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PETITIONER:

THE STATE OF HIMACHAL PRADESH & ORS.

Vs.

RESPONDENT:

SHRI MANGAT RAM

DATE OF JUDGMENT24/10/1994

BENCH:

MOHAN, S. (J)

BENCH:

MOHAN, S. (J)

VENKATACHALLIAH, M.N.(CJ)

CITATION:

1995 AIR 665 1995 SCC Supl. (1) 229

JT 1995 (2) 491 1994 SCALE (4)718

ACT:

HEADNOTE:

JUDGMENT:

1. Leave granted.

2. The respondent purchased land measuring 132 bighas 15

biswas in Khasra Nos. 90/2 to 90/5 in Cudah, Pargana

Pachhad, Tehsil Theog, District Simla from private owners

for the purpose of planting an apple orchard during the year

1981-82. The Government of Himachal -Pradesh owns about 35

bighas in Khasra No. 90/1. The above area is surrounded by

thick forests from all sides. In order to raise an apple

orchard felling of trees was required in the said area.

Such a felling is regulated by the provisions of Himachal

Pradesh Land Preservation Act, 1978 (here_ inafter referred

to as the Act). This Act provides for better Preservation

and protection of certain portions of territories. Under

Section 7 of the Act Regulation have been made. That inter

alia provides the trees for sale shall be felled in accor-

dance with 10 years felling programme. That programme, in

turn, required to be framed by the officials of the Forest

Department which is ultimately approved by the State

Government. Rule 4(2)(e) of the Himachal Pradesh Land

Preservation Rules, 1983 (hereinafter referred to as the

Rules) provides that no clear felling of the trees shall be

allowed even for the purpose of raising orchards.

3. Some of the respondents made an application for

demarcation of the land in question for the purpose of

marking and cutting of trees. The Assistant Collector II

Grade on 7th December, 1987 carried out the demarcation. On

8th January, 1988 he submitted the report with the noting

that the verification of the report is required to be done

by Senior Land Revenue Officer. Without such a verification

no action will be proper. It was further stated that in

view of the intricacies in the demarcation and interest of

the Government the land in question in which thousands of

trees of deodar, kali, tosh, broad leaved are standing and

which was fixed in dense forest and also for the purposes of

exchange, private sale, compensations of trees etc. and

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before giving order for counting of trees, for any purpose,

marking, cutting, the verification of this demarcation by

Senior Land Revenue Officer with the help of Sajra Musabi in

the presence of the Forest Department and also in the

presence of Tehsildars who had earlier given demarcation is

in the interest of Government and absolutely necessary. In

view of the above observation of Assistant Collector and

since no test of marking of trees was done, the Forest

Department for want of the above particulars could not give

the felling orders.

4.Thereafter on 14th December,1989, the lands were

demarcated. This was duly informed to the respondents.

493

Since the appellants were not satisfied by the demarcation

done by the Additional Collector the land was again

demarcated by the Assistant Settlement Officer. He

submitted a report in the first week of November, 1990. He

was of the view that the felling was permissible under 10

years programme during 1999-2000. The respondents were

informed of the same and were directed to approach the

competent authority or to wait till the forest bid opens for

the year 1999-2000.

5. Under these circumstances, the respondents filed C.W.P.

No. 206 of 1990 for a direction to carry out and finalise

the demarcation and a further direction to issue necessary

permission to cut and remove the trees. A further direction

was prayed for that in case it was not possible for the

State Government to grant permission it might be asked to

take over the entire forest after paying the market value

thereof.

6.The appellants took a stand that since the report of the

Assistant Collector II Grade contained so many infirmities

the permission to fell the trees could not be granted. Such

a permission could be granted only during 1999-2000 under

the IO years programme.

7. By the impugned judgment dated 30th September, 1992 the

High Court allowed the writ petition holding that the report

of Assistant Collector II Grade was final. Eschewing the

reports of the Assistant Settlement Officer and the

Additional Collector it directed the appellants to accord

sanction to the respondents for clear felling of trees

within a period of one month. Aggrieved by this judgment

the appellants have come up in appeal.

9. Before us the following contentions are raised by

learned counsel of the appellants:

The report of the Assistant Collector cannot be treated as

final since under Section 17 of the Himachal Pradesh Land

Revenue Act, 1973 (hereinafter referred to as Revenue Act)

the Financial Commissioner has got unlimited revisional pow-

ers. Where, therefore, at his direction there were further

reports of the Assistant Settlement. Officer and the

Additional Collector, reliance cannot be placed on the

report of the Assistant Collector Grade II.

9. Besides, the report of the Assistant Collector

contained so many infirmities.

10. In any event, Rule 4(2)(c) prohibits felling even

for the purposes of raising an orchard.

11. In opposing this it is submitted that the Assistant

Collector II Grade had the necessary authority under Section

107 of the Revenue Act. That power is cxercisable only by

him and no one else. If that is the final report, the

question of Financial Commissioner exercising revisional

powers under Section 17 of the Revenue Act could not arise.

12. Besides, the permission to fell trees had been given in

several other cases. The bar of 10 years felling programme

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cannot be applied in this case. Right from the date of

purchase these respondents have been vigorously pursuing

their application for permission to fell trees. As was

rightly pointed out by the High Court, having failed to

secure the necessary permission sought in their application

earlier, the same request was reiterated in the year 1989-

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90. Merely because of the pendency of that application with

the appellant the IO years programme as in 1989-90 cannot be

made applicable. Such a programme must relate to 1982-83

during which year there was no bar.

13. On a careful consideration of the above, we are not in

a position to differ from the High Court in relation to its

finding that the report of the Assistant Collector II Grade

is final. The Assistant Collector Grade II is the competent

person to effect demarcation. His report is final. Section

107 of the Revenue Act reads as under:-

"107. Power of Revenue Officers to define

boundaries. - (1) A Revenue Officer may, for

the purpose of framing any record or making

any assessment under this Act or on the

application of any person interested, define

the limits of any estate, or of any holding,

field or other portion of an estate, and may,

forthe purpose of indicating those

limits,require survey marks to be erected or

repaired.

(2) In defining the limits of any land under

sub-section (1), the Revenue Officer may,

cause survey-marks to be erected on any

boundary already determined by, or by order of

any Court, Revenue Officer or Forest

Settlement Officer, or restore any survey-

marks already set-up by, or by order of any

Court or any such officer.

14.It is not denied before us that Assistant Collector II

Grade is a Revenue Officer as defined under Section 4(17)

real with Section 7 (Classification of Revenue Officers).

Therefore, such an Assistant Collector 11 Grade is the

competent authority to exercise statutory powers under the

Act. The can define the limits of any estate or of any

holdings, fields or other portion of any estate.

15. The revisional powers of the Financial Commissioner

could not be exercised merely because the Assistant

Collector II Grade has stated that the demarcation could be

got verified from the Senior Revenue Officer. The

revisional powers of the Financial Commissioner arc

circumscribed by the statutory provision.

16. We arc unable to accept the contention of the learned

counsel for the appellants that Rule 4(2)(c) of the Rules of

1983 will have any application to the facts of the present

case. These Rules have no application to the lands in Theog

Forest Division. 'Mat is why the respondents relied on the

permission granted by the appellants in Balson Range for

marking and felling of trees to many persons from the

respective lands. Therefore Rule 4(2)(e) cannot be pressed

into service. It is also not correct to contend that the

respondents will have to wait to fell the trees in accor-

dance with 10 years programme till 1999-2000. Merely

because the application of the respondent was pending with

the appellant, the respondents cannot be made to suffer.

However, we make it clear that the respondents will have to

conform to the order passed by the Secretary (Forests) to

the Govt. of Himachal Pradesh in Order No. Fts(A) 3-1/81-

Part 11, Shimla-2, dated the Sept., 1984. It inter alia

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states:

"Provided also that any person felling the

trees either for domestic or agricultural use

or for sale shall be required to plant at

least 3 trees for one tree felled. In case,

however, a fruit orchard is planted in such

area, it shall be planted according to the

norms laid down by the State Horticulture

Department for complete stocking of the area".

495

17.It is open to the appellant to prescribe such conditions

as are permissible under the above proviso and all other

regulations/notifications governing the issue.

18.The appeal is accordingly dismissed in the above terms.

However, there shall be no order as to costs.