R. A. Sharma, J. - (1.) GAON Sabha Kodai and Magardaha, Tahsil Robertsganj, district Mirzapur on 27-10-1987 auctioned the right to cut and remove trees from certain plots of land. As the bid of the petitioner was highest for sum of Rs. 35,000/- plus Rs. 5,500/- Total Rs. 40,500/- the same was accepted and the petitioner claims to have deposited 1 /4th of this amount at the time of the auction. As the villages in question are situated almost in the middle of forest owned by the Forest Deptt. of the Government of U. P., demarcation of the plot was necessary before the petitioner could cut and remove the trees and an order to that effect was passed by the Sub-Divisional Magistrate. The petitioner was also required to obtain transit pass under the U. P. Transit of Timber and other Forest Produce Rules so as to enable him to remove the tress to the place of his business.
(2.) THE Forest Officer, vide his order dated 26-12-1988, has refused to grant transit pass to the petitioner on the ground that the land of the aforesaid Gaon Sabhas had already been separated from the forest land by digging tranches over which the people have constructed their cottages and are living therein, and there is no jungle on the Gaon Sabha land and it is only on the various land of the Government of U. P., where jungle exists but this has been reserved. THE petitioner has challenged this order of the Forest Officer by means of this writ petition. The aforesaid order has been challenged by the petitioner on the grounds that the plots of land from where the petitioner has to cut and remove trees have not been reserved and as such the respondents cannot refuse transit pass and the petitioner has all the rights to cut and remove the trees. So far as village Magardaha is concerned, the Government of U. P. has issued a notification dated 22-7-1972 under section 4 of the Indian Forest Act (hereinafter referred to as the Act) proposing to declare various plots of virious villages of Tehsil Robertsganj district Mirzapur including the plots in question of village Magardaha as reserved forest. However, final notification under section 20 of the Act has not yet been issued and in supplemenrary counter affidavit filed on behalf of the State Government, it has been mentioned that the Forest Department has already written to the Government for publication of the final notification under section 20 of the Act. As the notification under section 20 of the Act has not been issued by the Government so far and there is only a notification under section 4 of the Act, whereby the State Government proposed to declare certain area as reserved forest, the land comprised in the notification of section 4 of the Act cannot be treated to be reserved forest and the Forest Officer was as such wrong in holding that the land in dispute is reserved forest.
(3.) ALTHOUGH there is no notification under section 20 of the Act and as such the land in dispute cannot be treated to be a reserved forest, but in view of the notification under section 4, section 5 of the Act fully covers the situation. Section 5 of the Act as amended by the State of U. P. is as follows : "5. Bar of accrual of forest rights- After the issue of the notification under section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued ; and no fresh clearings for cultivation or for any other purpose shall be made in such land, nor any tree therein felled, girdled, lopped, tapped off, or the same otherwise damaged, nor any forest-produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf." The effect of Section 5 of the Act is that after the notification under Section 4 of the Act is issued virtually status quo is to be maintained. This section prohibits (i) acquisition of any right, (ii) fresh clearings for cultivation or any other purpose, (iii) felling, girdling, burning etc of trees and (iv) removing any forest trees, in or over the land comprised in the notification under Sec. 4 except in accordance with such rule as may be made by the State Government in this behalf.;