KAMDAR THIKANA NIBHERA KALAN Vs. JAGPAL

JUDGEMENT

(1.) THIS is a revision which has been wrongly described as appeal, and has been filed against an order of the S.D.O. Jaitaran dated 22.2.54 in a case under sec.6 of the Rajasthan Removal of Trees (Regulation) Ordinance 1949.

(2.) THE opposite party did not put in appearance despite notice and hence the revision was heard ex parte. We have examined the record and have heard the learned counsel appearing for the applicant. In view of the order that we are making in the case we refrain from expressing any opinion on the merits at this stage, Suffice it to observe that the procedure adopted by the lower court in trying this case is extremely irregular and unsatisfactory and we feel constrained to observe that it discloses an ignorance of the elementary principles of law. On 3.10.53, the opposite party, Jagmal, presented a written complaint before the lower court to the effect that the thikanawala sold three trees from his land to Bakhta and Ghisu who had removed them. Jagmal was examined on that very day on oath by the lower court and he gave out that Dakhta and Ghisu had wrongly cut down trees from his land. THEreafter notices were directed to be issued to the opposite party. It is surprising that notices, instead of being issued against Bakhta and Ghisu who were alleged to have cut down the trees, were actually issued to Premraj and Lal Singh employees of the thikana. THEre is absolutely no material on record to show as to how the names of Premraj and Lal Singh were ascertained in the matter and on what grounds Bakhta and Ghisu and the thikana itself were dropped out of the case. Jagmal examined himself in the presence of the opposite party on 7.2.53 and therein he stated that he did not know the name of the carpenter who actually cut down the trees although he stated that Lal Singh had sold the trees to him. Rawat, the only witness examined by Jagmal, stated that Mangu Khati and Rukha Khati were responsible for cutting down trees. None of these persons - Bakhta, Ghisu, Mangu and Rukha was examined by jagmal in the lower court. In fact Bakhta and Mangu were examined by the opposite party and they stated that the trees cut down by them were dried up ones that had been separated from the earth long before they were cut down by them. In other words, their version was that they removed only fallen trees. THE trial court imposed a fine of Rs. 20/- upon Kamdar Thikana Nimbahera without specifying the name of the person. As regards the question as to whether the trees were green or dried up ones at the time when they are alleged to have been cut, the trial court evaded the question by saying that it was non material for purposes of determination of this case. THEre can hardly be any justification for this view. Sec. 6 of the Ordinance penalises unauthorised removal for cutting of tree in this context would obviously mean a living tree attached to the earth. In case it is completely dried up or is totally uprooted from the earth by natural causes, as opposed to a partial or tempo-rary damage, it would cease to be a tree. THE question therefore, is highly relevant. In our opinion the result is that the case has been tried in a most undesirable and perfunctory manner. We would, therefore, allow this revision, set aside the order of the lower court and remand the case back to it with the direction that it be tried afresh in the light of the observations made above.