IN C.A. 9697-9698 OF 2013 -SC- Evidence which has been confirmed by Courts below must be reversed by High Courtsonly in rarest of rare cases: Supreme Court while holding that the right to enjoy possession of any land notified under Sec 4 of Forest Act was not only limited to Adivasi communities but was also based on proof of residence and date of original possession
Justice Krishna Murari and Justice Ahsanuddin Amanullah [05-07-2023]

Read More: Hari Prakash Shukla v. The State Of Uttar Pradesh

Simran Singh

New Delhi, July 6, 2023: The Supreme Court has allowed an appeal preferred by the bhoomidars of the subject land who were in possession of the same for agricultural purposes since the time when permanent lease was executed in their favour by the then zamindar in the year 1952,even though a 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 Indian Forest Act,1927(Forest Act) for declaration as reserved forest.

While referring to the case of BanwasiSevaAshram v State Of Uttar Pradesh  , the Top Court stated that the right to enjoy possession of any land notified under Section 4 of the Forest Act was not only limited to Adivasi communities and other forest dwelling communities, but was 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…”

The ApexCourt further referred to the case of BK Munirajuv State Of Karnataka , while expounding on the powers of the High Court under Article 226 of the Constitution of India and held that the same could not be used to re-appreciate evidence unless an error of fact appraised by the lower court was manifest and such an error had caused grave injustice.

The Bench was of the opinion that as far as the present case was concerned, the concurrent findings of the lower courts were neither perverse, nor the said courts had 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.

In the matter at hand, the appellant challenged the order passed by the High Court of Allahabad wherein the petition preferred by the respondents herein was allowed. The aforementioned declaration of the said land initiated an eviction drive of the local inhabitants, and against this, on the basis of a letter received from BanwasiSeva Ashram, a writ petition was instituted in this Court regarding the claim of the local inhabitants.

Issue for consideration

1. Whether the relief granted in the Judgment of BanwasiSevaAshram v State Of Uttar Pradesh  was only applicable to SC/ST/ other backward communities?
2. 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?

Court Analysis

While dealing with the first issue on hand, the Court referred to the case of BanwasiSewa 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 and Supreme Court had 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. The BanwasiSewa Judgment (Supra), when read into detail, showed that it conferred 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. The 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.

The Bench opined that the object of such judgment, was to further the cause of substantive justice, and to ensure that every party with a valid claim over the notified land was heard in detail, and no arbitrary power to evict local inhabitants was given to the State.

The Court noted that the forest communities did not only consist of people from recognised Adivasi and other backward communities, but also other groups residing in the said land. These other groups, who did not get recognition under the law as a forest dwelling community due to several socio-political and economic reasons, were also an integral part of the said forest communities and were 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. 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.”

The Bench stated that if the competent authority rejected their a claim, then the same could not exist against the situate land. It was opined that this right to be heard, must be granted to all claiming possession of the subject land, and the substantial right of possession could 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.”

Therefore, in light of the above mentioned discussions, the Court heldIssueNo. I in favour of the appellants.

The Bench while navigating through the second issue on hand stated that 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 Courts below. “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.”

The Bench was of the view that the Supreme Court, in a catena of judgments had held that the High Court, while exercising its inherent powers under 226 of the Constitution of India, could not 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.

The Bench observed that the introduction and admission of evidence at the trial stage goes through a rigorous process, wherein each piece of evidence introduced was subject to very strict scrutiny, and every party was 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. 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 the Bench had been answered in favour of the appellants herein, that was to say, the remedy granted under theBanwasiSewa judgment (supra) was available to the appellants herein, and the re-appreciation of evidence done by the High Court while exercising its inherent powers under Article 226, was bad in law and was liable to be struck down.

Further, Contempt Petitions filed at the behest of the appellants were rendered infructuous. In light of such observations, the impugned order and judgment passed by High Court of Allahabad dated 04.02.2013 was set aside and the orders passed by the Forest Settlement Officer and Additional District Judge were confirmed.