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2014 DIGILAW 241 (PNJ)

Divisional Forest Office, Gurdaspur v. Gian Singh

2014-01-30

PARAMJEET SINGH

body2014
Paramjeet Singh, J. 1. In this regular second appeal, plaintiffs-private persons and defendants-government are asserting their right, title and interest in and over the Shahpur Kandi forests which is an important gift of nature and is a natural resource in the shape of green blanket which not only produces innumerable material goods, but also provides environmental services which are essential for life. Birth and growth of human civilization and culture is very intimately connected with forests. Intimacy with forests has always been a refreshing and invigorating for human life. Materialism, greed and over exploitation of forests have created a disharmony and imbalance in our ecology and environment. This evil is being intensely realized now. Human consumerism has created such a great pressure on the forests that these have almost disappeared in many areas resulting in soil erosion, floods and barrenness, pollution, climatic changes, drought and destruction of the fragile eco-system. The civil suit out of which this second appeal arises is a classic case of greed of the plaintiffs to usurp the natural resources. The destruction of forests at the hands of either party is bound to have serious repercussions on the lives of the residents of the area. Mahatma Gandhiji said "Nature has enough for everybody's needs but not for everybody's greed". 2. This regular second appeal is directed against the judgment and decree dated 24.01.1984 passed by learned Sub Judge 1st Class, Pathankot whereby suit for permanent injunction filed by respondents/plaintiffs has been decreed and against the judgment and decree dated 04.04.1985 passed by learned District Judge, Gurdaspur whereby appeal preferred by appellants-defendants has also been dismissed. 3. For convenience sake, reference to parties is being made as per their status in the suit. 4. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts for disposal of this second appeal are to the effect that plaintiffs filed a suit for permanent injunction restraining defendants from cutting any tree or from removing cut wood lying in the land measuring 4486 kanals 19 marlas, (approximately 561 acres) as detailed in the head-note of plaint, situated in village Tikka Dhung, Tehsil Pathankot, District Gurdaspur. It was pleaded that the land in dispute has been recorded as 'shamilat tikka hasab rasad khewat' in the revenue record and is owned and possessed by the proprietors of the village. It was pleaded that the land in dispute has been recorded as 'shamilat tikka hasab rasad khewat' in the revenue record and is owned and possessed by the proprietors of the village. Plaintiffs are owners in possession of the land, being co-sharers. Defendants have no right, title or interest in the land in dispute. There are several trees standing in the suit land and some of the trees are lying cut in the land. Defendants want to remove the logs of wood and cut the trees standing in the disputed land. 5. Defendants resisted the suit and filed written statement. It was pleaded that property in dispute was under the management and control of Forest Department since times immemorial. The Government has become owner of the land which was shown as land of proprietary body under the provisions of the forest laws. The land in question had been declared demarcated and undemarcated protected forests vide Notifications No. 3 and 4 dated 05.01.1904. Plaintiffs have no right in the land in dispute. It was also pleaded that suit was not maintainable in the present form and had become in-fructuous as the standing trees had already been auctioned to Badri Nath Kama, contractor, that plaintiffs had remedies under the Indian Forest Act and the same were not availed of by them. The suit was barred by limitation and not triable by the civil court. The suit was bad for non-joinder of necessary parties and that suit was liable to be dismissed for want of notice under Section 80 CPC. 6. On the basis of pleadings of parties, the Court of first instance framed following issues: "1. Whether the land in dispute is owned and possessed by the proprietors of the village and the plaintiffs are owners in village and are owners in possession of the suit land being the co-sharers of the suit land? OPP 2. Whether the plaintiffs are entitled to the injunction prayed for? OPP 3. Whether the plaintiffs have no locus standi to file the present suit as they are not owners of the trees? OPD 4. Whether the suit in the present form is not maintainable? OPD 5. Whether the plaintiffs have waived their rights under the Indian Forest Act? OPD 6. Whether the suit is time barred? OPD 7. Whether the civil court has got no jurisdiction to entertain and try this suit? OPD 8. OPD 4. Whether the suit in the present form is not maintainable? OPD 5. Whether the plaintiffs have waived their rights under the Indian Forest Act? OPD 6. Whether the suit is time barred? OPD 7. Whether the civil court has got no jurisdiction to entertain and try this suit? OPD 8. Whether notice under Section 80 CPC is not required as the matter is urgent and immediate nature? OPD 9. Whether the plaint is not properly valued for the purpose of court fee and jurisdiction? OPD 10. Relief? 7. After appreciating the evidence, the Court of first instance decreed the suit restraining defendants from cutting any tree or removing cut wood lying in the land measuring 4486 kanals 19 marlas bearing khewat No. 19, khatuni No. 134, khasra No. 1, 61, 65, 70, 90, 237, 246, 302 min 335, 481, 519, 585, 587, 714 and 722 total field Nos. 15, situated in village Tikka Dhung, Tehsil Pathankot and issue No. 1 with regard to ownership in the land was also decided in favour of the plaintiffs. Feeling aggrieved, defendants preferred an appeal which has been dismissed by the lower Appellate Court. Hence, this second appeal. 8. When the appeal was admitted, no substantial question of law was framed No substantial question of law has been placed on record during the pendency of appeal. However, as the appeal has been pending since 1985, I have heard learned counsel for the parties on merits and perused the record. 9. Learned State counsel for the appellants has contended that land in dispute has been notified as demarcated and undemarcated protected forests vide Notifications No. 3 and 4 dated 05.01.1904. Learned counsel has further contended that 'shamilat tikka' vests in Gram Panchayat and reliance has been placed on Khiali Ram v. Subedar Mast Ram and others 1964 PLR 629 and Ram Sukh and others v. The State of Punjab and others 1965 PLR 1047. Learned counsel has further contended that 'shamilat tikka' is included in the definition of shamilat deh as provided in clause (g) of Section 2 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short "the 1961 Act") which came into force on 22.04.1961. Section 3 of the 1961 Act gives retrospective effect to clause (g) of Section 2. As per Section 4(1) of the 1961 Act, all the rights in shamilat deh vest in the Gram Panchayat. Section 3 of the 1961 Act gives retrospective effect to clause (g) of Section 2. As per Section 4(1) of the 1961 Act, all the rights in shamilat deh vest in the Gram Panchayat. Learned counsel has further contended that in view of notifications and the provisions of the Indian Forest Act, 1878, (in short "the 1878 Act"), proprietors have no right, title or interest in the management and control over the land in question, rather management and control of the same vests in the Government in view of the notifications. 10. On the other hand, learned counsel for respondent No. 2 contended that the impugned judgments and decrees passed by both the courts below are legal and valid. The land has been shown as 'shamilat tikka hasab rasad khewat', therefore, the plaintiffs being proprietors have right, title and interest in the land in dispute as per their respective shares. Findings of fact have been recorded by both the courts below which cannot be interfered with in second appeal. 11. I have considered the rival contentions of learned counsel for the parties. 12. From the arguments raised by learned counsel for the parties and perusal of record, the substantial question of law which arises for determination in this second appeal is as under: Whether trees standing in the forest land of Shahpur Kandi which have been shown in the revenue record as 'shamilat tikka hasab rasad khewat' belong to the proprietary body or the State Government under the provisions of the 1961 Act, and 1878 Act and the Government has a right to manage, control, cut and remove the trees from the protected forest in question? 13. There is no dispute that the land in question is situated in village Tikka Dhung, Tehsil Pathankot, District Gurdaspur which falls in the area of Shahpur Kandi forests in District Gurdaspur which was occupied by the outlying spurs of the Himalayas. In 1850, this formed part of District Kangra of the undivided Punjab. Mr. Barnes, the then Settlement Officer recorded all the waste lands as village common property, but the chir trees were expressly declared to be belonging to the Government. The right holders were entitled to cut other trees for their own use but not for sale. Reference can be made to paragraph 3 of the memorandum by the then Financial Commissioner, Sir. Barnes, the then Settlement Officer recorded all the waste lands as village common property, but the chir trees were expressly declared to be belonging to the Government. The right holders were entitled to cut other trees for their own use but not for sale. Reference can be made to paragraph 3 of the memorandum by the then Financial Commissioner, Sir. J.B. Lyall, forwarded to government with his Senior Secretary's letter No. 443 dated 9th April, 1883, printed in Forest proceeding of July, 1883. The Lieutenant Governor had declared the provisions of Chapter IV of the 1878 Act to be applicable to the forest and waste land of this area and issued notifications under Chapter IV, Section 28 of the 1878 Act declaring them as Demarcated Protected Forests vide Notification No. 3 dated 5th of January 1904 and Undemarcated Protected Forests vide Notification No. 4 dated 5th of January, 1904. Thereafter with the sanction of the Governor General in Council under Section 31 of the Act, rules applicable to the area in Shahpur Kandi Tract in District Gurdaspur were framed. All minute details have been mentioned in the rules regarding protecting, preserving and control over the trees. Approximately 8,000 acres of the more valuable forest land have been declared as demarcated forest, out of which, 4486 kanals 19 marlas belong to village Tikka Dhung (Duhg). Accordingly, the record of rights were drawn up vide Forest proceedings No. 29 of January 1904 declaring the extensive rights of user in the produce of the forests which are possessed by the owners and tenants of cultivated lands in the estates in which they are situated. The rules framed under Section 31 of the 1878 Act were notified vide Notification No. 115 dated 7th March 1904 defining the manner in which rights may be exercised in the case of demarcated and undemarcated forests respectively. The relevant rules read as under: "2. In these rules unless there is something repugnant in the subject or context- "Record-of-Rights" means the record prepared in accordance with Section 28 of the Indian Forest Act. "bartandar" means a person entitled to a right over land or trees in a protected forest which is or are the property of another. x x x x x x x "Tree", "timber", "cattle" have the same meaning as in the Indian Forest Act, 1878. "bartandar" means a person entitled to a right over land or trees in a protected forest which is or are the property of another. x x x x x x x "Tree", "timber", "cattle" have the same meaning as in the Indian Forest Act, 1878. "Land assessed to revenue" includes land which, though liable to assessment, was not charged with revenue in the internal distribution of the last assessment, but which has since that assessment been brought under cultivation or enclosed with the permission of competent authority, wherever permission was necessary. 7. Except as provided in Rules 21 and 22, the lopping, barking, cutting and removal of timber and trees in demarcated protected forests are prohibited except by bartandars in the exercise of a recorded right and subject to the provisions of these rules. 8. (i) Except as provided in Rules, 21, 22 and 23, no person other than the proprietors of cultivated land in the Shahpurkandi tract assessed to revenue, and their agricultural tenants, shall lop, bark, cut or remove timber and tress in any undemarcated forest. (ii) No such proprietor or tenant shall top, bark, cut or remove any timber or trees in an undemarcated forest except for his own domestic or agricultural (not including pastoral) purposes and subject to the provisions of these rules. 12. Except as provided in Rules 19 and 20, trees of whatever kind in the demarcated protected forests and Chil in he undemarcated protected forests may not be cut except under the permit of the Forest Officer. 17. Trees granted under permits may not be cut or removed until marked by a Forest official duly authorized in this behalf. 19. No permit is necessary for doing any of the acts next hereinafter mentioned, but nothing in this rule shall confer upon any person any right not recorded in the record-of-rights as enjoyed by him. The acts referred to are as follows: (i) The cutting and removal of (a) all fallen timber; (b) stumps; (c ) dry standing trees of less than a hath in girth at breast height; (d) branches of dry standing trees of a bath in girth at breast height or more, provided that the trees themselves are not cut. Nothing in this clause shall be deemed to allow the cutting and removal without permit of any timber or dry standing trees from any forest that has been burned. Nothing in this clause shall be deemed to allow the cutting and removal without permit of any timber or dry standing trees from any forest that has been burned. (2) The removal of leaves RSA No. 2630 of 1985 10 (a) of the amil and the safeddhau for tanning purposes; and (b) of the taur and other creepers for domestic purposes. (3) the cutting and removal for burning the dead to any amount sufficient for that purpose of any tree other than CHIL. Intimation of all such cuttings shall be given the 'rakha' or other Forest Official within ten days. 20. (1) No permit is necessary for the cutting and removal of brushwood, nor for the loping of trees other than Chil, Tun, Tali, Rajan, Kyar and Kaniar:- (a) in a demarcated forest by a person recorded as entitled to these rights; and (b) from the un-demarcated forest of a village by the proprietors of cultivated land assessed to revenue in the village and their agricultural tenants. (2) Brushwood may be cut and removed, and trees, with the exceptions detailed in subsection (1), may be lopped in the undemarcated forests of one village by the proprietors of cultivated land assessed to remove in another village in the Shahpur Kandi Tract and by their agricultural tenants under the permit of the Lambardar of the village in which the forest is situated. (3) Sub-sections (1) and (2) are subject to the proviso that the trees are lopped only for fodder for bedding and manure, and are not less than a hath in girth at breast height, and that the branches cut do not exceed a finger in thickness and that the trees are not lopped more than one-half of their height. 21. Gaddi shepherds may, within the areas over which they are permitted by the Deputy Commissioner under Rule 5 to graze their flocks, take dry fallen wood fit only for fuel, and may lop trees for fodder, but only for kids and subject to the restrictions imposed by Rule 20(3). 22. Ban Gujara and others allowed to graze their cattle under Rule 6 may within the areas over which they have been allowed to graze take dry fallen wood fit only for fuel and may lop trees for fodder subject to the restrictions imposed in Rule 20(3). 14. 22. Ban Gujara and others allowed to graze their cattle under Rule 6 may within the areas over which they have been allowed to graze take dry fallen wood fit only for fuel and may lop trees for fodder subject to the restrictions imposed in Rule 20(3). 14. The reference to the 1878 Act also finds mention in the Punjab Land Administration Manual, the relevant paras whereof read as under: 721. Indian Forest Act, VII of 1878. The late Mr. Baden Powell, a Punjab Civilian, who was Conservator of Forests from 1869 to 1872 and from 1876 to 1879, and who officiated as Inspector-General throughout 1873 and part of 1874, helped largely in putting forest legislation in India on its present basis. (Forestry in British India, page 116. He was the author of a book "Forest Law" published in 1893) In 1878 the Indian Forest Act was passed. This Act has been amended from time to tome but finally in 1927 a new Forest Act, XVI of 1927 was passed and now takes the place of original Act. It merely consolidates the various amendments made and removes certain ambiguities contained in the old Act, but makes no radical changes in the policy Lald down in that Act. This Act permits the local Government to constitute any forest land or waste land which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce to which the Government is entitled, a "reserved" or a "protected" forest. (Sections 20 and 29 of Act XVI of 1927). It is sufficient, therefore that the State should own the trees or some of them even though it may have recorded the soil, as was imprudently done in the case of Kangara as belonging to village communities. 722. Reserved forests. Chapter II of the Act deals with "reserved" and Chapter IV with "protected" forests. Reservations must be proceeded by a forest settlement in which a full inquiry is made into all private rights claimed or otherwise discoverable. (Section 6 and 7 of Act XVI of 1927) The instructions at present in force in the Punjab regarding the conduct of forest settlements will be found in appendix II. When once a forest has been notified as reserved no further private rights can grow up. (Section 6 and 7 of Act XVI of 1927) The instructions at present in force in the Punjab regarding the conduct of forest settlements will be found in appendix II. When once a forest has been notified as reserved no further private rights can grow up. (Section 23 of Act XVI of 1927) A reserved forest can only be disforested with the previous sanction of the governor-general in Council.(Section 27(1) of Act, XVI of 1927.) 723. Protected forests - No special forest settlement is required before notifying waste land as "protected forest." But Government must be satisfied that the nature and extent of the rights of Government and of private persons in the land have been enquired into and recorded at a survey or settlement or in such other manner as it deems sufficient. An ad interim order may be passed to protect the rights of Government pending the preparation of a proper record. By declaring waste land to be "protected forest" the future growth of rights is not prevented. When land has been notified as reserved forest many acts regarding it at once become criminal. But a notification of a protected forest to be effective must be followed by action under section 30, which enables Government:- (a) to declare any trees in a protected forest to be reserved; (b) to close portions of the forest from time to time and suspend the exercise of private rights, "provided that the remainder of the forest be sufficient and in a locality reasonably convenient, for the due exercise of the rights suspend."; (c) To prohibit quarrying lime and charcoal burning, removal of forest produce or clearing of the land for any purpose. Rules for the management of protected forests may be made, (Section 32 of Act XVI of 1927) and a breach of any rules and the doing of any act forbidden under section 30 are criminal offences. (Section 33 of Act XVI of 1927). Where the choice lies between action under chapter II of chapter IV, the former should ordinarily be preferred. There is no reason why the management of a reserved forest should be done with more rigid and less considerate of the needs of the surrounding communities than that of a protected forest. (Section 33 of Act XVI of 1927). Where the choice lies between action under chapter II of chapter IV, the former should ordinarily be preferred. There is no reason why the management of a reserved forest should be done with more rigid and less considerate of the needs of the surrounding communities than that of a protected forest. Nothing prevents Government from allowing as privileges to be revoked in case of abuse, the enjoyment of forest produce to which no actual right has been established. (See paragraphs 22-27 of appendix II) 724. Interference in case of privately owned forests. The Act recognizes the fact that occasions may arise in which it is necessary to interfere with the use, or even to assume the management of privately owned waste land for the good of the public in general. Reasons for such action are prevention of the spread of ravines, the protection of land from erosion or deposits of sand and boulders, the maintenance of the water supply in springs or streams and the like." 15. The 1878 Act consists of 83 sections and divided into 14 Chapters and a Preamble. Chapter II refers to reserved forests and such lands were the absolute property of the government. Chapter III refers to the village forests in which the government held only right of management. Village forests consisted of residue forests wastelands without any control of the forest department. Chapter IV refers to the protected forests, although the property was declared to be of the government but user rights of the villagers remained intact. Perusal of 1878 Act and Rules made by the Provincial Government (now State Government) for the protected forests of Shahpur Kandi Tracts in Gurdaspur District under Section 31 of the 1878 Act vide notification No. 115 dated 07.05.1904 make it clear that complete control over the trees was kept by the Government with it, possibly for the preservation of forests. Rule 7 provides that except as provided in Rules 21 and 22, the loping, working, cutting and removal of timber and trees in demarcated protected forests is prohibited except by bartandars in the exercise of a recorded right and subject to the provisions of these rules. Rule 7 provides that except as provided in Rules 21 and 22, the loping, working, cutting and removal of timber and trees in demarcated protected forests is prohibited except by bartandars in the exercise of a recorded right and subject to the provisions of these rules. Rule 12 provides that except as provided in Rules 19 and 20, trees of whatever kind in the demarcated protected forests and Chil in the un-demarcated protected forests may not be cut except under the permission of the Forest Officer. Rule 17 provides that trees granted under permits may not be cut or removed until marked by a forest official authorized in this behalf. These rules clearly show that the control over the trees has been kept with the Forest Department. It is pertinent to mention here that vide letter dated 12.03.1945 issued by the Deputy Secretary, Revenue, Lahore, (which is at page 49 of the record of the trial Court), management of Shahpurkandi Forests in the Gurdaspur District in which land in dispute falls, was transferred from the control of Deputy Commissioner, Gurdaspur to the Forest Department of the State. Another letter No. 1975 dated 22.11.1945 was issued by the Government of Punjab, Department of Revenue constituting Shahpur Kandi Forest Committee and Fund. In view of above, it is held that management and control over the trees and the area under the demarcated and un-demarcated protected forests vest in the Government in view of the notifications issued in 1904. Moreover, specific definition of 'record of rights' has been given in Rule 2 framed under Section 31 of the 1878 Act. The said rule provides that record prepared in accordance with Section 28 of the 1878 Act will be treated as a record for the purpose of demarcated and un-demarcated protected forests. It further needs to be clarified that the land in dispute has been recorded as 'shamilat tikka hasab rasad khewat' in the revenue record i.e. bandobast for the year 1910-11 (Ex. D-1) and other relevant document is Ex. D.W. 2/B. So all the rights, title and interest in the land under protected forests stood vested in the State Government including the trees and other produce. Thus, the entire property including the trees have ceased to be the property of any other person including the plaintiffs and, therefore, they cannot continue to manage the forests standing over the land in dispute. Thus, the entire property including the trees have ceased to be the property of any other person including the plaintiffs and, therefore, they cannot continue to manage the forests standing over the land in dispute. Admittedly, the land in the revenue record has been described as 'shamilat tikka hasab rasad khewat'. As per the definition of 'shamilat deh' given in Section 2(g) of the 1961 Act, 'shamilat tikka' has been included in 'shamilat deh' and is a forest. The plaintiffs or their predecessors never challenged the notifications, thus, they are estopped by their act and conduct from raising any claim with regard to forest land. Even under the Forest Settlement Reports, the trees and the forest produce vest in the State Government since times immemorial and these have been declared as protected forests and the petitioner cannot claim any right in these forests other than those recorded in the Forest Settlement Reports. 16. It would be appropriate to mention that during the pre-British period, forests were managed by the communities living around the forests and by the people dependent on them for their sustenance and livelihood. During British Indian Government, enacted various legislations for protection and preservation of the forests. Indian Forest Act, 1878 and thereafter Indian Forest Act, 1927 had come into being. The Constitution of India envisages a socialistic pattern of society. Article 48-A of the Constitution of India requires that State shall endeavour to protect and improve the environment and safeguard the forest and wild life of the country. Under Article 51-A of the Constitution, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wild-life and to have compassion for living creatures. In view of the mandate of the Constitution, there is an urgent need to check deforestation and dwindling green cover. Preservation and development of forests on scientific lines is a necessity. Many new enactments have been issued after the Independence of India for protecting the forests and environment. Even the Government of India has framed forest policies from time to time. First forest policy resolution was passed during the regime of British Indian Government on October, 1894. Thereafter, forest policy was revised in 1952 and again in 1988. The latest national policy aims at protection, conservation and development of forests. Even the Government of India has framed forest policies from time to time. First forest policy resolution was passed during the regime of British Indian Government on October, 1894. Thereafter, forest policy was revised in 1952 and again in 1988. The latest national policy aims at protection, conservation and development of forests. Its main objectives are as under: (i) Maintenance of environmental stability through preservation and restoration of ecological balance; (ii) Conservation of natural heritage; (iii) Check on soil erosion and denudation in catchment areas of rivers, lakes and reservoirs; (iv) Check on extension of sand dunes in the desert area of Rajasthan and along coastal tracts; (v) Substantial increase in forest tree cover through massive afforestation and social forestry programmes; (vi) Steps to meet requirements of fuel, wood, fodder, minor forest produce and timber for rural and tribal populations; (vii) Encouragement of efficient utilization of forest produce and optimum substitution of wood and (ix) Steps to create a massive people's movement, with involvement of women to achieve these objectives and minimize pressure on existing forests. 17. In view of above discussion, it is held that the forest land under dispute is a renewable natural resource and public property and vests in the Government. Accordingly, management and control of the forest by the Government for the welfare of the people in general and village community in particular on social lines and from ecological angle is undoubtedly in the interest of public at large. The substantial question of law is answered in favour of the appellants. In view of above, appeal is allowed, impugned judgments and decrees passed by the courts below are set aside, suit of the plaintiffs is dismissed. Decree-sheet be prepared. In the peculiar circumstances of the case, costs made easy.