YAKUB ALI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) By the instant C-482 application, the applicant is challenging the proceedings of Criminal Case No.1100 of 2010, pending in the Court of the learned Chief Judicial Magistrate, District Haridwar, whereby the applicant is facing trial in respect of offences punishable under Sec. 9 read with 51 of the Wildlife Protection Act, 1972, Ss. 26, 41, 42 and 63 of the Forest Act, 1927, and Sec. 2 of the Forest Conservation Act, 1980.

(2.) Brief facts of the case are that on 23/12/2008, the applicant, who was the Forester at the Khanpur Range, District Haridwar, informed his Forest Range Officer about the clearing of bushes and digging in the forest area by one Mr. Qamaruzmma. The applicant further informed that the activities were stopped and on the objection of Mr. Qamaruzmma that he is doing the said activities in his own property, and he was asked to request the authorities for survey and determination of boundaries. Thereafter, on 30/12/2008, Mr. Qamaruzmma made a representation to the Divisional Forest Officer, District Haridwar, requesting for the survey to determine the boundary between his land and the forest land, and in response to his representation, at the behest of the Administrative Officer, Forest Department, Haridwar, his request for the survey was accepted. Consequently, the survey was conducted on 5/2/2009 in the presence of the officials of Forest Department and Revenue Department, and the applicant was also present in the survey in his official capacity of Forester. Furthermore, in pursuance of the aforesaid survey, a final survey report was submitted by the surveyor, according to which, the survey and boundary demarcation was done, and the positioning of boundary pillars from No.1 to 12 was determined. On 25/5/2009, the Forest Ranger, Khanpur Range, issued a notice against Mr. Qamaruzmma for doing the alleged illegal and unauthorized activities in the reserved forest area, and Mr. Qamaruzmma was charged with destroying plantations, uprooting the roots of old trees and plowing of forest reserved area, boundary of which, was adjacent to the farm boundary of Mr. Qamaruzmma. The said alleged illegal activities were done when the forest department was still in the process of putting out the pillars in pursuance of the previously conducted survey and have only put pillars from Nos.7 to 12, hence, Mr. Qamaruzmma's property was taken into the control of Forest Department, and he was warned against doing any such illegal activity further. In response to the allegations, Mr. Qamaruzmma submitted before the Divisional Forest Officer, Haridwar that he conducted the alleged activities on his own land in regard to the survey conducted on 5/2/2009. Thereafter, in pursuance of the aforesaid alleged activities, two FIRs were registered against Qamaruzmma, bearing Range Case No.26/Khanpur/2009-10, which registered for the offences punishable under Sec. 26(h) of the Forest Act, 1927 for destroying 250-300 plantations by using JCB machine and tractor harrow, and Range Case No.27/Khanpur/2009-10 was registered for the offences punishable under Sec. 26(h) of Forest Act, 1927 for uprooting the roots of cut trees and plowing of forest reserved land. The said FIRs were lodged by the Forest Guards under the supervision of the applicant, as they were all part of the survey team that determined the boundaries of the forest land on 5/2/2009. In addition to the aforesaid FIRs, on 29/6/2009, a report was also submitted by the Sub-Divisional Forest Officer, Roorkee to the Divisional Forest Officer, Haridwar. The Sub-Divisional Forest Officer recorded that the survey of the site could not happen due to non-availability of some pillars and complete destruction of other pillars. He further recorded that the alleged activities occurred in pursuance of Mr. Qamaruzzma's claim on the land, as per the survey conducted on 5/2/2009, and as per the survey report, the Forest Ranger has taken control of the land, where the alleged activities have taken place, however, no conclusive observation could be made with regard to the ownership of the disputed land. Thereafter, on the basis of the report of the Sub-Divisional Forest Officer, the applicant herein was found, prima facie, guilty for felling of trees and plowing of the forest reserved area, and the applicant was suspended with immediate effect. Learned counsel for the applicant submits that in the report of the Sub-Divisional Forest Officer, as well as in the suspension order, there is no specific finding recorded against the applicant, and the report of the Sub-Divisional Forest Officer is itself inconclusive with regard to the ownership of the disputed land.

(3.) On 23/7/2009, charge-sheets were submitted in Range Case No.26/Khanpur/2009-10 and Range Case No.27/Khanpur/2009-10 respectively, and as per the investigation conducted by the Forest Department, only Mr. Qamaruzmma was found guilty for the offence punishable under Sec. 26(h) of the Forest Act, 1927. Learned counsel for the applicant submits that, in the charge-sheet, it is an admitted fact that the applicant, being the Forester, initially informed the Forest Department about the encroachment activities. He submits that in the report, it is stated that Mr. Qamarzumma took the unfair advantage of the survey conducted by the Forest Department on 5/2/2009, and his activities for encroachment would be detected, and punitive actions will be taken against him.