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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- 494 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.