Suresh Singh and Ors. Vs State of Hp and Ors.

For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocate General, for the respondents-State.

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Mr. Vijay Kumar Arora, Senior Advocate with Mr. Abhishek Nagta and Ms. Lalita Sharma, Advocates, for respondent No.6.

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Sandeep Sharma, J. (Oral)

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Since representation (Annexure P-8) having been filed by the petitioners has been deemed to be rejected in terms of order dated 27.10.2023 (Annexure R-III annexed with the reply of respondents No. 1 to 3), whereby representation dated 24.5.2023 having been filed by one Sh. Ramesh Chand, a private land owner similarly situate to petitioners herein,

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for extension of time under Ten Year Felling Program (TYFP) came to be rejected, petitioners have approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs:

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“i. That an appropriate writ, order or direction may kindly be issued to respondents No. 1 and 2 to extend the Ten-Year Felling Plan 20222023 by exercising the power under Clause 8 of the order dated 10.09.2002 (Annexure P-1), so that the application filed by the petitioners and the order dated 08.04.2022 (Annexure P-4) issued thereupon, could be processed in a time bound manner to complete the demarcation of trees and subsequently felling orders could be issued and transportation could be carried out within time so extended;

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ii. That an appropriate writ, order or direction may kindly be issued to the respondent No. 5 to carry out the demarcation of the private land of the petitioners which are subject matter of present civil writ petition i.e. land described in letter dated 08.04.2022 Annexure P-5 in a time bound manner;

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iv. That an appropriate writ, order or direction may kindly be issued to the respondent no. 3 to issue felling order in favour of the petitioners, immediately after completing codal formalities, in time bound manner.”

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2. Precisely the facts of the case as emerge from the record are that as per Ten Year Felling Program, khair trees standing on the private land of the petitioners falling under Jhandutta Block of Jhandutta Range ( as per list enclosed with Annexure P4), were to be felled and transported between 31.3.2022 and 31.3.2023, however for want of demarcation, trees

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located in the aforesaid Block could not be cut/removed within the stipulated period, therefore, petitioners made representation to the Principal Chief Conservator of Forests, Shimla, for extension of time in terms of Clause 8 of the office order dated 10.9.2002, which provides that where demarcation of the land and marking of trees has not been done during the prescribed year in accordance with the approved Ten Year Felling Program, permission to demarcate the land, marking and felling of trees, be granted beyond prescribed year of felling by the Principal Chief Conservator of Forests upto one year. The afore representation never came to be decided despite repeated requests made by the petitioners, one similarly situate private land owner (Ramesh Chand) approached this Court by way of CWP No.6274 of 2023, titled Ramesh Chand v. State of Himachal Pradesh . This Court vide judgment dated 12.9.2023, passed a detailed order (Annexure R-II) and directed the Principal Chief Conservator of Forest to decide the representation filed by the Sh. Ramesh Chand, petitioner therein, in terms of clause 8 of the office order dated 10.9.2002 within a period of four weeks. While issuing aforesaid direction, this Court specifically called upon the aforesaid authority to take note of judgment dated 21.11.2022, passed by the Division Bench of this Court in CWP No. 733 of 2022 Paras Ram and Ors. v. State of Himachal Pradesh and Ors. and Judgment dated 17.6.2014 passed in CWP No. 2074 of 2014 Jai Ram

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v. State of Himachal Pradesh and Ors., wherein similar issue came to be adjudicated by the Division Bench of this Court.

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3. Pursuant to afore directions issued by this Court, Principal Chief Conservator of Forest, Himachal Pradesh, vide impugned order dated 27.10.2023 (Annexure R-III annexed with reply filed by respondents No.1 to 3), rejected the representation of Sh. Ramesh Chand (i.e.petitioner in CWP no. 6274 of 2023) on the ground that since petitioners herein were unable to get the demarcation of the land done within the prescribed period of felling, extension of time, if any, granted, shall amount to deviation which has been otherwise disallowed by the Hon’ble Apex Court in its order dated 30.10.2009 in IA No. 2370. The representation filed by petitioners (Annexure P-8) has been deemed to be rejected in terms of order dated 27.10.2023. In the aforesaid background, petitioners have approached this Court in the instant proceedings.

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4. Precisely, the grouse of the petitioners, as has been highlighted in the petition and further canvassed by Mr. Dhiraj Thakur, learned counsel for the petitioners is that Principal Chief Conservator of Forests has disposed of representation in a slipshod manner without there being application of mind. He submitted that bare perusal of clause-8 of the notification dated 10.9.2002 itself suggests that in case demarcation of the land in question is not conducted for the reasons which were completely

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beyond the control of the applicants/petitioners herein, extension for a period of two years can be granted by the State Government and for one year by the Principal Chief Conservator of Forests. While making this Court peruse clause-8 of the office order as detailed herein above, Mr. Thakur, vehemently argued that prayer for extension of time, made in terms of afore clause contained in the Office Order, if allowed, would not amount to deviation, especially when there is ample material adduced on record to suggest that immediately after opening of the area concerned, petitioners herein had applied for demarcation through their Special Power of Attorney to DFO concerned. While making this court peruse various documents adduced on record, Mr. Thakur, further argued that Divisional Forest Officer of the area concerned after having inspected the area itself wrote to the revenue authorities for demarcation, but yet for one reason or the other demarcation could not be conducted during the felling year and as such, petitioner had no option, but to approach the Principal Chief Conservator of Forests to grant him extension of time in terms of clause 8 of the afore order. While making this court peruse order dated 30.10.2019, passed by the Hon’ble Apex Court in IA No. 2370, Mr. Thakur attempted to argue that same cannot be made applicable to the case of the petitioner because in afore order, it has been held that no deviation from the Ten Year Felling Program fixed by the Forest Department in accordance with the

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provision of the Land Preservation Act, 1978, will be permissible. He submitted that though as per aforesaid order dated 10.9.2002 (Annexure P- 1), no felling of trees including the Khair trees from the forest area will be permissible in violation of Hon’ble Supreme Court order dated 12.12.1996, but in the case at hand, application to fell the khair trees was made to the competent authority strictly in terms of aforesaid order passed by the Hon’ble Apex Court. He submitted that immediately after opening of the area in question for felling, petitioner herein applied for demarcation, which otherwise could not be conducted without specific order and assistance of the Forest Department. To substantiate his aforesaid argument, Mr. Thakur, specifically invited attention of this Court to order dated 8.4.2022 (Annexure P-4), passed by the Divisional Forest Officer Bilaspur, thereby directing the Range Officer Jhandutta to get the area demarcated from the Kanungo of the area concerned.

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5. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while supporting the impugned order attempted to argue that application for demarcation, if any, was required to be filed one year prior to opening of the area in question, but in the case at hand, same came to be filed during the currency of the felling year. He further submitted that despite repeated requests, petitioner failed to supply the requisite documents enabling the Forest Department to take appropriate steps for

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demarcation of the land in question. Mr. Kahol, further submitted that though clause 8 of the office order suggests that Principal Chief Conservator of Forest can grant extension of time of one year, after being satisfied that demarcation could not be conducted for the reasons beyond the control of the applicant and the department, but since in the instant case, application for demarcation was filed after one year of opening of the area, prayer made by the petitioner for extension of time rightly came to be rejected. Mr. Kahol, further submitted that as per directions passed by the Hon’ble Apex Court, no deviation from Ten Year Felling Program is permissible and as such, prayer for extension of time if accepted, may be on account of delay in demarcation, would amount to contempt of the order passed by the Hon’ble Apex Court.

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6. Mr. Vijay K. Arora, learned Senior Counsel, appearing respondent No.6-corporation, also adopted the arguments advanced by learned Additional Advocate General and submitted that there is nothing on record to suggest that demarcation could not be conducted within the prescribed period of one year on account of reasons which were completely beyond the control of the petitioners or on account of natural calamity.

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7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that as per Ten Year Felling Program, khair trees standing on the land falling under Jhandutta Block of

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Jhandutta Range were to be felled and transported w.e.f. 31.3.2022 to 31.3.2023. It is also not in dispute that immediately after opening of the area, as detailed herein above for felling, petitioner herein vide application dated 11.3.2022 addressed to Divisional Forest Officer, Bilaspur, made a request for demarcation of the land (Annexure R-1 annexed with the reply filed by respondents No.1 to 3). After receipt of the aforesaid communication, Divisional Forest Officer Bilaspur, vide communication dated 8.4.2022, directed the Range Officer Jhandutta (Annexure P-4) to get the land in question demarcated from the revenue authorities. Since despite repeated communications issued by the Divisional Forest Officer Bilaspur, no steps were taken by the revenue authorities to demarcate khair trees standing on the private land of Samoh Block of Jhandutta Range for felling year 2023, Divisional Forest Officer Bilaspur vide communication dated 9.9.2023, requested the Deputy Commissioner Bilaspur to issue necessary directions to the concerned revenue field staff to carry out demarcation of the private land immediately but in vain. Petitioner herein has placed on record number of documents (Annexure P-6 and P-7 Colly.) to substantiate his claim that despite repeated communications issued by the Divisional Forest Officer, Bilaspur, no steps were taken by the revenue authorities for demarcation of the land.

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8. If the reply filed by respondents No.1 to 3 is read in its entirety, there is no specific denial to the averments contained in the petition with regard to repeated communications made by him to the Divisional Forest Officer thereby requesting to take up the matter. It is also admitted in the reply filed by the aforesaid respondents that Divisional Forest Officer after receipt of communication/request from the petitioners took up the matter with the Deputy Commissioner, but fact remains that the land of the petitioners could not be demarcated within the prescribed felling year, as a result thereof, they were compelled to approach competent authority for extension of time in terms of the clause 8 of the office order.

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9. Though it has been vehemently argued by the learned Additional Advocate General as well as Mr. Vijay K. Arora, learned Senior Counsel for the respondent-corporation that clause-8 is not applicable in the present case, but before ascertaining correctness of the afore submission of the learned counsel for the respondents, it would be apt to take note of the Clauses 8 to 11 of order dated 10.9.2002, which read as under:

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“8. In all cases (other than those mentioned in para 6 & 7 of this order), where demarcation of land and marking of trees have not been done during the prescribed year in accordance with the approved ten years felling programme, permission to demarcate the land, marking and felling of trees may be granted beyond prescribed year of felling by the;

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(i) the Principal Chief Conservator of Forests upto one year; and

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(ii) State Government upto two years subject to their being satisfied that sufficient reasons exist for granting such permission.

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Where the permission has been granted under para-8 of this order, the Divisional Forest Officer concerned after demarcation of land and marking of trees shall issue felling order accordingly.

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Application for demarcation of the land form which felling is proposed to be done may be filed before the Divisional Forest Officer concerned one year in advance from the prescribed year of felling and the Divisional Forest Officer concerned may process the case for demarcation of land.

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In no case advance felling of trees shall be permitted before the prescribed year as fixed in the approved ten years felling programme.”

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10. Aforesaid clause 8 further came to be amended in the following

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manner:

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“2. In para-8 of the said order for sub-para (ii) of para-8 of the said order, the following shall be substituted, namely:-

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(ii) The State Government upto two years subject to its being satisfied that there exists any of the following reasons for granting such permission namely:-

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(a) If there is dispute over the title or ownership or possession of land on the production of a documentary evidence such as orders/certificate of the court; or.

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(b) If the area is in the ten years felling programme but the same has not been shown therein the certificate from the Divisional Forest Officer concerned; or

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(c) If the demarcation of land could not be made due to nonavailability of staff on furnishing a certificate from the sub-Divisional

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Officer (Civil) or the Divisional Forest Officer concerned as the case may be to this effect; or

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(d) If the process of demarcation of land, marking and felling or trees has not been completed due to a natural calamity; or

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(e) If the settlement of rates of trees has not been arrived at during the prescribed year of felling; or

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(f) If there is any other reason beyond the control of the land owner. Provided that the State Government may allow felling of the trees upto two years and six months after the prescribed year of felling in the snow bound areas.”

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11. Careful perusal of aforesaid provision suggest that the State Government has power to extend time upto two years, if it is satisfied that demarcation of land could not be done due to non-availability of staff and process for demarcation of land, marking, felling of trees could not be completed due to natural calamities or if settlement of rates of trees could not be arrived at during prescribed year of felling or if there is any other reason beyond the control of the land owner. Proviso to aforesaid provision clearly provides that the State Government may allow felling of trees upto two years and six months after felling programme, in snow bound areas.

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12. In the case at hand, Forest Department after having received application for permission to fell trees from the petitioner processed the case vide communication dated 8.4.2022 (Annexure P-4), but as has been taken note herein above, despite there being repeated communications issued by the Divisional Forest Officer of the area concerned to the Deputy

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Commissioner Bilaspur (Annexure P-6), no steps were taken by the revenue officials to demarcate the land and as such, petitioners had no option but to apply for extension of time in terms of clause-8 of the office order dated 10.9.2002 (Annexure P-1).

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13. Interestingly, Principal Chief Conservator of Forests after filing of representation at the behest of the petitioners proceeded to reject representation filed by one similarly situate private land owner namely Sh. Ramesh Chand vide office order dated 27.10.2023 (Annexure R-III) on altogether different grounds. Representation filed by the petitioners has been deemed to be rejected in terms of order dated 27.10.2023 annexed with reply filed by respondents No.1 to 3. While passing impugned order, he completely side-tracked from the issue with respect to applicability of clause-8 of the office order, rather proceeded to reject the case on the basis of order dated 30.10.2009, passed by the Hon'ble Apex Court in IA No. 2370, which otherwise could not be made applicable in the facts and circumstances of the case.

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14. It would be apt to take note of directions contained in the afore order passed by the Hon'ble Apex Court, which have been otherwise reproduced in impugned order.

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“i) no felling of trees, including of Khair trees, from the forest area will be permissible in violation of the Hon’ble Supreme Court order dated 12.12.1996; ‘

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ii) no deviation from the ten-year felling programme fixed by the Forest Department in accordance with the provisions of the Land Preservation Act, 1978 will be permissible;

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iii) no Katha/Kutch manufacturing unit will be permitted to be established/allowed to operate or to expand its capacity in violation of the Hon’ble Supreme Court orders dated 29/30.10.2002’

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15. As per aforesaid order, no felling of trees, including of Khair trees, from the forest area will be permissible in violation of the Hon’ble Supreme Court order dated 12.12.1996. Since in the case at hand, respondent itself opened the area in question for felling, it cannot be said that felling of trees including the khair trees from the area in question if permitted would be in violation of order dated 30.10.2019 passed by the Hon'ble Apex Court.

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16. Similarly, direction No.ii contained in afore order could not be made applicable in the present case for the reason that no request, if any ever came to be made at the behest of the petitioners for deviation, rather his simple prayer was that since on account of compelling circumstances as detailed herein above, land in question could not be demarcated within the prescribed period of felling year, extension in terms of clause 8 be granted, whereafter petitioners are otherwise under obligation to complete the felling if permitted within the prescribed period of felling year i.e. 2022-23. It is not the case where petitioner failed to fell /remove the trees within the

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prescribed felling year, rather they were unable to start work of felling on account of non-demarcation due to non availability of revenue staff.

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17. Since in the case at hand, there is sufficient material available on record suggestive of the fact that petitioners applied for felling of trees situate on the private land, well within time and thereafter Forest Department itself processed the case of the petitioners for demarcation, which otherwise could not be conducted for the reasons beyond the control of the petitioners, there was no occasion, if any, for the Principal Chief Conservator of Forests to reject prayer made by the petitioners for extension of time in term of clause 8 of the notification, on the basis of order dated 30.10.2019 passed by the Hon’ble Apex Court in IA No. 2370, which otherwise could not be made applicable in the present facts and circumstances of the case.

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18. At this stage, it would be apt to take note of judgment dated 2.11.2023, passed by this Court in CWP No. 1714 of 2023, titled M/s

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Vidhmata Wood (Private) Limited v. State of Himachal Pradesh and

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Ors ., wherein in similar facts and circumstances, direction came to be issued to the respondent to grant extension of time to the petitioner for demarcation of the land, enumeration, marking and felling of trees beyond the prescribed period of felling in terms of clause 8 of order dated 10.9.2002 amended on 24.9.2003 and 11.11.2013. Stand of the

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respondent department is that the deviation beyond the prescribed year of felling is not permissible as per Hon’ble Supreme Court orders and as demonstrated through the cases of Sh. Paras Ram and Sh. Jai Ram, the request of the petitioner for grant of deviation permission for demarcation of land/marking and feeling of trees during 2023-24 instead of 2022-23 has been rejected.

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19. In Vidhmata case supra, it has been held as under:

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Respondent No.1, while passing the impugned order has fallen in grave error, while observing that, even if it is presumed that the land is eligible for felling of trees, even then, case is moved for deviation of TYFP, cannot be allowed in terms of order passed in T.N. Godavarman. Division Bench of this Court, vide judgment dated 17.8.2022 passed in CWP No. 4181 of 2020, after having examined of Order dated 10.9.2002, whereby the State Government is/was competent to grant extension of time. It is quite apparent from Clause 8 of Order dated 10.9.2002 as well as subsequent amendments dated 24.9.2003 and 11.11.2003 that the State Government can extend the period upto two years subject to its satisfaction that there exists any of the following reasons for granting such permission:

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(a) If there is a dispute over the title or ownership or possession of land on the production of a documentary evidence such as orders/certificate of the court etc. or

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(b) If the area is in the ten years felling programme but the same has not been shown therein the certificate from the Divisional Forest Officer concerned; or

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(c) If the demarcation of land could not be made due to nonavailability of staff on furnishing a certificate from the Sub Divisional Officer (Civil) or the Divisional Forest Officer concerned as the case may be to this effect; or

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(d) If the process of demarcation of land marking and felling of trees has not been completed due to a natural calamity; or

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(e) If the settlement of rates of trees has not been arrived at during the prescribed year of felling; or

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(f) If there is any other reason beyond the control of the land owner.

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It is further provided by way of this amendment that the State Government may allow felling of trees up to 2 years and 6 months after prescribed period of felling in snow bound areas. 40. Conditions mentioned herein above, in clauses (c), (d) and (f) and proviso are/were applicable in the present case, as such, extension of time for demarcation of land, marking and felling of trees ought to have been granted to the petitioner.

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Otherwise also, impugned order holding that the case amounts to deviation of programme is patently wrong. Though much reliance has been placed by the respondents on the opinion rendered by Law Department but perusal of same clearly reveals that extension of time was permissible. Law Department, while rendering opinion clearly opined that Hon'ble Apex Court debarred the State Government from deviating from ten years felling programme, however, extension of time in felling programme is/was permissible under Clause 8 of the Order dated 10.9.2002. Division Bench, having taken note of the aforesaid opinion rendered by Law Department has categorically held that the request of the petitioner for extension of time, did not amount to deviation, and as such, the same needs to be considered in terms of Clause 8 of the order dated 10.9.2002.”

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20. Since, in the case at hand, there is sufficient material available on record suggestive of the fact that the petitioner applied for felling of trees situate upon the private land well within time and Forest Department processed the case of the petitioner, prayer made on behalf of the petitioner for extension of time could have been accepted. Moreover, the action of the respondents is not free from arbitrariness because they have been granting extension of time for various reasons including non-demarcation of land due to shortage of staff to other similarly situate persons.

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21. Consequently, in view of the detailed discussion made herein above, this Court finds sufficient merit in the petition and same is allowed and impugned order dated 27.10.2023 (Annexure R-III) is quashed and set-aside. Respondents are directed to grant extension of time to the petitioner for demarcation of land, enumeration, marking and felling of trees beyond the prescribed year of felling.

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22. Needless to say, while doing the needful, period during which case of the petitioner remained pending in litigation due to illegal action of the respondents, shall be excluded for granting extension of time for demarcation of land, enumeration, marking and felling of trees. Since the petitioners have been fighting for their rightful claim for more than a year, this Court hopes and trusts that entire process of demarcation,

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enumeration and marking of trees shall be completed by the respondents within six months from today.

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23. The petition stands disposed of in the afore terms, alongwith all

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pending applications.

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December 10, 2024 (Sandeep Sharma), (manjit) Judge

Suresh Singh and Ors. v. State of Hp and Ors.

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