BHAGAWAN BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, owner of a piece of land, has approached this Court with this writ petition under Article 226 of the Constitution of India seeking issue of a writ of certiorari to quash the communication to him issued by the Divisional Forest Officer, Kalahandi Division calling upon him to stop felling of any tree on the property until futher orders. The petitioner has also prayed for the issue of a writ of mandamus directing the Divisional Forest Officer, Kalahandi Division to issue the necessary permission to the petitioner to fell trees and to issue timber transit permit to him. According to the petitioner, owner of the land in question, the land having come to him from his father, he had earlier sought for permission to cut the trees and that by order dated 12-1-2000 he had been granted such permission. The permission was to cut the trees included in a joint verification report. But, subsequently while the petitioner was making preparations for the felling of the trees, the communication Annexure-6 was issued to him calling upon him to stop the felling. The petitioner made a representation for revocation of the order. On considering his representation, the Divisional Forest Officer called upon the Tahsilar, Kesinga to submit a report whether the piece of land was acquired by the petitioner only subsequent to 25-10-1980 or the acquisition was before. According to the petitioner, this was in view of the direction of this Court that no tree standing on any patta land subsequent to the coming into force of the Forest (Conservation) Act, 1980 should be permitted to be cut or felled. The concerned Tahsildar submitted a report to the effect that the petitioner had owned the land even before 25-10-1980, and since that doubt was cleared the Divisional Forest Officer should have withdrawn the order directing the petitioner not to cut or fell the trees and should have permitted him to go ahead with the felling and transport of the felled timber. The petitioner has submitted somewhat blandly that the Divisional Forest Officer has violated the constitutional right of the petitioner guaranteed under Articles 14, 19(1)(g) and 301 of the Constitution of India.2. The Divisional Forest Officer, Kalahandi Division, has filed a counter-affidavit. Therein it is submitted that though permission was granted earlier to the petitioner to fell trees and transport timber as per permission dated 12-1-2000, the petitioner neither felled any tree nor transported the timeber, and hence it was clear that the permission sought for felling on the ground that it was needed for the purpose of agriculture, was not true or sustainable. It is further submitted that the land was situated within Kalahandi-Dalangir-Koraput districts and rain was becoming scarce in those districts leading progressively to severe drought and in that situation, felling of trees or de-forestation would add fuel to the fire and make the drought more severe. It was in that context that the petitioner was issued the order directing him to stop felling and transport of timber. The situation in the above three districts justifies adoption of such a stand. After this Court passed the order dated 18-12-2000 in O.J.C. No. 7498 of 2000, restricting issuance of the timber transit permits in respect of the trees in Patta lands of the State, when pattas or title deeds have been acquired after 25-10-1980, the position regarding the petitioner was also verified. Even though the petitioner might have derived rights prior to 25-10-1980, since the petitioner got the land recorded in his name as a rayat only in the year 1988 when he was issued a rayat patta by the settlement authority, he will also come within the purview of the order of the High Court dated 18-12-2000. It is further submitted that the area from which the felling of trees is sought, is only having the forest growth and valuable trees. The said forest growth in no way affects the cultivation being carried on by the petitioner in the rest of his properties. The petitioner was having substantial agricultural properties and there was no real necessity for felling the trees and removing them and in the interest of conservation of forest, the prayer was rejected. It was necessary to maintain the ecology and no relief was liable to be granted to the petitioner.

(2.) Learned counsel for the petitioner referred to a decision of this Court in Jaladhar Swain v. State of Orissa, (1996) 82 Cut LT 709, to contend that the Forest (Conservation) Act, 1980 did not apply to trees standing on privately owned land. Of course, the said decision was rendered by this Court before the Supreme Court had the occasion to clearly speak on the scope of the Forest (Conservation) Act, and to explain what was 'forest' as referred to by that Act. In the aforesaid decision of this Court, it was stated that by no stretch of imagination it can be said that the trees standing on the privately owned lands came within the purview of the Forest (Conservation) Act, 1980. We consider the statement to be only a casual observation and it cannot certainly be said to be laying down a proposition of law that the Forest (Conservation) Act, 1980 cannot apply to private owned lands. If the private lands are forest as understood by that Act, the Act would certainly apply. The Forest (Conservation) Act is a law enacted by the Union Parliament. It is clearly binding on the State which is one of the States of the Union and therefore, the said Act will have full application in respect of the land dealt with therein. Moreover, the proposition that the Act is not attracted to private lands cannot be accepted since it is too wide. It will apply whether the land is privately owner or otherwise, if it is a forest land within the meaning of the Forest (Conservation) Act, 1980. Moreover, we are now governed by the clear pronouncement of the Supreme Court on the scope of the Forest (Conservation) Act and hence the decision relied on cannot be of any help to the petitioner nor can it be accepted as an authority for the proposition that the Forest (Conservation) Act, 1980 does not apply to privately owned lands. The said proposition adopted is inconsistent with the subsequent decisions of the Supreme Court and must be held to be not correct law.

(3.) Learned counsel relied on another decision of this Court in Md. Umar v. State of Orissa, (1986) 2 Orissa LR 632, to contend that if an application is made for transport of private timber the concerned Forest Officer should immediately grant the permission. On going through that decision, we find that this Court had no occasion to consider the effect of the Forest (Conservation) Act on an application made by a person for transport of timber or to consider the question from the angle of laws enacted for protection of forests. This decision also cannot be taken to be laying down the correct law in the light of the subsequent binding directions given by the Supreme Court. The argument based on those decisions is therefore rejected.