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The State of U.P. Vs. Mahant Avaidh Nath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1539 of 1971
Judge
Reported inAIR1977All192
ActsForest Act, 1927 - Sections 3 and 9
AppellantThe State of U.P.
RespondentMahant Avaidh Nath
Appellant AdvocateStanding Counsel
Respondent AdvocateS.B. Misra, Adv.
DispositionAppeal dismissed
Excerpt:
.....right not covered under section 3. (ii) scope of word `forest' - section 3 of forest act, 1927 - grove land not intended to mean forest land. (iii)raising of objections - section 9 of forest act, 1927 - no objections raised regarding land being out of scope of section 3 - not amounting to handing over of right. - - 1. 4. the defence delivered was that the plots constituted a forest and a part of the land was waste as well. it was urged that since the respondent failed to prefer any claim under section 6 of the act his rights, if any, got extinguished under section 9. section 9 reads: the second requirement of the section accordingly was satisfied in respect of such land. 13. learned counsel then urged that the respondent having failed to file objections had waived his rights under..........recorded by both the courts below is that it was neither a forest land nor a waste land but a grove land over which a grove had been planted by the plaintiff or his predecessors in interest. the finding is one of fact and binding in second appeal. 11. learned counsel for the appellant did not challenge this finding. the case thus proceeds on the footing that it was a grove land to which the provisions of section 3 of the act were applied. a grove is not a forest. in 19 corpus juris secundum it is stated that 'a grove is a cluster of trees not to be sufficiently extensive to be called a wood, a group of trees of indefinite extent.' learned counsel for the appellant invited my attention to laxman ichharam v. divisional forest officer (air 1953 nag 51) where it was observed that the.....
Judgment:

Gopi Nath, J.

1. This is a defendants' appeal arising out of a suit for injunction restraining the defendants from interfering with the plaintiffs' possession over the land in dispute and obstructing him from appropriating the timber of the trees of the plots in suit. The dispute relates to 8 plots of village Chowk, Tappa Sonari, Pargana Tilpur, Tahsil Mah-rajganj, district Gorakhpur.

2. Plaintiffs case was that there was a temple of Sri Gorakhnath in Gorakhpur, that the plaintiff was the Mahant of the temple, that the plots in dispute were groves planted by the temple in order to provide firewood for the maintenance of a perpetual fire (Akhand Dhuni) of Sri Gorakh Nath Ji and for use of every day Bhandara of Sadhus in the temple. The plaintiff-respondent claimed to be the Bhumidhar in possesion of the plots in dispute. The Forest Department of the State, it was alleged illegally issued a notification declaring the said plots as Reserved Forest. Plaintiff's case was that the said plots did not constitute a forest. They were groves under the U. P. Zamindari Abolition end Land Reforms Act and could not be declared a reserved forest under the Forest Act, (hereinafter referred to as the Act). It was alleged that the defendant No. 1 under the cover of a notification issued under the Forest Act was illegally interfering with the plaintiff's possession over the said plots. A notice under Section 80, C.P.C. was served on the State Authorities requiring them to abstain from interfering with the plaintiff's possession tout to no effect, hence the suit.

3. Defendants Nos. 2 and 3 the Gaon Siamaj and the Gaon Sabha of village Chowk, Tappa Sonari. Pargana Silpur, Tahsil Mahrajganj, district Gorakhpur, did not contest the suit. It was contested only by the State of U. P., defendant No. 1.

4. The defence delivered was that the plots constituted a forest and a part of the land was waste as well. The plots vested in the State after the coming into force of the Zamindari Abolition and Land Reforms Act, 1951. It was alleged that under a notification dated 11-2-1954 the Land was notified as having vested in the Forest Department of the State and the State Government thereafter issued a Notification declaring the plots as Reserved Forest under Section 4 of the Act. Proclamation under Section 6 was issued, on 6-8-1954, inviting objections by the claimants. Since the plaintiff did not file any objection, the Forest Settlement Officer declared the land in dispute as Reserved Forest by order dated 15-5-1958. After the publication of the notification under Section 20 of the Act, the plaintiff filed an objection on 3-5-59 which was rejected by the Forest Settlement Officer on 18-12-1969. An appeal filed against that order was allowed and the case was remanded. But on revision by the State the order of the Forest Settlement Officer was upheld and the order of the Additional Commissioner in appeal was set aside. The defendant pleaded that the State Government came in possession of the land in dispute on the vesting of estates under the U. P. Zamindari Abolition and Land Reforms Act and all rights, title and interest of the plaintiff, if any, were extinguished after vesting. It was further pleaded that the plaintiff was never in possession of the land in dispute nor were the plots a grove. It was alleged that the trees were self grown and were not planted by the plaintiff or his predecessors in interest. The plaintiff accordingly could not claim any title in them. It was further pleaded that the suit was not cognizable by the Civil Court and was further barred by the provisions of the Forest Act as also by Sections 38, 41 and 42 of the Specific Relief Act.

5. The trial court dismissed the suit on the findings that though the plots were a grove and the plaintiff was a Bhumidhar thereof but since he was out of possession he could not claim a relief of injunction. It further held that though the suit was not barred by the provisions of the Forest Act and the notification declaring the plots as Reserved Forest was illegal but since the suit involved a declaration of the plaintiff's Bhumidhari title to the plots, the Civil Court had no jurisdiction to try the same. No decree accordingly could be granted in the plaintiff's favour,

6. Since this appeal has been confined only to the question of the maintainability of the suit, I have found it unnecessary to refer to the other findings recorded by the trial court.

7. On appeal the lower appellate court reserved the decree and has decreed the suit on the finding that the suit was cognizable by the Civil Court, the main relief being of injunction and not of declaration under Section 229-B of the Zamindari Abolition and Land Reforms Act. The learned Judge was of opinion that no declaration had been claimed by the plaintiff and all that he claimed was an injunction on the ground that he being a Bhumidhar in possession was entitled to restrain the defendants from interfering with his possession over the plots in dispute. The notification declaring the plots as Reserved Forest could accordingly be ignored as one passed without jurisdiction. The suit in these circumstances was found maintainable in the civil court. He held that since the plaintiff was a Bhumidhar in possession of the plots which constituted a grove his rights could not be affected by an invalid declaration of the State Government declaring the land as Reserved Forest. The lower appellate court further found that the trees were planted by the plaintiff or his predecessors in interest and were not self-grown and the fuel from them was used for the 'Akhand Dhuni' of the temple. The plots were further found as constituting a grove and no part of them was found as waste land. The plaintiff accordingly was held a Bhumidhar of the same under Section 18 of the U. P, Zamindari Abolition and Land Reforms Act. This part of the plaintiff's case was admitted in the written statement of the defendant No. 3. The learned Judge then held that since the land in dispute was the Bhumidhari of the plaintiff, it did not vest in the State Government under the Forest Act. it being neither a forest land nor a waste land. The notification declaring the land as Reserved Forest was accordingly held invalid and not binding on the plaintiff. The learned Judge found that the plaintiff had all along been in possession of the land in dispute and exercising control over it through his servants and enjoying the usufructs of the grove. The suit accordingly was decreed as prayed.

8. Aggrieved the State has come up in second appeal.

9. Learned counsel for the appellant has raised two points in this appeal:

(1) that the declaration made under the Forest Act could not be challenged by the suit, the same being barred under the provisions of that Act; and

(2) that the suit was not cognizable by the Civil Court.

It was urged that since the respondent failed to prefer any claim under Section 6 of the Act his rights, if any, got extinguished under Section 9. Section 9 reads:

'9. Extinction of rights.

Rights in respect of which no claim has been preferred under Section 6, and of the existence of which no knowledge has been acquired by inquiry under Section 7, shall be extinguished, unless, before the notification under Section 20 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under Section 6.'

Under the Act the Government deals with forests in three ways: It declares certain forests as reserved forest under Chapter II. There is a formation of village forests under Chapter III. Chapter IV provides for a declaration of certain forests as protected forest. In the instant case the respondent's land was declared as a reserved forest under Chapter II, The procedure for this declaration is as follows:

Section 3 provides:

'The State Government may constitute any forest land or waste land whichis the property of Government, or over which the Government has proprietary rights; or to the whole or any part of the forest produce of which the Government is entitled, a reserved forest in the manner hereinafter provided,'

Power is thus given to the Government under this section to constitute any forest land or waste land as a reserved forest. The section applies to forest land and waste land only. To attract the provisions two conditions must exist:

(i) that the land is forest land or waste land, and

(ii) that it is the property of the Government.

Section 4 then empowered the State Government to issue a notification declaring that it has decided to constitute such land as a reserved forest. Section 4 also thus applies to land falling under Section 3. Section 5 bars the accrual of forest rights in the land notified under Section4. Section 6 then provides for the issue of a proclamation, specifying the situation and limits of the forest land which it is proposed to declare as a reserved forest. By Sub-section (c) of Section 6 a period not less than three months is prescribed for preferring a claim by persons who claim any rights under Section 4 or Section 5 of the Act. Section 7 requires the Forest Settlement Officer to conduct an enquiry into claims preferred under Section 6. Section 8 deals with the power of the Forest Settlement Officer. Section 9 then provides that if no claim is preferred within the period prescribed the rights of the claimant shall get extinguished. The claim gets extinguished under Section 9 in respect of rights in forest land or waste land falling under Section 3. No question of extinguishment of any right can arise in respect of land which does not fall under Section 3.

10. The argument of the learned counsel for the appellant as to the extinguishment of the respondents' rights proceeded upon an assumption that the land in dispute was covered by Section 3. The omission to prefer a claim consequently resulted in the extinction of his rights under Section 9. This assumption is misconceived. It is settled law that an ultra vires act of the Government cannot create rights in its favour and unlawful administrative acts cannot confer jurisdiction where none exists. There is a distinction between acts done within the jurisdiction where exercise of power is made in an irregular manner, and those where the act itself is beyond jurisdiction and ultra vires. In the instant case before the provisions of Section 9 could be attracted it had to be established by the Government that the land in dispute was either forest land or waste land within the meaning of Section 3 of the Act. The finding recorded by both the courts below is that it was neither a forest land nor a waste land but a grove land over which a grove had been planted by the plaintiff or his predecessors in interest. The finding is one of fact and binding in second appeal.

11. Learned counsel for the appellant did not challenge this finding. The case thus proceeds on the footing that it was a grove land to which the provisions of Section 3 of the Act were applied. A grove is not a forest. In 19 Corpus Juris Secundum it is stated that 'a grove is a cluster of trees not to be sufficiently extensive to be called a wood, a group of trees of indefinite extent.' Learned counsel for the appellant invited my attention to Laxman Ichharam v. Divisional Forest Officer (AIR 1953 Nag 51) where it was observed that the term 'forest' having not been defined in the Forest Act the meaning given in the Shorter Oxford English Dictionary may be applied which is as follows:

'an extensive tract of land covered with trees and under growth sometimes intermingled with pasture.....'

This case does not hold that a grove within the meaning of Section 3 of the U. P. Tenancy Act is a forest. There is obviously a distinction between a grove and a forest, otherwise all groves would become forests. If that were so. then even a very small piece of land over which a grove stands may be declared a reserved forest under Section 3 of the Forest Act. In the U. P. Zamindari Abolition and Land Reforms Act itself the legislature has drawn a distinction between a 'forest' and a 'grove'. Forest land under Section 117 of that Act vests in the Gaon Sabha while groves are settled as Bhumidaris with the intermediaries or grove holders, The intention was made further clear by U. P. Act No. 23 of 1965. Section 3 of the Indian Forest Act 1927 was substituted by the following:

'3. Power to reserve forests.

The State Government may constitute any forest land or waste land or any other land not being the land for the time being comprised in any holding or grove or in any village Abadi 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 of which the Government is entitled, a reserve forest in the manner hereinafter provided.''

By the State Amendment of the section, land other than forest land or waste land can also be constituted a reserve forest. But holdings and grove are excluded. Thus grove land was never intended to be included wthin the term 'forest land' or 'waste land' in order to declare the same as a reserved forest. Once Section 3 did not cover this land the proceedings taken were without jurisdiction and ultra vires. In Secretary of State v. Abdul Rahman (AIR 1923 Cal 377) it was held that where Section 3 of the Act did not apply to the land in question Sections 6, 7 and 9 were equally unattracted and the proceedings taken were ultra vires and the orders passed a nullity.

12. Learned counsel for the appellant on the basis of Mahendra Lal Jaini v. State of U. P. : AIR1963SC1019 urged that land forming Bhumidari of tenure holders could be declared reserved forest. The case was concerned with the second part of Section 3 of the Act which dealt with the Government's proprietary right over the land. It was held that the Government was the proprietor of all Bhumidhari land and the Bhumi-dharis had only a subordinate right in it. The second requirement of the Section accordingly was satisfied in respect of such land. It was not held that grove land was forest land within the meaning of Section 3 of the Act. The appellant in that case had claimed rights under Section 18 (d) (3) of the Zamindari Abolition and Land Reforms Act which dealt with sir land held under Patta Dwami or Istemrari. The land, it appears, had become waste land in that case. The case in hand is concerned with grove land and would fall either under Sub-section (a) or Sub-section (e) of Section 18. Mahendra Lal's case is thus distinguishable. Once the land in dispute was neither forest land nor waste land within the meaning of Section 3 of the Act the proceedings taken were void and the respondent's rights were not affected.

13. Learned counsel then urged that the respondent having failed to file objections had waived his rights under the Act and provisions of Section 9 could be pressed into service. Reliance was placed on Dhirendra Nath Gorai v. Sudhir Chandra Ghosh : [1964]6SCR1001 . That case has no application in the instant case. The judgment-debtor in Dhirendra Nath Gorai's case had not availed himself of the provisions of Section 35 of the Bengal Money Lender's Act. He was found precluded from raising an objection to the drawing up of the sale proclamation in proceedings for setting aside the sale under Order 21, Rule 90 of the Code of Civil Procedure. It was observed by their Lordships that 'A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none'.

14. The proceedings, under the Forest Act being ultra vires, the provisions of Section 9 could not be invoked as barring the instant suit. The contention fails and is rejected. This was the main point urged in the appeal.

15. As regards the maintainability of the suit in the Civil Court no serious argument was advanced. The suit was mainly for injunction. In Ram Awalamb v. Jata Shanker : AIR1969All526 a Full Bench of this Court held that if the main relief was for injunction the suit lay in the Civil Court.

16. The appeal Sails and is dismissed. But in the circumstances the parties shall bear their own costs. The interim order dated 21-7-1971 is discharged.


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