Himachal Pradesh High Court
M/S Vidhmata Wood (Private) Limited vs State Of Himachal Pradesh And Others on 2 November, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1714 of 2023 Reserved on: October 13, 2023 Decided on: November 2, 2023 ________________________________________________________ .
M/s Vidhmata Wood (Private) Limited ........... Petitioners Versus State of Himachal Pradesh and others Respondents ________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.
For the Petitioner : Ms. Devyani Sharma, Senior of Advocate with Mr. Anirudh Sharma, Advocate.
For the respondents :
Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C. Verma, Additional
rt Advocates General with Mr. Ravi
Chauhan & Ms. Sunaina, Deputy
Advocates General.
________________________________________________________ Sandeep Sharma, Judge Being aggrieved and dissatisfied with order dated 4.10.2022 (Annexure P-25), whereby representation having been filed by the petitioner in terms of judgment dated 17.8.2022 passed by a Division Bench of this Court in CWP No. 4181 of 2020, titled M/s Vidhimata Wood Pvt. Limited v. State of Himachal Pradesh and others (Annexure P-22), praying therein for extension of time under Clause 8 of Order dated 10.9.2002, came to be rejected, the petitioner has approached this Court in the instant proceedings filed under Art. 226 of the Constitution of India, seeking following main relief(s):
"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and an appropriate writ, order or direction may be issued thereby quashing and setting aside the impugned 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 02/11/2023 20:36:00 :::CIS 2
order dated 04.10.2022 (Annexure P-25) and granting the extension of time for demarcation of land, enumeration, marking and felling of trees from Kandlidhar in Khasra No. 10/7/2 in Trehta Beat, Holi Block Bharmour Division, District Chamba, .
Himachal Pradesh, beyond the prescribed year of felling, in terms of clause 8 of Order No. FFE-B-A(3)4/99 dated 10.9.2002 and amendments dated 11.11.2003 and 24.9.2003, and while doing so, the period during which the case of the petitioner for extension of time remained pending with the respondents and in litigation(s) due to illegal rejection by the respondents, may of kindly be excluded for granting extension of time for demarcation, enumeration, marking and felling of trees from area.
The respondents may be further directed to complete the entire rt process of demarcation of land, enumeration and marking of trees in a time bound period."
2. For having a bird's eye view of the matter, certain facts, which may be relevant for the adjudication of the case at hand are that though private land measuring 8162 Bighas comprised in Khasra No. 10/7/2 and 9/7/2/1 situated at Mauza Dhar Dhrabaton, Pargana Trehta, Sub Tehsil Holi, Tehsil Bharmour, District Chamba, Himachal Pradesh (popularly known as "Kandli Dhar") was granted to the forefathers of land owners by way of Inaam/grant by late Raja Sahib Shri Siri Singh Ji of Chamba on 26th Har Samwat 30 but during settlement operations in Chamba, around the year 1955, land in question wrongly came to be recorded in revenue records in the ownership of Government of Himachal Pradesh. Land owners filed an application for correction of records, but the same was rejected. Subsequently, the Financial Commissioner, in an appeal filed by the land owners, directed them to ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 3 get their ownership established before a civil court. Land owners then filed Civil Suit No. 136/306 of 1961/63 before learned Senior Sub Judge, Chamba, who vide judgment and decree dated 22.4.1965 .
(Annexure P-3) declared the landowners, who were plaintiffs therein, to be owner-in-possession of the land situate in Kandli Dhar measuring 8956 Bigha as per Map, which formed part of the decree, situate in Hadbast No. 191, Mauza Dhar Dhrabton, Sub Tehsil Bharmour and the defendants, Union of India, Himachal Pradesh Administration and of Collector, Chamba, who were defendants therein, were restrained from interfering in their rights as owners. Though the judgment and decree rt passed by Senior Sub Judge, Chamba was laid challenge upto Hon'ble Apex Court, but the same remained intact (Annexures P-4 to P-6).
3. Pursuant to judgment and decree passed by civil court, revenue record with regard to ownership and possessory rights of land owners was corrected. Jamabandi for the years 1985-86 (Annexure P-7) clearly reveals that the land owners were entered as owner-in-
possession of the land in dispute, which was denoted by Khasra No. 7/2.
4. Ceiling proceedings were initiated against the land owners and vide order dated 6.9.2018, Sub Divisional Collector Bharmour concluded that total 8162-04-00 Bigha of land was permissible to be retained by the land owners and surplus land measuring 3244-19-00 Bigha was ordered to be vested in State Government for public purpose and it was ordered that surplus land be mutated in favour of the State Government and in possession column, Kabza Van Vibhag ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 4 Tabe Bartandaraan be entered. Pursuant to aforesaid order, correction was carried out in the revenue record and land falling to the share of land owners was denoted by Khasra No. 9/7/2/1 measuring .
81-01 Bigha and Khasra No. 10/7/2 measuring 8081-03 Bigha and surplus land measuring 3244-19-00 Bigha in Khasra No. 9/7/2/2 were demarcated and handed over to the State Government through Forest Department and mutation to this effect was attested in the presence of of land owners, State Government through Divisional Forest Officer and Pradhan etc. on 26.11.2018 as per certified copy of Jamabandi for the year 2015-16 (Annexure P-8).
rt
5. In the year 1995, land owners transferred the felling rights for felling of trees from the land in dispute to M/s Ravi Timbers. Said rights were transferred to Shankar Industries for consideration. Thereafter, in August, 2018, Shankar Industries transferred the felling rights in favour of the petitioner-company (Annexure P-9). Petitioner also executed an agreement with land owners with respect to purchase of felling rights in Khasra Nos. 9/7/2/1 and 10/7/2 vide agreement dated 1.4.2019.
6. Vide communication dated 6.3.2010, respondents approved Ten Year Felling Programme (hereinafter, 'TYFP') for felling trees from private areas of i.e. Churah, Dalhousie, Chamba and Bharmour forest divisions of Chamba Circle from 2009-10 to 2018-19. Period 2018-19 was allocated for felling trees in Tiyari beat of Holi Block of Trehta Range of Bharmour Forest Division.
7. Petitioner applied for felling permission under TYFP in respect of land comprised of Khasra nos. 10/7/2 measuring 8081-03 Bigha ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 5 situate in Pargana Trehta, Tiyari Beat, Holi Block of Bharmour forest Division in October, 2018 during 2018-19. However, demarcation/marking/enumeration etc. of trees in pursuance to .
application of the petitioner could not be effected on account of adverse circumstances i.e. heavy snow precipitation, frigid temperatures and non-availability of staff.
8. In terms of Clause 8 of Order dated 10.9.2002 (Annexure P-12) issued by respondent No.1 under S.4 of Himachal Pradesh Land of Preservation Act, 1978 (hereinafter, 'Act 1978'), petitioner applied to the competent authority for extension of time. Divisional Forest Officer, rt Bharmour and Chief Conservator of Forests, Chamba, recommended the case of the petitioner for extension of time but no final decision on the request for extension of time was taken by the competent authority.
On 19.3.2019, petitioner again made a representation to the Chief Conservator of Forests for extension of time for felling of trees (Annexure P-18). On 30.3.2019, Divisional Forest Officer, Bharmour addressed a letter to respondent No.3-Chief Conservator of Forests, Chamba, (Annexure P-19), stating therein that due to heavy snow precipitation, frigid temperatures and non-availability of staff, there had been no felling of trees from private land for sale under TYFP in the previous year and as such, considering genuineness of the case, case of the petitioner was recommended for extension of time but due to inadvertence, instead of using word "extension", Divisional Forest Officer used the phase "incorporate Tiyari beat for the year 2019-20", which was followed in all future communications.
::: Downloaded on - 02/11/2023 20:36:00 :::CIS 69. Vide communication dated 27.9.2019 (Annexure P-20) Principal Chief Conservator of Forests, recommended the case of the petitioner for extension of time clearly pointing out that no felling of trees from .
private land in the beat applied for by the petitioner, had taken place under TYFP approved for the years 1999-2000 to 2008-09 an d2009- 10 to 2018-19 and all adjoining areas had been regularly worked and trees had been felled from adjoining areas. Most importantly, aforesaid authority specifically observed in the aforesaid communication that of felling in Tiyari beat area applied for by the petitioner is not likely to have any adverse impact from silviculture point of view, as no felling rt had taken place for the last more than two decades. Aforesaid authority recommended that the felling would take care of the imbalances caused due to the fact that the private area in adjoining area got worked regularly in the past but area of this beat was left untouched.
However, mistake made in previous communication by the Divisional Forest Officer was carried forward and instead of seeking "extension of time", proposal was made for "opening of the Tiyari beat for the years 2019-20"
10. Having taken note of aforesaid recommendation with regard to opening of Tiyari beat for the year 2019-20, respondent No.1, vide letter dated 29.6.2020 (Annexure P-21), rejected the case of the petitioner, on the ground that it would amount to preponement of felling programme.
11. Being aggrieved and dissatisfied with communication dated 29.6.2020 (Annexure P-21), petitioner preferred CWP No. 4181 of 2020, which ultimately came to be allowed vide order dated 17.8.2022.::: Downloaded on - 02/11/2023 20:36:00 :::CIS 7
Division Bench of this Court, while passing the aforesaid judgment, categorically held that there was no legal impediment in allowing the request made by the petitioner vide communication dated 19.3.2019, .
especially when, as per technical advice, proposal was feasible and beneficial. Though, Division Bench of this Court quashed and set aside the rejection order dated 29.6.2020 (Annexure P-21) passed by respondent No.1, but directed the respondents to consider the request of the petitioner for extension of time under Clause 8 of order dated of 10.9.2002 and pass a speaking order thereupon, within six weeks from the date of production of a copy of the judgment before the competent authority.
12. rt In the aforesaid background, prayer made on behalf of the petitioner for extension of time, came to be reconsidered. Vide communication dated 14.3.2023, Department apprised the petitioner that the matter stood decided by respondent No.1 way back on 4.10.2022, whereby the respondent Department again rejected the prayer made on behalf of the petitioner for extension of time. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for the relief(s), as have been reproduced herein above.
13. Pursuant to notice issued in the instant proceedings, respondents have filed reply, wherein, facts as have been noticed herein above, have not been disputed, rather stand admitted.
14. Claim of the petitioner as raised in the petition has been sought to be refuted on the ground that Khasra No. 10/7/2 situate in Mohal Dhar Dhrabton, Sub Tehsil Bharmour having an area of 8081-03 ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 8 Biggha is Gahar Sarkar. Besides above, respondents have also set up a case that vide Notification dated 4.3.1977, issued by the Government of Himachal Pradesh, land detailed herein above is a 'protected forest' .
and as such, no permission, if any, can be granted for felling trees under TYFP. Lastly, it has been stated on behalf of the respondents that even if it is presumed that the land is eligible for felling of trees, even then ,case is moved for deviation from TYFP, which cannot be allowed in terms of order dated 12.12.1996, passed by Hon'ble Apex of Court in T.N. Godavarman Thirumalpad v. Union of India, Writ Petition (Civil) No. 202 of 1995.
15. rt Precisely, the case of the petitioner, as has been highlighted in the petition and further canvassed by Ms. Devyani Sharma, learned senior counsel duly assisted by Mr. Anirudh Sharma, Advocate is that all the grounds raised by the respondents, while rejecting the representation of the petitioner vide impugned order (Annexure P-25) are not available to the respondents, because, all such grounds taken by the respondent-State in reply to earlier writ petition i.e. CWP No. 4181 of 2020, stand negated vide order dated 17.8.2022 (Annexure P-
22). While making this Court peruse the Jamabandi for the years 2015- 16 (Annexure P-8), Ms. Sharma vehemently argued that the area in question is Gahar and not 'Gahar Sarkar". She also invited attention of this court to Jamabandi for the years 1985-86 (Annexure P-7), to demonstrate that the land stands recorded as Gahar. Ms. Sharma, learned senior counsel further submitted that the correction in revenue record thereby showing nature of land to be Gahar was carried out pursuant to judgment and decree dated 22.4.1965 passed by civil court ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 9 (Annexure P-3), as such, State Government had no right to term the land in question as Gahar Sarkar. While making this Court peruse the official gazetteer (Annexure P-26), Ms. Sharma further argued that .
Gahar means a 'pasture' land. If it is so, same by no stretch of imagination, can be termed to be 'protected forest'. Ms. Sharma further argued that once issue with regard to title of the land in question stood adjudicated by a civil court and decision of same was upheld uptil Hon'ble Apex Court, respondents, while considering the of representation of the petitioner are/were estopped from raising plea of title. She submitted that otherwise also, at no point of time, issue of title rt was ever raised by the respondents at any stage of processing the case of the petitioner under TYFP and no objection in that regard was taken in the reply to earlier petition. Lastly, Ms. Sharma submitted that at no point of time, request, if any, ever came to be made on behalf of the petitioner for deviation rather its precise prayer was for extension of time. She submitted that respondent No.1 has fallen in grave error, while rejecting the case of the petitioner for extension of time on the ground that area in question has been notified as 'protected forest' on 4.3.1977. She submitted that the aforesaid defence of Notification was rejected by the Division Bench of this Court in its earlier order dated 17.8.2022. She submitted that once pursuant to order passed by civil court, revenue record was corrected, Notification, if any, issued by Government of Himachal Pradesh is of no consequence, especially with regard to land comprised in Khasra No. 10/7/2, which was in exclusive possession of the owners, from whom the petitioner has purchased felling rights.
::: Downloaded on - 02/11/2023 20:36:00 :::CIS 1016. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, supported the impugned order. He vehemently argued that at the request of the petitioner to open Tiyari beat during 2019-20 under .
TYFP was processed, considered and rightly rejected by the respondents in view of the Act 1978 and sub-section (3) of S.29 of Indian Forest Act, 1927. He stated that preponement of felling programme may not only amount to deviation and violation of order dated 10.9.2002 issued under Act, 1978 but also will be contrary to the of directions issued by Hon'ble Apex Court, which debars the State of Himachal Pradesh from deviating from the TYFP fixed in accordance rt with Act 1978. Mr. Kahol, further submitted that Dhar Drabaton forest of Trehta Range Bharmour Forest Division comprising of an area of 6784 Acres has been notified as 'protected forest' vide Himachal Pradesh Government Notification No. Ft8-3/74-SF(Part-II) dated 4.3.1977, as such, same cannot be opened for felling in terms of order dated 12.12.1996, passed by Hon'ble Apex Court in T.N. Godavarman.
17. I have heard the learned counsel for the parties and also minutely gone through the records.
18. Careful perusal of reply filed by the respondents and order impugned in the instant proceedings (Annexure P-25) reveals that the case of the petitioner has been rejected on the following grounds:
(a) Land is 'Gahar Sarkar'
(b) Land has been declared as 'protected forest' vide Notification dated 4.3.1977.
(c) Application for extension of time has been filed by the petitioner after the lapse of half of prescribed period.::: Downloaded on - 02/11/2023 20:36:00 :::CIS 11
19. It has been further observed in the impugned order that the request of the petitioner, if processed, would amount to deviation from TYFP.
.
20. Before ascertaining the correctness and merit in the aforesaid grounds raised by the respondents, it is pertinent to take note of the fact that all the aforesaid pleas were actually taken by the respondents in reply to CWP No. 4181 of 2020 filed by the petitioner and Division Bench of this Court, vide order dated 17.8.2022, rejected the aforesaid of grounds and directed the respondents to consider the case of the petitioner for extension of time in terms of Clause 8 of Order dated
21. rt 10.9.2002 (Annexure P-12).
Having perused order dated 4.10.2022 (Annexure P-25) vis-à-
vis order dated 17.8.2022, passed by Division Bench of this Court in CWP No. 4181 of 2020, there appears to be merit in the contention of Ms. Devyani Sharma, learned senior counsel for the petitioner, that same and similar grounds have been raised by the respondents to reject the case of the petitioner for extension of time in terms of Clause 8 of Order dated 10.9.2002 (Annexure P-12). It would be apt to take note of following paragraphs of order dated 17.8.2022 passed by Division Bench of this Court in CWP No. 4181 of 2023:
8. The contention of petitioner is that Clause 8 of the order dated 10.09.2002 (Annexure P-1) issued by respondent No.1 entitled the petitioner for extension of time as the demarcation and marking of trees etc., could not be done for the reason beyond the control of all concerned. As per petitioner, despite recommendations for extension of time in the case of petitioner, respondent No.1 and 2 failed to take final decision. Petitioner has further maintained that though its request ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 12 had only been for extension of time under Clause 8 of the order dated 10.09.2002 ibid, but the respondents wrongly construed the same to be a request for preponing of TYFP for the years 2019-20 to 2028-29.
9. In response, respondents have taken exception to the claim of petitioner on following grounds: -
.
i) The preponement of felling programme was not permissible being not only in violation of order dated
10.09.2002, but also contrary to directions issued by the Hon'ble Supreme Court barring State of Himachal Pradesh from making any deviation from the ten years felling programme in accordance with the 1978 Act.
ii) Dhar Drabthon Forest of Trehta Range Bharmour Forest Division, comprising of an area of 6784 hectares, was notified as "protected forests" vide Notification dated of 4th March, 1977.
iii) The Hon'ble Supreme Court on 12.12.1996 passed the following order in Writ petition (Civil) No. 202 of 1995 titled as T.N. Godavarman Thirumalpad vs. Union of India: -
rt "In view of the great significance of the points involved in these matters, relating to the protection and conservation of the forests throughout the country, it was considered necessary that the Central Government as well as the Governments of all the status are heard. Accordingly, notice was issued to all of them. We have heard the learned Attorney General for the Union of India, learned counsel appearing for the States and the parties/applicants and in addition, the learned Amicus Curiae, Shri H.N Salve, assisted by Sarvashri U. U. Lalit, Mahender Das and P.K Manohar. After hearing all the learned counsel, who have rendered very able assistance to the court, we have formed the opinion that the matters require a further indepth hearing to examine all the aspects relating to the National Forest Policy. For this purpose, several points which emerged during the course of the hearing require further study by the learned counsel and, therefore, we defer the continuation of this hearing for some time to enable the learned counsel to further study these points.
However, we are of the opinion that certain interim directions are necessary at this stage in respect of some aspects. We have heard the learned Attorney General and the other learned counsel on these aspects.It has emerged at the hearing, that there is a misconception in certain quarters about the true scope of the Forest Conservation Act, 1980 (for short the Act') and the meaning of the word "forest" used therein. There is also a resulting misconception about the need of prior approval of the central Government, as required by Section 2 of the Act, in respect of certain activities in ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 13 the forest area which are more often of a commercial nature. It is necessary to clarify that position.
The Forest Conservation Act 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made herein for the .
conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest: must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of section 2 (i) of the Forest Conservation Act. The term "forest land", occurring in section 2, will not only include "forest" as of understood in the dictionary sense but also any area recorded as forest in the government record irrespective of the ownership. This is now it has to be understood for the purpose of section 2 of this Act. The provisions rt enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof.
It has further been directed by the Hon'ble Apex Court as under:
I. General: 1. In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply-wood mills, and mining or any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government, Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must properly ensure total cessation of all such activities forthwith."
iv) The Supreme Court again in T.N. Godavarman Thirumalpadsupra passed the following order in I.A. No. 2370: -
"The High Court of Himachal Pradesh passed an order on 28.05.2008 in regard to felling of trees on private lands which came within the definition of forest land. The order was challenged both by the land owners and ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 14 contractors on the one side and the State Government on the other. In view of the controversy, we referred the matter to the Central Empowered Committee. The CEC after considering the relevant issues in detail has filed a report. The recommendations and suggestions .
made by the CEC are acceptable to all the parties before us. The CEC has recommended that the order passed by this Court on 08.05.2009 in I.A. 2370 of 2008 should be extended to the felling of Khair trees on privately owned non-forest areas also subject to the following conditions: - "i) no felling of trees, including of Khair trees, from the forest area will be permissible in violation of the Hon'ble of Supreme Court Order dated 12.12.1996; ii) no deviation from the ten-year felling programme fixed by the Forest Department in accordance with the provisions of the land preservation Act, rt 1978 will be permissible; 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".(CopyAnnexed as Annexure R- V)."
v) The land in respect of which petitioner had sought permission for felling of trees, formed a compact block of above five hectares and as such was liable to be treated as forest in terms of Notification dated 19.12.2011 issued by respondent No.1.
10. We have heard learned counsel for the petitioner and learned Deputy Advocate General for the respondents and also gone through the record carefully.
11. Clause 8 of the order dated 10.09.2002 reads as under: -
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: i) the Principal Chief Conservator of Forests upto one year; ii) State Government upto two years subject to their being satisfied that sufficient reasons (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: -::: Downloaded on - 02/11/2023 20:36:00 :::CIS 15
(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 etc; or.
(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 .
(c) If the demarcation of land could not be made due to non-availability 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
(d) If the process of demarcation of land, marking and felling or trees has not been completed due to a natural calamity; or
(e) If the settlement of rates of trees has not been of arrived at during the prescribed year of felling, or
(f) It there is any other reason beyond the control of the land owner.
Provided that the State Government may allow felling of the rt trees upto two years and six months after the prescribed year of felling in the snow bund areas."
12. It is not in dispute that petitioner had applied for felling permission of trees in land falling in Tiyari beat under TYFP during the year 2018-19. The felling permission is preceded by demarcation of land and marking etc., of trees to be felled, which admittedly could not be done due the reasons that area in question had become inaccessible for humans on account of inclement weather conditions.
The area was under 8 to 10 feet of snow, it was under threat of snow avalanche and landslides and night temperature ranged from -15 to -25 degrees centigrade. Additionally, there was severe shortage of staff. In the light of existence of aforesaid circumstances, the entitlement of petitioner to apply for extension under Clause 8 supra was clearly made out.
13. It is evident from the records especially documents Annexures P-7 to P-9 placed on record that DFO Bharmour and CCF Chamba had recommended the case of petitioner for extension of time. The contention of petitioner that its request for extension of time remained undecided has not been specifically rebutted by the respondents. There is nothing in the reply filed on behalf of the petitioner that any final decision was taken by the competent authority on the request of the ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 16 petitioner for extension of time. Thus, we have no hesitation to hold that respondents have failed to discharge their legal obligation to decide the representation of petitioner for extension of time in terms of clause 8 of order dated 10.9.2002 issued by the State Government .
under section 4 of 1978 Act. Accordingly, the prayer of the petitioner for directions to respondents to take final decision on its request for extension of time requires to be allowed.
14. Though with the lapse of time the other request of petitioner for allocation of year 2019-20 for felling in Tiyari beat might have become of incapable of acceptance, yet to remove any reservations about the nature and effect of such request and also the stand adopted by respondent No.1 thereon, we deem it necessary to deal with following issues before issuance of appropriate directions:
rt
(i) Whether Respondent No. 1 was right in considering the request letter dated 19.3.2019 of the petitioner as request for preponement of ensuing TYFP for the period 2019-20 to 2028- 29;
(ii) Whether the allotment of year 2019-20 for felling of trees from private land in Tiyari beat would have amounted to deviation in the ten years felling programme so as to attract the bar created by the Hon'ble Supreme Court in T.N. Godavarman Thirumalpadsupra?
15. Perusal of relevant extract of request letter dated 19.03.2019 of petitioner, as noticed above, does not lead to inference that it was a request for preponement of TYFP. The request of petitioner in fact appeared to be a request for approving the forthcoming TYFP for Bharmour Division in such a manner that Tiyari beat was opened for felling of trees during the very first year of said programme i.e., 2019-
20. The reasons for such request were obvious as the allocated year of 2018-19 had come to an end without final decision on the request of petitioner for extension of time.
16. It is clearly evident from the communication dated 29.06.2020 (Annexure P-13) whereby not only the case of petitioner was rejected in the context of its request letter dated 19.03.2019, but also ten years felling programme for the years 2019-20 to 2028-29 for the Bharmour Forest Division was approved. That being so, the ten years felling ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 17 programme for the Bharmour Division came into effect for all practical purposes w.e.f. the date of its approval i.e., 29.06.2020, when the first year of such programme i.e., 2019-20 had already elapsed. Hence, unless the ten years felling programme was in existence, the question .
of its preponement, in our considered view, would not have arisen and also could not have been made subject of consideration for the rejection of request of petitioner, in terms of its request letter dated 19.03.2019."
22. It is quite apparent from the reading of aforesaid paragraphs of of order passed by Division Bench of this Court in CWP No. 4181 of 2020 filed by the petitioner that the grounds raised by the respondents for rejecting the case of the petitioner for extension of time, were taken by rt the respondents in reply to earlier petition and same were rejected but yet the respondents again proceeded to reject the case of the petitioner on same and similar grounds.
23. At this stage, it would be apt to take note of order dated 17.7.2023 passed by this Court, which reads as under:
"Even though, the State has filed the status report dated 15.7.2023, however, we are not at all satisfied with the same. It is not in dispute that the decree was passed by the Civil Court on 22.4.1965 in favour of the land owners and once that be so, obviously the State could not have issued any notification declaring the land owned by the owners to be a 'forest land.' As regards the entry-cum-mutation, the classification of the land could not have been changed from 'Gahar' to 'Gahar Sarkar' in the absence of there being any order passed by the competent civil or revenue court/authority. In such circumstances, respondents are directed to re-examine the issue and file compliance report within a period of two weeks.
List on 31.7.2023."::: Downloaded on - 02/11/2023 20:36:00 :::CIS 18
24. Having perused the status report dated 15.7.2023, this Court categorically observed in order dated 17.7.2023 that once, it is not in dispute that judgment and decree was passed by civil court on .
22.4.1965 in favour of land owners, State could not have issued Notification declaring land in question to be 'protected forest'. Similarly, this court in the aforesaid order observed that the classification of the land could not have been changed to Gahar Sarkar in the absence of order from civil court/revenue authority. On the aforesaid two grounds, of this court, vide order dated 17.7.2023, though directed the respondents to re-examine the issue but this time, the respondents taking a U turn, rt claimed that even if land is not 'protected forest' and Gahar Sarkar, even then, prayer cannot be allowed in view of order dated 30.10.2009 delivered in IA No. 2370 in WP(C) No. 202/1995 passed in T.N. Godavarman case by Hon'ble Apex Court, wherein it was held that, "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."
25. Respondents have further claimed that in case felling permission is allowed it would amount to deviation for the reason that as per Order dated 10.9.2002 issued under the Act, 1978, it is provided that application for demarcation of land from which felling is proposed to be done, may be filed before the Divisional Forest Officer concerned one year advance from the prescribed year of felling, which is prescribed for in Clause 8 of Order dated 10.9.2002 (Annexure P-12).
26. In the case at hand, pursuant to provisions of Act, 1978, Government of Himachal approved TYFP for Tiyari Beat of Holi Block, ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 19 Trehta Range for the year 2018-19, which was notified vide Notification (Annexure P-11). Government of Himachal Pradesh issued order dated 10.9.2002 under the provisions of Himachal Pradesh Land .
Preservation Act, 1978 with regard to procedure for grant of felling permission and extension of time, demarcation of land, enumeration, marking and felling of trees. In the case at hand, petitioner applied for felling of trees qua trees situate over private land in Khasra No. 10/7/2 measuring 8081-03 Bigha, situate in Pargana Trehta, Tiyari Block in of October, 2018. Forest Department, after having noticed that the land upon which felling permission was sought was private land having rt trees of natural origin, processed the application. Since demarcation of land, enumeration, marking and felling of trees on private land for which felling permission had been applied for by the petitioner, could not be done during prescribed year, on account of heavy snow precipitation, frigid temperatures and non-availability of staff, Divisional Forest Officer, Bharmour vide communication dated 5.3.2019 (Annexure P-15), requested the Principal Chief Conservator of Forests Chamba to refer the case to competent authority in terms of Order dated 10.9.2002, for grant of extension of time for demarcation of land, enumeration, marking and felling of trees from the prescribed area of felling.
27. At this stage, it would be apt to take note of the Clauses 8 to 11 of order dated 1.9.2002 (Annexure P-12), which read as under:
"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 ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 20 and felling of trees may be granted beyond prescribed year of felling by the;
(i) the Principal Chief Conservator of Forests upto one year; and
(ii) State Government upto two years subject to their being satisfied that sufficient reasons exist for granting such permission.
.
9. 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.
10. Application for demarcation of the land form which felling is of 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.
rt
11. In no case advance felling of trees shall be permitted before the prescribed year as fixed in the approved ten years felling programme."
28. Aforesaid clause 1 further came to be amended in the following manner:
"2. In par-8 of the said order for sub-para (ii) of para-8 of the said order, the following shall be substituted, namely:-
(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:-
(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.
(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
(c) If the demarcation of land could not be made due to non-
availability of staff on furnishing a certificate from the sub-
::: Downloaded on - 02/11/2023 20:36:00 :::CIS 21Divisional Officer (Civil) or the Divisional Forest Officer concerned as the case may be to this effect; or
(d) If the process of demarcation of land, marking and felling or trees has not been completed due to a natural calamity; or .
(e) If the settlement of rates of trees has not been arrived at during the prescribed year of felling; or
(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 of two years and six months after the prescribed year of felling in the snow bound areas"
29. rt It is quite apparent from aforesaid provision that the State Government has power to extend time upto two years, if it is satisfied that demarcation of land could not be made 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 could not be arrived at during prescribed year of felling or if there is any other reason beyond the control of the land owner.
30. Proviso to aforesaid provision clearly provides that the State Government may allow felling of trees upto two years and six months, of felling programme in snow bound areas.
31. In the case at hand, Forest Department itself after having received application for permission to fell trees from the petitioner, processed the case but since demarcation and enumeration of trees could not be completed within the prescribed year, on account of heavy snow, Divisional Forest Officer Bharmour vide letter dated 5.3.2019, ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 22 requested the office of Chief Conservator of Forests to refer the case to the competent authority for extension of time. In the aforesaid communication, authority concerned specifically stated that on account .
of heavy snow precipitation, frigid temperatures and non-availability of staff, demarcation of land, enumeration of trees could not be done as such, case of the petitioner for extension be considered in terms of Clause 8 of order dated 10.9.2002.
32. Principal Chief Conservator of Forests vide communication of dated 27.9.2019, referred the matter pointing out that no felling from private land from the beat had taken place in the TYFP approved for rt the years 1999-2000 to 2008-09 and 2009-10 to 2018-2019 but instead of seeking extension of time, proposal was moved for opening of Tiyari beat for the year 2019-20, which was otherwise open at the relevant time and petitioner herein, well within time had applied for felling of trees in the private area.
33. Interestingly, respondent No.1 having taken note of the aforesaid communication sent by Principal Chief Conservator of Forests vide letter dated 27.9.2019 considered the case of the petitioner for preponement of felling programme by mis-appreciating and misreading the order dated 30.10.2019 passed in IA No. 2370 in WP(Civil) No. 202 of 1995, titled T.N. Godavarman Thirumalpad v.
Union of India, and rejected the case of the petitioner by holding that preponement of TYFP prepared by Forest Department from 2019-20 to 2028-29 would amount to deviation, which otherwise is not permissible as per order passed by Hon'ble Apex Court.
::: Downloaded on - 02/11/2023 20:36:00 :::CIS 2334. Being aggrieved and dissatisfied with aforesaid order dated 29.6.2020, petitioner approached this Court by way of CWP No. 4181 of 2020 and Division Bench of this Court, vide order dated 17.8.2022, .
clarified that at no point of time, request, if any, was ever made by the petitioner for preponement of felling programme rather, its simple request was for extension of time in terms of Clause 8 of Order dated 10.9.2002 (Annexure P-12). Division Bench, set aside the rejection order dated 29.6.2020 and directed the respondents to consider the of request of the petitioner for extension of time under Clause 8 of order dated 10.9.2002, but interestingly, the respondents again on same and rt similar grounds, rejected the case of the petitioner vide communication dated 4.10.2022 (Annexure P-25). If order dated 4.10.2022 passed on representation dated 27.2.2023 filed by the petitioner is perused in its entirety, respondents have again rejected the case of the petitioner on the grounds, which otherwise stood rejected/negated by this Court in CWP No. 4181 of 2020.
35. Though, there appears to be no reason for this Court to go into the correctness of reasoning assigned in the impugned order in view of categorical finding returned by Division Bench of this Court in CWP No. 4181 of 2020 but this Court after having examined the reasoning given in the impugned order vis-à-vis material available on record has no hesitation to conclude that the same is totally absurd and cannot withstand judicial scrutiny. Respondent No.1, while passing the impugned order, has gravely erred while misreading the revenue record i.e. Jamabandi for the years 2015-16, holding that Khasra No. 10/7/2 situate in Mauja Dhar Dhrabaton, Pargana Holi, measuring ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 24 8081-03 Bigha, as Gahar Sarkar. It is quite apparent from the Jamabandi for the years 2015-16 (Annexure P-8) that the area in question is Gahar.
.
36. Even in the latest Jamabandi for the year 2020-21, land is recorded as Gahar. Leaving everything aside, there is categorical finding by the civil court (Annexure P-3) that the land is recoded as Gahar, as such, State Government has/had no right in it nor the same could be recorded as Gahar Sarkar, as has been wrongly done by of respondent No.1. Similarly, respondent No.1 has fallen in grave error in raising issue of title of the land in question, especially when the issue of rt title stood adjudicated by civil court. Pursuant to decision rendered by civil court, which has attained finality upto Hon'ble Apex Court, revenue record was duly corrected in the presence of the officers of the respondent-State, as such, Ms. Devyani Sharma, learned Senior Counsel is right in contending that the title was never in dispute at any stage of processing the case of the petitioner under TYFP.
37. Respondent No.1 has further committed grave error, while holding that area in question is notified as 'protected forest' vide Notification dated 4.3.1977. Though, it is not in dispute that in view of declaration of possession of land owners of land in question vide judgment and decree (Annexure P-3 to P-6) passed by civil court, correction was incorporated in the revenue record, which was subsequent to the alleged Notification, but notification, if any, issued prior to passing of judgment and decree, consequent upon which revenue record came to be corrected, has no consequence, as far as case of the petitioner is concerned. State Government vide judgment ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 25 and decree passed by civil court stood restrained by way of decree of injunction to interfere in the use of land/ suit land, as such, Notification allegedly issued under S.29 of Forest Act, is without any enquiry, is of .
no consequence and had no applicability to the land in question i.e. Khasra No. 10/7/2. Though, it has been vehemently argued on behalf of the respondent-State that the land in question is 'protected forest' land, but careful perusal of judgment and decree passed by civil court clearly reveals that the land in question was private land and while of processing the case of the petitioner, it was admitted that the land in question was a private land.
38. rt Since, nature of land was Gahar, which is in the nature of pasture, but was not forest/waste land, nor it was property of the Government as no Government had any proprietary rights nor the Government was entitled to part or whole of the forest produce from said property, as such, same could not have been declared to be 'protected forest' under S.29 of the Indian Forest Act nor the Notification issued without enquiry and in violation of decree upheld upto Hon'ble Apex Court, was illegal and void and as such, could not govern the rights of land owners or the petitioner, which had purchased the felling rights from the land owners.
39. 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 ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 26 the record, categorically observed that the case of the petitioner was merely for extension of time under Clause 8 of Order dated 10.9.2002 (Annexure P-12), 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:
of
(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 rt
(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
(c) If the demarcation of land could not be made due to non-
availability 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
(d) If the process of demarcation of land marking and felling of trees has not been completed due to a natural calamity; or
(e) If the settlement of rates of trees has not been arrived at during the prescribed year of felling; or
(f) If there is any other reason beyond the control of the land owner.
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, ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 27 extension of time for demarcation of land, marking and felling of trees ought to have been granted to the petitioner.
41. 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 of deviating from ten years felling programme, however, extension of time in felling programme is/was permissible under Clause 8 of the Order rt 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.
42. 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 private land comprising of Khasra No. 10/7/2 in the year 2018 and Forest Department processed the case of the petitioner, prayer made on behalf of the petitioner for extension of time could have been accepted, especially in view of the recommendation made by Divisional Forest Officer Bharmour vide communication dated 5.3.2019 and by Chief Conservator of Forests vide letter dated 27.9.2019, wherein both the aforesaid authorities specifically observed that on account of heavy snow precipitation, frigid temperatures and non-
::: Downloaded on - 02/11/2023 20:36:00 :::CIS 28availability of staff, demarcation of land, enumeration and marking of trees could not be done.
43. Leaving everything aside, once Division Bench of this Court vide .
order dated 17.8.2022 passed in CWP No. 4181 of 2020, had specifically directed the respondents to grant extension of time for demarcation, enumeration and marking of trees from the land in question there was no occasion for the respondents to reject the case of the petitioner on same and similar grounds, which otherwise stood of rejected. Moreover, there is ample material available on record suggestive of the fact that action of the respondents is not free from rt arbitrariness because they have been granting extension of time for various reasons including non-demarcation of land due to shortage of staff to many similarly situate persons, as is evident from information supplied under Right to Information Act (Annexure P-28) in the same forest Division and under same felling programme extension was granted to land owners of private land in Deol Beat, Holi Block of Trehta Range through Divisional Manager, HFSFDC Ltd. Chamba on the recommendation and certificate furnished by RO Trehta, Naib Tehsil Holi and after completion of other formalities in view of the instructions on the subject. (Annexure P-30, dated 23.3.2019).
44. Case of the petitioner has been rejected on the ground that in terms of para-10 of Order dated 10.9.2002, application for demarcation of land, from which felling is proposed to be done, should have been filed before Divisional Forest Officer, one year in advance from the prescribed year of felling. In the instant case, petitioner, after purchasing felling rights in August, 2018, got necessary ground work ::: Downloaded on - 02/11/2023 20:36:00 :::CIS 29 done for application. In August, 2018, Ceiling proceedings initiated on 6.9.2018 were given effect in revenue record, after demarcation and delivery of surplus and, as such, respondents could not reject the case .
of petitioner for extension of time for the reason that application for demarcation of land ought to have been filed one year in advance from prescribed year of felling. Moreover, Clause 10 of order dated 10.9.2002, if read in its entirety, clearly provides that same is merely directory and not mandatory in nature. This clause has no application of qua the case, which stood processed, especially for extension of time.
45. Consequently, in view of the detailed discussion made herein rt above, this court finds sufficient merit in the petition and same is allowed. Order dated 4.10.2022, Annexure P-25 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 qua Kandli Dhar in Khasra No. 10/7/2 of Tiyari Beat, Holi Block, Bharmour forest Division, beyond the prescribed year of felling in terms of Clause 8 of Order dated 10.9.2002 (Annexure P-12) amended on 24.9.2003 and 11.11.2013.
46. 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 petitioner has been fighting for its rightful claim for more than five years, this court hopes and trusts that entire process of demarcation, enumeration and marking of trees shall be completed by the respondents within six months from today.
::: Downloaded on - 02/11/2023 20:36:00 :::CIS 3047. The petition stands disposed of in the afore terms, alongwith all pending applications.
(Sandeep Sharma) Judge .
November 2, 2023 Vikrant of rt ::: Downloaded on - 02/11/2023 20:36:00 :::CIS