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2011 DIGILAW 456 (ALL)

JUDAWAN v. ADDITIONAL DISTRICT AND SESSION JUDGE

2011-02-24

S.U.KHAN

body2011
JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the petitioner as well as learned standing counsel for the respondents. 2. Even though the matter arises out of orders passed under Forest Act 1927 in respect of land situate in Tehsil Duddhi District Son Bhadra (initially it was part of District Mirzapur), however, earlier also order had been passed at the first stage by Forest Settlement Officer (F.S.O.) much prior to the order of the Supreme Court reported in Banwasi Seva Asram v. State of U.P., AIR 1987 SC 374 . Pursuant to the said order of the Supreme Court amendment was made in U.P.Z.A.L.R. Act 1950 and Section 131-A was added by U.P. Act No. 14 of 1987 w.e.f. 3.4.1987. The first part of the section is quoted below : 131 A - “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” 3. However, in the first instance proceedings were initiated in 1972. Annexure 1 to the writ petition is copy of order passed by Forest Settlement Officer, Mirzapur in case No. 1711 which had been registered on the objections filed by the petitioner under Section 6 of Forest Act. The necessity to file the said objections arose for the reason that the land in dispute had been included in the notification dated 17.7.1969 issued under Section 4 of the Forest Act. The names of the parties of the said case were Judawan Ram v. Additiona D.F.O.Duddhi, District Mirzapur. The said case was decided on 13.7.1972 and that related to plot No. 373 area 12 bigha 19 biswa 10 Dhur and plot No. 374 area 14 bigha. Through order dated 13.7.1972 passed under Section 11(2)(i) of Forest Act it was directed that the plots in dispute in the said case should be excluded from the limits of the proposed forest. Right of the petitioner was decided therein. Thereafter, petitioner also filed suit under Section 229 B of U.P.Z.A.L.R. Act (suit No. 126/1278 Judawan v. Forest Department and others). Right of the petitioner was decided therein. Thereafter, petitioner also filed suit under Section 229 B of U.P.Z.A.L.R. Act (suit No. 126/1278 Judawan v. Forest Department and others). The said suit was decided on 25.10.1978 by Additional A.D.O./Assistant record officer Duddhi, District Mirzapur in favour of the petitioner mainly on the basis of earlier judgment of Forest Settlement Officer. 4. It may be mentioned that plot Nos. 373 and 374 were afterwards renumbered 1989 and 1990. 5. It appears that thereafter, fresh proceedings were initiated under the Forest Act in respect of the area which included land in dispute also. Petitioner again filed objection before F.S.O. Duddhi, District Son Bhadra as by that time Tehsildar Duddhi had been included in the newly carved out District Son Bhadra. The case was registered as case No. 1878 Judawan v. Forest Department. The matter was decided on 8.8.1991 by F.S.O. in favour of the petitioner. His objections were accepted and land in dispute was again directed to be excluded from the limits of the proposed forest. In the said order it was mentioned that copy of order of S.D.O. had been filed by the petitioner and that petitioner was in possession and that petitioner’s name was continuing to be recorded in the revenue record since 1385 fasli (1.7.1977 to 30.6.1978). Against order dated 8.8.1991. Forest Department filed appeal No. 672 of 1991. A.D.J. Duddhi Son Bhadra allowed the appeal on 30.11.1991 and set aside the order of the Forest settlement Officer dated 8.8.1991 and directed that the land in dispute should be given to the Forest Department for making reserved forest. The learned A.D.J. mentioned in its judgment each and every document which had been filed by the petitioner including earlier order of F.S.O. dated 13.7.1972. 6. Appellate Court allowed the appeal firstly on the ground that petitioner had stated that his father had been granted patta of the land in dispute which could not be proved and secondly, on the ground that the Presiding Officer of the appellate Court had himself inspected the land in dispute on 28.9.1991 and found that a small portion of the land in dispute was ploughed and sown and rest part was unploughed and in entire plot No. 1989 forest and bushes were there and the plots in dispute also contained big rocks and several trees. 7. 7. Earlier matter had been decided in favour of the petitioner by Forest Settlement Officer under Section 11(2)(i) of Forest Act as well as by S.D.O. under Section 229-B of U.P.Z.A.L.R Act. The said orders were never challenged by the Forest Department. Accordingly, subsequently, those orders could not be set aside or ignored by the learned A.D.J. that also mainly on the ground of spot inspection. Even if at the time of inspection entire land was not found ploughed and sown still earlier judgments could not be ignored. Presence of trees and rocks etc. also could not warrant ignoring the doctrine of res judicata. 8. Accordingly, writ petition is allowed. Judgment and order passed by the lower appellate Court is set aside. Judgment and order passed by the F.S.O. Dated 8.8.1991 is restored. —————