Judgment:
Ashok Bhushan, J.
1. All these writ petitions involve similar questions and challenges identical orders of the same date passed by Forest Settlement Officer and Additional District Judge. It is sufficient to note the facts of Writ Petition No. 51866 of 2004. Shiv Nath v. Additional District Judge, Mirzapur and others, for disposing all the writ petitions.
2. Heard Shri R. N. Sharma, learned counsel for the petitioner.
3. By these writ petitions, the petitioners have prayed for quashing orders dated 29.9.2001 passed by respondent No. 2, Forest Settlement Officer rejecting the objection of the petitioner and the orders dated 7.10.2003 passed by Additional District Judge (Court No. 4), Mirzapur dismissing the appeals filed by the petitioners. Brief facts of the case necessary for adjudicating the controversy raised in the writ petition are ; notification under Section 4 of the Indian Forest Act, 1927 was issued on 26.8.1967 notifying various plots including the plots in question proposed as reserved forest. Notification under Section 6 was also issued in 1968 giving the details of plots proposed to be included in the reserved forest. Petitioner filed an objection under Section 6/9 of the Indian Forest Act in the year 1994 claiming bhumindhari right over land in dispute. Petitioner's case before the Forest Settlement Officer was that a lease has been executed by the Gaon Sabha on 22.12.1958 in favour of the petitioner in pursuance of which petitioner is in possession of land in dispute. It was stated in the application that petitioner has become bhumidhar and declaration in favour of the petitioner be made. The objection filed by the petitioner was contested by the Forest Department of the State. The respondent filed documentary evidence including the notification under Sections 4 and 6 and the relevant khataunis of the land in dispute. The petitioner examined himself apart from one Devi Prasad Pandey as his witness to prove the lease. Forest Settlement Officer after considering the evidence on the record recording finding that the lease of the petitioner has not been proved and cannot be accepted. The Forest Settlement Officer held that the lease is neither registered nor it has been attested by competent revenue official. It was further held that the lease is not included in the relevant register and there is no entry in the revenue records of the lease in question. The petitioner aggrieved by the order of the Forest Settlement Officer filed an appeal. Appellate authority also affirmed the findings and dismissed the appeal. Shri R. N. Sharma, learned counsel for the petitioner challenging the orders raised following submissions :
(1) that no notification under Section 20 of the Indian Forest Act, 1927 having yet been issued the land cannot be treated to be reserved forest.
(2) That the petitioner is in possession of land in dispute in pursuance of the lease dated 22.12.1958 which lease was duly proved.
(3) That petitioner is entitled for the benefit of Section 122B (4F) of the U. P. Zamindari Abolition and Land Reforms Act, 1950 and he cannot be evicted by the respondent.
4. I have considered the submissions and perused the record. The first submission of the petitioner is that no notification under Section 20 of the Forest Act having been issued, the land is not reserved forest. He also placed reliance on the judgment of this Court in Jagannath Singh v. Deputy Director of Consolidation, 1987 RD 101 and another judgment in Harish Chandra Singh v. Deputy Director of Consolidation, 2002 (1) AWC 562 : 2002 RD 142.
5. In the above judgment this Court has taken the view that till a notification under Section 20 of the Forest Act is issued, the land cannot be treated to be reserved forest. There cannot be any dispute with the proposition as laid down by this Court in the above judgment. The reserved forest is constituted after issuance of notification under Section 20. In the present case the petitioner had filed an objection under Section 6/9 of the Forest Act, 1927 claiming rights of bhumidhar over land in dispute. The question in issue was not as to whether land is reserved forest vested in the forest department but the question in issue was as to whether petitioner has bhumidhari right so as to exclude the land from the proposed reserved forest. Petitioner had to prove his case that he is bhumidhar and the land cannot be included in the proposed forest and the notification under Section 20 be not issued. The issues raised by the petitioner were the issues which were required to be considered and decided prior to issuance of notification under Section 20 and the fact that no notification has yet been issued under Section 20 as pointed out by the counsel for the petitioner is not relevant.
6. The second submission of the petitioner, is that he is in possession of the land in dispute and the lease has been proved. The Forest Settlement Officer has recorded categorical finding that lease dated 22.12.1958 filed by the petitioner is not registered and is also not attested by the competent revenue authorities. Section 158 of the U. P. Zamindari Abolition and Land Reforms Act provide that a lease for a term exceeding one or from year to year may be made either by a registered instrument or in the prescribed manner. The manner for lease is prescribed in Rule 138 of the rules. Section 158 of the Act and Rule 138 of U. P. Zamindari Abolition and Land Reforms Rules are quoted as below :
'158. Registration of a lease.--Notwithstanding anything contained in the Transfer of Property Act, 1882, or the Indian Registration Act, 1908, a lease for a term exceeding one year or from year to year may be made either by a registered instrument or in the prescribed manner.'
'138. Section 157 read with Section 158.--(1) All leases of land made under Section 157, annual rent of which exceeds Rs. 100, shall be executed by registered instrument.
(2) Leases of land the rent of which is Rs. 100 or less may be attested by a revenue court or a revenue officer not inferior in rank to a Supervisor Kanungo within the local limits of whose jurisdiction the whole or some portion of the land to which such lease or counterpart relates, is situate.............'
7. According to Rule 138 leases of the land the rent of which is Rs. 100 or less may be attested by a revenue court or a revenue officer not inferior in rank to a Supervisor Kanungo. The specific finding has been recorded that lease has not been attested by any revenue official. The Forest Settlement Officer Consolidation has also held that there is no entry of the lease In the Ikrarnama register.
8. In the facts of the present case and the materials on record, no error has been committed by the authorities in recording finding that lease cannot be accepted. It has not been brought on the record that lease which is claimed to be executed on 20.12.1958 was given effect to in the revenue records. No entry came on the record in the last 40 years which was also a factor clearly coming against the petitioner's case. The submission of the petitioner that lease has been proved cannot be accepted. The finding of Forest Settlement Officer is that even if the petitioner is in possession, his possession is that of tresspasser. Learned standing counsel is right in his submission that courts below has not accepted the possession of the petitioner rather the findings have been recorded that even if any possession is there, the same is of tresspasser.
9. Coming to the last submission of the petitioner based on Section 122B (4F) of the U. P. Zamindari Abolition and Land Reforms Act, it is relevant to note that said provision give protection to the possession of a person belonging to the scheduled caste and scheduled tribe from any action under Section 122B. More over the benefit of Section 122B (4F) can only be claimed when the land is vested in the Gaon Sabha under Section 117. Section 122B (4F) is extracted below :
'(4F) Notwithstanding anything in the foregoing subsection, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 132) having occupied it from before (May 1, 2002), and the land so occupied together with land, if any, held by him from before the said date bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and (he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land.).'
10. There is no materials on the record that land belong to Gaon Sabha and was recorded in the khatauni in the name of Gaon Sabha. The protection under Sub-section (4F) is that no action shall be taken under Section 122B. The said provision has no relevance while deciding a claim of a objector under Section 6/9 of the Indian Forest Act, 1927. This submission docs not help the petitioner in any manner.
11. In view of the foregoing discussions, both the authorities have rightly rejected the claim of the petitioner after considering entire materials on record.
12. All the writ petitions lack merit and are dismissed summarily.