VISHNU KUMAR Vs. DIVISIONAL FOREST OFFICER NORTH

JUDGEMENT

(1.) -In this fourth petition, filed by petitioner, a Bhumidhar and Sirdar of plot nos. 297B, 129, 178 and 367 of village Ramchandrahi, for permission to cut and remove the dying trees under section 6 of U. P. Protection of Trees in Rural and Hill Areas Act, 1976, what stands amply demonstrated is the apathy of opposite parties to act in accordance with rules despite orders of State Government unless they are directed to do so by issuing direction under Article 226. Such unfortunate attitude apart from being frustrative results in increasing work load of this Court.

(2.) AS far back as 1960 the plots were attempted to be declared reserve forest. And the objection of petitioner's predecessor filed under section 6 of Indian Forest Act was dismissed. But on 20th September, 1980 the appeal filed under section 17 of the Forest Act was allowed and petitioner was declared Bhumidhar and Sirdar of plots including plot no. 297B which has now been numbered as 204 Ka. The effect of this order which had become final, was that the provisions of Indian Forest Act did not apply to it. On 4th March, 1981 the petitioner filed an application under Protection of Trees Act for felling and removing those trees standing over the plot which were dead or were in process of dying. AS the application was filed before State Government it called for comments on it from the Conservator of Forest who opined that since the land was no more reserve forest although a working plan was prepared for it but no action was taken due to pendency of litigation therefore, the suggestions made by prescribed authority in paragraphs 7, 8 and 10 of his report may be got implemented after getting it approved from State Government. On 5th January, 1982 the State Government directed the Conservator of Forest to cancel the notification issued under section 4 of Forest Act and to do the needful on application of petitioner in accordance with provisions of 1976 Act, the guidelines issued by State Government and the report submitted by him. On 18th February, 1982 the petitioner sent another request to the Conservator that although the petitioner had applied for felling and removing the trees in accordance with working plan of Forest department, but he shall not fell any tree of 1.25 ft. diametre and was willing to plant new trees. In February 1986, the Divisional Forest Officer sent a very peculiar letter denying the receipt of letter sent by petitioner in 1984 and objecting to petitioner's approaching State Government for grant of permission directly and expressing his inability to do anything so long the notification under section 4 was not cancelled. If an officer of the Stature of Divisional Forest Officer can afford to write such letter and ignore the direction of State Government, Conservator of Forest and the judgment given by the Civil Court as far back as 1980 then it shows complete lack of understanding of law and rules and leaves no room for doubt that the feeling of petitioner that the opposite parties deliberately made it a prestige point not to allow him to cut and remove the trees was not unjustified. However, the petitioner in these unfortunate circumstances, being left with no option approached this court and the first petition was filed in March, 1986. On 16th May, 1986 the petition was disposed of with direction to pass order on application of petitioner forthwith as no order on application of petitioner filed under section 6 having been passed it shall be deemed that after expiry of 90 days the application stood allowed under subsection (2) of Section 6 of the Act no. XLV of 1976. Since despite direction of this court the opposite parties did not pass any order the petitioner approached again by way of petition no. 17493 of 1986 in which an interim mandamus was issued on 24th October, 1986 directing Divisional Forest Officer to either dispose of the application within ten days from the date of copy of the order was produced or to show cause. The Divisional Forest Officer was further directed to file his personal affidavit as the Bench felt that the officer was deliberately disobeying direction of this court. Left with no option the opposite party passed an order on 3rd November, rejecting application of petitioner as plot no. 204 Ka was not separate at the spot, therefore, it was not possible to ascertain as to how many trees had dried up which the petitioner wanted to cut and remove. It was further observed that so long the notification under section 4 of the Forest Act was not cancelled it was not possible to grant permission. Needless to say that the objections were frivolous and raised as pretext to reject the application as the State Government in its letter issued to Conservator in 1982 had observed that in view of Government decision not to challenge the order of Civil Court declaring petitioner to be Bhumidhar of land the notification issued under section 4 had become ineffective. And as for separation of plot and specifying of trees was concerned the petitioner had clearly stated that he was keen to cut and remove those trees which the department itself intended to cut and remove in its working plan. Whether permission for this could be granted or not but there was no lack of detail due to which the order could not be passed. It may be that petitioner acted with impropriety in approaching the State Government instead of the Prescribed Authority but once the government took cognizance of it, obtained report of Conservator of Forest which in its turn was based on report of Deputy Conservator of Forest and Prescribed Authority and thereafter the government directed the authorities concerned to proceed in accordance with Act or rules then nothing survived for being objected by the opposite party as the State Government did not itself pass the order but directed the opposite party to do the needful. Further should the petitioner suffer for the fault of department in not cancelling the notification under section 4. In fact such lack of imagination and adhering to technicalities without application of mind result in untold suffering for which the government must take action and fix responsibility. However, after filing of counter-affidavit the petition was disposed of on 18th November, 1987 and petitioner was directed to file yet another application. Although in view of the facts narrated it was not necessary for this court to direct the petitioner to file a fresh application yet it appears in its anxiety to finalise the matter without prejudice to department it directed petitioner to file fresh application giving details of trees etc. While doing so the court further observed that since working plan as prepared by the Forest Department is stated to have been approved by the State Government, the officer concerned shall dispose of the application taking into account the same. In compliance with this direction issued by this court the petitioner once again filed an application before the opposite parties quoting from the working plan and giving the details of trees etc. and mentioning that since they were more than 100 years permission may be granted to fell and remove the same. Objection in respect of demarcation of plot was also removed as is clear from the Annexure 18, an answer given to a questionaire submitted by petitioner that the plot stood demarcated. But the application was rejected once again on 19th of January 1988 as petitioner had not complied with order of this Court inasmuch as the petitioner except mentioning the number of trees did not specify as to which tree he was desirous of cutting and removing. And since working plan had not been prepared for the land in dispute and there was no provision to cut trees on working plan of department.

(3.) IN the circumstances, this petition succeeds and is allowed. The order dated 13th January, 1988 is quashed. A direction is issued to opposite parties to allow the application of petitioner and grant permission to cut and remove trees as mentioned in the application filed on 14th November, 1987. The petitioner after removing the trees shall plant new trees over the land in dispute. We are inclined to impose exemplary costs leaving it open to State Government to recover from officials but we refrain from doing so in view of fervent appeal of the learned Standing Counsel. The petitioner shall, however, be entitled to its costs. Petition allowed.