- (1.) THIS revision petition is directed against the order passed by the Collector, Ajmer dated 1. 8. 1963 in appeal under sec. 17 of the Rajasthan Forest Act, 1963.
(2.) BRIEFLY, the facts of the case leading to the passing of the impugned order are as follows : - The petitioners were the muafidars of village Dang in Tehsil Arain, District Ajmer. It is alleged by the petitioners that the disputed land consisting of Khasra Nos. 1253, 1254, 1255, 1260, 1261 and 1222 was their khudkasht land long before the resumption of their muafi by the State Government. This land was temporarily handed over to the then State Government for purposes of management by the Forest Department who paid them their proportionate shares of the proceeds of the Theka Beed. In the year 1949 when the Forest settlement took place in the muafi area this disputed land was recorded in their khudkasht while the possession of the land continued to remain on the management basis with the agreement of the muafidars with the Forest Department. When the muafi was resumed under the Jagir Act in 1958, the disputed land being their khudkasht holding remained with the petitioner and they acquired khatedari rights. The Government in the Forest Department vide their Notification No. 17882/f. 15 (2) Rev. K. /57 dated the 21st November, 1957 issued a notification under sec. 29 of the Forest Act converting it into a protected forest. Objections were filed and request made that it should be excluded from the operations of the Forest Act and should not be converted into protected forest as it was required for their own cultivation. The Asstt. Forest Settlement Officer by his order dated 1. 8. 1963 rejected this application of the petitioner on the ground that the land was in possession of the Forest Department since long and no khudkasht right remained with the petitioner. In appeal before the Collector Ajmer the case was first remanded for further enquiry and by the present impugned order the Collector dismissed the appeal of the petitioner on the ground that the disputed land in question stood converted with the agreement of the petitioner to the forest land. The petitioners were clearly not in possession of the land in question and as it was not under their personal cultivation, although recorded as a khudkasht in settlement record it cannot be considered as the khudkasht land of the petitioner. It vested in the State on the resumption of the jagir under sec. 22 of the Jagirs Act and the question of release, therefore, of the land does not arise. Aggrieved by this impugned order the petitioner has filed this revision petition. The counsel for the petitioner contended by saying that the order passed by the Assistant Forest Settlement Officer was against the provision of sec. 29 of the Rajas-than Forest Act, 1953 in as much as the land sought to be converted into a protected forest was not the Government forest and waste land, but was a private khudkasht land of the petitioner. The Government Advocate raised a preliminary objection and filed an application that this point of law was never agitated before the lower courts and was not mentioned in the memo of revision and cannot be taken by way of surprise at this stage. The counsel for the petitioner therefore urged by saying that a pure question of law can even be raised at the stage of a second appeal by virtue of O. 41, R. 2 of the Code of Civil Procedure with the leave of the Court. Besides this Court was the Court of revision and it has the power to test the legality of the proceedings and the Court is free to decide all such matters. The case of petitioner by his failure to mention sec. 22 of the Forest Act cannot be allowed to go by default when the petitioner in his memo of revision by implication as pleaded that the land in question was the private land of the petitioner and cannot be a subject of convection into a protected forest by the State Government and hence it has to be released. I have considered the preliminary objection raised by the Government Advocate and the reply given by the counsel for the petitioner and also perused (he memo Of revision as well as the orders passed by the subordinate officers i. e. the Collector and the Asstt. Settlement Forest Officer. From the perusal of these orders it will be clear that the entire case of the petitioner has been built up on the ground that the land in dispute was his khudkasht land and the Forest Department has wrongly included it into the protected forest under the notification of the Government and should be released forthwith. This stand of the petitioner clearly implies that his proprietory right over the land has been invaded by the Forest Deptt. by issuing a notification converting it into a protected forest. The question, therefore, arises for decision is whether the Government is so empowered by the Forest Act or not. This stand of the petitioner springs no surprise on the Government Advocate with regard to the implication of sec. 29 of the Forest Act, 1953. Besides this Court of revision has full power to test the legality of the orders passed by the subordinate authorities. I, therefore, over-rule this objection of the Government Advocate and hold that the memo of revision sufficiently raises the plea that the land in dispute is not a subject of convection into a protected forest by the Government. On the merits of the case the counsel for the petitioner argued that it is an a admitted fact that the land in question was situated in a jagir area. The petitioners are recorded as the khudkasht holders of the land in question although not in possession and as such this being not the Government Forest or waste land and not the land in which the Government have proprietory rights was incapable of being con-vered into a protected forest by virtue of a notification referred to above. The mere fact that the land was handed over to the Forest Department for purposes of management does not in any way deprive his proprietory rights. On the resumption of the jagir or the muafi the petitioner acquired Khatedari rights over the land in question. The order passed by the Asstt. Forest Settlement Officer taking the land into a protected forest was clearly illegal and without jurisdiction. He further added that two other khudkasht holders of the land in the same area were allowed to have the benefit of having their land released from the protected forest. The Government Advocate's reply was that the land in question was in possession of the Forest Department ever since 1947. This is a fact admitted by the petitioners themselves and there was no question of this land becoming as the khudkasht land of the petitioner when it was not in their possession and not cultivated by them personally, The land stood converted into a forest land during the Kishengarh State. His second contention was that this being the forest land by virtue of sec. 22 of the Jagirs Act, 1952 it vested in the State and there is no question of this land being released from the protected forest. I have considered the arguments advanced from both sides and also seen the relevant record. It is an admitted fact that the land in dispute originally formed part and parcel of the petitioners jagir. Long before the resumption of the Jagir this land with the consent of the petitioners was taken over under the management of the Forest Department who have been paying the proportionate share of the petitioner out of the Theka income of this beed. From this, it is clear that although the possession by way of management remained with the Forest Department the proprietory or ownership right over the land in dispute remained with the present muafidars. There is no element of truth in the contention of the Government Advocate that this land stood converted into a forest land even while the petitioner enjoyed his muafidari rights. In fact there could be no such convertion. No provision of the forest Act of the Government of Rajasthan or any Forest Act of the Kishen-garh State has been shown to me which contains powers with the Government. to take over the land of the private persons without paying a pie towards compensation. It is also an admitted fact and which is clearly borne out from the record of this case that in 1949 when the settlement took place the land in dispute was recorded in the Khudkasht land of the petitioner muafidars. The mere fact that the possession was with the Forest Department with the consent of the owner does not come in the way of the muafidar getting his land recorded as his Khudkasht as he was the owner of the land in question. The argument of the Government Advocate that while the possession of the land in dispute remained with the Forest Department no Khudkasht right could be acquired is illogical and fallacious. It may be noted that the petitioner had the proprietory right over the land in dispute and the possession of the Forest Department was with his consent and agreement and if he wanted to get the land recorded in his Khudkasht holding there could be no impediment in his way in getting the holding recorded as such. As long as the parcha khatauni remains with the petitioner, the presumption of truth attaches to it and is bound to be considered as the Khudkasht holder of the land in dispute. It is not the case of the Forest Department that they while holding the possession of the land stood in the relationship of a tenant with the petitioner as land-holders and that they had acquired certain right over the petitioner which will protect their possession against the petitioners from taking over the land in his own custody. Beside stating that the Forest Department had the possession of the land in question, the Government Advocate could not make out a case that this possession of the Forest Department matured into a certain right in favour of the Government from which the Forest Department could not be dispossessed. It is, therefore, clear that the land continued to remain the Khudkasht of the jagirdar till the jagir came to be resumed in 1958. By operation of law Khudkasht lands by virtue of sec. 10 of the Jagirs Act 1952 and by virtue of sec. 13 of the Rajasthan Tenancy Act, 1955 became the khatedari lands of the Khudkasht holders. Thus when the muafi of the petitioner was got resumed, the Khudkasht land in dispute became the khatedari land of the petitioner. It thus continued to remain the private land of the petitioner in which the petitioners had proprietory rights. It was never the Government land nor there is anything to indicate that it was the forest or waste land of the Government in which it had proprietory rights. Sec. 29 of the Forest Act which runs as follows, clearly shows that protected forest under Chapter IV of the Rajasthan Forest Act, 1953 could only be created in forest lands or waste land which is the property of the Government or over which the Government has proprietory rights. "29. Protected Forests - (i) The Government may, by notification in the Rajasthan Gazette, declare the provisions of this Chapter applicable to any forest land or waste land which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietory rights, or to the whole or any part of the forest produce of which the Government is entitled. (ii) The forest land and waste lands comprised in any such notification shall be called a 'protected forest. ' (iii) No such notification shall be made unless the nature and extent of the rights of Government and of private persons in or over the forest land or waste land comprised therein have been inquired into and recorded at a survey or settlement or in such other manner as the Government thinks sufficient. Every such record shall be presumed to be correct until the contrary is proved. Provided that, if, in the case of any forest land or waste land, the Government thinks that such inquiry and record are necessary but that they will occupy such length of time as in the meantime to endanger the rights of Government, Government may, pending such inquiry and record, declare such land to be a protected forest, but so as not to abridge or affect any existing rights of individuals or communities. " The plain reading of the above section would clearly show that the protected forest could only be created by the Government over the Government land alone and not over the lands of the private persons. In fact enquiry is necessary if private rights are involved. It is but logical that the Government cannot invade or encroach upon proprietory rights of the individuals by converting their land into protected forests as it would involve them into payment of compensation and it would tantamount to trespass over the land of the private individual, unless of course the Government acquires the ownership of the private individual over his land it cannot take over possession of such land. If the Government wishes to take over control of forest lands not being the property of the Government it has to proceed under Chapter V of the Forest Act, 1953 and follow the procedure laid down in it. Sec. 38 of the Forest Act even provides for protection of forest at the request of the owner, but in this case the Government has not proceeded under Chapter V of the Forest Act. The question, therefore, now arises is whether the land in question was the forest land and as such according to the impugned order of the Collector, Ajmer vested in the State as a result of the resumption of the muafi of the petitioner or it remained a Khudkasht land of the petitioners. It is true that this land in dispute was at no time cultivated by the petitioners after it was taken over with the agreement of the petitioner by the Forest Department for purposes of management and payment of the produce of the Theka to the petitioners. But the land was nevertheless in the record of rights, that is parcha Khatauni recorded as the Khudkasht land of the petitioner. The definition provided for Khudkasht in sec. 2 Sub-sec. (1) of the Jagirs Act, 1953 runs as follows - "sec. 2 (i) Khudkasht - Means any land cultivated personally by a jagirdar and includes - (1) Any land recorded as Khudkasht, Sir or Hawala in settlement record; and any land allotted to a jagir as Khudkasht under Chapter IV. " Thus it is not necessary that the land should be cultivated personally by the Jagirdar before it becomes Khudkasht land. This definition clearly suggests that before a land could be styled as Khudkasht it has either to be cultivated personally or it is recorded as such in the settlement record or allotted to a jagirdar as Khudkasht by the competent authority. It is not necessary that all these three ingredients should be found together to enable a person to claim his Khudkasht rights. It is sufficient that if one of the ingredients is there to make the land as Khudkasht. It is beyond doubt that the land in dispute was recorded as Khudkasht and therefore it remains as such. The Collector, Ajmer in his impugned order misread the provisions of the Jagirs Act when he came to the conclusion that this land in question was a forest land and vested under sec. 22 of the Jagirs Act, 1952. It was clearly a Khudkasht land and was saved from being vested under sec. 23 of the Jagirs Act. It is not necessary that the land in dispute should have been got declared by the petitioner as his Khudkahst land but it is sufficient if the property belong to the category mentioned in sec. 23 of the Jagirs Act, it is saved from the vesting provisions of the sec. 22 of the Act and would remain the property of the owner of the resumed jagir. Thus the finding of the Collector, Ajmer that the property vested in the State Government as forest land and the argument of the Government Advocate that too did so, is entirely a wrong conclusion derived from misreading of the facts of the case and the law on the subject. I am clearly of the opinion that the land in dispute was the Khudkasht land of the Jagirdar and as such it could not be a land over which a protected forest under sec, 29 could be created by the Government. The Notification by the Government and an action taken by the Forest Department in retaining this land lacked inherent jurisdiction and is clearly illegal. I, therefore, accept the revision petition of the petitioner, set aside the impugned order of the Collector, Ajmer as wall as the order of the Asstt. Settlement Forest Officer and declare that on the land in dispute no protected forest could be created. The Notification of the Government creating such forest was illegal and without jurisdiction. The petitioner is entitled to the possession of his Khudkasht land subject to the terms and the agreement under which the land was taken over by the Forest Department for management. The petitioner is further entitled to rendition, of accounts by the Forest Department for the income collected by them during the period the land remained in their management. . ;