DAVINDER KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) By way of this writ petition, the petitioner has primarily prayed for the following reliefs:

(2.) The case of the petitioner is that he is a registered Forest Contractor and he intended to purchase dry Khair trees from different owners from their Malkiti lands. For the said purpose, he approached the land owners in Tikka Ghamirpur, Mauza Nandpur and bargained with them qua dry Khair trees standing on their lands. Applications were submitted by the land owners as per procedure through the petitioner to respondent No. 4 and petitioner acquired knowledge that procedure prescribed for grant of felling permission was adhered to by calling for the reports from the Range Officer as also Revenue Agencies. According to the petitioner, reports were submitted by the Authorities concerned with respect to the land of the land owners and Forest Officials reported the matter to respondent No. 4 that there were trees standing on the personal lands of the inhabitants of the village, which were dry and permission qua felling of the same be granted. Notice was taken of this fact also that the area in question was earlier having the status of "Khudrao Drakhtan Malkiyat Sarkar". According to the petitioner, vide Notification dtd. 11/3/1999 (Annexure-P-1), ownership of trees standing on such lands stood vested in the owners and entries to this effect were also recorded in the revenue papers. Reports were also submitted by the field staff of the Forest and Revenue Departments to the effect that lands in question were not part of any forest land as per the Working Plan of Dehra Forest Division. As no felling permission was com ing forth from respondent No. 4, inquiries in this regard were made by the petitioner and he was informed that respondent No. 3 had forwarded the case to respondent No. 2, requesting for necessary guidelines, who in turn, vide letter dtd. 30/3/2019, addressed to respondent No. 3, on the subject "Felling of Khair Trees from Private Lands during the Year 2018-19-Case of Shri Davinder Kumar S/o Shri Radha Krishan, VPO Behdala, Tehsil and Distt. Una, H.P." observed that a comprehensive Management Plan was required to be prepared and got approved from the competent authority for felling of trees from the private land having entry of "Khudrao Drakhtan Malkiyat Sarkar" and as no such comprehensive Management Plan for felling of trees from the private land having said entry, had been prepared and got approved from the Government, therefore, action be taken in this regard. It is the case of the petitioner that the contents of this letter are contradictory in view of the fact that earlier there was no embargo in respect of felling of dry Khair trees and for said purpose, no Working/Management Plan was required. This embargo was now being created by ignoring the contents of Annexure-P-1. According to the petitioner, the provisions of the Forest Conservation Act, 1980 cannot be made applicable to dry trees, because if said trees are not permitted to be removed, then they will die and cause loss not only to the private land owners but also to the State exchequer. According to the petitioner, earlier two writ petitions were filed in this regard, i.e., CWP No. 11034 of 2011 and CWP No. 1191 of 2011. On account of the directions which were passed in these writ petitions by the Court, the Authority concerned issued a Communication dtd. 4/1/2013, which was also not being adhered to by the respondent-State. In this backdrop, the petition has been filed by the petitioner praying for the reliefs already enumerated hereinabove.

(3.) Reply to the petition has been filed by respondents No. 1 to 4 as well as respondent No. 5. The stand of respondents No. 1 to 4 is that petitioner had applied for issuance of order for marking and demarcation of dry Khair trees standing on the private land of land owners of Tikka Ghamirpur, Mauza Nandpur, Tehsil Dehra, District Kangra, H.P. vide application dtd. 21/1/2019. Range Officer, Nagrota Surian was asked to confirm the availability of dry Khair trees in Tikka Ghamirpur, who vide letter dtd. 23/1/2019, reported that there were 189 dry Khair trees standing on the private land in the said Tikka. Thereafter scrutiny of papers submitted by the petitioner was undertaken and respondent No. 4 issued an order calling upon Sub-Divisional Officer, Dehra to get the demarcation and marking of dry Khair trees done. 60 dry Khair trees were enumerated/marked for felling as per list duly verified by the concerned signatories in terms of Annexure-R-3 appended with the reply of respondent No. 4. As grant of permission for felling more than 49 trees was within the competence of respondent No. 3, hence, case was moved to the office of respondent No. 3 through proper channel, who referred the matter alongwith all relevant papers to respondent No. 2 vide Annexure-R-5, dtd. 22/3/2019. Said respondent vide letter dtd. 30/3/2019 (Annexure-R-6) called upon respon-dent No. 3 to prepare a comprehensive Management Plan for felling of trees from the private land having entry of "Khudrao Drakhtan Malkiyat Sarkar" and get it approved from the Government. Plan was prepared by respondent No. 4 and submitted to respondent No. 3 vide letter dtd. 12/2/2019 (Annexure-R-7) for approval, but the same was returned back by respondent No. 2 vide letter dtd. 18/3/2019 with the direction to prepare the same for remaining 10 years felling programme from 2019-20 onwards on the prescribed proforma and submit the same to the office of respondent No. 2. This was submitted vide Annexure-R-9, dtd. 21/5/2019. As per respondents No. 1 to 4, issuance of Notification dtd. 11/3/1999 was not in dispute, but Additional Principal Chief Conservator of Forests (Central) Northern Regional Office, Dakshin Marg, Sector 31-A, Chandigarh vide Communication dtd. 4/1/2013 (Annexure-R-13) had clarified that the land having the status of "Khudrao Drakhtan Malkiyat Sarkar" comes under the definition of "Forest" as per order dtd. 12/12/1996, passed by the Hon'ble Supreme Court in T.N. Godavarman Thirumulkpad v. Union of India and others, Writ Petition (Civil) No. 202 of 1995, hence, Forest Conservation Act, 1980 automatically comes into operation and accordingly, separate Management Plan for the areas in issue having previously the status of "Khudrao Drakhtan Malkiyat Sarkar" stood prepared and submitted to the higher authorities for obtaining the approval of the State Government. As per the said respondents, the Management Plan was under process of getting approval from the Government of Himachal Pradesh and unless the same was approved, permission for felling of trees from the land having the status of "Khudrao Drakhtan Malkiyat Sarkar" could not be done.