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PETITIONER: THE STATE OF U.P.

       Vs.

RESPONDENT: DY. DIRECTOR OF CONSOLIDATION & ORS.

DATE OF JUDGMENT:       08/07/1996

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) HANSARIA B.L. (J) MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (5) 194        JT 1996 (6)   306  1996 SCALE  (5)145

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Kuldip Singh, J      The land  in dispute measuring 22.11 acres was notified as reserved  forest under  Section 20  of the  Indian Forest Act, 1927  (the Act)  by the  notification dated  August 19, 1963. Respondents, in the appeals herein, claimed before the authorities under  the U.P.  Consolidation of  Holdings  Act 1953 (the Consolidation Act) that they were in possession of the land  and had  acquired  Sirdari  rights.  They  further claimed  that  the  land  was  illegally  subjected  to  the proceedings under  the Act because they had become owners of the land.  Since the  land  was  not  the  property  of  the Government-according to  them-the notification declaring the land as  reserved  forest  was  illegal.  The  Consolidation Authorities accepted  the objections of the respondents. The writ petitions  under Article  226 of  the  Constitution  of India filed by the State of U.P. - challenging the orders of the Consolidation  Authorities -  were dismissed by the High Court. These  appeals are  against the  judgment of the High Court upholding the orders of the Consolidation Authorities. We may  briefly notice  the facts  of the  case.  The  State Government  issued  a  notification  dated  March  29,  1954 declaring its  intention to constitute the land in dispute a reserved forest.  After disposal  of  the  objections  filed under Section  6 read  with Section  9 of  the Act  and  the finalisation of  the appeals  under Section 17 of the Act, a notification dated  August 19,  1963 declaring  the land  in dispute to be reserved for forest was issued. In the revenue records the  respondents were  recorded as Sirdari - holders of the  land. The  land was  also recorded  as a part of the forest department khata.      Learned counsel  for the  appellants has contended that the respondents did not raise any objection/claim before the Forest Settlement Officer under the Act. There is nothing on

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the record to show that any objection or claim was ever made by the  respondents before  the authorities  under the  Act. Consolidation operations  commenced in the area on April 13, 1966.  The  respondents  claimed  before  the  Consolidation Authorities that  they had  acquired Sirdari  rights in  the land on  the basis  of their  long possession.  It was  also claimed that the land in dispute was neither forest land nor waste land  and as  such in terms of Section 3 of the Act it could  not  be  notified  as  reserved  forest.  Before  the authorities under  the Consolidation  Act, the State of U.P. pleaded that  the land  in dispute stood vested in the State by he  notification dated  October 11, 1952 issued under the U.P. Zamindari  Abolition and  Land Reforms  Act  1951  (the Abolition Act).  In the  writ petition before the High Court the State Government averred as under:      "That in  the objections  filed  by      opposite party  No.4  the  question      that the  land in  dispute did  not      vest in  the State  Government, was      not raised: nor was it pleaded that      the   State   Government   had   no      authority to  issue a  notification      under section  4 of  the Act as the      land in  dispute was not covered by      section 3  of the  Act. No issue on      these  points  was  framed  by  the      Consolidation Officer."      The Consolidation  Officer allowed  the  claim  of  the respondents  and   came  co   the   conclusions   that   the notification under  Sections 4  and 20  of the  Act did  not affect the rights of the respondents in the land in dispute. He, however,  dismissed the  claim of respondent Husain. The Settlement Officer  upheld the claims of the respondents and dismissed the  appeals filed by the State. He also dismissed the appeal  filed by  Husain. The revision petition filed by the State  Government were  dismissed by  the  Dy.  Director Consolidation.  However,  the  revision  petition  filed  by Husain was  allowed and  he was also given relief in similar terms  as   the  other   respondents  were   given  by   the Consolidation Authorities. The High Court dismissed the writ petitions filed  by the  State of  U.P.  on  file  following reasonings :      "Para 2 of the writ petition states      that 0.53  acres of land in village      Asauwa, tehsil  and district  Kheri      was vested in the State at the time      of  abolition   of  the   Zamindari      through   notification   no.617/XIV      dated 11.10.1952. The allegation is      a picture  of vagueness. It has not      been  stated   as  to  under  which      provision of  law did  this vesting      take   place.   The   U.P.Zamindari      Abolition and Land Reforms Act came      into operation  on 1st  July, 1952.      Apparently     the     notification      mentioned in this paragraph was not      issued  under  the  U.P.  Zamindari      Abolition and  Land Reforms  Act. A      copy of  the notification  has  not      been annexed  to the writ petition.      In my  opinion no  reliance can  be      placed on  paragraph 2  of the writ      petition to  sustain the  plea that      the  land   in  dispute   was   the

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    property of  the Government or that      the  Government   had   proprietary      rights in it. The counter-affidavit      filed on  behalf of  the respondent      disputes that the plots of which he      was in  cultivatory possession  had      vested  in   the  State.   In   the      circumstances the  finding that the      land in  dispute was not covered by      section 3  Forest Act  could not be      characterised as  erroneous in law.      The    consequential    proceedings      emanating on the notification under      section 4  and culminating  in  the      notification under  section 20 were      without   jurisdiction   and   void      because  the   land  did  not  fall      within the  purview of section 3 of      the  Act.  Section  4  of  the  Act      authorises the  State Government to      constitute a  reserved forest  only      on land which is covered by section      3  and   no  other.   If   in   any      particular case  the  land  is  not      covered   by    section   3,    the      notification under  section  4  and      subsequent provisions  would confer      no    jurisdiction    to    validly      constitute it as reserved forest. A      tenure-holder need  not  waste  his      time and  money in participating in      such void  proceedings. It is not a      case   where    the   consolidation      authorities have  gone  behind  the      orders   passed    in   proceedings      consequent   to    the   issue   of      notification under  section 4. This      is a  case where  the consolidation      authorities have examined the title      of   tenure-holders.    They   have      further  examined,  in  my  opinion      rightly, whether the title of these      persons    was    established    or      defeated.  The   State   Government      asserted  that   their  title   had      extinguished by  virtue of  section      20 of  the Act.  In order  to  test      this the  consolidation authorities      could validly  go into the question      whether the  proceedings under  the      Indian  Forest   Act  were  totally      without jurisdiction. They were not      testing  the   correctness  of  the      order  passed   disposing  of   the      objections.  They  were  trying  to      find whether  the proceedings  were      at    all     recognizable.     The      proceedings being totally void, the      consolidation   authorities    were      bound to hold that the title of the      objectors  was   not   extinguished      thereby."      We are of the view that the High Court felt into patent error in  appreciating the  provisions of  the Act  and  the Abolition Act.  It is  not disputed  that the  Abolition Act

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applied to the land in dispute and, therefore, the State was the proprietor of the land and the respondents, even if they were Sirdars, would still be tenure holders.      This Court  in Mahendra  Lal Jaini,  Vs. State of Uttar Pradesh and  others, AIR 1963 Supreme Court 1019, dealt with an identical  question. Mahendra  Lal Jaini,  in a  petition under Article  32 of  the Constitution  of India,  contended before this  Court that  he being  a Bhumidar in possession, the provisions  of the  Act (The Forest Act, 1927) would not apply to  the said land. Repelling the contention this Court held that  though Bhumidars  have higher rights than Sirdars and Asamis,  they were  still tenure holders under the State which was  proprietor of  the land in the areas to which the Abolition Act  applied. It was further held that, even if it was presumed  that the  petitioner Mahendra  Lal Jaini was a Bhumidar, he  could not  claim to  be the  proprietor of the land. It  was held  that the  provisions of the Act would be applicable to  the land  in dispute.  It would  be useful to reproduce the  relevant part from the judgment of this Court in Mahendra Lal’s case :      "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 bhumidhars  have certain wider      rights in their tenures as compared      to 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  it the proprietor of the      land in  dispute and the petitioner      even if  he were  a bhumidhar would      still be  a tenure-holder...... The      petitioner therefore  even if he is      presumed to  be a  bhumidhar cannot      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.   State  of   Uttar      Predesh, AIR  1952 All  88.) As  we      have already  pointed out Ss. 4 and

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    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."      It is  thus obvious  that a  person who was holding the land as  Sirdar was not vested with proprietary rights under the  Abolition   Act.  He   was  a  tenure  holder  and  the proprietary rights  vested with  the State.  The High Court, therefore, fell into patent error in assuming that by virtue of their  status as Sirdars the respondents were proprietors of the  land. The  State being  the proprietor  of the  land under the  Abolition Act  it was  justified in  issuing  the notification under Section 4 of the Act.      The nature  of the  land - whether covered by Section 3 of the  Act or not - could only be determined on the date of the notification under Section 4 of the Act which was issued on March 29, 1954. Neither the Consolidation Authorities nor the High  Court have  gone into  the question as to what was the  nature   of  the   land  on   the  relevant  date.  The Consolidation Authorities  recorded their  findings  in  the year 1968-69.  They were  wholly oblivious  of the nature of the land 14-15 years back in the year 1954.      The crucial  question for  consideration,  however,  is whether the  Consolidation Authorities have the jurisdiction to go  behind the  notification under  Section 20 of the Act and deal  with the land which has been declared and notified as  a  reserve  forest  under  the  Act.  It  is  necessary, therefore, to  examine the  scheme of Chapter II of the Act. Section 3  provides that the State Government may constitute any forest  land or  waste land 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 to 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 the  notification under  Section 4 after the issue of the notification. Section  6, inter  alia, gives  power  to  the Forest Settlement  Officer to  issue a proclamation fixing a period of  not less  than three months from the date of such proclamation and  requiring every  person claiming any right mentioned in  Section 4  or Section  5 within  such  period, either to present to the Forest Settlement Officer a written notice specifying  or to  appear before  him, and  state the nature of  such right  and the amount and particulars of the Compensation (if  any) claimed in respect thereof. Section 7 gives power  to the Forest Settlement Officer to investigate the  objections.   Section  8  prescribes  that  the  Forest Settlement Officer  shall have  the same  powers as  a civil court has  in the  trial of  a suit.  Section 9, inter alia, provides for the extinction of rights where no claim is made under Section 6. Section 11(1) lays down that in the case of a claim  to a  right in or over any land, other than a right of way  or right of pasture, or a right to forest produce or water course,  the Forest  Settlement Officer  shall pass an order admitting  or rejecting  the same in whole or in part. In the  event of  admitting the  right of  any person to the land, the  Forest Settlement  Officer, under  Section 11(2),

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can either exclude such land from the limits of the proposed forest or  come to  an agreement  with the owner thereof for the surrender  of his rights or proceed to acquire such land in the  manner provided  by the  Land Acquisition Act, 1884. Section 17  provides for appeal from various order under the Act  and   Section  18(4)  for  revision  before  the  State Government. When  all the proceedings provided under Section 3 to  19 are  over the  State Government  has to  publish  a notification under  Section  20  specifying  definitely  the limits of  the forest  which is to be reserved and declaring the  same  to  be  reserved  from  the  date  fixed  by  the notification.      It is  thus obvious  that the Forest Settlement Officer has the  powers of a civil court and his order is subject to appeal and finally revision before the State Government. The Act is  a complete  code in  itself and  contains  elaborate procedure for declaring and notifying a reserve forest. Once a notification  under Section 20 of the Act declaring a land as reserve  forest is  published, then all the rights in the said land  claimed by  any person  come to an end and are no longer  available.   The  notification  is  binding  on  the Consolidation Authorities in the same way as a decree of the civil court. The respondents could very well file objections and claims  including objection  regarding the nature of the land before the Forest Settlement Officer. They did not file any  objection  or  claim  before  the  authorities  in  the proceedings under  the Act.  After  the  notification  under Section 20 of the Act, the respondents could not have raised any  objections   qua  the   said  notification  before  the Consolidation  Authorities.  The  Consolidation  Authorities were bound by the notification which had achieved finality.      We,  therefore,   allow  the  appeals,  set  aside  the impugned judgment  of the  High Court and also the orders of the Consolidation Authorities to the extent they are against the interest  of the State. We hold that the land in dispute was rightly  declared and  notified as  a reserve forest and the respondents  have no  rights or claim or any interest in the said land. No costs.