Ram Pati v. District Judge, Mirzapur — 1985 DIGILAW 796 (ALL)

ORDER S.K. Dhaon, J. - The petitioners, who claim themselves to be the Sirdars of certain plot of land, challenge the legality of an order passed by a District Judge acting as an Appellate Authority under S. 17 of the Indian Forest Act, 1927, as applicable to Uttar Pradesh (hereinafter referred to as the Act) dismissing their appeal and upholding the order of the Forest Settlement Officer (hereinafter referred to as the Settlement Officer) rejecting their objections. 2. Before the record operations there were plots Nos. 142, 143, 149, 150, 151, 152, 153, 154, 155 and 156. After the record operations these plots were renumbered as plot No. 96Ka, area 68 Bighas. The said plot was situated in village Bahera, Pargana Vijaigarh, Tehsil Robertsganj, District Mirzapur. The plot vested in the State of Uttar Pradesh under S. 6 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the U.P. Act). Thereafter a notification under S. 117 of the U.P. Act was issued and the plot vested in the Gaon Samaj (later on substituted as Gaon Sabha). On 20th July, 1963, the Gaon Sabha executed a Patta in favour of the petitioners with respect to a portion of the said plot. On 9th April, 1964, an order of mutation was passed by the Sub-Divisional Officer in favour of the petitioners and they were recorded as Sirdars in the Khatauni of 1375 to 1377F. By a notification dated 31st December, 1965, purported to have been issued under S. 117(6) of the U.P. Act vesting of the entire plot in the Gaon Sabha was resumed by the State Government. On 14th January, 1967, a notification purporting to be under S. 4 of the Act was issued with respect to the plot. This was followed by a notification on 15th April, 1967 purporting to be under S. 6 of the Act. The petitioners preferred an objection before the Settlement Officer claiming themselves to be the sirdars of an area of 20 Bighas 11 Biswas of the said plot. They claimed to be lessees from Gaon Sabha on the basis of the aforementioned Patta and, therefore, the plot, or in any case the area which was the subject matter of the leases, could not be declared as reserved forest. As already indicated, the objection was rejected. They preferred an appeal. 3. They claimed to be lessees from Gaon Sabha on the basis of the aforementioned Patta and, therefore, the plot, or in any case the area which was the subject matter of the leases, could not be declared as reserved forest. As already indicated, the objection was rejected. They preferred an appeal. 3. The Appellate Authority recorded the findings, the plot was forest on 1st July, 1952 and it vested in the Gaon Sabha as such. The vesting of the entire plot in the Gaon Sabha was undone by the notification dated 31st December, 1965. The petitioners were admitted as sirdars over a portion of the plot through the aforementioned Patta and their names were duly mutated in the revenue papers. The application for the cancellation of the (sic) filed by the Forest Department was rejected on 6th April, 1970 and the appeal preferred by the Department against the said order was also dismissed on 19th February, 1971. In 1963 the Gaon Sabha, Bahera had the right to admit the petitioners as sirdars over the portion of the plot. The leases in favour of the petitioners were not executed surreptitiously. The Pattas were executed in 1963. The irregularity, if any, of the leases could not be challenged in the proceedings under the Act. This could be done either in proceedings under S. 198 of the U.P. Act or by means of a regular suit. The consequence of the notification dated 31st December, 1965 under S. 117(6) of the U.P. Act was that the rights of the Gaon Sabha and the persons claiming through it. including the petitioners, came to an end. The petitioners ceased to be sirdars on the date when the notifications under Sections 4 and 6 of the Act were issued. The area of the plot which was the subject matter of the leases was not under cultivation in 1963 and thereafter. The portion of the plot of which the petitioners claim to be the sirdars did not constitute a "holding" within the meaning of the U.P. Tenancy Act, 1939 so as to fall in the exceptions provided for in S. 3 of the Act. 4. The first question to be determined is whether the plot was land (cultivable, barren) or forest when a notification under S. 4 of the U.P. Act was issued. 4. The first question to be determined is whether the plot was land (cultivable, barren) or forest when a notification under S. 4 of the U.P. Act was issued. In other words, whether on 1st July, 1952, the date of vesting, the plot was either land or forest. Under S. 6, the plot vested in the State of Uttar Pradesh free from all incumbrances with effect from 1st July, 1952 and the plot, in the condition as it was on 1st July, 1952, vested in the Gaon Sabha from the date of the notification under S. 117 of the U.P. Act. The Settlement Officer did not advert to this question at all. The appellate Authority, however, observed that the plot was forest and as such on 1st July, 1952 the same stood vested in the State and thereafter in the Gaon Sabha. It is to be noted that, apart from making this stray observation, there is no discussion as to how and in what manner the plot was considered as forest by it. It appears that before the authorities below, the respondents neither led any evidence nor produced any material to show that on 1st July, 1952, the plot was a forest. Even in this Court, despite the fact that the petitioners have averred that the plot was Banjar on the relevant date apart from denying this fact and reiterating that it was forest no material has been produced by the contesting respondents. This Court is entitled to take judicial notice of the fact that different notifications under S. 117 of the U.P. Act were issued with regard to land and forests and other things enumerated in S. 117. During the course of the arguments I suggested to learned Standing Counsel to find the particulars of the notification and produce a copy of the same, but he failed to do so. In the absence of any material the observation of the Appellate Authority, much less a finding, cannot be sustained and has to be ignored. 5. S. 3(14) of the U.P. Act provides that except in Chapter VII and some other provisions, with which we are not concerned, "land" means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. In Chapter VII falls S. 117. 5. S. 3(14) of the U.P. Act provides that except in Chapter VII and some other provisions, with which we are not concerned, "land" means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. In Chapter VII falls S. 117. That provision provides that at any time after the publication of the notification referred to in S. 4, the State Government may, by general or special order declare that as from a certain date all or any of the things enumerated therein, which had vested in the State under the U.P. Act shall vest in a Gaon Sabha. In S. 117 these things are mentioned. We are only concerned with the first two namely, (1) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove; and (2) forest. S. 195 of the U.P. Act provides that the Land Management Committee (substituted for Gaon Sabha by S. 53 of U.P. Act No. 37 of 1958) shall have the right to admit any person as Sirdar to any land where (a) the land is vacant land (b) the land is vested in the Gaon Sabha (substituted for Gaon Samaj by U.P. Act No. 33 of 1961) or (c) the land has come into the possession of the Land Management Committee under S. 194 or under any other provision of the U.P. Act (a) refers to land becoming vacant under any provision of the Act. Therefore, we are neither concerned with (a) or (c). We are directly concerned with (b). We have already seen that the definition of "land" as contained in S. 3(14) of the U.P. Act has no application to lands referred to in S. 117 and we have also seen that in S. 117 land may be cultivable or otherwise. In other words, S. 117 embraces land other than land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. It follows that S. 117 envisages vesting in the Gaon Sabha of land other than the one referred to in S. 3(14). And at the relevant time S. 195 empowered the Gaon Sabha to admit any person as sirdar to any land which vested in it under S. 117. It follows that S. 117 envisages vesting in the Gaon Sabha of land other than the one referred to in S. 3(14). And at the relevant time S. 195 empowered the Gaon Sabha to admit any person as sirdar to any land which vested in it under S. 117. The position, therefore, is that the definition of "land" as contained in S. 3(14) had and has no application to the land referred to in (b) of S. 195. This position is further clarified when we have in mind that S. 3 itself provides that "in this Act, unless there is anything repugnant in the subject or context", the definitions as enumerated therein would apply. In S. 195, the subject or context of land is certainly repugnant or contrary to the land as contemplated in the definition in S. 3(14). Clearly, the definition of "land" in S. 3(14) has no relevance in the context of S. 195. Therefore, there is no difficulty in taking the view that even forest land is covered by the expression land used in (b) of Section 195. 6. The Appellate Authority has rightly taken the view that in proceedings under the Act the legality or the regularity of the proceedings taken under S. 195 of the U.P. Act for admitting the petitioners as sirdars to a portion of the plot by executing leases or Pattas in their favour cannot be gone into. 7. Sub-sec. (4) of S. 198 at the relevant time empowered the Collector and even now empowers the Collector to cancel the allotment and the lease following it. In sub-sec. (5) of S. 198, every order made by the Collector under sub-sec. (4) has been made final. Of course, the finality is subject to a revision by the Board of Revenue under S. 333. The Appellate Authority patently erred in taking the view that the allotment made in favour of the petitioner could be annulled or interfered with by the Civil court. The reason is that the Legislature in its wisdom has in U.P. Act provided for a particular forum and resort can be had to that forum alone and to none other. 8. The Appellate Authority patently erred in taking the view that the allotment made in favour of the petitioner could be annulled or interfered with by the Civil court. The reason is that the Legislature in its wisdom has in U.P. Act provided for a particular forum and resort can be had to that forum alone and to none other. 8. In Simlesh Kumar v. Gaon Sabha, Uskar Ghazipur, AIR 1977 AII 360 : 1977 All LJ 310 a Full Bench of this Court relying upon Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 has taken the view that : "The last sub-section of S. 198 of the Zamindari Abolition Act declares that that the orders of the Collector are, subject to a revision under S. 333, "final". This thus bars a suit or any other proceeding in a civil court. The order passed by the Collector or any order passed by the Board of Revenue in a revision filed against the order of the Collector, if any, gains finality between the parties. These orders settle and conclude the rights of the parties. As such the rights cannot subsequently be reopened." The Full Bench, therefore, has taken the view that the consolidation authorities under the Consolidation of Holdings Act have no jurisdiction to cancel or set aside a lease or allotment made by the Land Management Committee under S. 198. This applies to the proceedings under the Act as well. 9. We have now to examine the impact of the notification issued by the State Government under S. 117(6) of the U.P. Act upon the rights of the petitioners as sirdars over a portion of the plot. To answer the query the question should be; what has been resumed by the State by exercising statutory power under section 117(6)? The answer is all or any one of the things mentioned in S. 117(1) and vested in the Gaon Sabha. The key to the solution of the problem is the legislative intent either express or implied in insisting upon the use of the word "vest" in S. 117(1) particularly in the background of the occurrence of the same word in Sections 4 and 6. 10. Operation of Sections 4 and 6 resulted in the complete destruction of all rights, title and interest of all the intermediaries in the things catalogued in Sub-cls. (i) and (ii) of cl. 10. Operation of Sections 4 and 6 resulted in the complete destruction of all rights, title and interest of all the intermediaries in the things catalogued in Sub-cls. (i) and (ii) of cl. (a) of S. 6. Instantaneously, those things stood vested in the State of Uttar Pradesh free from all incumbrances thereby, it (the State) became an absolute owner. S. 122A of the U.P. Act indicates that the Land Management Committee is given the general superintendence, management, preservation and control of all the land, forest within village boundaries, trees (other than trees in a holding, grove or abadi) fisheries, tanks, ponds, water channels, pathways, sabadi sites and hats, bazars and melas vested in the Gaon Sabha under S. 117. Sub-sec. (2) of S. 122A indicates that the settling and management of land is one of the incidences of general power of superintendence and management. It is, therefore, implicit in S. 122A that the State Government does not purport to transfer its proprietary rights when it vests the things mentioned in S. 117(1) by issuing a notification. It merely transfers the possession and management of the things for the time being. What is implicit in S. 122A is made explicit in S. 126 wherein the State Government is empowered to issue such orders and directions to the Land Management Committee as may appear necessary for the purposes of the U.P. Act. It also provides that it shall be the duty of the Land Management Committee and its office bearers to carry out such orders and comply with such directions. Apparently, the orders and directions can be-with regard to the general superintendence and management and other duties entrusted to the Land Management Committee with respect to land etc. as referred to in S. 122A. In other words, the Land Management Committee is duty bound to discharge its functions of the general superintendence, management, preservation and control of the land etc. vested in the Gaon Sabha in accordance with the directions and orders issued by the State Government. The preservation of the power of the State Government to issue orders and directions with regard to the management and superintendence of the things vested in the Gaon Sabha is completely destructive of the very idea of the transfer of its proprietary right and interest in the said things by the State Government. 11. The preservation of the power of the State Government to issue orders and directions with regard to the management and superintendence of the things vested in the Gaon Sabha is completely destructive of the very idea of the transfer of its proprietary right and interest in the said things by the State Government. 11. In State of U.P. v. Smt. Ramsri, AIR 1976 All 121 a Division Bench of this Court has taken the view that the word "vest" occurring in Section 117(1) merely connotes that on notification by the State Government under the provision passes only possession of the land concerned to the Gaon Sabha or any other local authority in whose favour such notification is made without any transfer of ownership therein resulting. Therefore, notwithstanding a notification under S. 117 (1) the State Government retains ownership in the land. This view has been affirmed by the Supreme Court in Maharaj Singh v. State of U.P., AIR 1976 SC 2602 . 12. Applying the principle as enunciated by the Supreme Court, the'ownership of the things in S. 117 is at no stage transferred to the Gaon Sabha. Therefore, the question of the acquisition of the proprietary right by the Gaon Sabha over the said things does not arise. The consequence of the action under S. 117(6) is that the Gaon Sabha is divested of its possession over the things. The duty cast upon it to supervise and manage the things comes to an automatic end the moment the possession of the things is taken back from it by the State Government. It cannot thereafter exercise any right of management or superintendence. However, the deprivation of its possession and the right of management do not nullify the actions already taken by it in the course of management of the things. Any transaction entered into by it or any action taken by it in furtherance of its obligation to manage and supervise the things will not only continue to exist but also continue to bind the State Government on whose behalf it had hithertofore been managing or superintending the things. Therefore, if in the course of management the Gaon Sabha settled the plot in dispute with the petitioners that settlement would remain intact and wholly unaffected by the resumption of the possession by the State Government of the things, including the land from the Gaon Sabha. Therefore, if in the course of management the Gaon Sabha settled the plot in dispute with the petitioners that settlement would remain intact and wholly unaffected by the resumption of the possession by the State Government of the things, including the land from the Gaon Sabha. The land was given to the petitioners by the Gaon Sabha while acting as the Manager of the State Government and the State Government is bound by the acts of its agent. 13. Under S. 19 of the U.P. Act all land held or deemed to have been held by certain classes of persons shall be deemed to be settled by the State Government with such persons who shall been titled to take or retain possession of the land as sirdars S. 131 provides that every person, who, as a consequence of the acquisition of estates, becomes a Sirdar under S. 19, every person who is admitted as sirdar of any land under or in accordance with the provisions of S. 195 or S. 196 and every person who in any manner acquires the rights of a sirdar under or in accordance with the provisions of the U. P. Act or of any other law for the time being in force, shall be called a Sirdar and shall have all rights and be subject to liability conferred upon a sirdar by or under the U.P. Act. We have seen that the Gaon Sabha in the purported exercise of power under S. 195 admitted the petitioners as sirdars over a portion of the plot. Therefore, the petitioners have all the rights and they are subject to all the liabilities which the sirdars enjoy and suffer under the U.P. Act. S. 190 lays down the conditions under which the interest of a sirdar in a holding or any part thereof shall be extinguished. It is thus clear that the interest of a sirdar cannot extinguish except upon the happening of the events mentioned in sub-cls. (a) to (f) of S. 190. By necessary implication, the Statute excludes any other contingency, the happening of which may result in the extinguishment of the interest of the sirdar. It is thus clear that the interest of a sirdar cannot extinguish except upon the happening of the events mentioned in sub-cls. (a) to (f) of S. 190. By necessary implication, the Statute excludes any other contingency, the happening of which may result in the extinguishment of the interest of the sirdar. To put it differently, if S. 190 does not provide that the interest of a sirdar, who has come into existence by the operation of S. 131(b), that is a person admitted as a sirdar of the land under or in accordance with the provisions of S. 195, shall extinguish upon the resumption of the land by the State Government from the Gaon Sabha by taking action under S. 117(6), such sirdars shall continue to be sirdars despite the action of the State Government under S. 117(6). Therefore, the view taken by the Appellate Authority that the rights of the petitioners as sirdars came to an end upon the issuance of the notification under S. 117(6) is patently erroneous. 14. Section 3 of the Act provides that the State Government may constitute any land which is for the time being comprised in any holding as a reserve forest. In the explanation to this section it is provided that the expression "holding" shall have the meaning assigned to it in the U.P. Tenancy Act, 1939. The authorities below have taken the view that since the petitioners failed to establish that the portion of the plot was ever under cultivation, particularly on or before the date of the notification under S. 4 of the Act, the same cannot be exempted from being declared as a reserved forest. S. 3(7) of the U.P. Tenancy Act, 1939 provides that "holding" 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 and in the case of a thekadar includes the theka area. We have, therefore, to find out the definition of land for understanding the import of the word "holding". 15. Land is defined in S. 3(10) of the said Act to mean :- 'Land' means land which is let or held for growing of crops, or as grove land or for pasturage. We have, therefore, to find out the definition of land for understanding the import of the word "holding". 15. Land is defined in S. 3(10) of the said Act to mean :- 'Land' means land which is let or held for growing of crops, or as grove land or for pasturage. It includes land covered by water used for the purpose of growing singhara or other produce, but does not include land for the time being. occupied by buildings or appurtenant thereto other than buildings which are improvements." So in the definition of land, we are concerned with the first part, namely, land which is let or held for growing of crops. The definition clearly indicates that the intention for which the letting takes place has merely to be seen. Two situations are provided even in the first part; one is land let for growing of crops and the other is land held for growing of crops. Actual growing of crops is not a sine qua non or a condition precedent for attracting the phrase "for growing of crops'. The moment the petitioners were allotted the plot by the Gaon Sabha under S. 195 of the U.P. Act, they became sirdars. Obviously, the letting took place for growing of crops in future. The intention is clarified if we look to the definition of land in the U. P. Act. In S. 3(14) of the Act land is defined to mean : "Land" except in Sections 109. 143 and 144 and Chapter VI means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming." 16. In State of U.P. v. Smt. Sarjoo Devi, (1977) 3 All LR 447 : AIR 1977 SC 2196 the Supreme Court considered the definition of land in the U. P. Act and observed that a bare perusal of the word `land' as contained in S. 3(14) of the U.P. Act would show that it is not necessary for the land to fall within the purview of this definition that it must be actually under cultivation or occupied for purposes connected with agriculture. The requirement of the definition is amply satisfied if the land is either held or occupied for purposes connected with agriculture. The requirement of the definition is amply satisfied if the land is either held or occupied for purposes connected with agriculture. The authorities below, therefore, patently erred in taking the view that despite the provisions as contained in S. 3 of the Act the plot in dispute could be declared as a reserved forest. 17. In the result, this petition succeeds and is allowed. The order dated 20th August, 1974 passed by the District Judge, Mirzapur (the Appellate Authority) is quashed. The order dated 24th March, 1968 passed by the Forest Settlement Officer, Varanasi is also quashed. The petitioners are entitled to their costs.