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

- **Citation:** (2019) 4 ILRA 1257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-23
- **Case number:** Writ-C No. 36416 of 1995
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-anr-v-the-a-d-j-sonbhadra-ors-44914
- **Pages:** 16

## Headnote

A. Constitution of India - Article 48A -
Forest Conservation Act, 1980 - Section
2 - Environment protection - Forest
conservation
-
Statutory
interdict
enshrined in Section 2 represents a
momentous measure of „we the people‟
to preserve and protect forests and the
environment. This singular provision
finally gave effect to the constitutional
obligation placed upon the State by
virtue of Article 48A of the Constitution -
Decision
of
Apex
Court
in
T.N.
Godavarman Thirumulpad‟s case that the
Act, 1980 is enacted with a view to check
further deforestation which ultimately
results in ecological imbalance may not
be ignored. (Para 17 & 18)

B. Review - Maintainability - Absence of
statutory provision - Formulation of
adjudication process by Apex Court -
Special procedure was formulated and
evolved by the Supreme Court and put in
place by virtue of its decisions of
Banwasi Sewa Ashram‟s case. It was this
unique
and
distinctive
process
of
adjudication as evolved therein that was
mandated to be adhered to by the
adjudicating authorities while processing
claims laid under the 1927 Act. It was
this exceptional process of adjudication
in terms of which all decisions taken by
the FSO were liable to be placed before
the Additional District Judge for scrutiny,
appraisal and confirmation. The orders
passed in Banwasi Sewa Ashram thus
constituted the source and foundation
for the authority which was to be
exercised by the FSO‟s and Additional
District Judges. (Para 20 & 21)

C. Civil Law - Indian Forest Act, 1927 -
Section 4 & 5 - Notification dated
04.07.1970 issued u/s 4 of Act, 1927 -
On the date when the notification came
to be promulgated, the prohibition and
bar as engrafted in Section 5 of the 1927
Act came to operate, which clearly
mandates
that
no
rights
shall
be
acquired in or over the land comprised in
such notification except by succession or
under a grant of contract in writing
made in that behalf by the Government -
Consequently after 04.07.1970 no rights
could have been acquired on land which
came to be included in the notification
u/s 4. (Para 28)

Held - While the private respondent asserts
to have been in possession of the land prior to
its vesting under the provisions of 1950 Act,
no material or evidence was either alluded to
or brought to the attention of the Court. That
material also does not appear to have been
placed for the consideration of either the FSO
or the Additional District Judge. This, the Court
notes

## Text

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4 All. Aryavart Bank Vs. Appel. Auth. Payment of Gratuity Act, 1972 & Dy. Chief Labour Commis. Kanpur & Ors. 1257
the controlling authority to the effect that
the appellant has deposited with him an
amount equal to the amount of gratuity
required to be deposited under sub-section
(4), or deposits with the appellate
authority such amount."

10. A plain reading of the
aforementioned provision indicates that
any person aggrieved by an order under
sub-section (4) of Section 7, may, within
60 days from the date of receipt of the
order, prefer an appeal to the appropriate
Government or such other Authority as
may be specified by the appropriate
Government in this behalf. In terms of the
first proviso the appropriate Government
or the Appellate Authority, as the case
may be, may if it is satisfied that the
appellant was prevented by sufficient
cause from preferring the appeal within
the said period of 60 days, extend the said
period by a further period of 60 days.

11. It is thus seen that as per terms
of sub-section (7) of Section 7 of the P.G.
Act, 1972 the prescribed limitation for
filing an appeal against an order order
under sub-section (4), is 60 days from the
date of receipt of the order, and in a case
where the appeal is preferred within the
aforesaid prescribed time period the same
would be held to be within limitation and
there would be no requirement for seeking
extension of the time period.

12. It is only the case where the
appeal has been filed beyond the
prescribed time period of 60 days from
the date of receipt of the order passed
under sub-section (4), that the first
proviso to sub-section (7) would be
required to be invoked by filing an
application for condonation of delay, and
the Appellate Authority would thereafter
be required to exercise its discretion in the
matter and in case it records its
satisfaction
that
the
appellant
was
prevented by sufficient cause from
preferring
the
appeal
within
the
prescribed period of 60 days, the said
period may be extended by a further
period of 60 days.

13. In this view of the matter, the
order dated 05/06.08.2019 having been
passed by the Appellate Authority without
consideration of the facts relevant for
deciding the issue of limitation the same
cannot be legally sustained and is thus set
aside.

14. The matter is remitted back to
the Appellate Authority for a fresh
decision in the light of the observations
made above.

15. It would be open to parties to
appear before the Appellate Authority and
make their submissions on the point of
limitation. The appeal, if found by the
Appellate
Authority
to
be
within
prescribed
period
of
limitation,
as
provided under sub-section (7) of Section
7 of the P.G. Act, 1972 may be heard and
decided on its merits thereafter.

16. It is made clear that this Court
has not expressed itself on the rival
contentions sought to be raised by the
parties, either on the point of limitation or
on merits.

17. The writ petition is allowed to
the extent indicated above.
----------
(2019)12 ILR A1257

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2019
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
BEFORE
THE HON'BLE YASHWANT VARMA, J.

Writ-C No. 36416 of 1995

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

Counsel for the Petitioners:
Sri Prabodh Gaur, C.S.C., Sri Sanjai
Goswami

Counsel for the Respondents:
S.C., Sri H.M. Srivastava, Sri O.P. Singh,
Sri S.K. Rao

A. Constitution of India - Article 48A -
Forest Conservation Act, 1980 - Section
2 - Environment protection - Forest
conservation
-
Statutory
interdict
enshrined in Section 2 represents a
momentous measure of „we the people‟
to preserve and protect forests and the
environment. This singular provision
finally gave effect to the constitutional
obligation placed upon the State by
virtue of Article 48A of the Constitution -
Decision
of
Apex
Court
in
T.N.
Godavarman Thirumulpad‟s case that the
Act, 1980 is enacted with a view to check
further deforestation which ultimately
results in ecological imbalance may not
be ignored. (Para 17 & 18)

B. Review - Maintainability - Absence of
statutory provision - Formulation of
adjudication process by Apex Court -
Special procedure was formulated and
evolved by the Supreme Court and put in
place by virtue of its decisions of
Banwasi Sewa Ashram‟s case. It was this
unique
and
distinctive
process
of
adjudication as evolved therein that was
mandated to be adhered to by the
adjudicating authorities while processing
claims laid under the 1927 Act. It was
this exceptional process of adjudication
in terms of which all decisions taken by
the FSO were liable to be placed before
the Additional District Judge for scrutiny,
appraisal and confirmation. The orders
passed in Banwasi Sewa Ashram thus
constituted the source and foundation
for the authority which was to be
exercised by the FSO‟s and Additional
District Judges. (Para 20 & 21)

C. Civil Law - Indian Forest Act, 1927 -
Section 4 & 5 - Notification dated
04.07.1970 issued u/s 4 of Act, 1927 -
On the date when the notification came
to be promulgated, the prohibition and
bar as engrafted in Section 5 of the 1927
Act came to operate, which clearly
mandates
that
no
rights
shall
be
acquired in or over the land comprised in
such notification except by succession or
under a grant of contract in writing
made in that behalf by the Government -
Consequently after 04.07.1970 no rights
could have been acquired on land which
came to be included in the notification
u/s 4. (Para 28)

Held - While the private respondent asserts
to have been in possession of the land prior to
its vesting under the provisions of 1950 Act,
no material or evidence was either alluded to
or brought to the attention of the Court. That
material also does not appear to have been
placed for the consideration of either the FSO
or the Additional District Judge. This, the Court
notes, since no such material or evidence was
ever noticed by either the Forest Settlement
Officer or the Additional District Judge in the
orders which were framed. It has also come
on the record that the initial order made by
the FSO on 30 August 1986 was ultimately
recalled by that authority on 25 February
1992. The respondent never assailed that
order in any proceedings.

Reverting to the individual facts, the Court
notes that the Additional District Judge on
both occasions has clearly failed to bear in
mind that the initial order passed by the FSO
30 August 1986 had itself been recalled by
that authority subsequently. That subsequent
order of 25 February 1992 has neither been
alluded to nor considered. The respondent did
not lead any other evidence that may have
established that he had been in cultivatory
4 All. The State of U.P. & Anr. Vs. The A.D.J. Sonbhadra & Ors.
1259
possession from prior to 4 July 1970 when the
notification under Section 4 came to be issued
or from before 15/16 May 1950 being the
order of the State Government transferring
Dudhi Forest to the Forest Department. The
Additional District Judge rests his decision
solely on the spot inspection report which
formed the basis of the original order which
was ultimately recalled. The Additional District
Judge also does not rest his decision on any
other independent or cogent evidence which
may have established that the factual position
as found by the FSO was incorrect. Viewed in
that backdrop, it is manifest that the prayer
for review was clearly liable to be granted.

D. Civil Law - U.P. Zamindari Abolition
and Land Reform Act, 1950 - Section
131-A - Scope - Overriding Effect - 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 -
However, provision of Section 131A is
neither stated to have overriding effect
over the other parts of the 1950 Act nor
it is worded to be in supersession of
other statutes that may operate on the
subject of 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. (Para 23)
E. Meaning of word „Forest‟ - Expression
forest to be understood not just as
defined in dictionaries but also to any
land which answered the description of
forest as generally understood as also
land recorded as forest irrespective of
ownership.
The
rights
consequently
claimed by virtue of Section 131A cannot
be recognised as flowing unhindered by
the restrictions imposed in that decision.
(Para 26)

F.
Interpretation
of
statute
-
Harmonious construction - Section 131A
of Act, 1950 as is evident does not
override or eclipse the prohibition put in
place by Section 5 of Act, 1927 - In
order
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 -
Assertion of a right under Section 131A
and a recognition thereof in law would
also have to be tested on the anvil of
Section 2 of the 1980 and the orders of
the Supreme Court referred to above -
The extent of protection which can be
recognised cannot be viewed in the
abstract and in any case cannot be
adjudged without bearing in mind the
provisions made in the 1927 and the
1980 Acts. (Para 27)

Writ Petition allowed. (E-1)

List of cases cited: -

1. Banwasi Sewa Ashram Vs. State of U.P. And
Others (1986) 4 SCC 453

2. T.N. Godavarman Thirumulpad Vs. Union of
India (1997) 2 SCC 267

3.
Judgment
of
Supreme
Court
dated
13.11.2000
passed
in
Centre
for
Environmental Law Vs. Union of India W.P.
(Civil) No. 337 of 1995

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

1. Heard Sri Sanjai Goswami, the
learned
Additional
Chief
Standing
Counsel and Sri Rajesh Srivastava,
learned Standing Counsel for the State
and Sri O.P. Singh, learned Senior
Advocate who has appeared for the
respondents.

2. This petition challenges the orders
dated 30 January 1993 and 24 May 1994
passed by the Additional District Judge.
The challenge itself arises in the backdrop
of
proceedings
taken
in
District
Sonbhadra pursuant to the procedure as
evolved and laid in place by the Supreme
Court in Banwasi Sewa Ashram Vs.
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
State
of
U.P. And
Others1. The
challenge arises in the context of the
proposal of the State to constitute a
reserved forest in accordance with the
provisions made in the Indian Forest
Act, 19272. On the record the Court finds
an order dated 15/16 May 1950, issued by
the Deputy Secretary in the Government
of Uttar Pradesh and addressed to the
Secretary, Board of Revenue conveying to
him the sanction of the Governor to the
transfer of the "Dudhi Forest" from the
control and administration of the Revenue
Department to the Department of Forest.
The document stands testimony to the fact
that the Dudhi Forest was under the
control and administration of the State
Government from prior to the date of this
communication. On 4 July 1970, the State
proceeded to issue a notification under
Section 4 of the 1927 Act embodying its
intent to constitute a reserved forest in the
district. The
land
over
which
the
respondent claims interest admittedly
forms part of this notification. It appears
that asserting that he had been in
continuance possession of this land and
was also cultivating the same, he
approached the Forest Settlement Officer
for a declaration in respect of his status
and title which was granted on 30 August
1986. In terms of this order, the Forest
Settlement Officer is stated to have
recognized the respondent to be a
bhumidhar in possession over the land in
question.

3. It is pertinent to note that in the
meanwhile the Supreme Court received a
letter on or about 1983 which was treated
as a petition under Article 32 of the
Constitution. The grievance which was
raised in that letter was in respect of the
rights of tribals and traditional forest
dwellers who were deprived of their status
and rights of possession and cultivation
over lands which had come to be included
in notifications issued under Section 4 of
the 1927 Act by the State Government.
The Supreme Court was apprised that
tribals and other individuals in possession
of the land had been deprived of their
right without the statutory procedure of
due enquiry and settlement of claims
having been undertaken. Entertaining that
challenge the Supreme Court on 22
August 1983 passed the following interim
order:

"The writ petition is adjourned
to October 4, 1983 in order to enable the
parties to work out a formula under which
claims to Adivasis or tribals in Dudhi and
Robertsganj Tehsils, to be in possession of
land and to regularisation of such possession
may be investigated by a high powered
committee with a view to reaching a final
decision in regard to such claims. Meanwhile,
no further encroachments shall be made on
forest land nor will any of the Adivasis or
tribals be permitted under colour of this order
or any previous order to cut any trees and if
any such attempt is made, it will be open to
the State authorities to prevent such cutting of
trees and to take proper action in that behalf
but not so as to take away possession of the
land from the Adivasis or tribals."

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
4 All. The State of U.P. & Anr. Vs. The A.D.J. Sonbhadra & Ors.
1261
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 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
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 19803
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.

7. Reverting back to the issue of
settlement of claims in accordance with
the procedure evolved by the Supreme
Court, it appears that on the detailed
directions being brought to the attention
of the respondents, the order of 30 August
1986 conferring the status of bhumidhar
on the private respondents was recalled by
the FSO on 25 February 1992. In the
meanwhile and pursuant to the process of
settlement that was initiated in accordance
with the procedure prescribed in Banwasi
Sewa
Ashram,
the
claim
of
the
respondent fell for consideration before
4 All. The State of U.P. & Anr. Vs. The A.D.J. Sonbhadra & Ors.
1263
the FSO. The FSO in his order of 26
March 1992 noted that the respondent rested
his claim solely on the order of the Forest
Settlement Officer, which had already been
annulled on 25 February 1992. It noted that
the nature of the land was such that it was
suitable to be included and made part of the
proposed reserved forest and consequently
upheld the inclusion of the land in the
notification issued under Section 4. In
accordance with the procedure laid down in
Banwasi Sewa Ashram, that order was then
placed before the Additional District Judge for
scrutiny by way of a suo moto appeal. The
Additional District Judge on 30 January 1993
proceeded to reverse the decision of the FSO
and held that since the earlier spot inspection
had found the petitioner to be in possession of
the land and having partly cultivated it, the
plot in question was liable to be excluded
from the proposed reserved forest.

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 nonoccupants have been recorded without onthe-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
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.

12. Appearing in support of the
petition,
Sri
Goswami,
the
learned
Additional Chief Standing Counsel has
submitted that the review was liable to be
granted since on both occasions the
Additional District Judge had failed to
either allude to or consider the fact that
the order made in favour of the
respondent by the FSO on 30 August
1986 no longer survived having been
recalled on 25 February 1992. It was
submitted that the spot inspection report
which
was
referred
to
in
those
proceedings was the same on which the
order of 30 August 1986 rested. It was
contended that in any case no rights could
be recognized as having accrued in favour
of the respondent post the issuance of the
notification under Section 4 on 4 July
1970. According to Sri Goswami, the
rights which had been claimed by the
respondent on the basis of possession
could not have been accorded recognition
in law in view of the provisions made in
Section 5 of the 1927 Act. Section 5 as
amended in its application to the State of
U.P. vide Act No. 23 of 1965 reads thus: -

"5. Bar of accrual of forest
rights.-- After the issue of notification
under section 4 no right shall be acquired
in or over the land comprised in such
notification, except by succession or
under a grant or a contract in writing
made or entered into by or on behalf of
the Government or some person in whom
such
right
was
vested
when
the
notification was issued; and no fresh
clearings for cultivation or for any other
purpose shall be made in such land, nor
any tree therein felled, girdled, lopped,
tapped, or burnt, or its bark or leaves
stripped off, or the same otherwise
damaged, nor any forest-produce removed
therefrom, except in accordance with such
rules as may be made by the State
Government in this behalf."

13. It is pertinent to note that while
Section 5 in the principal enactment stops
at restraining individuals from clearing
land included in a Section 4 notification
for cultivation or any other purpose, the
4 All. The State of U.P. & Anr. Vs. The A.D.J. Sonbhadra & Ors.
1265
U.P. Amendment travels further and injuncts
persons from cutting or felling trees or
removing forest produce from such land.
According to Sri Goswami there was an
abject failure on the part of the respondent to
establish any right or title over the land
existing from prior to the issuance of the
notification under Section 4. Sri Goswami
drew the attention of the Court to the fact that
the nature of the land as was found to exist on
the spot was duly taken into consideration by
the FSO in his order of 26 March 1992 and
that the Additional District Judge clearly erred
in overturning that verdict and failing to grant
the prayer for review as made.

14. Refuting those submissions, Sri
O.P. Singh, learned Senior Counsel who
has appeared for the private respondent
addressed the following submissions.
According to Sri Singh, the Court must
bear in mind that no provision of the 1927
Act grants a power of substantive review
on the Appellate Authority. The power to
undertake a substantive review, it was
contended, must be statutorily conferred
and cannot be available to be exercised in
the absence of a specific provision in that
respect being made in the statute. Sri
Singh referring to the order of 4 October
1993 submitted that the direction of the
Supreme Court was not liable to be
viewed as conferring on the Additional
District Judge the authority to undertake a
substantive review. He submits that after
noticing the contentions addressed it was
only observed in that order that it would
be open to the Forest Department to
approach the Additional District Judges
by way of an appropriate application that
may be considered and disposed of "in
accordance with law". According to Sri
Singh, the tenor of the directions and
observations
entered
in
that
order
establishes that the question of the
maintainability of the review petition was
not decided and it was left open to the
Additional District Judges to consider any
application that the Forest Department
chose to make in accordance with law. In
view thereof it was submitted that the
Additional District Judge could not have
entertained the review petition. According
to Sri Singh once the Additional District
Judge had proceeded to allow the claim of
the respondent on 30 January 1993 the
same attained finality and therefore could
not have been reviewed.

15. Sri Singh has further placed
reliance upon the provisions made in
Section 131-A of the U.P. Zamindari
Abolition and Land Reforms Act 19504
to submit that notwithstanding the orders
passed by the authority in proceedings
undertaken under the 1927 Act, the law
itself accords protection to persons like
the respondent in cultivatory possession
of land and the extension of bhumidhari
rights albeit on a non transferable basis.
That provision is in the following terms: -

"131-A. Bhumidhari rights in
Gaon Sabha or State Government land
in certain circumstances.--Subject to the
provisions of Section 132 and Section
133-A,
every
person
in
cultivatory
possession of any land, vested in a Gaon
Sabha under Section 117 or belonging to
the State Government, in the portion of
District Mirzapur South of Kaimur Range,
other than the land notified under Section
20 of the Indian forest Act, 1927, before
the 30th day of June, 1978, shall be
deemed to have become a Bhumidhar
with non-transferable rights of such land.

 Provided that where the land
in cultivatory possession of a person,
together with any other land held by him
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
in Uttar Pradesh exceeds the ceiling area
determined under the Uttar Pradesh
Imposition of Ceiling on Land Holdings
Act, 1960, the rights of a Bhumidhar with
non-transferable rights shall accrue in
favour of such person in respect of so
much area of the first-mentioned land, as
together with such other land held by him,
does
not
exceed
the
ceiling
area
applicable to him and the said area shall
be demarcated in the prescribed manner in
accordance with the principles laid down
in the aforesaid Act."

16. Sri Singh placing reliance
upon the provisions made in Section 131A has submitted that in light of the
statutory
protection
accorded
and
extended, no cause arises for this Court to
interfere with the order ultimately passed
by the Additional District Judge in the suo
moto appeal. It was lastly urged that a
reserved forest could not be viewed as
land falling within the ambit of Section
132 of the 1950 Act since it essentially
remains land per se till it is actually
declared as reserved forest under Section
20 of the 1927 Act. This submission was
addressed in light of the benefits extended
by Section 131A being made subject to
the provisions of Section 132 of the 1950
Act. Section 132 of the 1950 Act reads
thus: -

"132.
Land
in
which
[bhumidhari] rights shall not accrue.-
Notwithstanding anything contained in
Section 131, but without prejudice to the
provisions of Section 19, [bhumidhari]
rights shall not accrue in--

(a) pasture lands or lands
covered by water and used for the purpose
of growing singhara or other produce or
land in the bed of a river and used for
casual or occasional cultivation;

(b) such tracts of shifting or
unstable
cultivation
as
the
State
Government may specify by notification
in the Gazette; and

[(c) lands declared by the State
Government by notification in the Official
Gazette, to be intended or set apart for
taungya plantation or grove lands of a
[Gaon Sabha] or a local authority or land
acquired or held for a public purpose and
in particular and without prejudice to the
generality of this clause--

(i) lands set apart for military
encamping grounds;

(ii)
lands
included
within
railway or canal boundaries;

(iii) lands situate within the
limits of any cantonment;

(iv) lands included in sullage
farms or trenching grounds belonging as
such to a local authority;

(v) lands acquired by a town
improvement trust in accordance with a
scheme sanctioned under Section 42 of
the U.P. Town Improvement Act, 1919
(U.P. Act VII of 1919), or by a
municipality for a purpose mentioned in
clause (a) or clause (c) of Section 8 of the
U.P. Municipalities Act, 1916 (U.P. Act
VII of 1916); and

(vi) lands set apart for public
purposes under the U.P. Consolidation of
Holdings Act, 1953 (U.P. Act V of
1954).]"

17. Before proceeding to deal with
the rival submissions noted above, it
would be apposite to notice certain
noteworthy
statutory
and
judicial
interventions with regard to the subject of
forests that intervened. The proceedings
in Banwasi Sewa Ashram progressed
during a period when the 1980 Act had
already come to be promulgated. The
statutory interdict enshrined in Section 2
4 All. The State of U.P. & Anr. Vs. The A.D.J. Sonbhadra & Ors.
1267
of that enactment represents a momentous
measure of "we the people" to preserve
and protect forests and the environment.
This singular provision finally gave effect
to the constitutional obligation placed
upon the State by virtue of Article 48A of
the Constitution. Section 2, seemingly
unpretentious and yet pregnant with
purpose and intent, stipulates as follows: -

"2. Restriction on the dereservation of forests or use of forest
land
for
non-forest
purpose.--
Notwithstanding anything contained in
any other law for the time being in force
in a State, no State Government or other
authority shall make, except with the prior
approval of the Central Government, any
order directing,--

(i) that any reserved forest
(within the meaning of the expression
"reserved forest" in any law for the time
being in force in that State) or any portion
thereof, shall cease to be reserved;

(ii) that any forest-land or any
portion thereof may be used for any nonforest purpose;

[(iii) that any forest-land or any
portion thereof may be assigned by way
of lease or otherwise to any private person
or to any authority, corporation, agency or
any
other
organisation
not
owned,
managed or controlled by Government;

(iv) that any forest-land or any
portion thereof may be cleared of trees
which have grown naturally in that land
or portion, for the purpose of using it for
reafforestation.]"

18. From a historical perspective,
the development of the jurisprudence on
the subject of environment protection
would be incomplete if one were to ignore
the epoch making decision handed down
by the Supreme Court on 12 December
1996
in
T.N.
Godavarman
Thirumulpad Vs. Union of India5 when
it held: -

"4. The Forest Conservation
Act, 1980 was enacted with a view to
check
further
deforestation
which
ultimately results in ecological imbalance;
and therefore, the provisions made therein
for the conservation of forests and for
matters connected therewith, must apply
to all forests irrespective of the nature of
ownership or classification thereof. The
word
"forest"
must
be
understood
according to its dictionary meaning. This
description
covers
all
statutorily
recognised forests, whether designated as
reserved, protected or otherwise for the
purpose of Section 2(i) of the Forest
Conservation Act. The term "forest land",
occurring in Section 2, will not only
include "forest" as understood in the
dictionary sense, but also any area
recorded as forest in the Government
record irrespective of the ownership. This
is how it has to be understood for the
purpose of Section 2 of the Act. The
provisions
enacted
in
the
Forest
Conservation
Act,
1980
for
the
conservation of forests and the matters
connected therewith must apply clearly to
all forests so understood irrespective of
the ownership or classification thereof.
This aspect has been made abundantly
clear in the decisions of this Court in
Ambica Quarry Works v. State of Gujarat
[(1987) 1 SCC 213] , Rural Litigation and
Entitlement Kendra v. State of U.P. [1989
Supp (1) SCC 504] and recently in the
order dated 29-11-1996 (Supreme Court
Monitoring Committee v. Mussoorie
Dehradun Development Authority [ WP
(C) No 749 of 1995 decided on 29-111996] ). The earlier decision of this Court
in State of Bihar v. Banshi Ram Modi
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
[(1985) 3 SCC 643] has, therefore, to be
understood
in
the
light
of
these
subsequent decisions. We consider it
necessary to reiterate this settled position
emerging from the decisions of this Court
to dispel the doubt, if any, in the
perception of any State Government or
authority......"

19. Again on 13 November 2000,
the Supreme Court in Centre for
Environmental Law Vs. Union of
India6 passed the following order: -

"Four weeks for filing
of
affidavits by the States that have not
already done so. List after 5 weeks.
Pending further orders, no dereservation
of forests/Sanctuaries/National Parks shall
be affected."

In one sense the decisions and orders
referred to above followed the trend
which was set in the 8 February 1989
order of the Supreme Court in Banwasi
Sewa Ashram which had held that land
covered under a notification issued under
Section 4 of the 1927 Act would also be
covered by the prohibition imposed by
Section 2 of the 1980 Act. It was these
orders and the prevailing statutory regime
that
governed
the
field
when
the
settlement proceedings forming subject
matter of the instant writ petition were
progressing before the FSO and the
Additional
District
Judges.
Having
sketched the backdrop in which the
impugned proceedings ensued before the
authorities, the Court now proceeds to
rule on the submissions addressed by
respective parties.

20. Dealing firstly with the question
of maintainability of the review petition,
the Court notes that the provisions
engrafted in the 1927 Act do not make a
specific provision of substantive review
being
exercised
by
the
authorities
constituted thereunder. However, the
Court also bears in mind that the 1927 Act
also does not envisage a suo moto appeal
being preferred or entertained by the
Additional District Judge either. The facts
which were obtaining in the region in
which the reserved forest was proposed to
be created, the manner in which the rights
of tribal and traditional forest dwellers
were
overlooked
and
trodden
over
constrained the Supreme Court to modify
the statutory procedure put in place by the
1927 Act. It was the special procedure
formulated and evolved by the Supreme
Court and put in place by virtue of its
decisions and orders rendered from time
to time in Banwasi Sewa Ashram that
governed the field. It was this unique and
distinctive process of adjudication as
evolved therein that was mandated to be
adhered to by the adjudicating authorities
while processing claims laid under the
1927 Act.