Ashok Bhushan, J.
1. Heard counsel for the petitioners.
2. This writ petition has been filed by the petitioners praying for quashing of the order dated 25.6.2001 passed by the Deputy Director of Consolidation, Barellly, order dated 15.12.2000 passed by the Settlement Officer of Consolidation Camp at Shahjahanpur and the order dated 25.1.1973 passed by the Consolidation Officer, Shahjahanpur. The petitioners have prayed for quashing of the orders passed in revision Nos. 99, 108 and 109.
3. Facts of the case as emerge from the pleadings of the writ petition are ; the dispute relates to Gata No. 41-M (15.00, acres) of Khata No. 103 ; Gata No. 2-M (8.50 acres) of Khata No. 262 and Gata No. 2-M (6.25 acres) of Khata No. 41 situated in village Gahloioya, Paragana and Tehsil Powayan, district Shahjahanpur. A notification under Section 4 of Indian Forest Act, 1927. (hereinafter referred to as the Forest Act) was issued by the State Government proposing the area therein to be declared as reserved forest on 27.3.1954. The concerned Sub-Divisional Officer was appointed as forest settlement officer. Further, a notification under Section 6 of the Forest Act was issued on 29.6.1963. Lastly, notification under Section 20 of the Forest Act was issued on 3.8.1966 declaring the area included therein as reserved forest.Petitioners have stated that the Gaon Sabha executed lease in favour of one Tara Singh of plot No. 41-M on 5.4.1964. Petitioners Nos. 1 and 2 and Mahendra Singh (predecessor-in interest of petitioners No. 3, 4 and 5) claimed to have taken a sale deed dated 7.6.1965 from said Tara Singh and others regarding the plot No. 41-M area 15.00 acres and it is stated in the writ petition that their names were also mutated. Plot No. 2-M area 8.50 acres of Khata No. 262 was claimed to be holding of one Charan Singh and Ratan Singh who sold the same in favour of the petitioner No. 6 by registered deed dated 28.9.1966. Similarly, plot No. 2-M (6.25 acres) of Khata No. 41 was claimed to be holding of one Daya Ram who sold it in favour of the petitioner No. 7.
4. Consolidation operations in village in question started in accordance with the provisions of U.P. Consolidation of Holdings Act, 1953, in which the objections were filed by the vendors and some of the petitioners. It was claimed in the objection that the name of the petitioners have been rightly recorded on the basis of the various sale-deeds and lease deeds and the area is wrongly included in the Khatas of the Forest Department from which Khata the area should be scored of. Tara Singh the vendor who executed the sale deed in favour of some of the petitioners had filed objections that the names of vendors be recorded. The consolidation officer rejected the objections of the petitioners. The consolidation officer took the view that the notification of the land was issued under Sections 4, 6 and 20 of the Forest Act in which after expiry of time for filing objections the land was declared as reserved forest and the objectors did not raise any claim before the forest settlement officer, hence their objections cannot be accepted. The consolidation officer further held that after publication of notification under Section 20 of the Forest Act, the consolidation courts had no jurisdiction to delete the name of the forest department. Appeals were filed by the petitioners along with several other persons against the order of the consolidation officerwhich were dismissed on 15.12.2000. Several revisions were also filed against the order of the settlement officer of consolidation which too were dismissed by the Deputy Director of Consolidation vide his order dated 25.6.2001. The Deputy Director of Consolidation also took the view that in view of the notification under Sections 4, 6 and 20 of the Forest Act declaring the land as reserved forest no rights can be given to the objector either by lease or sale deed. It was further held that the objectors ought to have filed objections before the forest settlement officer who was the competent authority. The Deputy Director of Consolidation placed reliance on the judgment of the Apex Court in the case of State of U.P. v. Deputy Director of Consolidation and Ors. 1996 All LJ 1393, to the effect that after publication of the notification under Section 20 of the Forest Act consolidation courts have no jurisdiction to take out the land from the Khata of the Forest. The objectors are aggrieved against the aforesaid orders passed by the consolidation authorities and have challenged the same in this writ petition,
5. The counsel for the petitioner Sri P.N. Khare submitted that the orders passed by the consolidation authorities are erroneous and not in accordance with law as declared by this Court in several decisions. The counsel submitted that the land in question was bhumidhari of petitioners and prior to its purchase by the petitioners was part of holding of predecessor in title of the petitioners and no proceedings under the Indian Forest Act, 1927, could have been held for declaring the said area as reserved forest. Counsel for the petitioner submitted that the reserved forest cannot be declared of a land which is part of holding of a tenure-holder. Counsel for the petitioner placed reliance on two judgments of this Court i.e., Ratan Singh and Ors. v. State of U. P, and Ors., 1979 All LJ 1216 and State of U.P. v. Assistant Director of Consolidation. Baretlly and Ors., 1999 All LJ 1673.
6. After having heard counsel for the petitioner and after perusing the records, following questions arise for determination in the present writ petition :
1. Whether the consolidation courts are entitled to consider the objections regarding the claims of land which has been declared as reserved forest in accordance with the provisions of the Indian Forest Act, 1927?
2. Whether Section 27A of Indian Forest Act, 1927 (as amended in U.P.) creates a bar for consideration of claims by consolidation courts regarding the land declared as reserved forest in accordance with the Indian Forest Act, 1927?
3. Whether any land forming part of holding of a tenure-holder can be declared as reserved forest under the provisions of the Indian Forest Act, 1927?
4. Relief, if any, to which petitioners are entitled in the writ petition?
7. Before considering the issues which arise in the writ petition, it is necessary to look into the scheme and the nature of proceeding which are holding under the provisions of the Indian Forest Act, 1927, The Forest Act. 1927, was enacted to consolidate the law relating to forest, the transit of forest-produce and other connected matters. Chapter 11 of the Act relates to reserved forest. Section 3 provides the power to reserve forests. This Section provides that the State Government may constitute any forest land or waste land which is the property of Government or over which the Government has proprietary rights, a reserved forest. Section 3 is quoted as under:
'Section 3--Power to reserve forests.--The State Government may constitute any forest-land or waste land which is the property of Government, or over which theGovernment 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.'
8. Section 3 as in its application to the State of Uttar Pradesh, has been substituted by U.P. Act No. XXIII of 1965 with effect from 23.11.1965, to following effect:
'3. Power to reserve forests.--The State Government may constitute any forest land or waste land or any other land (not being 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.'
Explanation.--The expression 'holding' shall have the meaning assigned to, it in the U.P. Tenancy Act, 1939, the expression 'village abadi' shall have meaning assigned to it in the U.P. Village Abadi Act. 1947.'
9. Section 4 provides that whenever it has been decided to constitute any land a reserved forest, the State Government shall Issue a notification in the Official Gazette. Section 4 is quoted as below :
'Section 4 : Notification by State Government---(1) Whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette :
(a) declaring that it has been decided to constitute such land a reserved forest ;
(b) specifying as nearly as possible, the situation and limits of such land ; and
(c) appointing an officer (hereinafter called 'the forest settlement officer') to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits, or in or over any forest produce, and to deal with the same as provided in this Chapter.
Explanation---For the purpose of Clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries.
(2) The officer appointed under Clause (c) of Sub-section (1) shall ordinarily be a person not holding any forest office except that of forest settlement officer.
(3) Nothing in this Section shall prevent the State Government from appointing any number of officers not exceeding three, not more than one of whom shall be a person holding any forest office except as aforesaid, to perform the duties of a forest settlement officer under this Act.'
Section 6 further provides that after issue of notification under Section 4 of the Forest Act, the forest settlement officer shall publish in the local vernacular in every town and village in the neighbourhood of the land comprised therein a proclamation specifying, as nearly as possible, the situation and limits of the proposed forest explaining the consequences and fixing period of not less than three months and requiring every person claiming any right mentioned in Section 4 or 5 within such period to appear before the forest settlement officer and state, the nature of such right and the amount and particulars of the compensation claimed in respect thereof. Section 7 is regarding inquiry by forest settlement officer. Section 7 is quoted below :
'Section 7 : Inquiry by forest settlement officer.--The forest settlement officer shall take down in writing all settlements madeunder Section 6, and shall at some convenient place inquire into all claims duly preferred under that Section, and the existence of any rights mentioned in Section 4 or Section 5 and not claimed under Section 6 so far as the same may be ascertainable from the records of Government and the evidence of any person likely to be acquainted with the same.
10. Section 8 is regarding power of the forest settlement officer. Section 8 is material since it provides that the forest settlement officer will have all the powers of the civil court in the trial of the suit. Section 9 is with regard to extinction of rights. Sections 8 and 9 are extracted below :
'Section 8--Power of forest settlement officer.--For the purpose of such inquiry, the forest settlement officer may exercise the following powers, that is to say :
(a) power to enter, by himself or any officer authorised by him for the purpose, upon any land, and to survey, demarcate and make a map of the same : and
(b) the powers of a civil court in the trial of the suit.'
'Section 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.'
11. Section 11 of the Act provides that the forest settlement officer shall pass an order admitting or rejecting the claim to a right in or over any land. Sub-section (2) of Section 11 provides that if claim is admitted inwhole or in part then he will either exclude such land from limit of the proposed forest or come to an agreement with the owner thereof for the surrender of his rights, or proceed to acquire such land in the manner provided by the Land Acquisition Act, 1894. Section 17 provides for right of appeal to a claimant against the order of forest settlement officer to such officer of revenue department, of rank not lower than that of Collector as the State Government by notification in the Official Gazette, appoint, to hear appeals from such orders. This Section also contemplates creation of a Court namely forest court. Section 20 provides for issue of notification declaring reserved forest. Section 20 is extracted below :
'Section 20 -- Notification declaring forest reserved.--[1] When the following events have occurred, namely :
(a) the period fixed under Section 6 for preferring claim be elapsed and all claims. If any, made under that Section or Section 9 have been disposed of by the forest settlement officer ;
(b) If any such claims have been made, the period limited by Section 17 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer or Court ; and
(c) All lands (if any) to be included in the proposed forest, which the forest settlement officer has, under Section 11, elected to acquire under the Land Acquisition Act, 1894 (1 of 1894), have become vested in the Government under Section 16 of that Act.
The State Government shall publish a notification in theOfficial Gazette, specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification.
(2) From the date settlement officer fixed such forest shall be deemed to be a reserved forest.'
Section 27A has been added by the U.P. Act No. 23 of 1965 which reads as under :
'Section 27A--Finality of orders, etc.--No act done, order made or certificate issued in exercise of any power conferred by or under this Chapter shall, except as herein before provided, be called in question in any Court.'
12. The scheme of the Forest Act, is evident from the various provisions as referred above, clearly proved that in the proceeding beginning by notification under Section 4 all claims regarding land included in the notification are adjudicated by an authorised officer. All claims to the land can be made and adjudicated. Section 8 gives all powers of the civil courts to the forest settlement officer available in trial of the suits. There is appeal provided under Section 17 to . higher forum. The notification under Section 4 is published in Official Gazette appointing forest settlement officer to inquire and determine any right in or over any land. Forest Settlement Officer also issues a proclamation in every town and village in the neighbourhood to make the proceedings known to all concerned. The adjudication of all claims to the land is by a special court with right of appeal. The enquiry regarding claims is for the purpose of finding out as to whether the land in question can be declared as reserved forest or it cannot be declared reserved forest due to the rights or claims of claimants and the provision further contemplates that even if right or claim of claimants has been established there is procedure for coming to agreement with the owner for surrender of his right or toacquire such land in the manner provided by the Land Acquisition Act. The provision of the Act contemplates extinction of all rights regarding land included in the reserved forest.
13. Section 27A has been added giving finality to the orders passed in proceedings under the Indian Forest Act and Section creates express bar by saying that the order made or certificate issued in exercise of powers conferred in Chapter II shall not be called to question in any Court. While considering the question of exclusion of jurisdiction of the civil court, Constitution Bench of the Apex Court in Dhulabhai etc. v. State of Uttar Pradesh and Anr., AIR 1969 SC 78 has laid down principle for determination regarding exclusion of jurisdiction. It was laid down in paragraph 32 (1) at page 89 as under :
'Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'
14. U.P. Consolidation of Holdings Act, 1953, has been enacted to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of the agriculture. Section 9 Sub-section (1) provides for issue of notice for inviting objection and Section 9(2) contemplates filing of objection. Section 9A refers to disposal of case-relating to claim to land and partition of Joint holdings. There is provision of appeal and revision. While deciding objections under Section 9A (2), the consolidation courts cannot disregard a binding decree of the competent court deciding title to the land. The scheme of the Act also reveals that in consolidation Act also, the claims of the parties are decided which claimalso bars any subsequent adjudication as per provisions of Section 49. The dispute under the Forest Act is dispute of claims of land qua declaration of area as reserved forest, the declaration under Forest Act declaring an area as reserved forest will exclude Jurisdiction of any subsequent Court to reexamine the matter by virtue of provision of Section 27A.
15. The Apex Court had occasion to consider the aforesaid controversy in State of U.P. v. Deputy Director of Consolidation and Ors., 1996 All LJ 1393 (SC). In the aforesaid case before the Apex Court also, the land in dispute was notified as reserved forest under Section 20 of the Forest Act. Before the consolidation courts, the claimants claimed sirdari right and asserted that the land was Illegally subjected to be proceeding under the Forest Act and the notification declaring the land as reserved forest was illegal. The consolidation courts accepted objection of the claimants and allowed their objections. The writ petition was dismissed by the High Court against which an appeal was filed before the Apex Court. After examining the nature of proceedings under the Forest Act, the Apex Court laid down in paragraph 10 :
'10. It is thus obvious that the forest settlement officer has the powers of a civil court and his order is subject to appeal and finally revision before the State Government. The Act is complete Code in itself and contains elaborate procedure for declaring and notifying a reserve forest. Once a notification under Section 20 of the Act declaring a land as reserved forest is published, then all the rights in the said land claimed by any person come to an end and are no longer available. The notification is binding on the consolidation authorities in the same way as a decree of the civil court. The respondents could very well file objections and claims including objection regarding the nature of the land before the forestsettlement officer. They did not file any objection or claim before the authorities in the proceedings under the Act. After the notification under Section 20 of the Act, the respondents could not have raised any objection qua the said notification before the consolidation authorities. The consolidation authorities were bound by the notification which had achieved finality.'
The Apex Court in the aforesaid case has held that the respondents could not have raised any objection qua the notification under Section 20 before the consolidation authorities.
16. With regard to Ratan Singh's case (supra), as relied by counsel for the petitioners, the learned single Judge held in paragraph 12 as under :
'10. This case rests on the determination of the fact whether the land declared as reserved forest by a notification issued under Section 20 of the Act, was the land as contemplated under Section 3 of the Act or it fell outside the scope of Section 3. This was a jurisdictional matter and it was necessary for the Deputy Director of Consolidation to go into the matter and the Deputy Director of Consolidation was not right in rejecting the objection of the petitioners merely on the ground that notification under Section 20 of the Indian Forest Act, declaring the land as reserved forest has already been issued. In case, it is found that the land in dispute at the time when notification under Section 4 of the Act was issued, was forest land or waste land and it was the property of the Government or in which the Government had the proprietary right, in that case, the notification issued under Section 20 of the Act declaring the disputed land as reserved forest cannot be challenged in this proceeding. But in case, the disputed land was not covered by Section 3 of the Act and was the tenancy land of the petitioners and was in their cultivation, it willnot be governed by the provisions of the Sections 3 and 4 of the Act and any notification issued under Section 20 of the Act, declaring the land as reserved forest, will be without jurisdiction and the civil court or any regular court competent to decide the title of the parties, will have Jurisdiction to determine the title of the petitioners and their claim will not be barred under the provisions of the Act.'
In the aforesaid case, learned single Judge took the view that if the land declared as reserved forest was not the land as contemplated under Section 3 of the Forest Act, then the provision of Sections 3 and 4 of the Forest Act and any notification issued under Section 20 of the Act declaring the land as reserved forest will be without Jurisdiction and the civil court or any regular court competent to decide the title will have jurisdiction to determine the title. The learned single Judge in the aforesaid case took the view that the consolidation courts were required to consider the aforesaid issue and the claim cannot be rejected merely on the ground that the land has been declared to be reserved forest.
17. In a subsequent judgment of this Court State of Uttar Pradesh v. Assistant Director of Consolidation (supra), the learned single Judge laid down in paragraph 18 as under :
'18. The Apex Court has rightly ruled that all lands sirdari or bhumidhari stood vested in the State Government, vide notification issued under Section 4 of the U.P. Z. A. and L.R. Act. Therefore, even bhumidhari land situated in the State could be subject-matter of notification under Sections 4 and 20 of the Forest Act. After enforcement of U.P. Act No. 23 of 1965 the position was changed, inasmuch as Section 3 as amended by the said Act. carved out an exception. It provided that the State Government may constitute any forest land, waste land, or any other land (not being the land for the time being comprised in anyholding or grove or in any village or abadi) which is property of the State Government or over which the Government, has proprietary rights. The Government could constitute reserved forest after following the procedure prescribed under the Act. On the basis of the decisions, therefore, it cannot be accepted that even the land, which is part and parcel of the holding of a tenure-holder, can be subject-matter of notification issued or proceedings taken under Sections 3 to 20 of the Act. Submissions made by learned Additional Chief Standing Counsel that the land in dispute could be constituted as reserved forest, cannot be accepted.'
In the aforesaid case, the learned single Judge has relied on the concurrent findings given by the consolidation courts that the land in dispute was never declared as reserved forest. It was held in paragraph 21 as under :
'The authorities below have also recorded concurrent findings to the same effect and it has been held that on the basis of the aforesaid notifications it cannot be held that the land in dispute was ever declared as reserved forest. The authorities below, even if they could not disregard the said notifications, were legally Justified to see as to whether the said notifications cover the land in dispute or not, inasmuch as, the petitioner itself filed objections for expunctlon of the names of contesting respondents from the revenue papers. The expunction of names of contesting respondents was not possible unless it was found that the land in dispute was actually declared as reserved forest.'
Learned single Judge in above case has also relied on the amendment of Section 3 by the U.P. Act 23 of 1965. Thus, the case relied by the counsel for the petitioner, i.e.. State of U.P. v. Assistant Director of Consolidation. Bareilly and others. 1999 All LJ 1673, does not help the petitioner since in that case, the HighCourt affirmed the concurrent finding that the land in dispute was never included in notification under Section 20 of the Forest Act, hence the orders passed by the consolidation authorities were affirmed. In the present writ petition, there is no such finding by the consolidation authorities rather the finding has been recorded to the contrary by the consolidation authorities that the land in dispute is included in the notification under Section 20 of the Forest Act.
18. Two other earlier cases of this Court also need to be noted ; they are Jang Bahadur and Ors. v. State, 1971 AWR 599 and State of U.P. v. Mahant Auaidh Nath, AIR 1977 All 192. In Jang Bahadur and Ors. case (supra), it was held in paragraph 10 :
'10. The State Government could only issue a notification as provided under Section 4 of the Act about a land described under Section 3 of the Indian Forest Act and as this land was not of any of the two categories of land mentioned in Section 3 of the Indian Forest Act. the State Government had no power to declare this land as a forest land. As such, the State Government, while issuing the notification under Section 4 of the Indian Forest Act travelled beyond the power and scope given under Section 3 of the Indian Forest Act and as such it was notification without authority and Jurisdiction. This being the State of affairs, the civil court certainly had jurisdiction to try the suit and as such the finding of the trial court and the lower appellate court that the suit was barred by Section 18(4) of the Indian Forest Act was Illegal and therefore, it cannot be maintained.'
In AIR 1977 All 192, it was held in paragraph 10 :
'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 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.'
19. In Maharaja Sir Pateshwari Prasad Singh of Balrampur. Dharam Karva Nidhi v. State of U.P. through Executive Engineer, Irrigation Division. Balrampur and Ors., 1979 RD 142, the learned single Judge took the view that if the rights are adjudicated by the forest settlement officer, those findings by a competent tribunal are binding in the consolidation proceedings. It was held at page 145 :
'In view of the fact that rights of the petitioner were adjudicated as against the State by the forest settlement officer, whose findings were affirmed in appeal, the said findings being findings by a competent tribunal, the same had a binding effect. The said findings will also be binding even in consolidation proceedings. If the rights of the parties have been decided under the Forest Act then this finding will be binding between the parties before the consolidation authorities as they were also to decide the very samething which was already decided. Section 11, C.P.C., as such, will not apply, but general principles of res-judicata will apply in respect of the findings recorded by the forest settlement officer which. In any view, is a tribunal of competent jurisdiction and the consolidation authorities are bound by it.'
20. The Apex Court in State of U.P. v. Deputy Director of Consolidation (supra) laid down that forest settlement officer having the power of the civil courts and his orders being subject to appeal and revision are final and, once notification under Section 20 of the Forest Act has been issued declaring the land as reserved forest it is not open to raise objection before the consolidation authorities qua the said notification. Apex Court having laid down in 1996 ALJ 1393 (paragraph 10) as quoted above that the consolidation authorities were bound by the notification issued under Section 20 of Forest Act which have achieved finality, the decision of the learned single Judge in Ratan Singh's case and Jang Bahadur's case (supra) cannot be followed. Adjudication by forest settlement officer regarding the rights of a claimant are final and cannot be reopened by consolidation authorities otherwise there may be two conflicting judgments on the same issue which has never been the intention of the law. The decision by the forest settlement officer cannot be said to be judgment coram non judice nor it can be said that the Judgments of the forest settlement officer are nullity nor it can be said that the said authority had no jurisdiction to determine about the nature of land included in the notification.
21. In view of the above discussion with regard to question No. 1, it is held that the consolidation courts cannot entertain a claim with regard to land which is covered by notification under Section 20 of Forest Act, 1927, and with regard to question No. 2 it is held that the Section 27A of the Forest Act creates express bar for adjudication of claim regarding reserved forest in any subsequent proceedings.
22. The third question which arises on the submission of the counsel for the petitioner that the land included in holding of a tenure-holder cannot be declared as reserved forest and the notifications under the Forest Act are without jurisdiction. has next to be considered. As noted above, the Section gives power to the State Government to constitute any forest land or waste land which is the property of the Government or over which the Government has proprietary right as the reserved forest. Section 4 contemplates issue of notification with regard to land which is to be declared as reserved forest. Emphasis has been laid with regard to amended provision of Section 3 as substituted by the U.P. Act, 23 of 1965, on the basis of the amended definition, it has been submitted that the land which is comprised in any holding or grove or in any village abadi cannot be declared as reserved forest. The Division Bench of this Court in Om Singh and Ors. v. State of U.P. and Ors., 1980 ALJ Vol 78 at p. 56, summary of cases (77), had considered the provisions of Forest Act, 1927, including amended Section 3 of Forest Act. The Division Bench in the aforesaid case has held that even according to the amended definition, the third category of land, namely, 'or any other land not being land for the time being comprised in any holding or any village abadi' does not control the first two categories, namely, forest land or waste land Section 3 covers forest land and waste land irrespective of whether the same comprise in a holding or not. The forest land or waste land. If it is comprised in a holding, can always be declared as reserved forest exercising the powers under Section 3. The provision of Section 3 of the Forest Act cannot read to the effect that a forest land or waste land included in any holding cannot be declared reserved forest. The said interpretation will run contrary to the object of Forest Act. A tenure-holder may have a forest land or waste land in his holding but if the said holding is to be excluded from declaration of reserved forest, the same will become beyond the power of the State to declare it reserved forest. The provision of Section 11 of Forest Act which contemplates that the land included under Section 4, even if it belongs to a claimant, can be acquired under Land Acquisition Act, clearly contemplates that the forest land or waste land included in the holding of tenure-holder can also be included in reserved forest.
23. The word 'forest land' has not been defined under the Forest Act. The definition of forest land was added by Section 38 (b) by U.P. Act No. 23 of 1965. Section 38A (b) defines forest and Sub-section (c) defines forest land which are quoted below :
'Section 38A (b) 'forest' means a tract of land covered with trees, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency, and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, stream-flow, protection of land from erosion, or other such matters and shall include :
(i) land covered with stumps of trees of a forest;
(ii) land which is part of a forest or was lying within a forest on the first day of July, 1952 ;
(iii) such pasture land, waterlogged or cultivable or non-cultivable land, lying within, or adjacent to, a forest as may be declared to be a forest by the State Government ;
(c) 'forest land' means a land covered by a forest or intended to be utilised as a forest.'
24. The definition of word 'forest' is very wide which also includes a tract of land - covered with trees, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency. Section 38A (b) (iii) further clarifies that cultivable or non-cultivable land, lying within, or adjacent to, a forest may be declared to be a forest by the State Government. The word 'claimant' has also been defined in Section 38A (a) which is extracted below :
'(a) 'Claimant' as respects any land means a person claiming to be entitled to the land or any interest therein acquired, owned, settled or possessed or purported to have been acquired, owned, settled or possessed whether under, through or by any lease or licence executed prior to the commencement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, or under and in accordance with any provision of any enactment. Including the said Act.'
25. The definition of 'claimant' and 'forest' as enacted by U.P. Act 23 of 1985 have left no room for doubt that any land included in the holding of a tenure-holder can also be declared as reserved forest. Although the definition has been added by U.P. Act No. 23 of 1965 but the definition clarified that very wide definition of forest has to be taken while interpreting the word 'forest land' as used in Section 3. In the present case, notification under Section 20 was made subsequent to aforesaid amendment by U.P. Act 23 of 1965. The claimant as defined under Section 38 (a) had a right to file application before the forest settlement officer till publication of Section 20 notification by showing sufficient cause for not preferring the claim within the time as given in Section 6.
26. The word 'forest' came for consideration before the Apex Court in T.N. Godauarman Thirumulkpad v. Union of India and Ors., (1997) 2 SCC 267. The Apex Court said that the word 'forest' must be understood according to its dictionary meaning and will not only include forest as understood in the dictionary sense but also any area recorded as the forest in the Government record irrespective of the ownership. In paragraph 4. It was laid down by the Apex Court :
'4. ..... The word 'forest' must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 20(1) of the Forest Conservation Act. The term 'forest land' occurring in Section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership.'
27. Thus, if any area of land is in nature of forest and is recorded in the tenure of any tenure-holder or in the name of intermediary/proprietor thekedar (as before abolition of zamindari), the land can be declared as reserved forest irrespective of the ownership of land. Under Indian Forest Act, 1927, power is given to declare the forest land/waste land as reserved forest irrespective of its ownership. Thus, even if forest land or waste land is included in a tenure-holder's tenure, there is no prohibition in any law from declaring the said land as forest land. The third category apart from forest land and waste land which has been added by the U.P. Act 23 of 1965, i.e., any other land (not being land for the time being comprised in any holding or grove or in any village abadi] refers to any other land other than forest land or waste land. Thus, if the land is neither forest lend nor waste land, the same cannot be declared as reserved forest if it is comprised in any holding or grove or in village abadi Thus, in fact the U.P. Act 23 of 1965 added one more category of land which can be declared apart from forest or waste land. The scope of Section 3 as applicable in U.P. after U.P. Act 23 of 1965 is wider than the original Section 3 of the Forest Act. This view has already been expressed by the Division Bench in Om Singh and Ors. v. State of U.P. and Ors. (supra).
28. From the above discussion, it is clear that forest land or waste land included in holding of a tenure-holder can also be declared as reserved forest and there is no prohibition even in amended Section 3 vide U.P. Act 23 of 1965. The prohibition which has been created by amended Section 3 is with regard to only any other land not being land for time being comprised in any holding or grove or in any village abadi. The words' not being land for the time being comprised in any holding or grove or any village abadi do not control the word forest land or waste land used in Section 3. A Constitution Bench of the Apex Court considered the provisions of Indian Forest Act, 1927, in Mahendra Lal Jain v. State of Uttar Pradesh and Ors., AIR 1963 SC 1019. The Apex Court laid down in paragraph 29 as under :
'29. It is next urged that even if Sections 38A to 38C are ancillary to Chapter II, they would not apply to -the petitioner's land, as Chapter II deals inter alia with waste land or forest land, which is the property of the Government, which is dealt with under Chapter V. That is so. But unless the petitioner can show that the land in dispute in this case is his property and not the property of the State. Chapter II will apply to it. Now there is no dispute that the land in dispute belonged to the Maharaja Bahadur of Nahan before the Abolition Act and the said Maharaja Bahadur was an intermediary. Therefore, the land in dispute vested in the State under Section 6 of the Abolition Act and became the property of the State. It is however, contended on behalf of the petitioner that if he is held to be a bhumidhar in proper proceeding, the land would be his property and therefore, Chapter V-A, as originally enacted, if it is ancillary to Chapter II would not apply to the land in dispute. We are of opinion that there is no force in this contention. We have already pointed out that under Section 6 of the Abolition Act all property of intermediaries including the land in dispute vested in the State Government and became its property. It is true that under Section 18, certain lands were deemed to be settled as bhumidhari lands, but it is clear that after land vests in the State Government under Section 6 of the Abolition Act, there is no provision therein for divesting of what has vested in the State Government. It is, however, urged on behalf of the petitioner that he claims to be the proprietor of this land as a bhumidhar because of certain provisions in the Act. There was no such proprietary right as bhumidhari right before the Abolition Act. The Abolition Act did away with all proprietary rights in the area to which it applied and created three classes of tenure by Section 129 ; bhumidhar, sirdar and asami, which were unknown before. Thus, bhumidhar, sirdar and asami are all tenure-holders under the Abolition Act and they hold their tenure under the State in which the proprietary right vested under Section 6. It is true that bhumidhars have certain wider rights to their tenures as compared to sirdars ; similarly sirdars have wider rights as compared to as mis, but nonetheless as the three are mere tenure-holders--with varying rights under the State--which is the proprietor of the entire land in the State to which the Abolition Act applied, it is not disputed that the Abolition Act applies to the land in dispute and therefore, the State is the proprietor of the land in dispute and the petitioner even if he were a bhumidhar would still be a tenure-holder. Further, the land in dispute is either waste land or forest land (for it is so far not converted to agriculture) over which the State has proprietary rights and therefore, Chapter II will clearly apply to this land and so would Chapter VA. It is true that a bhumidhar has got a heritable and transferable right and he can use his holding for any purpose including industrial and residential purposes and if he does so that part of the holding will be demarcated under Section 143K. It is also true that generally speaking, there is no ejectment of a bhumidhar and no forfeiture of his land. He also pays land revenue (Section 241) but in that respect he is on the same footing as a sirdar, who can hardly be called a proprietor because his interest is not transferable be except as expressly permitted by the Act. Therefore, the fact that the payment made by the bhumidhar to the State is called land revenue and not rent would not necessarily make him a proprietor, because sirdar also pays land revenue, though his rights are very much lower than that of a bhumidhar. It is true that the rights which the bhumidhar has to a certain extent approximate to the rights which a proprietor used to have before the Abolition Act was passed ; but it is clear that rights of a bhumidhar are in many respects less and in many other respects restricted as compared to the old proprietor before the Abolition Act. For example, the bhumidhar has no right as such on the mineral under the sub-soil. Section 154 makes a restriction on the power of a bhumidhar to make certain transfers. Section 155 forbids the bhumidhar from making usufructuary mortgages. Section 156 forbids a bhumidhar, sirdar or asami from letting the land to others, unless the case conies under Section 157. Section 189 (aa) provides that where a bhumidhar lets out his holding or any part thereof in contravention of the provisions of this Act. his right will be extinguished. It is clear therefore, that though bhumidhars have higher rights than sirdars and asamis, they are still mere tenure-holders under the State which is the proprietor of all lands in the area to which the Abolition Act applies. The petitioner, therefore, even if he is presumed to be a bhumidhar cannot claim to be a proprietor to whom Chapter II of the Forest Act does not apply, and therefore, Chapter, VA as originally enacted, would not apply : (see in this connection, Govindin v. State of Uttar Pradesh, AIR 1952 All 88.) As we have already pointed out Sections 4 and 11 give power for determination of all rights subordinate to those of a proprietor, and as the right of the bhumidhar is that of a tenure-holder, subordinate to the State, which is the proprietor of the land in dispute, it will be open to the forest settlement officer to consider the claim made to the land in dispute by the petitioner, if he claims to be a bhumidhar. This is in addition to the provision of Section 229B of the Abolition Act. The petitioner therefore, even if he is a bhumidhar cannot claim that the land in dispute is out of the provisions of Chapter II and therefore, Chapter V-A, even if it is ancillary to Chapter II, would not apply. We must, therefore, uphold the constitutionality of Chapter V-A as originally enacted, in the view we have taken of its being supplementary of Chapter 11, and we further hold that Chapter II and Chapter V-A will apply to the land in dispute even if the petitioner is assumed to be the bhumidhar, of that land.'
In the aforesaid case, the Apex Court has also held that Chapter V-A which has been added by U.P. Act 23 of 1965 is ancillary to Chapter II, thus the definition of 'forest land' and 'claimant' are applicable with regard to definition under Chapter II. Thus, the definition given in Section 38A will be applicable to proceedings under Chapter II of the Forest Act.
29. From the above discussion it is clear that the law laid down by the Apex Court in the case of State of Uttar Pradesh v. Deputy Director of Consolidation and others. 1996 All LJ 1393, is fully applicable on the facts of the present case and the consolidation courts have rightly held that they cannot adjudicate the claims over the land included in the notification under Section 20 of the Forest Act.
30. In view of the above discussion, the petitioners are not entitled for any relief in the writ petition. No error has been committed by the consolidation authorities in rejecting the objections of the petitioners. The writ petition lacks merit and is dismissed.