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2013 DIGILAW 136 (ALL)

Rajbir v. State of U. P. Thru' Collector, Meerut

2013-01-10

SIBGHAT ULLAH KHAN

body2013
JUDGMENT Sibghat Ullah Khan, J.: - Heard Shri N.C. Rajvanshi, learned Senior Counsel assisted by Shri M.K.Rajvanshi, learned counsel for the petitioners and Shri S.P.Mishra, learned standing counsel for the respondents 2. Forest Settlement Officer, Bijnore passed an order in favour of the petitioners on 15.2.2005 in Case No. A-75 of 2003 under Section 6/9 of Forest Act, copy of which is Annexure-15 to the writ petition. Against the said order State of Uttar Pradesh filed Misc. Appeal No. 72 of 2005 which was allowed by Additional District Judge, Court No. 8, Meerut on 17.1.2006 and order of Forest Settlement Officer was set aside. True copy of the order of the Appellate Court is Annexure-17 to the writ petition which has been challenged through this writ petition. 3. The matter relates to 80 Bigha Pukhta land (about 45 acres) of Plot No. 306 (Old Plot No.190) situate in Village Tarbiyatpur Sumali, Pargana Kithore, Tehsil Mawana District Meerut. The case taken up by the petitioners before the Forest Settlement Officer was that initially Smt. Bhagwan Kaur was zamindar of the land in dispute and it was included in Khewat No. 1; that she was doing agriculture upon the said land hence in the Khasra 1356 to 1359 fasli it was entered as her Khudkasht; in 1359 fasli her period of possession was mentioned as four years hence she became sirdar of the same on 1.7.1952 (first day of 1360 fasli). It was further stated that the name of Sirdar Smt. Bhagwan Kaur was entered in the revenue record till 1361 fasli however, unfortunately in 1362 fasli the land was entered as Banjar and belonging to the Forest department which entry was farzi. It was further stated that on coming to know about the fault in the revenue records objections were filed before Consolidation Officer after start of consolidation in the area in question, That the Consolidation Officer accepted the claim of the petitioners however, it held that it had no jurisdiction to hear the matter and only Forest Settlement Officer could decide the matter which order was maintained in appeal. It was further stated that provisions of Section-6 of Forest Act were not complied with before declaring the land in dispute as Forest Land hence notifications under Sections 4 and 20 were illegal (farzi). 4. It was further stated that provisions of Section-6 of Forest Act were not complied with before declaring the land in dispute as Forest Land hence notifications under Sections 4 and 20 were illegal (farzi). 4. Forest Department filed objections contending that Section-4 Forest Act notification was issued in 1955 and Section-20 notification was issued in 1970. 5. Through interim order dated 29.6.2004 Forest Settlement Officer held the objections of the petitioners to be with time. 6. It is mentioned in the order passed by F.S.O. that petitioners filed all the Khataunis from 1356 to 1365 fasli. Copy of order dated 20.9.2002 passed by Consolidation Officer was also filed. Forest Department filed copies of gazettes of 22.10.1955 and 29.8.1970. 7. This writ petition has been filed by seven persons. In the order passed by the Forest Settlement Officer it is mentioned that names of the petitioners (or their predecessors) were entered over different areas of plot No. 190 in 1356 fasli as Khudkast. Similar was the position in 1357, 1358, 1359 fasli with the increasing period of possession (four years in 1359 fasli as Khudkast). It is further mentioned that in khatauni of 1361-62 fasli the land was entered in the names of the petitioners as sirdar. In 1365 fasli number was changed to 306. It is quite clear that after 1361 fasli neither the name of the petitioners nor of any other private person is entered in the revenue record. 1362 fasli corresponds to 1.7.1955 to 30.6.1956. On 22.10.1955 notification under Section-4 of Forest Act had been issued. 8. There is absolutely no explanation as to why after 1361 fasli names of the petitioners were not entered in the revenue record. Issuance of Section-4 notification does not affect the continuing revenue entries. It is only after Section-20 notification that the names of private persons are expunged and the names of Forest Department is entered. 9. As mentioned in the opening paragraph of the order passed by the F.S.O. it was the specific case of the petitioners that the owner of the land in dispute was Smt. Bhagwan Kaur whose name was mentioned under Khewat No. 1. It is not understandable that if it was so then how the land in dispute was entered in the names of the petitioners as kudkast. Khudkast could be of the zamindar only. 10. It is not understandable that if it was so then how the land in dispute was entered in the names of the petitioners as kudkast. Khudkast could be of the zamindar only. 10. In any case it is the experience of the court that in order to grab the gaon sabha or government property people manipulate the certified copies of old records. I have discussed this aspect in detail in U.P. Avas Evam Vikas Parishad vs. Lajja Ram 2001 R.J. 770 : 2003 (95) RD 236, relevant part of which is quoted below: - If the presumption of entry in favour of plaintiff's father for four or seven years is to be presumed then presumption of correctness of discontinuance of entry for 40 years will also have to be drawn. Life of law has not been logic, it has been experience (O.W. Holmes). This principle applies with greater force on presumptions and human conduct. I have heard and decided hundreds of matters pertaining to agricultural land and my experience is that Gaon Sabha property has been looted by unscrupulous persons on a very large scale by manipulation in the revenue records and forging of orders particularly of consolidation courts. The modus operendi is that a very old entry or copy of order is produced like a rabbit from the hat of a magician and its resumption or recording is sought. Supreme Court in Civil Appeal No.1132 of 2011, Jagpal Singh and others Vs. State of Punjab, in Para-20 observed as follows: "20. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices." In Dina Nath Vs. State of U.P., 2009 (108) R.D. 321, I held that not making any efforts for getting the name of the petitioner entered in the revenue records on the basis of alleged patta by Gaon Sabha for 29 years proved that no patta was executed. State of U.P., 2009 (108) R.D. 321, I held that not making any efforts for getting the name of the petitioner entered in the revenue records on the basis of alleged patta by Gaon Sabha for 29 years proved that no patta was executed. I issued directions to all the Collectors to reopen all such cases where names of private persons were entered in the revenue records over Gaon Sabha land. Matter was carried to the Supreme Court in the form of S.L.P. (Civil) C.C. 4398 of 2010 Dina Nath Vs. State. The Supreme Court decided the matter on 29.03.2010 and quoted almost my entire judgment in inverted commas and approved the same. Accordingly, it is held that whenever a person comes along with the case that Gaon Sabha land was allotted to him or some order was passed by any Court in his favour declaring his right over Gaon Sabha land or some revenue entry was in his favour long before but during last several years his name is not recorded in the revenue records then an irrebuttable presumption amounting to almost conclusive proof must be drawn to the effect that allotment order or entry is forged. 11. In any case there is absolutely no explanation as to why proceedings were not initiated for declaration and correction of revenue record immediately after 1955. Objections were filed before Consolidation Officer in the year 2000. Earlier also consolidation must have taken place. It is quite clear that taking advantage of fresh round of consolidation petitioners filed objections in the year 2000 before consolidation officer to grab the land of the forest department and manufactured some certified copies of old documents. However, even if those copies are treated to be correct still petitioners have got absolutely no case. Objections were hopelessly barred by time. 12. After notification under Section 20 of Forest Act no one can raise any objection. In this regard learned standing counsel for the State has cited the authority of the Supreme Court reported in State of Uttar Pradesh vs. D.D.C. 1996 R.D. 448. 13. The following authorities have been cited by the learned counsel for the respondent. 14. First is State of U.P. Vs. Assistant Director of Consolidation 1999 R.D. 454. In this regard learned standing counsel for the State has cited the authority of the Supreme Court reported in State of Uttar Pradesh vs. D.D.C. 1996 R.D. 448. 13. The following authorities have been cited by the learned counsel for the respondent. 14. First is State of U.P. Vs. Assistant Director of Consolidation 1999 R.D. 454. However, that authority holding that consolidation authorities have got power to ignore the notifications under Section 4 and 20 of Forest Act is directly in conflict with the above authority of the Supreme Court. Similar is the position of the authority of Uttaranchal High Court reported in State of Uttrranchal vs. Lok Mani Sharma 2006 (100) R.D. 447. The third authority cited is the judgment dated 13.4.2013 given in writ petition No. 3825 of 1976 State of U.P. vs. IV A.D.J. However, the said judgment is not directly on the point. In the said case entry of the tenure holder was continuing until Section-4 notification. Accordingly, I do not find any error in the impugned order. In order to establish possession over agricultural land the most important evidence is of revenue record. If petitioners want to place reliance upon revenue record from 1356 to 1362 fasli on the ground of presumption then several times stronger presumption has to be drawn against them due to dis-continuance of their names since 1362 fasli (1956 A.D.). 15. Accordingly, writ petition is dismissed.