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2008 DIGILAW 408 (GUJ)

State of Gujarat v. Buddhdev M. Vasva

2008-09-16

K.M.THAKER, RAVI R.TRIPATHI

body2008
JUDGMENT : Ravi R. Tripathi, J. This Letters Patent Appeal is filed by the State of Gujarat, through Secretary, Forest & Environment Department; Collector, Bharuch; Addl. Collector (Irrigation); Special Land Acquisition Officer, Unit-II, Ukai Songadh Killa; Chief Conservator of Forest, Baroda; and Dy. Conservator of Forest, Rajpipla. The present appeal is filed being aggrieved by the judgement and order dated 1st May 1998 passed by the learned Single Judge, whereby the petition was partly allowed and the original respondents/ appellants herein were directed to pay to the petitioners/ respondents herein a sum of Rs. 45,886-75 with simple interest at the rate of 12% per annum from 23.04.1987 till realisation of the amount. The learned Single Judge was pleased to order that the amount be paid within eight weeks from the date of receipt of writ. 2. Learned advocate Mr. Y.V. Shah appearing for the respondents/ original petitioners submitted that the said direction of the learned single Judge is not complied with and the respondents have not received any amount despite the judgement and order in their favour since 1st May 1998. 3. Learned Assistant Government Pleader (AGP), Ms. Maithili D. Mehta vehemently submitted that this Letters Patent Appeal is required to be allowed in view of Circular dated 21st May 1966 addressed by the Under Secretary, Agriculture & Cooperation Department to the Chief Conservator of Forest. A copy of the same is produced at Annexure 'B' to the appeal. On perusal of Annexure 'B', it is noticed that it is not a circular. It is a letter in reply to a letter of the addressee-Chief Conservator of forest dated 2nd December 1965. The number of the letter of the Chief Conservator of Forest is mentioned in the opening para of Annexure 'B'; it is 33/ D/ A/ 15531. The perusal of Annexure 'B' reveals that the Chief Conservator of Forest must have asked for guidance for the disposal of reserved trees, like teak and mahuda and in response to that this letter dated 21st May 1966 is written. 4. Annexure 'B' consists of two paras. Para 1 provides that teak and mahuda trees will be permitted to be cut by the owners for their personal use, whereas kher trees in Districts Surat and Valsad will be permitted to be sold to carpenters for preparing agricultural instruments by the owners. 4. Annexure 'B' consists of two paras. Para 1 provides that teak and mahuda trees will be permitted to be cut by the owners for their personal use, whereas kher trees in Districts Surat and Valsad will be permitted to be sold to carpenters for preparing agricultural instruments by the owners. Except the aforesaid, whenever teak, kher and mahuda trees are to be disposed of, the same will be done only through Forest Department. Para 2 of Annexure 'B' provides that in cases where kher trees are disposed of by the owners, then 50% of the price realised will be paid to the Government. In the event the trees are disposed of by the Forest Department, the amount spent by the Forest Department in selling trees, will be deducted and 50% of the remaining amount will be retained by the Government and 50% will be paid to the owners. 5. Learned AGP vehemently submitted that in view of this circular the action of the respondents (in the petition)/ the present appellants was just and proper, and no relief ought to have been granted to the petitioners. 6. As noted above, Annexure 'B' is a reply by the Under Secretary, Agriculture & Cooperation Department addressed to the Chief Conservator of Forest, Vadodara, to his letter dated 2nd December 1965. Under what authority such a policy could have been laid down by an officer of the rank of Under Secretary is not borne out from that letter-Annexure 'B' dated 21st May 1966. In the present case, the petitioners were told by the Irrigation Department that the petitioners are at liberty to cut 160 trees which were standing on their land, which were acquired for the construction of Chudavav Dam on payment of Re.1-00 per tree. If that is so, where is the question of Forest Department coming into picture and the internal communication between the Agriculture & Cooperation Department on one hand and the Chief Conservator of Forest on the other being applicable to the case of the petitioners. Except this communication dated 21st May 1966, the learned AGP is not able to point out any document or material which entitles the Government to claim 50% price realised of a tree standing on the land of the petitioners, which was acquired for the purpose of construction of a dam. 7. Except this communication dated 21st May 1966, the learned AGP is not able to point out any document or material which entitles the Government to claim 50% price realised of a tree standing on the land of the petitioners, which was acquired for the purpose of construction of a dam. 7. The submissions of the learned AGP cannot be accepted more particularly, at this appeal stage. The learned Single Judge has recorded in para 2 as under: "Though the Special Civil Application was filed as early as in 1987, no affidavit-in-reply is seen filed by the respondents." It was put to the learned AGP as to whether this circular was ever pointed out to the Court at the time of hearing of Special Civil Application, which was decided on 1st May 1998. The learned AGP submitted that from the record, it appears that her predecessor could not put this communication before the Court. That being so, when this Court is considering the legality and validity of the judgement and order dated 1st May 1998, this Court cannot take into consideration this communication dated 21st May 1966. Mr. Y.V. Shah, learned advocate appearing for the respondents herein/ original petitioners also submitted that Annexure 'B' is not a 'circular'. He submitted that it is only a reply to a letter written by the Chief Conservator of Forest dated 2nd December 1965. He also submitted that the same cannot be looked into at this stage, more particularly, when it was not produced by the Government at the time of hearing of the petition. 8. In the present case, the petition was filed in the year 1987 and it was taken up for final disposal in 1998, i.e. after long 11 years. Still the Government did not find time to file reply to the petition, whatever worth it could have been. 9. Besides, a very shocking state of affairs is coming to light from the present proceedings. The respondents/ original petitioners were tribals and their land bearing Survey No.75 at Village Samiyar, Taluka Sagbara, District Bharuch was acquired for the purpose of Chudavav Dam. The land owners had 160 trees on their land. 9. Besides, a very shocking state of affairs is coming to light from the present proceedings. The respondents/ original petitioners were tribals and their land bearing Survey No.75 at Village Samiyar, Taluka Sagbara, District Bharuch was acquired for the purpose of Chudavav Dam. The land owners had 160 trees on their land. It is recorded in the judgement that these land owners were told that, 'they are at liberty to cut these trees by paying Re.1.00 per tree', but the land owners were not in position to pay even that amount and could not exercise their right of cutting trees on payment of Re.1-00. As is recorded in the judgement, later on, these trees were cut at the instance of the Irrigation Department and the same were sold in a public auction and in public auction a sum of Rs. 1,30,075/- was realised by the authorities. It is also recorded that 10% of the sale price was deducted by the original respondents towards supervision charge and 50% of the remaining amount of sale proceeds was directed to be given to the original petitioners/ appellants herein. It is also on record that out of that, 2% was deducted towards Income Tax and a sum of Rs. 49,866-05 was made available to the original petitioners. It is rightly recorded in the judgement that the details of the expenditure incurred by the Department are not produced. The respondents have also not brought to the notice of the Court any guidelines issued by the Department in such matters. Even if it is assumed that the original respondents are entitled to deduct expenses towards cutting/ removing trees, they could have deducted reasonable expenses. (emphasis supplied) It is also recorded in the judgement that, "3. .. .. The bidders themselves would have taken steps to remove the trees from the place. It is difficult to assume that the Department would have spent Rs. 50,886/- for cutting and removing the trees, as the averments made in the petition are not denied by the respondents. .. .." This Court is of the opinion that the present Letters Patent Appeal is nothing but a glaring example of filing of frivolous litigation by the Government officers, who have not to incur any expense for the same. 50,886/- for cutting and removing the trees, as the averments made in the petition are not denied by the respondents. .. .." This Court is of the opinion that the present Letters Patent Appeal is nothing but a glaring example of filing of frivolous litigation by the Government officers, who have not to incur any expense for the same. If the Government had no time to file an affidavit in reply for a long period of 11 years, there was no reason to file an appeal against a well considered judgement. It is nothing but an irony of fate that on one hand the Government claims to be the guardian/ trustee of the tribal population of the State and on the other hand they are deprived of their legitimate dues. The facts of the present case are glaring example of this. It is on record that the owners of the trees, whose land was acquired for the purpose of Chudavav Dam were not in a position to deposit Rs. 160/-, an amount at the rate of Re.1.00 per tree. Therefore, they could not cut and remove the trees. Later, when the Government auctioned those trees, it deducted 10% of the sale proceeds towards 'supervision' charges. There cannot be a better example of Government 'apathy' towards the tribals, who otherwise claims to be the well wisher and trustee of the tribals by providing schemes for their social and economic upliftment. 10. This Court restrains itself from making further observations in this regard. The Government is directed to comply with the order passed as back as on 1st May 1998 by paying the owners of the trees the sum of Rs. 45,886-75 with simple interest at the rate of 12% per annum from 23.04.1987 till realisation of the amount, within eight weeks from today. A copy of this judgement and order be made available to the learned AGP Ms. Maithili D. Mehta for its onward communication and compliance. 11. Looking to the facts of the case, this Court deems it proper to order that even in case the Government decides to file an appeal against this order, deposit of this amount will be a condition precedent. In case of failure to comply with this direction, the Court will have no other alternative than to take necessary action against the responsible officer. 12. In case of failure to comply with this direction, the Court will have no other alternative than to take necessary action against the responsible officer. 12. This matter be listed on 18th November 2008 for reporting compliance of this order. The Letters Patent Appeal is dismissed. Appeal dismissed.