HARI PRAKASH SHUKLA & ORS. versus THE STATE OF UTTAR PRADESH & ANR. on 5 July 2023

[2023] 10 S.C.R. 1001 : 2023 INSC 600

HARI PRAKASH SHUKLA & ORS.

v.

THE STATE OF UTTAR PRADESH & ANR.

(Civil Appeal No(s). 9697-9698 of 2014)

JULY 05, 2023

[KRISHNA MURARI ANDAHSANUDDIN AMANULLAH, JJ.]

Forest Act, 1927: s. 4 – Declaration of reserved forest – Forestinhabitants – Right to be heard by Forest Officer – On facts, landin possession of the appellants-bhoomidars, declared as reservedforest – Initiation of eviction drive against the appellants – ForestSettlement Officer held that the appellant had a rightful claim overthe said land – Writ petition by the Forest Department – Allowed bythe High Court and directed eviction of the appellants – Reviewpetition there against also dismissed – On appeal, held: Right offorest inhabitants to be heard on the claims by the Forest Officer isnot restricted only to certain forest communities – Right to be heard,must be granted to all claiming possession of the subject land, andthe substantial right of possession can be granted or denied duringthe said hearing, by the competent authority – Right to enjoypossession of any land notified u/s. 4 is not only limited to Adivasicommunities and other forest dwelling communities, but is also basedon proof of residence, date of original possession, etc – Right toinhabit the said lands is not restricted only to certain communities –Appellants are not from a backward community and nor do theyclaim to be so, thus, have right to be heard by the Forest Officer –Furthermore, the concurrent findings of the lower courts neitherperverse, nor the said courts have over stepped their jurisdiction –Re-appreciation of evidence done by the High Court while exercisingits inherent powers u/Art. 226, bad in law and is liable to be struckdown – Thus, the impugned order and judgment not liable to besustained and is set aside – Constitution of India, 1950 – Art. 226 .

Allowing the appeals and dismissing the contempt petitions,the Court HELD: 1.1 It must be noted that forest communities donot only consist of people from recognized Adivasi and other

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Abackward communities, but also other groups residing in the saidland. These other groups, who do not get recognition under thelaw as a forest dwelling community due to several socio-politicaland economic reasons, are also an integral part of the said forestcommunities and are essential to their functioning. Further, therecan also be several instances of people ancestrally being forestBdwellers, however, due to lack of documentation, are not able toprove the same. [Para 20][1006-G; 1007-A]

1.2 The appellants are not from a backward community andnor do they claim to be so, however, the Banwasi judgment, ifinterpreted in a narrow manner only to benefit certain recognizedCforest communities, would cause a great deal of harm to multipleother communities. It must be noted that the Banwasi judgmentonly grants a right to be heard by a competent authority, and ifsuch authority rejects a claim, then the said claim cannot existagainst the situate land. [Para 21][1007-B-C]

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1.3 This right to be heard, must be granted to all claimingpossession of the subject land, and the substantial right ofpossession can be granted or denied during the said hearing, bythe competent authority, that is to say, the right to be heard mustbe enjoyed by all, and the right to possess, must be enjoyed byEthose who have a legitimate claim. Further, the right to enjoypossession of any land notified under Section 4 of the Forest Actis not only limited to Adivasi communities and other forestdwelling communities, but is also based on proof of residence,date of original possession, etc. If the right to inhabit the saidlands is not restricted only to certain communities, how canFthe right to be heard on such claims be restricted to the same.[Paras 22 and 23][1007-C-E]

1.4 The appellants before the impugned order passed bythe High Court in Writ Jurisdiction, had two concurrent findingsin their favour by way of decisions rendered by the lower courts.GThe appellants had proved their possession over the subject landby leading evidence, and the veracity of the same, by way of properprocedure, was tested by both the lower courts. The High Court,however, without evidence being led by the respondents, set asidethe concurrent findings. [Para 25][1007-G-H]

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1.5 The concurrent findings of the lower courts are neitherperverse, nor the said courts have over stepped their jurisdiction.In such a scenario, wherein neither of the conditions weresatisfied, the High Court could not have re-appreciated theevidence in writ jurisdiction and come to a different conclusion.[Para 29][1008-E]

1.6 The remedy granted under the Banwasi Sewa judgmentis available to the appellants, and the reappreciation of evidencedone by the High Court while exercising its inherent powersunder Article 226, is bad in law and is liable to be struck down.[Para 32][1009-B]

1.7 Since the dispute has been held in favour of theappellants, the contempt petitions are rendered infructuous. Theimpugned order and judgment passed by the High Court is notliable to be sustained and is set aside. The orders passed by theForest Settlement Officer and Additional District Judge areconfirmed. [Paras 33 and 34][1009-C-D]

Banwasi Seva Ashram vs State Of Uttar Pradesh (1986)4 SCC 753 : [1987] 1 SCR 336 – explained.

BK Muniraju Vs. State Of Karnataka (2008) 4 SCC451 : [2008] 2 SCR 992; Krishnanand Vs. Director ofConsolidation (2015) 1 SCC 553 : [2014] 11 SCR 1001

– referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9697-9698 of 2014.

From the Judgment and Order dated 04.02.2013 in CWP No.28242 of 2006 and dated 08.02.2013 in CWP No. 28242 of 2006, CMRANo. 41732 of 2013 of the High Court of Judicature at Allahabad.

With

Contempt Petition (Civil) Nos. 209-210 of 2021.

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AAnil Kaushik, Mrs. Shashi Sharma, Abhishek Mishra, Rajat Rana,Ms. Anju Kaushik, Ms. Arunima Dwivedi, Advs. for the Appellants.

S. R. Singh, Sr. Adv., Kamlendra Mishra, Adv. for theRespondents.

The Judgment of the Court was delivered by B

KRISHNA MURARI, J.

1. The present appeals are directed against the impugned orderand judgment dated 04.02.2013 passed by the High Court of Allahabadat Allahabad, (hereinafter referred to as “High Court”), whereby, theCWrit Petition preferred by the respondents herein was allowed.

FACTS

2. The relevant facts necessary for the adjudication of the presentappeals, for the sake of convenience, are being mentioned herein.

3. The appellants herein are the bhoomidars of the subject landDand are in possession of the same. The said lands, as per the appellants,is being used by them for agricultural purposes since a permanent leasewas executed in their favour by the then zamindar in the year 1952.

4. It is to be noted that part of the subject land, including the landin possession of the Appellants, was declared as reserved forest, andEthe other part of the said land was subject to a notification under Section4 of the Forest Act for declaration as reserved forest.

5. Such a declaration of the said land initiated an eviction drive ofthe local inhabitants, and against this, on the basis of a letter receivedfrom Banwasi Seva Ashram, a writ petition was instituted in this CourtFregarding the claim of the local inhabitants.

6. This Court, vide judgment and order dated 20.11.1986 in theabovementioned writ petition, directed the formation of a High PoweredCommittee consisting of a retired High Court Judge and two officers forthe purpose of adjudicating upon the claims of persons over the saidGdisputed land, and subsequently, further directed the claims to be heardby Forest Settlement Officer.

7. On the basis of the abovementioned judgment, the appellantsherein filed their claims before the Forest Settlement Officer, and afterproper consideration of representations made by both the parties, theHforest settlement officer held that the said land has been in possession of the Appellants even prior to 1385 Fasli and thus, have a rightful claimover the said land.

8. Aggrieved by the abovementioned order, the respondents hereinpreferred an appeal before the Additional District Judge, however, byway of a well-reasoned order dated 04.04.1991, the same was dismissed.

9. Subsequent to the dismissal of the Appeal, the appellants hereinfiled an application for the enforcement of the abovementioned order,and the learned Additional District Judge vide order dated 23.03.2005allowed the said application and directed the recording of the Appellantsherein as Bhoomidars.

10. The respondent Forest Department then filed a Review againstthe order dated 04.04.1991, however, while observing that the nature ofthe review was more in the nature of an appeal, dismissed the same videorder dated 08.12.2005.

11. Despite the said dismissal, the Forest Department filed anapplication for recall against the abovementioned order of review,however, the said application for recall was also dismissed vide orderdated 08.12.2005.

12. Aggrieved by the said orders, the respondent Forest Departmentfiled a writ petition in High Court of Allahabad, and vide impugnedjudgment and order dated 04.02.2013, the same was allowed, and theeviction of the Appellants was directed.

13. Against the said order, the appellants filed Review Petitionwhich was dismissed by order dated 08.02.2013. However, the evictionof the appellants was stayed until 20.03.2013 to enable them to approachthis Court.

14. As against the abovementioned impugned order of the HighCourt, the appellants herein have preferred the present appeals.

ANALYSIS

15. We have heard Shri Anil Kaushik for the appellants and ShriS.R.Singh, Learned Senior Counsel assisted by Shri Kamlendra Mishrafor the respondents.

16. At the outset, for the adjudication of the present appeals, it isour considered opinion that following two issues arise for ourconsideration.

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AI.Whether the relief granted in the Judgment of BanwasiSeva Ashram vs State Of Uttar Pradesh1 is only applicableto SC/ST/ other backward communities?

II.Whether the High Court, while exercising its jurisdictionunder Article 226 of the Constitution of India, could haveBre-appreciated the evidence adduced to come to itsfindings?

ISSUE I-Whether the relief granted in the Judgement ofBanwasiSeva Ashram vs State Of Uttar Pradesh2 is only applicable to SC/ST/other backward communities?

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17. In the case of Banwasi Sewa Ashram (Supra),whereincertain Adivasi communities inhabiting the situate land were being evictedfrom their homes on grounds of the said land being subject to a Section4 notification under the Forest Act, this Court held that the said inhabitantshad a right for their claims to be heard by the Forest Officer, and it wasDthe forest officer, who had the power to go into the merits of the caseand decide the claims of the inhabitants.

18. The abovementioned Banwasi Sewa Judgment (Supra),when read into detail, would show that it confers upon the inhabitants ofthe subject land, only a procedural right to be heard by the appropriateEauthority, and not a substantive right of possession/inhabitation of theland. In simpler terms, this would mean that this Court, while deliveringthe said judgment, did not go into the merits of each claim but only providedan appropriate forum for the claims to be heard.

19. The object of such judgment, in our opinion, is to further theFcause of substantive justice, and to ensure that every party with a validclaim over the notified land is heard in detail, and no arbitrary power toevict local inhabitants is given to the state.

20. It must be noted that forest communities do not only consist ofpeople from recognized Adivasi and other backward communities, butalso other groups residing in the said land. These other groups, who doGnot get recognition under the law as a forest dwelling community due toseveral socio-political and economic reasons, are also an integral part ofthe said forest communities and are essential to their functioning. Further, 1 1986 4 SCC 753H2 1986 4 SCC 753

there can also be several instances of people ancestrally being forestdwellers, however, due to lack of documentation, are not able to provethe same.

21. While we are aware of the fact that the Appellants herein arenot from a backward community and nor do they claim to be so, however,the abovementioned Banwasi Judgment (Supra),if interpreted in anarrow manner only to benefit certain recognized forest communities,would cause a great deal of harm to multiple other communities. At thesake of repetition, it must be noted that theBanwasi Judgment (Supra),only grants a right to be heard by a competent authority, and if suchauthority rejects a claim, then the said claim cannot exist against thesituate land.

22. This right to be heard, in our opinion, must be granted to allclaiming possession of the subject land, and the substantial right ofpossession can be granted or denied during the said hearing, by thecompetent authority, that is to say, the right to be heard must be enjoyedby all, and the right to possess, must be enjoyed by those who have alegitimate claim.

23. Further, the right to enjoy possession of any land notified underSection 4 of the Forest Act is not only limited to Adivasi communitiesand other forest dwelling communities, but is also based on proof ofresidence, date of original possession, etc. If the right to inhabit the saidlands is not restricted only to certain communities, how can the right tobe heard on such claims be restricted to the same.

24. Therefore, in light of the abovementioned discussions, we holdIssue No. I in favor of the Appellants.

ISSUE-II Whether the High Court, while exercising its jurisdictionunder Article 226 of the Constitution of India, could have re-appreciatedevidence to come to its findings?

25. The Appellants herein, before the impugned order passed bythe High Court in Writ Jurisdiction, had two concurrent findings in theirfavour by way of decisions rendered by the lower courts. The Appellantshad proved their possession over the subject land by leading evidence,and the veracity of the same, by way of proper procedure, was testedby both the lower courts. The High Court, however, without evidencebeing led by the respondents, set aside the concurrent findings videimpugned order and judgment dated 04.02.2013.

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26. This Court, in a catena of judgments has held that the HighCourt, while exercising its inherent powers under 226 of the Constitutionof India, cannot re-appreciate evidence and arrival of finding of facts,unless the authority which passed the original order did so in excess ofits jurisdiction, or if the findings were patently perverse.

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27. In the case of BK Muniraju Vs. State Of Karnataka3, thisCourt, while expounding on the powers of the High Court under Article226 of the Constitution of India, held that the same cannot be used to re-appreciate evidence unless an error of fact appraised by the lower courtis manifest and such an error has caused grave injustice.

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28. Further, in the case of Krishnanand Vs. Director ofConsolidation4, this Court, in a similar fact circumstance whereinconcurrent findings of the lower courts were dismissed by the HighCourt while exercising its writ jurisdiction, held that re-appreciation ofevidence under Article 226 can only be done in cases where the originalDorder by the lower court was passed in excess of its jurisdiction or if thefindings of the lower courts were patently perverse.

29. It is our opinion that as far as the present case is concerned,the concurrent findings of the lower courts are neither perverse, nor thesaid courts have over stepped their jurisdiction. In such a scenario,Ewherein neither of the conditions were satisfied, the High Court couldnot have re-appreciated the evidence in writ jurisdiction and come to adifferent conclusion.

30. It must be noted that the introduction and admission of evidenceat the trial stage goes through a rigorous process, wherein each piece ofFevidence introduced is subject to very strict scrutiny, and every party isgiven the opportunity to test the veracity of the said evidence throughprocedure established by law. The legitimacy of the evidence, at everystage, is questioned, and the opposing party is given the right to questionthe said evidence by placing their doubts regarding the same in court.Such a mechanism in law of going through evidence, is not available toGthe High Court while exercising its powers under writ jurisdiction, andtherefore, evidence which has been confirmed by the lower courts, mustonly be reversed by the High Courts in the rarest of rare cases.

3 2008 4 SCC 451H4 2015 1 SCC 553

31. In light of the abovementioned discussions, we hold Issue No.II in favour of the Appellants herein.

32. In the present case at hand, both the issues framed by us hasbeen answered in favour of the Appellants herein, that is to say, theremedy granted under theBanwasi Sewa judgment (supra)is availableto the appellants herein, and the reappreciation of evidence done by theHigh Court while exercising its inherent powers under Article 226, in ouropinion, is bad in law and is liable to be struck down.

33. Further, Contempt Petitions filed at the behest of the appellantsherein have also been brought to our notice. However, since the disputein question has been held in favour of the appellants, the contempt petitionsare rendered infructuous.

34. In light of such observations, the impugned order and judgmentpassed by High Court of Allahabad dated 04.02.2013 is not liable to be sustained and is thereby set aside. The orders passed by the ForestSettlement Officer and Additional District Judge are hereby confirmed.The appeals, accordingly, stand allowed and the captioned contemptpetitions are dismissed.

35. In the facts and circumstances, we do not make any order asto costs.

Nidhi JainAppeals allowed and contempt petitions dismissed.(Assisted by : Tamana, LCRA)

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