NALIN RAWAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) In the above writ petition, the Petitioners have prayed for directions to the Respondents to permit them to cut and remove some 'Kahir' trees from their orchard land comprised in Khasra Nos. 7, 29-35, situate in village Keori, Tehsil Nalagarh, District Solan, H.P.

(2.) Petitioners alleged that they have purchased 91-13-0 bishwas of land in village Keori, Tehsil Nalagarh for the purpose of growing orchard. They have made development and planted various species of plants including mango, chikoo, papita, grapes and various types of citrus plants. For the purpose of raising orchard scientifically and economically, the Petitioners were advised to plant Khair trees as fillers along the berms. The Petitioners also alleged that there are about 900 fruit plants of various species and about 6000 Khair trees of various ages and sizes grown on the land. They have invested lacs of rupees in raising the orchard, laying of pipes, constructing for farm houses, construction of water tank etc. etc. The fruit trees have started bearing the fruits and they are being hampered by the standing Khair trees and some of the Khair trees, therefore, are to be weeded out in order to avoid the loss of the fruits. The Petitioners further alleged that representation to the Respondents was made pointing out their requirement for removing Khair trees which were causing harm to their orchard. Their case was forwarded by the Divisional Forest Officer, Nalagarh to the Conservator of Forest, Bilaspur vide letter dated 6.6.1994 (Annexure P-6) but nothing positive came out of this. CWP No. 98 of 1991, came to be filed by Smt. Vimla Rawal, mother of Petitioner No. 1 which was dismissed as infructuous on 27.7.1997. After the disposal of the writ petition, Petitioner No. 2 made another representation to Respondent No. 2 on 10.7.1997 (Annexure P-8) requesting that some Khair trees were cut in the year 1994-95 as per felling programme and if this programme is continued, the next tree-felling would be in the year 2004-2005, whereas many of the Khair trees were required to be felled to provide sun rays and to remove the competition of fruit bearing plants in the orchard, because these trees are causing harm to the fruit trees, resulting in huge financial loss to the Petitioners. The Petitioners also alleged that the provisions of the Himachal Pradesh Land Preservation Act, 1978 and the Himachal Pradesh Land Preservation Rules, 1983 are oppressive as no guidelines have been provided which have to be adopted by the forest officials and further the object for enacting the Act is to provide for the better preservation and protecting of the area from erosion and from causing any damage to the land in the area. They further stated that the perusal of the provisions of the Act would show that they do not apply to the established orchards and the Petitioners are within their rights to maintain their orchards economically in the way which they are doing. Khair trees which are growing as fillers can be removed in the best interest of the growth of the orchard as and when required. They have also stated that 10 years felling programme imposing restrictions on felling of Khair trees is irrational because it ignores the fact that orchardist having planted other trees, there would be no set back to ecology if harmful plants like Khair trees are removed from the orchard. On these premises, the Petitioner seek the aforesaid relief.

(3.) In their counter, the Respondents have stated that if the Petitioners want to remove seedlings and saplings of Khair in order to properly space the Khair plants, then they do not require any permission. Even if they want to fell trees for their bona fide domestic use then they will have to seek permission from the competent authority as per provisions contained in the H.P. Land Preservation Act, 1978 and the Rules made thereunder. The Respondents have also stated that if the Petitioners want to sell their Khair trees from their private land then the permission cannot be allowed because the Petitioners had already felled 718 Nos. Khair and B.L. Misc. trees from their private land in question bearing Khasra Nos. 181/29, 185/70, 35, 5, 7 (out of total 92.6 bighas comprising all Khasra numbers viz. 5, 7, 26, 28, 181/29, 35, 63, 64, 65, 66, 67, 68, 69, 185/70 and 182/70) during the year 1994-95 when the area was due for felling under approved 10 years felling programme. As per rule and procedure made under the H.P. Land Preservation Act, 1978, felling from these Khasra numbers can now be allowed only after ten years i.e. in 2004-2005. Since whole area was due for felling during 1994-95, the Petitioners could not be allowed deviation in felling programme up to two years i.e. up to 1996-97 and now the Petitioners can be allowed felling from all the Khasras only during 2004-05. The Respondents alleged that in the year 1997 the Petitioners applied to fell trees from their private land in violation of ten years felling programme which could not be allowed as same is in contravention of Standing Order No. 670 dated 13.8.1993 (Annexure R-2).