REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 9697-9698 OF 2014

HARI PRAKASH SHUKLA & ORS . … APPELLANT(S)

VERSUS

THE STATE OF UTTAR PRADESH & ANR. … RESPONDENT(S)

WITH

CONTEMPT PETITION (CIVIL) NO(S). 209-210 OF 2021

HARI PRAKASH SHUKLA & ANR. … PETITIONER(S)

VERSUS

PRAKHAR MISHRA & ANR. … ALLEGED

CONTEMNOR(S)/RESPONDENT(S)

JUDGMENT

KRISHNA MURARI, J.

1.The present appeals are directed against the impugned order and

judgment dated 04.02.2013 passed by the High Court of Allahabad at

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Allahabad, (hereinafter referred to as “High Court”), whereby, the Writ

Petition preferred by the respondents herein was allowed.

FACTS

2.The relevant facts necessary for the adjudication of the present appeals,

for the sake of convenience, are being mentioned herein.

3.The appellants herein are the bhoomidars of the subject land and are in

possession of the same. The said lands, as per the appellants, is being

used by them for agricultural purposes since a permanent lease was

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 land in

possession of the Appellants, was declared as reserved forest, and the

other part of the said land was subject to a notification under Section 4

of the Forest Act for declaration as reserved forest.

5.Such a declaration of the said land initiated an eviction drive of the

local inhabitants, and against this, on the basis of a letter received from

Banwasi Seva Ashram, a writ petition was instituted in this Court

regarding the claim of the local inhabitants.

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6.This Court, vide judgment and order dated 20.11.1986 in the

abovementioned writ petition, directed the formation of a High

Powered Committee consisting of a retired High Court Judge and two

officers for the purpose of adjudicating upon the claims of persons over

the said disputed land, and subsequently, further directed the claims to

be heard by Forest Settlement Officer.

7.On the basis of the abovementioned judgment, the appellants herein

filed their claims before the Forest Settlement Officer, and after proper

consideration of representations made by both the parties, the forest

settlement officer held that the said land has been in possession of the

Appellants even prior to 1385 Fasli and thus, have a rightful claim over

the said land.

8.Aggrieved by the abovementioned order, the respondents herein

preferred an appeal before the Additional District Judge, however, by

way of a well-reasoned order dated 04.04.1991, the same was

dismissed.

9.Subsequent to the dismissal of the Appeal, the appellants herein filed an

application for the enforcement of the abovementioned order, and the

learned Additional District Judge vide order dated 23.03.2005 allowed

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the said application and directed the recording of the Appellants herein

as Bhoomidars.

10.The respondent Forest Department then filed a Review against the

order dated 04.04.1991, however, while observing that the nature of the

review was more in the nature of an appeal, dismissed the same vide

order dated 08.12.2005.

11.Despite the said dismissal, the Forest Department filed an

application for recall against the abovementioned order of review,

however, the said application for recall was also dismissed vide order

dated 08.12.2005.

12.Aggrieved by the said orders, the respondent Forest Department

filed a writ petition in High Court of Allahabad, and vide impugned

judgment and order dated 04.02.2013, the same was allowed, and the

eviction of the Appellants was directed.

13.Against the said order, the appellants filed Review Petition which

was dismissed by order dated 08.02.2013. However, the eviction of the

appellants was stayed until 20.03.2013 to enable them to approach this

Court.

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14.As against the abovementioned impugned order of the High Court,

the appellants herein have preferred the present appeals.

ANALYSIS

15.We have heard Shri Anil Kaushik for the appellants and Shri

S.R.Singh, Learned Senior Counsel assisted by Shri Kamlendra Mishra

for the respondents.

16.At the outset, for the adjudication of the present appeals, it is our

considered opinion that following two issues arise for our

consideration.

I.Whether the relief granted in the Judgment of Banwasi Seva

Ashram vs State Of Uttar Pradesh

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is only applicable to SC/ST/

other backward communities?

II.Whether the High Court, while exercising its jurisdiction under

Article 226 of the Constitution of India, could have re-appreciated

the evidence adduced to come to its findings?

1 1986 4 SCC 753

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ISSUE I- Whether the relief granted in the Judgement of Banwasi Seva

Ashram vs State Of Uttar Pradesh

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is only applicable to SC/ST/ other

backward communities?

17.In the case of Banwasi Sewa Ashram (Supra), wherein certain

Adivasi communities inhabiting the situate land were being evicted

from their homes on grounds of the said land being subject to a Section

4 notification under the Forest Act, this Court held that the said

inhabitants had a right for their claims to be heard by the Forest Officer,

and it was the forest officer, who had the power to go into the merits of

the case and 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 of the

subject land, only a procedural right to be heard by the appropriate

authority, and not a substantive right of possession/inhabitation of the

land. In simpler terms, this would mean that this Court, while delivering

the said judgment, did not go into the merits of each claim but only

provided an appropriate forum for the claims to be heard.

2 1986 4 SCC 753

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19.The object of such judgment, in our opinion, is to further the cause

of substantive justice, and to ensure that every party with a valid claim

over the notified land is heard in detail, and no arbitrary power to evict

local inhabitants is given to the state.

20.It must be noted that forest communities do not only consist of

people from recognized Adivasi and other backward communities, but

also other groups residing in the said land. These other groups, who do

not get recognition under the law as a forest dwelling community due to

several socio-political and economic reasons, are also an integral part of

the said forest communities and are essential to their functioning.

Further, there can also be several instances of people ancestrally being

forest dwellers, however, due to lack of documentation, are not able to

prove the same.

21.While we are aware of the fact that the Appellants herein are not

from a backward community and nor do they claim to be so, however,

the abovementioned Banwasi Judgment (Supra), if interpreted in a

narrow manner only to benefit certain recognized forest communities,

would cause a great deal of harm to multiple other communities. At the

sake of repetition, it must be noted that the Banwasi Judgment

(Supra), only grants a right to be heard by a competent authority, and if

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such authority rejects a claim, then the said claim cannot exist against

the situate land.

22.This right to be heard, in our opinion, must be granted to all

claiming possession of the subject land, and the substantial right of

possession can be granted or denied during the said hearing, by the

competent authority, that is to say, the right to be heard must be enjoyed

by all, and the right to possess, must be enjoyed by those who have a

legitimate claim.

23.Further, the right to enjoy possession of any land notified under

Section 4 of the Forest Act is not only limited to Adivasi communities

and other forest dwelling communities, but is also based on proof of

residence, date of original possession, etc. If the right to inhabit the said

lands is not restricted only to certain communities, how can the right to

be heard on such claims be restricted to the same.

24.Therefore, in light of the abovementioned discussions, we hold Issue

No. I in favor of the Appellants.

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ISSUE-II Whether the High Court, while exercising its jurisdiction under

Article 226 of the Constitution of India, could have re-appreciated

evidence to come to its findings?

25.The Appellants herein, before the impugned order passed by the

High Court in Writ Jurisdiction, had two concurrent findings in their

favour by way of decisions rendered by the lower courts. The

Appellants had proved their possession over the subject land by leading

evidence, and the veracity of the same, by way of proper procedure,

was tested by both the lower courts. The High Court, however, without

evidence being led by the respondents, set aside the concurrent findings

vide impugned order and judgment dated 04.02.2013.

26.This Court, in a catena of judgments has held that the High Court,

while exercising its inherent powers under 226 of the Constitution of

India, cannot re-appreciate evidence and arrival of finding of facts,

unless the authority which passed the original order did so in excess of

its jurisdiction, or if the findings were patently perverse.

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27.In the case of BK Muniraju Vs. State Of Karnataka

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, this Court,

while expounding on the powers of the High Court under Article 226 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 court

is manifest and such an error has caused grave injustice.

28.Further, in the case of Krishnanand Vs. Director of Consolidation

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,

this Court, in a similar fact circumstance wherein concurrent findings of

the lower courts were dismissed by the High Court while exercising its

writ jurisdiction, held that re-appreciation of evidence under Article 226

can only be done in cases where the original order by the lower court

was passed in excess of its jurisdiction or if the findings 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 the said

courts have over stepped their jurisdiction. In such a scenario, wherein

neither of the conditions were satisfied, the High Court could not have

re-appreciated the evidence in writ jurisdiction and come to a different

conclusion.

3 2008 4 SCC 451

4 2015 1 SCC 553

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30.It must be noted that the introduction and admission of evidence at

the trial stage goes through a rigorous process, wherein each piece of

evidence introduced is subject to very strict scrutiny, and every party is

given the opportunity to test the veracity of the said evidence through

procedure established by law. The legitimacy of the evidence, at every

stage, is questioned, and the opposing party is given the right to

question the said evidence by placing their doubts regarding the same in

court. Such a mechanism in law of going through evidence, is not

available to the High Court while exercising its powers under writ

jurisdiction, and therefore, evidence which has been confirmed by the

lower courts, must only be reversed by the High Courts in the rarest of

rare cases.

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 has been

answered in favour of the Appellants herein, that is to say, the remedy

granted under the Banwasi Sewa judgment (supra) is available to the

appellants herein, and the reappreciation of evidence done by the High

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Court while exercising its inherent powers under Article 226, in our

opinion, is bad in law and is liable to be struck down.

33.Further, Contempt Petitions filed at the behest of the appellants

herein have also been brought to our notice. However, since the dispute

in question has been held in favour of the appellants, the contempt

petitions are rendered infructuous.

34.In light of such observations, the impugned order and judgment

passed 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 Forest

Settlement Officer and Additional District Judge are hereby confirmed.

The appeals, accordingly, stand allowed and the captioned contempt

petitions are dismissed.

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

……...….………...………………,J

(KRISHNA MURARI)

……...…....….………….…………,J

(AHSANUDDIN AMANULLAH)

NEW DELHI;

05

th

JULY, 2023

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