# The State of U.P. Through the Divisional Forest Officer, Mirzapur v. IVth Additional District Judge and others

- **Citation:** (2012) 1 ILRA 424
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-13
- **Case number:** Civil Misc. Writ Petition No. 3825 of 1976
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-through-the-divisional-forest-officer-mirzapur-v-ivth-42184
- **Pages:** 14

## Headnote

Sri V.K. Singh
Sri Bhagwati Prasad Singh
Sri H.P. Mishra
Sri R.N. Singh
Sri V.K. Singh
Sri B.P. Singh
Sri Vivek Kumar Singh

Indian
Forest
Act
1927-Section
3Deceleration of land -about 746 Bigha 17
Biswa-as
surplus
land-situated
in
revenue village Babua Raghunath Singhobjection by Raja Vishwanath Singhbeing hereditary tenant after abolition of
Zamindari become Sirdar under Section
19 and subsequently Bhumidhar-as such
after deposit of 20 times rent became
Bhumidhar-who
gifted
to
Charitable
Trust DAIYA-hence can not be declared
1 All] The State of U.P. V. IVth Additional District Judge and others
425
as forest land including cultivatory land
also-held-Bhumidhari
Rights
Subordinate to propitiatory Rights of
State Government-hence can exercise its
Power under Section 4-Land actually
under
cultivation
be
excludedconsequential direction given.

Held: Para 45

At this stage, learned counsel for the
respondents
submits
that
from
the
finding recorded by the authorities under
Act, 1927, it was admitted that a small
portion of the land was actually under
cultivation and therefore, such land
could not be treated to be forest or
waste land. It would fall in category 'c'
as aforesaid. No demarcation of the area
in that regard has been done. Therefore,
the State Government must at least be
directed to exclude the land, which was
under cultivation, as it was part of the
holding excluded under Section 3 of Act,

## Text

_Characters 0–39,746 of 48,041. This is a partial read: ask again with offset=39746 for what follows._

424 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
authority is the best judge of this that
clause (3) of Article 311 makes the
decision of the disciplinary authority on
this question final. A disciplinary authority
is not expected to dispense with a
disciplinary inquiry lightly or arbitrarily
or out of ulterior motives or merely in
order to avoid the holding of an inquiry or
because the Department's case against the
government servant is weak and must fail.
The finality given to the decision of the
disciplinary authority by Article 311(3) is
not binding upon the Court so far as its
power of judicial review is concerned and
in such a case the Court will strike down
the order dispensing with the inquiry as
also the order imposing penalty. The case
of Arjun Chaubey v. Union of India is an
instance in point."

13. The aforesaid decision of the
Division Bench have been followed in
other cases namely Kuldeep Kumar Vs.
State of U.P. and others, 2011(3) UPLBEC
2421; Dharam Pal Singh Chauhan Vs.
State of U.P. and others, 2011(4) ADJ 851;
Gulabdhar Vs. State of U.P. and others,
2011(5) ADJ 835; Ram Yagya Saroj Vs.
State of U.P. and others, 2010(4) AWC
3495; Umesh Kumar Vs. State of U.P. and
others, 2009(5) ADJ 405; and Bishambher
Singh Bhadoria Vs. State of U.P. and
others, 2008 (3) UPLBEC 2357.

14. What emerges from the above
mentioned cases is that the recording of the
reason is a condition precedent for
invoking Rule 8(2)(b) of the 1991 Rules
and the reasons must be genuine to the
facts of the case. In the present case, the
controversy against the petitioner was that
he had used the forged certificate. To
prove the said allegations, disciplinary
proceedings was necessary. This case does
not fall under the exception carved out by
the Supreme Court in the cases of Jaswant
Singh (supra) and Satyavir Singh (supra).

15. In view of the above, the writ
petition is allowed. The impugned order
dated 25.7.2007 is quashed. However, it
shall be open to the respondent authority to
proceed to hold the inquiry under 1991
Rules. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 3825 of 1976

The State of U.P. Through the Divisional
Forest Officer, Mirzapur
 ...Petitioner
Versus
IVth
Additional
District
Judge
and
others

 ...Respondents

Counsel for the Petitioner:
Sri Lalji Sinha
S.C.

Counsel for the Respondents:
Sri V.K. Singh
Sri Bhagwati Prasad Singh
Sri H.P. Mishra
Sri R.N. Singh
Sri V.K. Singh
Sri B.P. Singh
Sri Vivek Kumar Singh

Indian
Forest
Act
1927-Section
3Deceleration of land -about 746 Bigha 17
Biswa-as
surplus
land-situated
in
revenue village Babua Raghunath Singhobjection by Raja Vishwanath Singhbeing hereditary tenant after abolition of
Zamindari become Sirdar under Section
19 and subsequently Bhumidhar-as such
after deposit of 20 times rent became
Bhumidhar-who
gifted
to
Charitable
Trust DAIYA-hence can not be declared
1 All] The State of U.P. V. IVth Additional District Judge and others
425
as forest land including cultivatory land
also-held-Bhumidhari
Rights
Subordinate to propitiatory Rights of
State Government-hence can exercise its
Power under Section 4-Land actually
under
cultivation
be
excludedconsequential direction given.

Held: Para 45

At this stage, learned counsel for the
respondents
submits
that
from
the
finding recorded by the authorities under
Act, 1927, it was admitted that a small
portion of the land was actually under
cultivation and therefore, such land
could not be treated to be forest or
waste land. It would fall in category 'c'
as aforesaid. No demarcation of the area
in that regard has been done. Therefore,
the State Government must at least be
directed to exclude the land, which was
under cultivation, as it was part of the
holding excluded under Section 3 of Act,
1927.
Case law discussed:
1960 (RD) 337; 1990 AWC 210

(Delivered by Hon'ble Arun Tandon,J. )

1. Heard Sri V.K. Singh, learned
Additional Advocate General, assisted by
Sri V.K. Chandel, learned Standing Counsel
for the State-petitioner and Sri R.N.Singh,
and Sri B.P. Singh, learned Senior
Advocates assisted by Sri Vivek Kumar
Singh, Advocate on behalf the contesting
respondent, in both the writ petitions.

2. These two writ petitions raise
common question of law and facts and
have, therefore, been clubbed together and
are being decided together by means of this
common order. Civil Misc. Writ Petition
No. 3825 of 1976 has been treated to be the
leading writ petition.

3. The State of Uttar Pradesh has filed
this writ petition for quashing of the orders
dated 22nd March, 1961 passed by the
Forest Settlement Officer, Mirzapur, dated
28th
October,
1961
passed
by
the
Commissioner Varanasi as also the order
dated 28th May, 1976 passed by the IVth
Additional District Judge, Mirzapur.

4. Facts in short leading to the present
writ petition as are follows:

5. Notification under Section 4 of the
Indian Forest Act, Act, 1927 (hereinafter
referred to as the "Act, 1927"), was issued
by the State of Uttar Pradesh on 19th
December, 1955, which included amongst
other the areas of village Babura Raghnath
Singh and Katra Tappa Upraudh, District
Mirzapur.
To
the
said
notification,
objections were filed by Raj Vishwa Nath
Pratap Singh under Section 6 of Act, 1927.
On the objection so filed, it appears that an
order was passed excluding the plots in
question from the limits of the proposed
reserved forest on 22nd April, 1957.
Subsequently, however, order dated 22nd
April, 1957 was recalled under order of the
Forest Settlement Officer dated 20th
December, 1957. As a result whereof,
objections under Section 6 of Act, 1927
stood restored.

6. During the pendency of the
aforesaid proceedings, Vishwa Nath Pratap
Singh is stated to have deposited 10 times of
the land revenue and to have obtained
Bhumidhari Sanad of the land covered by
the notification under Section 4 of the Act,
1927, with reference to the provisions of
U.P. Agriculture Tenants (Acquisition of
Privileges) Act, 1949 (hereinafter referred
to as the 'Act, 1949') read with the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 (hereafter referred to as the 'Act,
1950').
Immediately,
after
obtaining
Bhumidhari Sanad, Sri Vishwa Nath Pratap
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Singh executed a gift deed of the area
covered by notification under Section 4 of
the Act, 1927 in favour of Daiya Charitable
Society on 21st June, 1959.

7. The objections filed by Vishwa
Nath Pratap Singh were not pressed.
Thereafter Daiya Charitable Society made
an application for impleadment in place of
Vishwa Nath Pratap Singh, which was
allowed on 22nd July, 1959 by the Forest
Settlement Officer. The Daiya Charitable
Society instead of pursuing the objections
filed by Vishwa Nath Pratap Singh filed its
own objections. The objections filed by the
Daiya Charitable Society were admitted.

8. Under the order dated 22nd March,
1961, the Forest Settlement Officer framed
four issues for determination, namely, (a)
whether the transfer made by Vishwa Nath
Pratap Singh in favour of the objector i.e.
Daiya Charitable Society is valid and in
accordance with law or not, (b) whether the
land in dispute was a jungle or waste land
on the date of vesting or not, (c) whether the
objector has acquired any right over the
land in dispute and (d) what relief, if any,
objector is entitled?

9. The Forest Settlement Officer vide
order dated 22nd March, 1961 held that
since the entire land in dispute was recorded
as the holding of Vishwa Nath Pratap Singh
in the records of 1359 Fasli Khasara,
question of its vesting after abolition of
Zamindari does not arise. He went out to
hold that it might be a farzi holding in the
village records but this question cannot be
decided in the proceedings under Section 4
of Act, 1927. The plots in dispute were not
entered in the list of plots transferred to
Forest Department as they constituted a
holding in the pre-vesting days. The order
refers to the local inspection made twice,
the report whereof is on File No.
237/349/36. It discloses that only a small
area of the notified plots is under actual
cultivation and that the remaining major
part of it was forest and waste land on the
date of vesting. The land has not vested in
the Government being recorded in the
holding coming down since pre-vesting
period. He then proceeded to hold that since
Vishwa Natha Pratap Singh was recorded as
tenant-in-chief of the land in question and
after depositing 10 times of the land
revenue he has acquired Bhumidhari rights
the gift deed executed by him in favour of
Daiya Charitable Society was valid.

10. So far as the issue nos. 3 and 4 are
concerned it was held that the objectors
have become bhumidhar of the land as per
the decision of issue nos. 1 and 2. The
objector was entitled to utilize the entire
holding in the way he was legally entitled.
Claim of the objector was allowed and the
Divisional Forest Officer was advised to
take necessary action to acquire the land in
dispute under Section 11 of Act, 1927, if so
required.

11. Not being satisfied with the order
passed by the Forest Settlement Officer
dated 22nd March, 1961, the State of Uttar
Pradesh filed an appeal under the Act, 1927
before
the
Commissioner,
Varanasi
Division,
Varanasi.
The
appeal
was
dismissed by the Additional Commissioner
vide order dated 28th October, 1961 only on
the ground that on record there is Khasara
entry of 1359 Fasli, which records that the
land in dispute was recorded as kastkari of
Vishwa Nath Pratap Singh and such a land
will not become the propriety of the State
government
even
after
abolition
of
Zamindari. The transfer of the land in
dispute in favour of Daiya Charitable
Society was also upheld.
1 All] The State of U.P. V. IVth Additional District Judge and others
427

12. Against the order of the Additional
Commissioner, the State of Uttar Pradesh
preferred a revision before the District
Judge, Mirzapur being Civil Revision No.
85 of 1966. The revision has also been
dismissed by the IVth Additional District &
Sessions Judge, Mirzapur vide order dated
28th May, 1976 after recording that from
Khatauni Extract of 1359 Fasli, it is evident
that Raja Vishwa Nath Pratap Singh was
recorded under ziman as a hereditary tenant
of the plots in question. After enforcement
of Act, 1951, the land shall be deemed to
have been settled by the State Government
with Raja Vishwa Nath Pratap Singh, who
became entitled to retain possession as
Sirdar under Section 19 of the Act. He has
become Bhumidhar by depositing 10 times
the rent under the Act, 1949.

13. The learned Additional District &
Sessions Judge has recorded that the land in
question was part of the holding within the
meaning of U.P. Tenancy Act, 1939
(hereinafter referred to as the 'Act, 1939'), it
was not possible for the State Government
to constitute a reserved forest qua such land,
and therefore, the notification under Section
4 of Act, 1927 was not competent and
without jurisdiction. The learned Additional
District & Sessions Judge went out to
consider Sections 4 and 6 of Act, 1950 as
well as definition of land as provided under
Section 3 (8) of Act of 1939. The contention
of the State of Uttar Pradesh that since the
land was not occupied for any purpose
mentioned in the aforesaid definition, it
cannot be said to be part of 'holding' within
the meaning of its definition under Section
3 (10) read with Section 3 (8) of Act, 1939
was repelled on the ground that even if Raja
Vishwa Natha Pratap Singh i.e. hereditary
tenant could not cultivate the land even for
years together, he would not be deprived of
his right as hereditary tenancy. It has been
explained that merely because the land is
not being cultivated and was lying as waste
will not effect the rights of the tenureholder. Accordingly the revision filed by the
State of Uttar Pradesh was dismissed.

14. In order to keep the record
straight, it may be noticed that while the
aforesaid proceedings were pending, the
State authorities issued notice under Section
10 (2) of the U.P. Imposition of Ceiling on
Land Holdings Act, 1960 (hereinafter
referred to as the 'Act, 1960') including the
land in question along with other land in the
year 1975-1976. Objections filed were
considered and the ceiling limits were
determined by the Prescribed Authority
under order dated 17th November, 1976.
Against the same revenue appeals were
filed before the District Judge, Allahabad,
wherein transfers made were accepted. The
IVth Addition District Judge vide order
dated 10th February, 1977 held that 1990
bighas and 2 biswa of Mauja Babua Raghu
Nath Singh and 746 bighas and 17 biswas
of Mauja Katra of District Mirzapur was
surplus in the hand of the tenure-holder.
According to the respondents, the ceiling
proceedings have become final between the
parties. In the matter of compensation for
the trees and other developments, which
were standing over the surplus land,
revenue appeal no. 188 of 1981 were filed
by the Daiya Charitable Society. The appeal
was allowed by the District Judge,
Allahabad vide order dated 29th August,
1981. Writ petition filed by the State against
the said order being Civil Misc. Writ
Petition No. 2362 of 1982 was dismissed by
the High Court on 21th May/June, 1984.
Thereafter, Special Leave to Appeal (Civil)
No. 9119 of 1985 was filed by the State of
Uttar Pradesh before the Hon'ble Supreme
Court of India, it was also dismissed vide
order dated 31st October, 1985.
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

15. Daiya Charitable Society is stated
to have filed Original Suit No. 36 of 1973 in
the matter of determination of number of
trees and its valuation. The suit was decreed
by the Civil Judge, Mirzapur vide order
dated 8th November, 1976 determining the
value of trees at Rs. 15,34,300/-. First
appeal filed by the State Government
against the said valuation is pending before
the High Court being First Appeal No. 42 of
1977. In respect of trees existing over the
land within the District of Allahabad first
appeal no. 178 of 1975 which has been
decided and the valuation of trees has been
modified.

Contentions of State-petitioner:

16.

In
the
aforesaid
factual
background,
the
learned
Additional
Advocate General on behalf of the Statepetitioner submitted that there has been
complete miscarriage of justice at the hand
of the authorities under the Act, 1927. He
explains that under Section 3 of Act, 1927
as amended in the State of Uttar Pradesh,
the State Government has been conferred a
power to construe any forest land or waste
land or any other land (not being land for
the time being comprised in any holding or
in any village Abadi), which is the property
of the Government or over which the
Government has proprietary rights, or to the
whole or any part of the forest produce of
which the Government is entitled, as
reserved forest in the manner provided in
the Act. Under Explanation to the said
Section, holding has been assigned the same
meaning as is assigned to the word
"holding" under the U.P. Tenancy Act,
1939. According to the learned Additional
Advocate General, Section 3 contemplates
three categories of land, which are the State
property or over which the State has
proprietary rights i.e. (a) forest land, (b)
waste land and (c) any other land.
According to him, so far as the forest and
waste lands are concerned, the power to
constitute a reserved forest is absolute. The
conditional exclusion clause applies to other
land i.e. the third category (c). The The
State Government gets a right to constitute
the forest/waste land as is a reserved forest,
if it is the property of the State or the State
has proprietary rights over the same.

17. He submits that the authorities
have misread the provisions of Section 3 of
Act,
1927
and
have
proceeded
on
misconception of law in applying the
conditional exclusion Clause, in the case of
land, which is forest and waste land also. It
is the case of the State Government that the
authorities under Act, 1927 have also failed
to take note of the law as declared by the
Supreme Court of India in the case of
Mahendra Lal Jaini vs. State of Uttar
Pradesh & others, reported in AIR 1963
SC 1019. According to him, the Supreme
Court of India has laid down that any land
to which the provisions of Act, 1950 apply
after the enforcement of the said act would
become property of the State Government
and the State shall have proprietary right
over the entire land covered by the Act,
1950. The Apex Court has explained that a
bhumidhar has a better right than a Sirdar
and the Sirdar has a better right than a
Asami, yet all are mere tenure-holder under
the State and the State has the proprietary
right over the land. Even in respect of the
land of which a person claims to be
Bhumidhar, Chapter II of Act, 1927 would
apply.
Learned
Additional
Advocate
General, therefore, submits that in the facts
of the case, what was required to be seen by
the authorities, under the Forest Act was as
to whether the land was forest or waste land
and whether State had the proprietary rights
over the same.
1 All] The State of U.P. V. IVth Additional District Judge and others
429

18. The fact that the land in question
is covered by Act, 1950 is admitted to the
respondents, inasmuch as it is their own
case that they had obtained bhumidhari
sanad with reference to the provisions of
Act, 1950 and that it is only because of the
bhumidhari sanad granted in his favour, that
Vishwa Nath Pratap Singh had executed a
gift deed in favour of Daiya Charitable
Society, which has stepped into its shoes
and is contesting the proceedings. It was
neither the case of Vishwa Nath Pratap
Singh nor it is the case of the society that
the land is outside the scope of Act, 1950.
Learned Additional Advocate General
explains that all the authorities/courts below
have recorded a concurrent finding of fact
based on spot inspection that the major
portion of the land was forest and waste
land, only small portion was under
cultivation. Thus according to the learned
Additional Advocate General, land being
covered by Act, 1950 and most of it being
forest and waste land, could be declared to
be reserved forest, (on simple reading of
Section 3 of Act, 1927) by adopting the
procedure of Section 4 of the Forest Act.
Orders impugned therefore, cannot be
legally sustained and the objection of the
Daiya Charitable Society is liable to be
rejected.

Contentions
of
contesting
respondent:

19. Sri R.N. Singh, learned Senior
Advocate on behalf of Daiya Charitable
Society submits that if any land is part of
the holding of an hereditary tenant and if
such person has subsequently obtained
bhumidhari
sanad
after
abolition
of
zamindari, by deposit of 10 times the land
revenue, then such land, even though, it
may be forest or waste land, on the date of
vesting, cannot be declared as reserved
forest. For the purpose a heavy reliance has
been placed upon the use of the words "not
being land for the time being comprised in
any holding" subsequent to the words "any
other land" in Section 3 of Act, 1927.
According to Sri Singh, word "holding" as
per Explanation to Section 3 of Act, 1927
has been assigned the same meaning as has
been assigned to the same word under
Section 3 (7) of Act, 1939.

20. Section 3 (7) of the Act, 1939
defines "holding" to means a parcel or
parcels of land held under one lease,
engagement or grant or in the absence of
such lease, engagement or grant under one
tenure.

21. From the record, it was established
that Vishwa Nath Pratap Singh was
recorded as the tenant-in-chief over the land
in 1369 Fasali khasara entry. The land was,
therefore, comprised in the holding of
Viswanath Pratap Singh. In respect of such
land, the State Government had no power to
constitute any reserved forest. He has
placed reliance upon the judgment of the
Supreme Court in the case of State of Uttar
Pradesh vs. Smt. Sarjoo Devi & others
reported in AIR 1977 SC 2196 for
explaining the meaning of the word
"holding". According to him, it is not
necessary that every piece of land, part of
the holding must actually be used for
cultivation all the time. He then placed
reliance upon the Division Bench judgment
of this Court in the case of Subedar Dalip
Singh Karki vs. State of U.P. reported in
1974 RD 227 for the proposition that even
Banjar land can form part of the holding of
an hereditary tenant, over which Sirdari
rights will accrue under Section 19 of Act,
1950 and later bhumidhari rights can be
granted on satisfaction of the conditions
required. Reference is also made to the
430 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
judgment this Court in the case of Ram Pati
& others vs. District Judge, Mirzapur
reported in 1985 (RD) 448 for the
proposition that it is the intention, as borne
out from the lease is to be seen as to for
what purpose, the land is being held, actual
growing of crops is not a sine qua non or a
condition precedent for examining the said
issue.

22. Sri B.P. Singh, learned Senior
Advocate on behalf of Daiya Charitable
Society in furtherance of what has been
stated by Sri R.N. Singh, contended that
Section 7 of Act, 1950 saves the rights of
the tenant and for that purpose Section 19
(iv) of Act, 1950 and Section 5 (29) of the
Act, 1939 are also referred to. According to
him, rights of the intermediaries have been
taken over by the State Government under
Act, 1950 but the rights of the tenant have
not been so taken over, and therefore, the
rights of Vishwa Nath Pratap Singh and the
Daiya Charitable Society, who are the
tenants are not adversely effected, in any
manner
because
of
the
enforcement/applicability of Act, 1950 in
the area concerned.

23. It is further contended by both the
learned counsels for the respondents that the
present writ petition has practically become
infructuous because of the recognition of
the rights of Vishwanath Pratap Singh as the
Bhumidhar by the State Government by
granting bhumidhari sanad in his favour and
in view of the orders passed by the
authorities under Act, 1960 as well as the
order passed by the Civil Court in the matter
of determination of compensation for the
trees standing on the land in question. They
submit that once the State authorities
themselves have admitted the Daiya
Charitable Society as the holder of the land
for the purposes of ceiling and owner of the
trees being the bhumidhar of the land in
question, it is no more open to the State
Government to contend that the same was
not a part of the holding within Section 3 of
Act, 1927, so as to issue a notification under
Section 4 of Act, 1927.

24. I have considered the submissions
made by the learned counsel for the parties
and have examined the records of the writ
petitions.

25. For appreciating the controversy
raised on behalf of the parties, it would be
worthwhile to reproduce Section 3 of Act,
1927 as applicable in the State of Uttar
Pradesh, it reads as follows:

"STATE AMENDMENT

Uttar
Pradesh.---For
section
3,
substitute the following section, namely:-----
---

"3. Power to reserve forests. ----The
State Government may constitute any forest
land or waste land or any other land (not
being alnd for the time being comprised in
any holding [****] or in any village abadi)
which is the property of Government, or
over
which
the
Government
has
proprietary rights, or to the whole or any
part of the forest produce of which the
Government is entitled, a reserved forest in
the manner hereinafter provided.

Explanation.---The
expression
"holding" shall have the meaning assigned
to it in U.P. Tenancy Act, 1939, and the
expression 'village abadi' shall have the
meaning assigned to it in the U.P. Village
Abadi Act, 1947."

26. From a simple reading of Section
3 of Act, 1927, it would be clear that the
1 All] The State of U.P. V. IVth Additional District Judge and others
431
State Government has been granted power
to constitute a reserved forest in respect of
three categories of land, if it is the property
of the State Government or the Government
has proprietary rights over it, (a) forest land
(b) waste land and (c) any other land ( not
being land for the time being comprised in
any holding or in any village abadi). Other
parts of section are not relevant for our
purposes. Right of the State Government to
constitute reserved forest in respect of forest
and waste land is not circumscribed by the
exclusion clause as applicable to other lands
i.e. not being land for the time being
comprised in any holding or in any village
Abadi.

27. In respect of forest land and waste
land, which is the property of the State
Government
or
over
which
it
has
proprietary rights, the power of the State to
constitute a reserved forest is absolute. In
respect of forest and waste land only two
facts are to be satisfied for constituting a
reserved forest i.e. (the land is forest or
waste land and (b) it is the property of the
State or the State has proprietary right over
the same.

28. Conclusion so drawn by this Court
is well supported by a Division Bench
judgment of this Court in the case of Raghu
Nath Singh & Another vs. The State of
Uttar Pradesh & Another reported in 1960
(RD) 337, wherein after reproducing the
provisions of Act, 1927, it has been
explained as follows:

"A
careful
examination
of
the
provisions of the Indian Forest Act would
show that the power of the State
Government to constitute any land as a
reserved forest is circumscribed by three
conditions as laid down in Section 3.
Firstly, it can constitute such forest land or
waste land to be reserved forest as is the
property of Government. Secondary it can
do so if the proprietary rights in the land
vest in Government, or thirdly where it (the
Government) is entitled to the whole or any
part of the forest produce of any land. The
Sections of the Act after Section 3 prescribe
the manner in which any land can be
constituted a reserved forest."

29. The Division Bench has further
held that the action of the State Government
in constituting the leased lands as reserved
forest can be upheld, if any, of the three
conditions are proved to exist.

30. In respect of the land in question
with the enforcement of the Act, 1950,
proprietary rights have vested in the State
Government. It is admitted on record that
most of the land qua which notification
under Section 4 of Act, 1927 had been
issued was forest and waste land. Therefore,
condition no.1, as pointed by the Division
Bench stands satisfied.

31. So far as the contention raised on
behalf of the respondents qua the land being
under the tenancy of Vishwanath Pratap
Singh, and it being part of his holding qua
which bhumidhari sanad had been issued,
therefore, the State Government could not
exercise power of declaring such forest and
waste land as reserved forest under Section
3 of Act, 1927 is concerned, suffice is to
reproduce paragraphs-26, 27 and 29 of the
judgment of the Apex Court in the case of
Mahendra Lal Jaini (Supra), relevant
portion of paragraphs 26, 27, and 29 read as
follows:

"(26.) It is necessary therefore to I
look at the scheme of Chap. II of Forest
Act, which contains sections 3 to 27 and
deals with reserved forests. Section 3
432 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
provides that the State Government may
constitute any forest land or waste land
which is the property of Government or
over
which
the
Government
has
proprietary rights, or to the whole or any
part of the forest produce of which the
Government is entitled, a reserved forest.
Section 4 provides for the issue of a
notification declaring the intention of the
Government to constitute a reserved forest.
Section 5 bars accrual of forest rights in the
area covered by notification under s. 4 after
the
issue
of
the
notification.
..................................."

(27) It is clear from this review of the
provisions of Chap. II that it applies inter
alia to forest land or waste land, which is
the property of the Government or over
which the Government has proprietary
rights. By the notification under S. 4, the
Forest Settlement Officer is appointed to
inquire into and determine the existence,
nature and extent of any rights alleged to
exist in favour of any person in or over any
land comprised within such limits, or in or
over any forest produce, and to deal with
the same as provided in this Chapter.
...............................................................
It
will be clear therefore that Chap. II
contemplates that where forest land or
waste land is the property of Government
or over which the Government has
proprietary rights, the Forest Settlement
Officer
shall
proceed
to
determine
subordinate rights in the land before a
notification under S. 20 is issued making
the area a reserved forest. In the
determination of these rights, the Forest
Settlement Officer has the same powers as a
civil court has in the trial of suits, and his
order is subject to appeal and finally to
revision by the State Government. Section 5
also shows that after a notification under
S. 4, no further forest rights can accrue. It
appears, however, that after the Abolition
Act came into force, it was felt that more
powers should be taken to control forests
than was possible under S. 5 as under the
Abolition Act all lands to which the-
Abolition Act applied had vested in the
State and become its property. ........

29..........................................It is next
urged that even if Ss. 38-A to 38-G are
ancillary to Chap. II, they would not apply
to the petitioner's land, as Chap. II deals
inter-alia with waste land or forest land,
which is the property of the Government
and not with that land which is not the
property of the Government, which is dealt
with under Chap. V. That is so. But unless
the petitioner can show that the land in
dispute in this case is his property and not
the property of the State, Chap. II will apply
to it. Now there is- no dispute that the land
in dispute belonged to the Maharaja
Bahadur of Nahan before the Abolition
Act and the said Maharaja Bahadur was
an intermediary. Therefore, the land in
dispute vested in the State under S. 6 of the
Abolition Act and became the property of
the State. It is however, contended on
behalf of the petitioner that if he is held to
be a bhumidhar in proper proceedings, the
land would be his property and therefore
Chap. V-A, as originally enacted, if it is
ancillary to Chap. II would not apply to the
land in dispute. We are of opinion that there
is no force in this contention. We have
already pointed out that under S. 6 of the
Abolition Act all property of intermediaries
including the land in dispute vested in the
State Government and became its property.
It is true that under S. 18, certain lands
were deemed to be settled as bhumidhari
lands, but it is clear that after land vests in
the State Government under S. 6 of the
Abolition Act, there is no provision therein
for divesting of what has vested in the State
1 All] The State of U.P. V. IVth Additional District Judge and others
433
Government. It is however urged on
behalf of the petitioner that he claims to
be the proprietor of this land as a
bhumidhar because of certain provisions
in the Act. There was no such
proprietary right as bhumidhari right
before the Abolition Act. The Abolition
Act did away with all proprietary rights
in the area to which it applied and
created three classes of tenure by S. 129;
bhumidhar, sirdar and asami, which
were unknown before. Thus bhumidhar,
sirdar and asami are all tenure-holders
under the Abolition Act and they hold
their tenure under the State in which the
proprietary right vested under S. 6. It is
true that bumidhars have certain wider
rights in their tenures as compared to a
sirdars similarly sirdars have wider
rights as compared to asamis, but
nonetheless all the three are mere tenure
holders - with varying rights - under the
State which is the proprietor of the entire
land in the State to which the Abolition
Act applied. It. is not disputed that the
Abolition Act applies to the land in
dispute and therefore the State is the
proprietor of the land in dispute and the
petitioner even if he were a bhumidhar
would still be a tenure-holder. Further,
the land in dispute is either waste land or
forest land (for it is so far not converted
to agriculture) over which the State has
proprietary rights and therefore Chap. II
will clearly apply to this land and so
would Chap. V-A. It is true that a
bhumidhar has got a heritable and
transferable right and he can use his
holding for any purpose including industrial
and residential purposes and if he does so
that part of the holding will lie demarcated
under S. 143. It is also true that generally
speaking, there is no ejectment of a
bhumidhar and no forfeiture of his land. He
also pays land revenue (S. 241) but in that
respect he is on the same footing as a sirdar
who can hardly be called a proprietor
because his interest is not transferable
except as expressly permitted by the Act.
Therefore, the fact that the payment made
by the bhumidhar to the State is called land
revenue and not rent would not necessarily
make him of a proprietor, because sirdar
also pays land Revenue though his rights
are very much lower than that bhumidar. It
is true that the rights which the bhumidar
has to a certain extent approximate to the
rights which a proprietor used to have
before the Abolition Act was passed; but it
is clear that rights of a bhumidhar are in
many respects less and in many other
respects restricted as compared to the old
proprietor before the Abolition Act. For
example, the bhumidhar has no right as
such in the minerals under the sub-soil.
Section 154 makes a restriction on the
power of a bhumidhar to make certain
transfers.
Section
155
forbids
the
bhumidhar,
from
making
usufructury
mortgages.
Section
156
forbids
a
bhumidhar, sirdar or asami from letting the
land to others, unless the case comes under
S. 157. Section 189 (aa) provides that where
a bhumidhar lets out his holding or any part
thereof in contravention of the provisions of
this Act, his right will be extinguished. It is
clear therefore that though bhumidhars
have higher rights than sirdars and
asamis, they are still mere tenure-holders
under the State which is the proprietor of
all lands in the area to which the
Abolition Act applies. The petitioner
therefore even if he is presumed to be a
bhumidhar can of claim to be a
proprietor to whom Chap. II of the
Forest Act does not apply, and therefore
Chap. V-A, as originally enacted, would
not apply : (see in this connection, Mst.
Govindi v. The State, of Uttar Pradesh),
AIR 1952 All. 88). As we have already
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
pointed out Ss. 4 and 11 give power for
determination of all rights subordinate to
those of a proprietor, and as the right of
the bhumidhar is that of a tenure-holder,
subordinate to the State, which is the
proprietor, of the land in dispute, it will
be open to the Forest Settlement officer
to consider the claim made to the land in
dispute by the petitioner, if he claims to
be a bhumidhar. This is in addition to the
provision of S. 229-B of the Abolition Act.
The petitioner therefore even if he is a
bhumidhar cannot claim that the land in
dispute is out of the provisions of Chap. II
and therefore Chap. V-A, even if it is
ancillary to Chap. II, would not apply. We
must therefore uphold the constitutionality
of Chap. V-A, as originally enacted, in the
view
we
have
taken
of
its
being
supplementary to Chap. II, and we further
hold that Chap. II and Chap. V-A will
apply to the land in dispute even if the
petitioner is assumed to be the bhumidhar,
of that land."

32. Thus, it will be seen that the
Supreme Court has laid down that
bhumidhars have certain wider rights in
their tenure-holding as compared to Sirdars.
Similarly, Sirdars have wider rights as
compared to Asamis, but nonetheless all
three are mere tenure-holders with holding
rights over the land, the proprietary right
whereof is with the State. The Apex Court
has gone on to hold that although
Bhumidhars have higher rights than Sirdars
and Asamis, they are still mere tenureholders under the State, which is proprietor
of all lands in the area to which Abolition
Act applies i.e. Act, 1950. Petitioner even if
presumed to be bhumidhar cannot claim to
be proprietor of the land to whom Chapter
II of the Forest Act does not apply.

33. It has, therefore, to be held that
Vishwanath Pratap Singh was merely a
sirdar and subsequently with the grant of
sanad, a bhumidhar in respect of land,
which has been found to be forest and waste
land of which the State Government, was
the proprietor in view of application of Act,
1950 to the area. He or for that purpose the
society cannot contend that the State
Government has no power to declare the
forest land and waste land as reserved forest
under Section 4 of Act, 1927. Bhumidhari
rights are subordinate to the proprietary
rights of the State Government. In view of
provisions of Section 3 of Act, 1927, the
power of the State Government to declare
the forest and waste lands of which it has
the proprietary as reserved forest is not
diluted in any manner, merely because
Vishwanath Pratap Singh is held to be the
Sirdar and thereafter bhumidhar.

34. This Court is not called upon to
enter into the issue as to whether the forest
land and waste land subject matter of
Section 4 notification formed part of the
holding of Vishwanath Pratap Singh or not,
inasmuch as, as already noticed above,
exclusion, which has been provided under
Section 3 of Act, 1927, applies to other
lands only and not to the forest and waste
lands, which, in the opinion of the Court,
form a separate class under Section 3 of
Act, 1927.

35. Most of the land is forest or waste
land and that Act, 1950 applies in the area is
admitted on record, both in view of
pleadings
and
evidence
before
the
authorities under the Forest Act as well as
before this Court. The State could exercise
its power under Section 4 of the Act, 1927
in the facts of the case. The contention
raised by the learned Additional Advocate
1 All] The State of U.P. V. IVth Additional District Judge and others
435
General finds favour with this Court and is
upheld.

36. This Court may now deal with the
other objection, which has been raised on
behalf of the respondents, namely, that these
proceedings under Act, 1927 have become
redundant
in
view
of
subsequent
proceedings i.e. grant of bhumidhari sanad,
ceiling proceedings taken under Act, 1960
and because of orders passed by the
competent Civil Court in the matter of
determination of valuation of trees standing
on the land in question.

37. This Court may record that ceiling
limits are determined with regard to the land
held by a recorded tenure-holder. Such
determination of the ceiling limits does not
divest the State Government of proprietary
rights over the land, which is forest land and
waste land nor its power to constitute the
forest land and waste land as reserved forest
is lost because of such ceiling proceedings.
Both acts operate in different field.
Whatever may have been the decision in the
proceedings under Act, 1960, the exercise
of powers under Section 4 of Act, 1927 by
the State will not be diluted or adversely
affected.

38.