Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 4969 of 2001 (Old No. 8668 of 1986) Mr. H.E. Chowfin, S/O Mr. D.A. Chowfin, (since deceased) 1/1 T.H.Chowfin and others. … Petitioners. Versus District Judge Pauri Garhwal and two others. … Respondents. WITH (1)Writ Petition (M/S) No. 4844 of 2001 (Old No. 8644 of 1990) T.H. Chowfin and others. … Petitioners. Versus Additional Commissioner (Admn.) Garhwal Region, and two others. … Respondents. (2)Writ Petition (M/S) No. 4842 of 2001 (Old No. 8646 of 1990) Suneeta and two others. … Petitioners. Versus Additional Commissioner (Admn.) Garhwal Region, and two others. … Respondents. Mr. B.C.Pande, Senior Advocate with Mr. Rajesh Sharma and Mr. Lalit Sharma, Advocates, learned counsel for the petitioners. Mr. Sudhir Kumar, Brief Holder, learned counsel for the respondents. Date August 10, 2011. Hon’ble B.S.Verma, J. Since the controversy involved in these three writ petitions is similar, therefore, for the sake of convenience, these writ petitions are being decided by this common judgment. 2 2. In Writ Petition No. 4969 (M/S) of 2001, the petitioners have sought a writ in the nature of certiorari quashing the impugned judgment and orders dated 18-11-1983, 26-11-1984, 20-5-1985 and 3-9-1985 (contained in Annexure Nos. I, II, III and IV respectively). By order dated 18-11-1983, the land of H.E.Chowfin (the original tenure holder) was declared surplus by the Prescribed Authority. By order dated 26-11-1984, Ceiling Appeal Nos. 28 of 1983, 29 of 1983 and 6 of 1984 preferred by I.A.Chowfin and Kumari Sunita and others were dismissed by a common judgment by the District Judge, Pauri Garhwal. By order dated 20-5-1985, the application moved by the applicants for filing their objection has been rejected by the Prescribed Authority. By order dated 3-9-1985 the District Judge Pauri Garhwal has dismissed Ceiling Appeal No. 8 of 1985, I.A.Chowfin Vs. U.P. State, Ceiling Appeal No. 9 of 1985, Smt. B.S.Chowfin Vs. U.P. State and Ceiling Appeal No. 10 of 1985, Km. Sunita Chowfin Vs. U.P. State by a common judgment. 3. In Writ Petition (M/S) No. 4844 of 2001, the petitioners T.H.Chowfin and 4 others have sought a writ in the nature of certiorari quashing the impugned judgment and order dated 2-2-1990, whereby the learned Additional Commissioner (Administration) Garhwal Division, Pauri has allowed the three review applications (No. C.A. No. 3/89-90, State of U.P. Vs. T.H.Chowfin and others) as well as Review Application No. 2/89- 90 and Review Application No. 1/89-90, moved by the State by a common order and has set aside the order dated 18-7-1989 passed by the learned Commissioner and the appeal of the petitioners dated 21-11-1988 was dismissed. 4. In Writ Petition (M/S) No. 4842 of 2001 the petitioner I.A.Chowfin has assailed the order dated 2-2-1990 passed by the learned Additional Commissioner referred to above. 3 5. Proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (for short the Act) (registered as Ceiling Case No. 4 of 1982-83 and No. 1 of 1983-84) were initiated against the recorded tenure holder and a notices under sub-section (2) of Section 10 of the Act were issued to the original tenure holders H.E. Chowfin in respect of the land in dispute situate in two village Gandoli and village Mandakhal in district Pauri Garhwal. The land in dispute was recorded in the names of the petitioners and others jointly. It appears that initially the tenure holders failed to respond to the notices and the proceedings were decided ex-parte and certain land was declared surplus. 6. It appears that the earlier order was passed the Prescribed Authority in the year 1975 thereby certain land was declared surplus in possession of the joint tenure holders. The said order was challenged in Ceiling Appeal No. 9 to 15 of 1975 before the District Judge Pauri Garhwal and the appellate court by a common judgment dated 6-12-1977 allowed those appeals, set aside the order passed by the Prescribed Authority holding that compliance of Rule 10 of the Ceiling Rules has not been made in the matter regarding demarcation of the land in possession of the joint tenure holders in the joint holding and remanded the cases to the Prescribed Authority to decide the same afresh in accordance with law. 7. After remand, the Prescribed Authority got prepared fresh statements and maps prepared by the Patwari concerned as required under Rule 10 of the Rules framed under the Act and notices were issued to the tenure holders to file objections. The tenure holders filed their objections alleging that a considerable portion of the land in dispute is a forest, which is regulated and managed under the provisions of U.P. Private Forest Act and that 4 the land covered by the forest cannot be the subject-matter of the proceedings under the Act and they claimed exclusion of the alleged forest land from the ceiling area. 8. Before the Prescribed Authority, the State has examined Balbir Singh Patwari as P.W. 1, Kunj Bihari Pant, Supervisor Kanungo, as P.W.2 and Sri Khundlal Patwari as P.W.3. The tenure holders have filed copy of Khasara of village Mandakhal and copy of Khatauni of village Gangoli but have not led any oral evidence before the Prescribed Authority to substantiate their objections. 9. The Prescribed Authority after hearing both the parties and on perusal of the evidence led by them, has observed that the Patwari in his statement on oath has stated in the land in dispute, there are some bushes and some trees standing in scattered manner at some places and they cannot be termed as forest. Learned Prescribed Authority also observed that the tenure holder has not established that there is forest in the land in dispute or a part thereof. The Prescribed Authority also observed that the tenure holder has failed to give details of any forest existing on any plot number. It was also observed that in the Khatauni filed by the tenure holder, the name of the tenure holder is recorded. The Prescribed Authority has observed that the working plan of forest in respect of some land is not exclusive proof of the fact that there exists forest in the land in dispute. Ultimately, the Prescribed Authority rejected the objections of the tenure holders and declared the land of the tenure holders surplus in two village, namely village Gandoli and village Mandakhal Ghurdorsyun as mentioned in the impugned order dated 18-11-1983. 5 10. Aggrieved by the said order, landholders preferred Ceiling Appeal No. 28 of 1983, 29 of 1983 and Ceiling Appeal No. 6 of 1984 before the District Judge Pauri Garhwal. 11. Before the appellate Court, it was contended that the Prescribed Authority did not follow the directions given in the remand order and there was no fair trial. The learned appellate Court after hearing both the parties came to the conclusion that the compliance of Rule 10 of the Ceiling Rules was made and separate maps were prepared. The appellate court did not find favour with the appellants and ultimately by detailed order dated 26-11-1984 dismissed all the three appeals and upheld the order passed by the Prescribed Authority. However, the appellate Court gave a right to the appellant to give their options in the matter of surplus land within a period of thirty days and directed the Prescribed Authority to consider the merit of the options according to law. 12. It appears that instead of exercising their right of fresh options as directed by the appellate Court by order dated 26-11- 1984, moved applications raising different pleadings with regard to exclusion of alleged forest land from consideration of ceiling area before the Prescribed Authority. The Prescribed Authority appears to have obtained a report from Tahsildar, Pauri, who submitted his report that the possession of the surplus land had been taken by the department and ultimately declined the request of the tenure holders by his order, dated 20-5-1985. Aggrieved by the said order, the tenure holders preferred separate appeals before the District Judge Pauri Garhwal, which were registered as Ceiling Appeal No. 8 of 1985, I.A.Chowfin Vs. U.P.State, Ceiling Appeal No. of 1985, Smt. B.S.Chowfin Vs. U.P.State and Ceiling Appeal No. 10 of 1985, Km. Sunita Chowfin Vs. U.P.State. 6 13. The learned appellate court in his order dated 3-9-1985 has observed that the tenure holders did not move any such application in exercise of a right of fresh option given to them by the District Judge within the stipulated period, rather they moved applications setting forth different pleadings and wanted the Prescribed Authority to take the alleged forest land out of consideration on the ground that such land was not covered by the provisions of the Act. The learned District Judge has observed that the Prescribed Authority has not disregarded the directions of the appellate court and has consequently dismissed the appeals, which gave rise to the present writ petitions bearing W.P.M.S. No. 4969 of 2001. 14. So far as the controversy involved in other writ petitions, bearing W.P.M.S. No 4844 of 2001 T.H.Chowfin and others Vs. Additional Commissioner and others, W.P.M.S. No 4842 of 2001 Suneeta and others Vs. Additional Commissioner and others and W.P.M.S. No 4843 of 2001 I.A. Chowfin Vs. Additional Commissioner and others are concerned, all these three writ petitions have arisen out of a common order dated 27-10-1988 passed in the matter under Section 12-A of the Act. It also appears that proceedings in Ceiling Case No. 22 of 1986-87 State Vs. Sunita and two others were drawn under Section 12-A of the Act before the Prescribed Authority in consequence of the order passed by the District Judge dated 26-11-1984 in Ceiling Appeal No. 29 of 1983 and Ceiling Appeal No. 6 of 1984, whereby right of fresh option with regard to the surplus land was given to the tenure holders, as mentioned earlier. It appears that tenure holders Sunita and two others had given their choice. Before the Prescribed Authority, while giving their option the opposite parties-petitioners herein again agitated that the forest land was not excluded from the ceiling area of the petitioners. The Prescribed Authority did not accept the contention of the petitioners on the ground that the scope of consideration before him was limited to the extent of option and 7 the determination of surplus land had been upheld by the District Judge by order dated 26-11-1984. The Prescribed Authority by his order dated 27-10-1988 has declared surplus land in possession of the tenure holder as mentioned in the order and determined the surplus land under Section 12-A of the Act. It appears that the order dated 27-10-1988 of the Prescribed Authority was challenged in appeal before the Commissioner, Garhwal Division, Pauri Garhwal. The appellate court by its order dated 18-7-1989 appears to have allowed the appeals and the learned Additional Commissioner appears to have considered the issues, which were already considered and decided in appeal by the District Judge in his order dated 26-11-1984 and have arrived at a different conclusion. 15. Aggrieved by the said order, the State preferred three review applications bearing Review Application No. 1/89-90, Review Application No. 2/89-90 and Review Application No. 3/89- 90), which were decided by a common order passed in Review Application No. C.A. 3/89-90 by the Additional Commissioner (Administration) Garhwal Division, Pauri. The learned Additional Commissioner after hearing both the parties allowed all the three review applications by his order dated 2-2-1990 and set aside the order 18-7-1989. The appeals preferred against the order dated 27- 10-1988 were dismissed. The order dated 2-2-1990 has been assailed in these writ petitions. 16. It may also be mentioned that the petitioners I.A. Chowfin had assailed the order dated 2-2-1990 passed by the learned Additional Commissioner, whereby the review applications filed by the State have been allowed and the order dated 18-7-1989 passed by the learned appellate court has been recalled by a common order and the appeal of the appellant dated 21-11-1988 was dismissed, by filing Writ Petition (M/S) NO. 4843 of 2001 (Old NO. 8645 of 1990) before this Court. This writ petition was 8 dismissed by this Court for want of prosecution vide order dated 16-9-2005, but no application to recall the dismissal order dated 16- 9-2005 has been filed by the petitioner. 17. It is thus obvious that in leading W.P.M.S. No. 4969 of 2001, the petitioner H.E.Chowfin has assailed all the orders contained as Annexure Nos. I, II, III and IV respectively, referred to above and in other writ petitions, the order dated 2-2-1990 passed in review applications has been assailed by the petitioners. 18. On behalf of the State, counter affidavit has been filed in each writ petition. In the counter affidavit it has been stated that the learned appellate Court by its judgment and order dated 26-11- 1984 had dismissed the ceiling appeals of the petitioners on merit but right of options was only given to the petitioners to be exercised with regard to the surplus land, but the petitioners never assailed the order dated 26-11-1984 before any higher forum, therefore, the said order attained finality and matter could not have been agitated on other issued again before the Prescribed Authority except that of merit of the options. 19. The petitioners in Writ Petition (M/S) No. 4969 of 2001 has filed supplementary affidavit. Along with the supplementary affidavit, the petitioners have annexed copy of the order dated 18-7-1989 as Annexure S.A. No. 3 to the supplementary affidavit, passed by the learned Additional Commissioner (Administration) Garhwal Division, wherein the order dated 27-10-1988 passed by the Prescribed Authority was assailed. The learned appellate Court, while allowing the appeals has directed that the land which is not subject matter ceiling proceedings be excluded and compliance of Rule 10 of the rules framed under the Act be made only in respect of the rest of the land of village Gandoli and village Mandakhal. The petitioners have 9 also annexed copy of order dated 29-11-1979 passed by the Prescribed Authority as Annexure S.A. No. 4. This order of the appellate court has been set aside by order dated 2-2-1990 passed by the Additional Commissioner on review applications filed by the State. The order dated 2-2-1990 is impugned in connected writ petitions, referred to above. 20. The petitioners have also filed a copy of the working plan in respect of the forestland involved in these writ petitions. The working plan relates to 127.50 hectares land in village Mandakhaland 182.10 hectares land in village Gandoli as private forest. 21. I have heard learned counsel for the parties and perused the entire material placed before this Court including the impugned orders. 22. At the outset it may be mentioned that it is admitted to the learned counsel for the petitioners that the oral request made by him to take the working plan on record regarding the land in dispute was rejected by this Court vide order dated 29-9-2010, passed on the order-sheet. It appears that the learned Prescribed Authority in his order dated 18-11-1983 has already dealt with the contention of the petitioners regarding the working plan and has held that by a mere working plan, it cannot be concluded that the area under the working plan in fact is a forest. The issue of working plan shall be dealt with in the latter part of the judgment at an appropriate place. 23. Learned counsel for the petitioners made a reference to the working plan, which has been annexed as Annexure No. 2 annexed to review/recall application No. 8510 of 2010, moved in W.P.M.S. No. 4969 of 2001 wherein prayer was made to recall the 10 order dated 29-9-2010 and the document, which is annexed with the application may be taken on record. Learned counsel for the petitioners has vehemently contended that as per working plan for the private forest, out of total 133.10 hectare are of Mandakhal estates, 127.50 hectares is private forest and out of total area of Gandoli estates i.e. 323.80 hectares, land measuring 182.10 hectares is private forest. Learned counsel further contended that the working plan for total 309.60 hectares forest land out of total area of 456.90 hectares was made initially for the period 1952-53 upto 1966-67 and thereafter revised working plan was made for the period 1967-68 to 1981-82. Learned counsel therefore argued that this forest land should have been excluded from the ceiling proceedings against the petitioners. Learned counsel for the petitioner further argued that the land acquired under the Act has to be allotted to persons belonging to Scheduled Caste, Scheduled Tribe etc. which will be in violation of the Forest Conservation Act 1980 and the orders of the Apex Court in Gowda Varman case. 24. Learned counsel for the petitioners further argued that the authorities below have not considered the impact of the admissions made on behalf of the State that the State Government itself has accepted that large area of the aforesaid two villages is a private forest area. According to the learned counsel the said forest land has to be treated as Hissedari Land under Section 3(6) of the Kumaun and Uttarakhand Zamindari Abolition Act (for short KUZA Act). Under Section 8 of the said Act, the Hissedar became Bhumidhars, therefore, in spite of being a forest land and the land not being an agricultural land, the same came to be recorded as Bhumidhari land. Learned counsel for the petitioners also submitted that the petitioners became bhumidhar of the forest land in dispute w.e.f. 1-1-1978, while the ceiling proceedings had been initiated in the year 1975 and no new notice was issued to them after 1-1-1978 and as such the forest land could not have been included in the ceiling notices. 11 25. On the other hand, in reply, the learned counsel for the State has argued that the present writ petitions are not legally maintainable for the simple reason because the order declaring the surplus land passed by the Prescribed Authority dated 18-11-1983 was challenged in appeal before the appellate court and the learned appellate Court by its order dated 26-11-1984 dismissed the appeals on merits, which were preferred on behalf of the petitioners. The order dated 26-11-1984 was not at all challenged by the petitioners neither before the higher forum earlier and no ground for delay has been set forth in the present writ petitions to condone the delay. Learned State counsel further contended that the appeals preferred by the petitioners were dismissed on merits by the learned District Judge vide order dated 26-11-1984 and in compliance of the directions of the appellate court, the petitioners were required to exercise their right of options before the Prescribed Authority and that it was not open to the petitioners to take the same objections again before the Prescribed Authority, which already stood disposed by the Prescribed Authority and confirmed in appeal by the learned District Judge in his order dated 26-11-1984. None of the parties assailed the order dated 26-11-1984 before any higher forum. As such the petitioners are estopped from challenging the said order in the second round of litigation. Learned State counsel further submitted that the land covered by the forest is governed by the KUZA Act and the Prescribed Authority and the appellate Court did not commit any error in including such lands in the holding of the tenure holders. Learned State counsel also argued that the word “land” has not been defined in the Act, therefore, the meaning of the land as defined in the KUZA Act shall be relevant for the purposes of the proceedings under the Act. Learned State Counsel also submitted that the ceiling proceedings were pending on 1-1-1978 and the land in dispute had been included in the ceiling notices and the petitioners have taken objection for inclusion of the said land, hence the petitioners are not prejudiced by not issuing a 12 fresh notice. Learned counsel also urged that this point was not at all raised before the courts below, therefore, they cannot raise such a plea before the writ Court. Learned State Counsel also argued that the Government can even acquire land for forest purpose as is provided under the Forests Act and that the surplus ceiling land can be set apart for forest purpose within the purview of Section 25 of the Act. Therefore, the submissions of the petitioners cannot be accepted that the forest land cannot be included in the holding of the tenure holder and cannot be declared surplus. 26. It may be mentioned that this Court in exercise of writ jurisdiction cannot sit like a Court of appeal and cannot re- appreciate the evidence led by the parties. Only perversity in the impugned judgments can be examined by a writ Court. 27. In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” 28. The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.RS. and others [(2008) 9 Supreme Court Cases, 1] while dealing with Articles 226 and 227 of the Constitution of India has observed as under:- 13 “38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” 29. For a just decision in the matter, a reference to the relevant provisions of the KUZA Act and the U.P. Zamindari Abolition and Land Reforms Act (for short Z.A.& L.R.Act) is necessary. 30. Section 3(21) of the KUZA Act provides that the words and expressions not defined under this Act but used in the U.P.Zamindari and Land Reforms Act shall have same meaning in this Act as assigned to them under Z.A.& L.R.Act. 31. Sub-section (14) of Section 3 of the Z.A.&L.R.Act defines land as follows:- “Land” [except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming;” 14 32. Subsection (10) of Section 3 of the KUZA Act defines land as follows:- “land” means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming but shall not include a forest;” 33. Section 4-A of the KUZA Act reads as under:- “4-A. Vesting of interest of hissedar in the forest land.-With effect from January 1, 1978 the rights, title and interest of every hissedar in respect of forest land shall cease and shall vest in the State Government free from all encumbrances and the provisions of this Chapter and Chapter V shall mutatis mutandis apply to