CIVIL APPELLATE JURISDICTION : Civil Appeal No. 678 of 1968.
From the judgment and order dated the 9th May 1966 of the Allahabad High Court (Lucknow Bench) in Writ Petition No. 150 of 1960.
S. C. Aggarwala and V. J. Francis, for the appellant.
G. N. Dikshit and O. P. Rana, for the respondents.
The Judgment of the Court was delivered by
This appeal by certificate granted by the Allahabad High Court, Lucknow Bench, under Article 133(1)(b) of the Constitution has its origin in a proceeding under the Indian Forest Act, 1927 (hereinafter referred to as the Act).
Appellant Madan Lal had preferred a claim under sec. 6 of the Act in respect of certain plots of land in village Khamaria, Pargana Khairigarh, District Kheri which were included along with other land in a notification under sec. 4 of the Act issued on April 3, 1954 declaring that the State Government had decided to constitute the said land a reserved forest. The Divisional Forest Officer, North Kheri Division, filed an objection to the claim of the appellant that he had Sirdari rights in the said plots. An inquiry into the claim was started by the Forest Settlement Officer under sec. 7 of the Act and evidence of the parties was concluded on February 19, 1955. The case was adjourned for local inspection to March 3, 1955. The local inspection was not however held on the due date and was made instead on May 3, 1955 when the Forest Settlement Officer further directed that the case would be put up for orders, but it was not stated when. The record of the case shows that on May 9, 1955 the Forest Settlement Officer recorded an order under sec. 11(1) of the Act that the appellant had proved his claim, and directed the Divisional Forest Officer to "inform within 15 days whether he wants the land on payment of compensation or not". Sec. 11(1) reads :
"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 shall pass an order admitting or
rejecting the same in whole or in part."
Sub-sec. (2) of sec. 11 states:
"If such claim is admitted in whole or in part, the Forest Settlement Officer shall either-
(i) exclude such land from the limits of the
proposed forest; or
(ii) come to an agreement with the owner thereof
for the surrender of his rights; or
(iii)proceed to acquire such land in the manner
provided by the Land Acquisition Act, 1894."
According to the respondents the order made by the Forest Settlement Officer admitting the claim of the appellant was passed without any notice to them and in their absence. The respondents’ case is that they came to know of this order on April 24, 1956 when the Forest Settlement Officer recorded another order stating:
"Claim has been admitted in this case. The case
will be included in the list to be forwarded to the
Govt. When information from the Govt. is received in
regard to the acquisition of land, further action will
be taken under Section 11(2) (iii) of the Indian Forest The first respondent, State of Uttar Pradesh, filed an appeal through the Divisional Forest Officer (respondent No. 2) in the Court of the Deputy Commissioner, Lakhimpur-Kheri on July 20, 1956 under sec. 17 of the Act. Sec. 17 allows an appeal to be preferred by any person who has made a claim under the Act or any Forest-officer or other person generally or specially empowered by the State Government in this behalf, against an order passed on such claim by the Forest Settlement Officer under sec. 11. The section prescribes a time limit of three months from the date of the order for presenting the appeal. The petition of appeal under sec. 17 presented in this case shows that it was directed "against the order dated 24.4.1956" and the prayer made in the petition was : "This appeal be allowed and the orders of the Forest Settlement Officer admitting the claim of the respondent be set aside with costs.....". The appellate tribunal repelling a contention raised by the claimant that the appeal was barred by limitation observed:
"Since the order dated 9.5.55 was not delivered in
the presence of the parties or after giving them any
notice of date it cannot be said to have been delivered
properly under the law. It is obvious that in case the
Forest Settlement Officer had decided to pass an order
determining the rights of the parties, it was incumbent
on him to have duly informed the parties concerned both
of the date of the order and subsequently of its
content. This was clearly not done." In these circumstances it was held that the period of limitation should run from April 24, 1956 and not from the date of the first order. On the merits the appellate tribunal found on a consideration of the evidence that claim of ’Sirdari’ rights over the land in question had no basis and allowed the appeal by its order dated April 20, 1959. The tribunal also set aside another order releasing the disputed land in favour of the claimant which was passed by the Forest Settlement Officer during the pendency of the appeal.
The claimant filed a writ petition in the High Court at Allahabad challenging the order of the appellate tribunal as without jurisdiction on two grounds: first, the order passed on May 9, 1955 was set aside though the appeal was directed not against that order but against the order dated April 24, 1956 which was not an appealable order under the Act and, secondly, assuming the appeal was also directed against the earlier order, it was barred by limitation. On the first point the High Court took the view that since the prayer made in the petition of appeal was for setting aside the ’orders’ of the Forest Settlement Officer admitting the claim, the appeal must be held to have been preferred against both the orders. As regards limitation, the High Court observed:
"In the present case, the facts found show that
though this order was purported to be passed on the 9th
May, 1956 on that date the parties were not present and
no notice of that date had been given to the parties.
The finding of the Deputy Commissioner is that the
Divisional Forest Officer actually came to know of that
order only on the 24th April, 1956 and this fact does
not appear to have been challenged on behalf of the
petitioner....... In these circumstances, we think
that, on the principles governing the administration of
justice, it should be held that so far as the Forest
Department was concerned, the order should be deemed to
have been passed on the 24th April, 1956 and the right
of appeal granted to the Department should be
determined on that very basis. This is actually what
the Deputy Commissioner did. If we were to accept the
submission on behalf of the petitioner that the
limitation for filing the appeal must be computed from
the date put down by the Forest Settlement Officer in
the order itself, it can result in material injustice
to the parties because there can be cases where a
Forest Settlement Officer may make an order, sign it
and keep it in his own custody without pronouncing it
or informing the parties concerned. The order may see
that light of day only after the expiry of three months
and thus this interpretation would result in all
concerned parties being deprived of the right of appeal
altogether." The learned Judges of the High Court added, "even if we were to hold that the appeal was time-barred", in the circumstances stated above, they would still not consider this to be "a fit case for interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution." On this view the High Court dismissed the writ petition on May 9, 1966. The appellant had also filed a revisional application to the State Government under sec. 18(4) of the Act against the order of the appellate tribunal which the State Government rejected by its order dated March 9, 1960. The writ petition refers to this unsuccessful revisional application in stating the facts, but it contains no prayer for quashing or setting aside the order of the State Government.
In the appeal before us, counsel for the appellant pressed the same two grounds urged before the High Court, and also sought to raise several questions of fact and further made a grievance that the order passed by the State Government on the revision application did not state the reasons for rejection. On the question whether the appeal presented under sec. 17 of the Act covered the order passed by the Forest Settlement Officer on May 9, 1955, it appears that the prayer made in the petition of appeal refers not only to ’orders’ in the plural, but also describes them as orders admitting the claim of the respondent, though, of course, the order dated April 24, 1956 was not one admitting the claim and as such was not appealable. Thus though the date of the earlier order was not mentioned in the petition of appeal, there can be no doubt that the appeal was also directed against that order.
The other question is whether the appeal was in time. Sec. 17 provides a right of appeal from an order passed by the Forest Settlement Officer under sec. 11 and lays down a time limit of three months from the date of the order for presenting the appeal. In this case the order under sec. 11 was recorded by the Forest Settlement Officer on May 9, 1955, and the appeal under sec. 17 filed on July 20, 1956 was obviously long out of time if the impugned order could be said to have been made on May 9, 1955 when it was recorded. Counsel for the appellant relied on a decision of this Court, Municipal Board Pushkar v. State Transport Authority, Rajasthan & Ors.(1) as an authority for the proposition that equitable considerations have no place in interpreting provisions of limitation. This was a case under the Motor Vehicles Act, 1939. Sec. 64A of that Act provides a right of revision from an order made by a State Transport Authority or Regional Transport Authority to the State Transport Appellate Tribunal and adds that no revisional application shall be entertained by the State Transport Appellate Tribunal "unless the application is made within thirty days of the date of the order." This Court observed that the words "date of the order" could not mean the date of the knowledge of the order in the absence of clear indication to that effect. If the decision stopped with the above observation it would have undoubtedly lent support to the appellant’s contention, but the Court having made the observation went on to consider the question what the expression "date of the order" meant. This is what the Court said :
"This still leaves open for investigation the
problem as to what is the date of the order. According
to the appellant the date when the Regional Transport
Authority passed the resolution is the date of the
order. Against this it is urged on behalf of the bus
operators that it is the date when that resolution was
brought into effect by the publication of the
notification which should be considered to be the date
of the order. In our opinion, the respondents’
contention should be accepted. For, it is a fallacy to
think that the date when the
Regional Transport Authority passed the resolution was
the date on which the fixation of the new-bus-stand or
the discontinuance of the old bus stand was ordered. It
has to be remembered in this connection that Rule 134
itself contemplates that the fixation or alteration of
bus stands would be made by a notification. It is only
on such notification that a notified but stand comes
into existence. So long as the notification is not made
there is in law no effective fixation of a new bus
stand or discontinuance of the old bus stand
The matter may be considered from another aspect.
Section 64A provides for an application for revision by
a person aggrieved by an order. It is the making of the
order which gives rise to the grievance. In this case
it is the fixation of the new bus stand and the
discontinuance of the old bus stand by which the bus
operators claim to have been aggrieved. It is easy to
see that there is no real cause for grievance till such
fixation and discontinuance of bus stands have been
made by a notified order. In other words, the order has
not been "made" till the notification has been
published. Before that it is only an intention to make
an order that has been expressed."
It is clear that the publication of the notification serves as notice to the aggrieved party and enables him to make an application under sec. 64A within the prescribed time limit. This case therefore does not support the appellant.
The Act we are concerned with does not state what would happen if the Forest Settlement Officer made an order under sec. 11 without notice to the parties and in their absence. In such a case, if the aggrieved party came to know of the order after the expiry of the time prescribed for presenting an appal from the order, would the remedy be lost for no fault of his ? It would be absurd to think so. It is a fundamental principle of justice that a party whose rights are effected by an order must have notice of it. This principle is embodied in Order 20, Rule 1 of the Code of Civil Procedure; though the Forest Settlement Officer adjudicating on the claims under the Act is not a court, yet the principle which is really a principle of fair play and is applicable to all tribunals performing judicial or quasijudicial functions must also apply to him. The point has been considered and decided by this Court in Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer(1). This was a case under the Land Acquisition Act, 1894 and the Court was considering the question of limitation under the proviso to sec. 18 of that Act. Under sec. 18 of the Land Acquisition Act a person who has not accepted the Collector’s award can apply to the Collector requiring him to refer the matter for the determination of the court. This application has to be made within Six months from the date of the Collector’s award in the case where person interested was not present or represented before the Collector at the time when he made his award or had received no notice from the Collector of the award. Construing the expression "the date of the award" this Court observed:
"The knowledge of the party affected by the award,
either actual or constructive, being an essential
requirement of fairplay and natural justice the
expression "the date of the award" used in the proviso
must mean the date when the award is either
communicated to the party or is known by him either
actually or constructively. In our opinion, therefore,
it would be unreasonable to construe the words "from
the date of the Collector’s award" used in the proviso
to s. 18 in a literal or mechanical way.
.... where the rights of a person are affected by
any order and limitation is prescribed for the
enforcement of the remedy by the person aggrieved
against the said order by reference to the making of
the order must mean either actual or constructive
communication of the said order to the party
concerned."
The High Court in the case before us was therefore right in holding that the impugned order should be deemed to have been passed on April 24, 1956 when the Forest Department came to know of the order and "the right of appeal granted to the Department should be determined on that very basis."
Counsel for the appellant sought to argue that the appellate authority was wrong in finding that the respondents had no notice of the order passed by the Forest Settlement Officer. We cannot permit the appellant to question the findings of fact in this appeal. As regards the order passed by the State Government on the revision petition filed by the appellant, it appears that though the appellant referred to the said order in the writ petition there is no prayer in the petition for setting aside or quashing that order. As the validity of this order was not questioned before the High Court, the appellant cannot be allowed to raise the question at this stage.
In the result the appeal is dismissed with costs. P.B.R. Appeal dismissed.