dealing with this question it would
be apposite to bear in mind the fact that by
the time that this measure was introduced,
the 1980 Act already stood in place. The
rights
which
are
claimed
by
the
respondents in terms of its provisions
would merit examination and evaluation
from a dual perspective- firstly, on the
basis of the language of the section itself
and other attendant provisions of the 1950
Act and secondly, in the backdrop of the
statutory regime governing forests which
otherwise exists.

On a plain reading of Section
131A, it is evident that the provision is
neither stated to have overriding effect
over the other parts of the 1950 Act nor is
it worded to be in supersession of other
statutes that may operate on the subject of
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
forests. As is manifest, that provision is
not worded so as to apply notwithstanding
a prohibition or restraint contained in any
other enactment which touches the field of
forests and rights that may accrue on land
on which forests may exist. In its barest
form, Section 131A seeks to protect the
possession of persons on land which may
vest in a Gaon Sabha by virtue of Section
117 of that Act. Section 117 provides that
the State Government may by a general or
special order vest in a Gaon Sabha or other
local authority land that had come to vest
with it upon promulgation of the 1950 Act.
It becomes relevant to recall that Section 4
of the 1950 Act envisaged the vesting of
all estates situate in the State with the
Government upon abolition of zamindari.
Section
117
while
enumerating
the
categories of vested land that may be
transferred not just speaks of forests but
also of land cultivable or otherwise, trees,
fisheries, ponds, tanks, water channels,
pathways and abadi sites. Consequently
when Section 131A refers to land vesting
in a Gaon Sabha under Section 117, it
cannot be understood as being with regard
to possession of persons upon forests
alone. Possession of a person may be
found to exist even on land cultivable or
otherwise or on any other category of
estates vesting in the State.

The second internal control on
the benefit conferred by that provision is
manifest from its opening lines itself
which makes its provisions subject to
Sections 132 and 133A of the 1950 Act.
Section 132 of the 1950 Act essentially
declares that bhumidhari rights shall not
accrue upon the categories of land
enumerated
therein.
This
statutory
interdict also applies to land declared or
held by the Government for a public
purpose in terms of Section 132 (c).