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IN THE HIGH COURT OF ALLAHABAD
YASHWANT VARMA, J.
Ram Prasad – Appellant
Versus
State Of U.P. And Others – Respondent
Writ C. No.41929 of 2018
Decided on : 09-07-2021
Indian Forest Act, 1927 - Section 4 - Forest Conservation Act, 1980 - Section 2 - U.P. Revenue Code 2006 - Section 98 - Notification - Dereservation of forests or use of forest land for non-forest purpose- Restriction of - Respondent refusing permission to the petitioner to sell a part of his land holding - Validity of stand taken by respondents as it stands - reflected from the impugned order -
Finding of the court: Court opinion that it was not open for third respondent to defer consideration of grant of permission merely because State had itself failed to implement judgment of this Court in Jai Ram. In any case, rights of petitioner and private respondents already stood settled in light of orders passed by FSO and Additional District Judge - The phrase “forest land” as used by the learned Judge while deciding Jai Ram. As noted hereinabove, landholding of petitioner did not remain forest land once it came to be excluded from the proposed reserved forest by virtue of order passed by FSO - There was no explicit restraint on transfer entered at all. The only two restraints that were placed was in respect of cutting of trees and damage to “forest land”. The Court fails to appreciate how aforesaid injunction could eclipse rights conferred on the petitioner by Section 98 of the Code
Result: Writ petition is allowed
JUDGMENT :
1. Heard learned counsel for the petitioner, Sri Saurabh Kumar who appears for respondent Nos. 5 to 11 and Sri Birendra Pratap Singh learned Standing Counsel for the State respondents.
2. The petitioner claims to be the bhumidhar over plot No. 961/1. The aforesaid plot is situated in Village Patwadh Tehsil Robertsganj District Sonbhadra and forms part of a belt of land falling south of the Kaimur Range. According to the petitioner the plot admeasures 10 Bighas 9 biswa. The petition challenges an order dated 06 October 2018 passed by the third respondent refusing permission to the petitioner to sell a part of his land holding. That permission was sought by the petitioner who belongs to the Scheduled Castes in light of the provisions made in Section 98 of the U.P. Revenue Code 20061. Section 98 of the Code reads thus:
Provided that the permission by the Collector may be granted only when-Code
(a) the bhumidhar belonging to a scheduled caste has no surviving heir specified in clause (a) of sub-section
(2) of Section 108 or clause (a) of Section 110, as the case may be; or
(b) the bhumidhar belonging to a scheduled caste has settled or is ordinarily residing in the district other than that in which the land proposed to be transferred is situate or in any other State for the purpose of any service or any trade, occupation, profession or business; or
(c) the Collector is, for the reasons prescribed, satisfied that it is necessary to grant the permission for transfer of land.
(2) For the purposes of granting permission under this section, the Collector may make such inquiry as may be prescribed.]"
3. Before proceeding further, however, it would be apposite to step back and sketch the backdrop in which the controversy would have to be decided.
4. It would be relevant to recollect that this vast tract of land falling south of the Kaimur Range in District Sonbhadra formed subject matter of proceedings before the Supreme Court in Banwasi Sewa Ashram v. State of U.P. And Others, (1986) 4 SCC 453. This celebrated judgment took up the grievance of numerous traditional forest dwellers, members of the SC/ST communities who had been in possession of the said land for decades and were being evicted or deprived of their right to cultivate their land consequent to the inclusion of this vast area in various notifications issued under section 4 of the Indian Forest Act, 1927[1927 Act]. In order to safeguard their rights and to ensure that a fair and transparent process of settlement was undertaken, the Supreme Court proceeded to formulate a special procedure for the trial and disposal of claims.
5. Departing from the statutory mechanism inbuilt and laid in place by the 1927 Act, it provided that all claims of landholders and persons found in possession would firstly be decided by the Forest Settlement Officers, FSO.
6. Their decisions were thereafter to be placed before designated courts of Additional District Judges by way of suo moto appeals. The Additional District Judges were to examine and scrutinize the decisions of the FSO and after hearing the landholders or persons found to be in possession dispose of those appeals. The decisions rendered by the Additional District Judges were in terms of the directions issued by the Supreme Court liable to be treated as final and to be recognised as orders contemplated under the 1927 Act.
7. The salient orders which were passed by the Supreme Court in the aforesaid matter were noticed in great detail by this Court in State of U.P. Vs. ADJ Anpara and others, 2019 (10) ADJ 771. The extracts of that decision are reproduced hereinbelow:-
Forest land - Restrictions on transfer by bhumidhars belonging to a scheduled caste - Land which had been included in a notification issued under Section 4 of 1927 Act, would also be subject to rigou....
A decision by an authority exercising discretionary power under a statute must be arrived at by taking into account the relevant considerations and eschewing the irrelevant considerations, in the abs....
The judgment emphasizes the importance of continuous rent receipts and evidence of possession in validating land settlements under the Bihar Land Reforms Act, 1950. It also highlights the significanc....
Section 41 says that where with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consider....
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