State of Uttar Pradesh Vs. District Judge (Tribunal), Bareilly and anr. - Court Judgment

Excerpt:
civil - amendment in revision petition - article 226 of constitution of india - decision went for revision - certain amendments were made - court not competent to accept changes related to facts at the stage of revision. - - air 1956 sc 479 was pronounced on 20th march, 1956, that these petitioners woke up and asserted their alleged rights .ifthey acquiesced in the jurisdiction of the income-tax officers to whom their cases were transferred they were certainly not entitled to invoke the jurisdiction of this court under article 32. it is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this court .(paragraph 45). these observations establish the proposition that where a party has submitted to jurisdiction, it cannot be allowed to plead.....orderb.n. lokur, j. 1. writ petitions nos. 3408 of 1969, 3425 of 1969, 2982 of 1969, 2967 of 1969 and 3343 of 1969 were heard together and are being disposed of by this judgment as they raise a common question of law. all these five petitions have been filed by the state of uttar pradesh and seek to quash the orders made in revisional jurisdiction by the district judge acting as a tribunal under the indian forest act. 1927 (hereinafter referred to as 'the act') as amended by the indian forest (uttar pradesh amendment) act, 1965. (u. p, act no. xxiii of 1965).2. it is not necessary to set out in detail the facts relating to these petitions and it is sufficient to mention the following few bald facts for the purpose of these petitions. some notifications were issued by the state government.....

Judgment:
ORDER

B.N. Lokur, J.

1. Writ Petitions Nos. 3408 of 1969, 3425 of 1969, 2982 of 1969, 2967 of 1969 and 3343 of 1969 were heard together and are being disposed of by this judgment as they raise a common question of law. All these five petitions have been filed by the State of Uttar Pradesh and seek to quash the orders made in revisional jurisdiction by the District Judge acting as a Tribunal under the Indian Forest Act. 1927 (hereinafter referred to as 'the Act') as amended by the Indian Forest (Uttar Pradesh Amendment) Act, 1965. (U. P, Act No. XXIII of 1965).

2. It is not necessary to set out in detail the facts relating to these petitions and it is sufficient to mention the following few bald facts for the purpose of these petitions. Some notifications were issued by the State Government under Section 4 of the Act declaring that it had been decided to constitute the lands specified therein as reserve forest and, in response to the proclamation under Section 6 of the Act which followed the notification, the contesting opposite parties to these petitions (hereinafter referred to as 'the claimants') preferred claims to certain rights over some of the lands; in Writ Petitions Nos. 3408 of 1969 and 3425 of 1969 the rights claimed were Bhumidhari rights while in the remaining three petitions the rights claimed were rights to forest produce. The Forest Settlement Officer, who investigated the various claims, rejected the claims of the claimants in Writ Petitions Nos. 3408 of 1969 and 3425 of 1969 under Section 11 of the Act and of the claimants in the other Writ Petitions under Section 12 of the Act; appeals filed by the claimants were dismissed by the Additional Commissioner in 1962. The claimants went up in revision to the State Government purportedly under Section 18 (4) read with Section 22 of the Act. The Act was amended by the Indian Forest (Uttar Pradesh Amendment) Act, 1965 (hereinafter referred to as 'the Amending Act'). Section 16 (5) of which provided for the transfer of pending revision petitions to a Tribunal constituted under Section 16 (3) consisting, as provided in Section 16 (4) of the Act, of the District Judge. All the revision applications were then transferred to and allowed by the District Judge on 30th May. 1969, after hearing the State and the claimants. These petitions under Article 226 of the Constitution challengeing the validity of the orders of the District Judge were presented by the State in August and September. 1969.

3. The grounds attacking the orders of the District Judge, as set out in the five petitions, raise questions of fact; however, on 4th December. 1969, the State applied for permission to amend the petitions by adding one more ground, namely, that the Tribunal (the District Judge) had no jurisdiction to decide the revision petitions; the permission was granted and the petitions were amended accordingly. The learned Advocate-General appearing for the State fairly conceded that the questions of fact raised in the petitions could not be agitated in these proceedings and confined his arguments only to the added ground that the Tribunal was not competent to entertain the revision petitions and hence the orders allowing the revision petitions were null and void.

4. In Pannalal Binjraj v. Union of India. AIR 1957 SC 397 arising out of a petition under Article 32 of the Constitution challenging the transfer of certain income-tax cases to the Income-tax Officer, the Supreme Court observed:--

'..... none of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income-tax Officers to whom their cases had been transferred. It was only after our decision in Bidi Supply Co. v. The Union of India. AIR 1956 SC 479 was pronounced on 20th March, 1956, that these petitioners woke up and asserted their alleged rights ..... Ifthey acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred they were certainly not entitled to invoke the jurisdiction of this Court under Article 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this Court .....'(paragraph 45).

These observations establish the proposition that where a party has submitted to jurisdiction, it cannot be allowed to plead want of jurisdiction in a petition under Article 226 of the Constitution, The learned Advocate-General, however, drew my attention to the following observations in the majority judgment of the Supreme Court in Arunachalam Pillai v. Southern Roadways, AIR 1960 SC 1191:--

'In our opinion, although the respondent had submitted to the jurisdiction of the Regional Transport Officer and had not in his petition under Article 226 in the High Court taken the objection that that officer had no jurisdiction to vary the conditions of a permit.the High Court acted rightly in allowing the respondent to urge that the Regional Transport Officer had no jurisdiction to vary the conditions of a permit. It was not until the decision of the High Court in Writ Appeal No. 107 of 1955 that it became the considered view of that Court that the Regional Transport Officer had no jurisdiction to make any such variation. When the law was so declared by the High Court it could not reasonably be said that the High Court erred in allowing the respondent to take this point although in its petition under Article 226 the point had not been taken. This was obviously because the decision of the High Court in Writ Appeal No. 107 of 1955 had not been given at the time of the filing of the petition. Since the question went to the root of the matter and it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court faced with a Division Bench decision of its own on the matter, could not very well refuse permission to the respondent to rely on that decision in support of its petition questioning the validity of the order of the Government of Madras made under Section 64-A of the Act.' (Paragraph 5).

Relying upon these observations, the learned Advocate-General submitted that the correct legal position that no revision lay was declared by a Division Bench of this Court in Spl. Appeal No. 931 of 1969 connected with Special Appeals Nos. 880, 930 and 928 of 1969 (All) and hence the State should be allowed to raise the plea of lack of jurisdiction in the Tribunal to entertain the revision petitions, even though the State had submitted to the jurisdiction of the Tribunal in those petitions. This submission has been stoutly resisted by Shri S. C. Khare, contending that whatever doubt there might have been on the question was resolved as long back as 1961.

5. To appreciate the rival arguments it would be relevant to refer to the provisions of the Act and to trace the case law interpreting them. After the issue of the notification under Section 4 of the Act and the proclamation under Section 6. the Forest Settlement Officer enquires into the claims made by the parties. In the case of a claim to a right in or over any land, other than a right of way or right of pasture, or a right to forest produce or a water course, the Forest Settlement Officer passes an order under Section 31 (1) admitting or rejecting the claim in whole or in part; Section 11 (2) sets out action to be taken by the Forest Settlement Officer if any claim is admitted inwhole or in part; he has to exclude the land over which rights have been admitted from the limits of the proposed forest or come to an agreement with the owners for the surrender of their rights or proceed to acquire the land under the Land Acquisition Act. In the case of a claim to a right of pasture or to forest produce the Forest Settlement Officer passes an order under Section 12 admitting or rejecting the same in whole or in part if a claim is admitted in whole or in part, action to be taken by the Forest Settlement Officer is stated in Section 15; he has to confer upon the claimants a right of pasture or to forest produce in some other forest tract or alter the limits of the proposed forest so as to exclude the forest land for the purpose of the claimants or continue to exercise the right within certain portions of the proposed forest. Section 16 contemplates commutation of such rights by payment of money or grant of land or otherwise. Section 17 provides for appeals against the orders of the Forest Settlement Officer made under Sections 11, 12. 15 and 16 to a Revenue Officer of a rank not lower than that of a Collector or to the Forest Court if established. Section 18 prescribes the procedure for hearing of the appeals and Section 18 (4) reads:--

'(4) The order passed on the appeal by such officer or Court, or by the majority of the members of such Court, as the case may be, shall, subject only to revision by the State Government, be final.'

After all the formalities are completed the State Government is required to publish a notification under Section 20 specifying definitely the limits of the reserve forest. Section 22 reads:---

'22. The State Government may, within five years from the publication of any notification under Section 20. revise any arrangement made under Section 15 or Section 18. and may for this purpose rescind or modify any order made under Section 15 or Section 18, and direct that any one of the proceedings specified in Section 15 be taken in lieu of any other of such proceedings, or that the rights admitted under Section 12 be commuted under Section 16.'

6. A question arose whether Section 18 (4) envisaged that every appellate order was open to revision by the State Government and in Raghunath Singh v. State of Uttar Pradesh. 1961 All LJ 686 a Division Bench of this Court held that Section 18 (4) does not confer a right of revision against all appellate orders and that the revisional powers of the State Government were restricted to the cases mentioned in Section 22 only and did not extend to all appellate ordersof the officer or the Forest Court, It was observed:--

'Section 18 in laying down the procedure for hearing of an appeal has in Sub-section (4) further provided that the order passed on appeal by the Collector or the Court shall be final. The finality given to it by the sub-section is qualified by such order as the Government might pass in revision. The sub-section does not as the respondents would interpret it to mean, make provision conferring revisional jurisdiction on the State Government. The State Government's powers in that behalf must be found elsewhere, i.e. under Section 22. The principle is well settled that where any jurisdiction is created by a statute its extent and the manner in which it shall be exercised must itself be governed by that statute. The revisional jurisdiction of the State Government referred to in subsection (4) of Section 18 must therefore, be ascertained from the Forest Act itself. Section 22 is the only provision under which the State Government has been conferred revisional jurisdiction. But according to it the same is exercis-able in the case of arrangements made under Section 15 or Section 18. The provision in Sub-section (4) does not confer revisional jurisdiction.' (page 697)

It is clear from this ruling that no revision lay to the State Government except in cases mentioned in Section 22 i. e. in cases where any arrangement has been made by the Forest Settlement Officer under Section 15 or by the appellate authority under Section 18. Where a claim is rejected under Section 11 or Section 12 by the Forest Settlement Officer and an appeal under Section 17 against the rejection is dismissed, no revision lay to the State Government as there was no arrangement under Section 15 or under Section 18. Later a doubt arose regarding the correctness of this view in the light of the following observations of the Supreme Court in Mahendra Lal Jaini v. State of Uttar Pradesh, AIR 1963 SC 1019:--

'Section 17 provides for appeals from orders passed under Sections 11, 12. 15 and 16, while Section 18 (4) provides for revising the appellate order by the State Government.'

7. A Full Bench of this Court, however, held on the 13th November, 1967. in Mohammad Siddiq v. State of Uttar Pradesh. 1968 All LJ 238 =- (AIR 1968 All 396 (FB)) that the view taken in 1961 All LJ 686 (supra) was correct and explained the aforesaid observations of the Supreme Court in the following words:--

'This observation does not lay down the extent of the revising power of the State Government It only describes thatthere fa power of revision in the State Government. For finding out the extent of the powers of the State Government we have to look to Section 22 which specifically gives to the State Government the powers of revising the orders of the appellate authority under Section 18. This section confines the power of the State Government in revision only to interfering with the arrangement made under Section 15 or Section 18 .....'

8. In 1965 the Uttar Pradesh Legislature passed the Amending Act substituting several new sections for the sections in the Act. The new sections relevant for the purpose of these petitions are 17, 18 (4) and 22. New Section 17 provided for an appeal to the District Judge by a claimant against the orders of the Forest Settlement Officer under Sections 11, 12, 15 and 16.

New Section 18 (4) reads as follows:

(4) The order passed on the appeal shall, subject to the provisions of Section 22. be final.'

New Section 22 reads as follows:--

'22. The State Government may, within five years from the publication of any notification under Section 20. revise any arrangement made under Section 15 or on appeal under Section 18, and may for this purpose rescind or modify any order made under Section 15 or Section 18. and direct that any one of the proceedings specified in Section 15 be taken in lieu of any other of such proceedings or that the right admitted under Section 12 be commuted under Section 16.'

The new Sections 18 (4) and 22 merely made explicit what, according to the decision in 1961 All LJ 686 (supra), confirmed in 1968 All LJ 238 = (AIR1968 All 396) (FB) was implicit These new sections clarified that no revision lay to the State Government except in regard to arrangements made under Section 15 or under Section 18.

9. Notwithstanding the clear decisions in 1961 All LJ 686 (supra) and 1968 All LJ 238 = (AIR 1968 All 396) (FB) (supra). The question whether all appellate orders were revisable was again agitated after the Amending Act came into force in a bunch of Writ Petitions decided by Satish Chandra. J. on 6-5-1969 (All), The State of U. P. v. Pirthi Singh. He took the view that the Act has been materially altered as a result of the Amending Act and relied for the purpose on Section 16 of the Amending Act. Section 16 of the Amending Act made transitory provisions regarding appeals and revisions. Sub-section (3) enabled the State Government to constitute Tribunals which under Sub-section (4) were to consist of Dist. Judges. Sub-section. (5) provided.

'(5) Any petition for revision presented to the State Government purporting to be made under Sub-section (4) of Section 18 of the Principal Act as it stood before its amendment by this Act, at any time within five years before this commencement of this Act shall whether pending on the date of such commencement with the State Government or purporting to have been decided by it before such date under the said sub-section, be referred by the State Government to the Tribunal having jurisdiction and the Tribunal may after giving to the parties an opportunity of being heard confirm, set aside or modify the order under revision or remand the case to the Forest Settlement Officer with such directions as it thinks fit:

Provided that nothing in this subsection shall be deemed to require the State Government to refer to the Tribunal any objection made by a Forest Officer which the State Government does not think fit to be pressed.'

According to the learned Judge the provision in the section that any petition for revision presented to the State Government purporting to be made under Sub-section (4) of Section 18 ..... whether pending or decided within five years before the commencement of the Amending Act shall be referred by the State Government to the Tribunal, indicates that such revision petitions were in order. This view was upset in appeal by a Division Bench in Special Appeal No. 931 of 1969 (Pirthi Singh v. State of U. P.) connected with Special Appeal Nos. 928 and 930 of 1969, D/- 6-1-1970 (All). The Division Bench observed:--

'The learned Single Judge laid stress upon the word 'purporting' appearing in Section 16 (5) of the Amendment Act. The expression 'purporting to be made under Sub-section (4) of Section 18' is merely description of the class of revision to be transmitted by the State Government to the Tribunal. There is no indication in Section 16 (5) of the Amendment Act that the jurisdiction of the Tribunal is wider than that of the State Government Section 16 merely created a forum for the disposal of revisions filed before the State Government.'

10. The argument of the learned Advocate-General was that though the decisions in 1961 All LJ 686 (supra) and 1968 All LJ 238 = (AIR 1968 All 396) (FB) (supra) clarified the position regarding the right of revision, the view taken by Satish Chandra. J. created further doubts on the question which was resolved by the decision of the Division Bench in the Special Appeals and hence in the light of the observations in the majority judgment of the Supreme Courtin AIR 1960 SC 1191 the plea that the District Judge had no jurisdiction to decide the revisions may be allowed to be canvassed by the State. To determine the weight of this argument it is necessary to refer to certain dates.

11. The appeals of the claimants were dismissed in 1962 and presumably the revision petitions were filed in 1962 or 1963: These revision petitions appear to have been transferred by the State Government in view of Section 16 (5) of the Amending Act to the District Judge soon after the enforcement of the Amending Act on the 23rd November, 1965. The decision in 1961 All LJ 686 and 1968 All LJ 238 = (AIR 1968 All 396) (FB) (supra) held sway then and the State Government ought to be credited with the knowledge that the revision petitions were incompetent. It has not been shown that the State Government considered the effect of Section 16 (51 of the Amending Act in consultation with its legal advisers and felt satisfied that the revision petitions could, by reason of Section 16 (5) of the Amending Act, be validity disposed of by the District Judge notwithstanding the decisions in 1961 All LJ 686 and 1968 All LJ 238 - (AIR 1968 All 396) (FB) and hence they did not challenge the jurisdiction, of the District Judge. The revision petitions were disposed of on the 30th May, 1969. i. e. about three weeks after the decision of Satish Chandra. J. in Pirthi Singh v. State of Uttar Pradesh but it has not been shown to me that the revision petitions were heard after the decision of Satish Chandra. J. and that in view of that decision, the State could not urge at the hearing of the revision petitions that the District Judge had no jurisdiction to decide them. The State filed Special Appeals against the decision, of Satish Chandra. J. urging that the District Judge had no jurisdiction to hear the revision petitions. These writ petitions were filed in August and September. 1969 i. e. 3-4 months after Satish Chandra. J, held that the revisions transferred under Section 16 (5) of the Amending Act could be heard and decided by the District Judge and yet no ground as to want of jurisdiction was taken in the writ petitions. The applications for amending the petitions by adding the ground that the Tribunal had no jurisdiction were made more than a month before the Division Bench held on the 6th January, 1970, in the aforesaid Special Appeals against the judgment of Satish Chandra, J. that the District Judge had no jurisdiction to entertain the revisions. The Applications do not state why the ground was not taken before the District Judge or in the writ petitions as filed. It cannot then be saidon the material before me that the ground has been taken in these writ petitions later by amendment after the legal position was clarified by the Division Bench in the said Special Appeals. In the circumstances, it cannot be said that the situation in the present case is the same as that which arose in the case of AIR 1960 SC 1191 and hence the benefit of the observations in that decision is not available to the State. The more appropriate decision which covers the facts of these petitions as set out above is the decision in AIR 1957 SC 397 which disentitles the State to any relief in a petition under Article 226 of the Constitution on the ground that the District Judge had no jurisdiction to entertain the revisions although the State had not raised any objection to the jurisdiction at the hearing of the revision petitions.

12. The result is that there is no doubt that in view of the decisions in 1961 All LJ 686 and 1968 All LJ 238 = (AIR 1968 All 396) (FB) as well as in Pirthi Singh v. State of Uttar Pradesh the District Judge had no jurisdiction to entertain and decide the revision petitions but since the State submitted to and acquiesced in his jurisdiction without protest, these are not fit cases in which any relief should be granted on the ground that the District Judge had no such jurisdiction.

13. The petitions are dismissed. There shall be no order as to costs.