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2015 DIGILAW 525 (UTT)

Divisional Forest Officer v. Sri Bhim Dutt Pandey

2015-11-04

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : V.K. Bist, J. 1. Writ petitioner (respondent in the present appeal) filed Writ Petition No. 1294 of 2014 (M/S) for following reliefs: “(i) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 1 DFO Champawat to give the permission to petitioner to cut the dry wood in logs and give the transit pass to petitioner. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 1 DFO Champawat to comply the order dated 24.02.2014 (Annexure No. 7) to this writ petition passed by Conservator of Forest Kumaon respondent No. 2.” 2. Facts of the case, in brief, are that in the year 2003 the petitioner moved an application under Section 5 of Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976 before Divisional Forest Officer, Champawat for cutting and removing five fallen trees. The said application remained pending in the office of Divisional Forest Officer, Champawat for a long period. The petitioner filed a Writ Petition No. 1831 of 2011 (M/S) before this Court. The said writ petition was disposed of on 01.09.2011 directing the appellant No. 1 to consider and decide the application of the petitioner by a reasoned and speaking order within a period of four weeks from the date of production of certified copy of the order. The certified copy of the order along with the application was received by the office of appellant No. 1 on 01.09.2011. Range Officer, Sukhi Dhang, Champawat and Sub Divisional Officer, Champawat were asked to submit report after making spot inspection. On 21.02.2012 Sub Divisional Forest Officer, Champawat submitted a report that writ petitioner himself had digged the roots of three trees as a result of which trees fell down. It appears that appellant No. 1 did not grant permission to the writ petitioner and proceeded in the matter under Section 10 of the Act. Being aggrieved, the writ petitioner challenged the order dated 25.05.2012 by filing a Writ Petition No. 1697 of 2012 (M/S). Same was dismissed. After dismissal of the writ petition, the petitioner deposited a sum of Rs. 15,000/- on 02.03.2012 as penalty/ fine in a case registered against him. After making payment of fine the petitioner moved an application before the appellant No. 1 seeking permission to remove the trees. The Forest Range Officer recommended the matter. Same was dismissed. After dismissal of the writ petition, the petitioner deposited a sum of Rs. 15,000/- on 02.03.2012 as penalty/ fine in a case registered against him. After making payment of fine the petitioner moved an application before the appellant No. 1 seeking permission to remove the trees. The Forest Range Officer recommended the matter. On 15.05.2013 appellant No. 1 passed order declining permission to the petitioner to remove the trees. Permission was declined on the ground that petitioner failed to prove the ownership over the trees and the land. Thereafter the petitioner filed another Writ Petition No. 1644 of 2013 (M/S) before this Court seeking permission for removing five fallen trees from his land. The said writ petition was disposed of giving liberty to the writ petitioner to avail statutory remedy available to him by approaching the Revising Authority under section 6(4) of the Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976. The petitioner thereafter filed representation/ revision before the Conservator of Forest, Almora/appellant No. 2. On 24.02.2014, respondent No. 2 passed an order on the said revision directing appellant No. 1/Divisional Forest Officer, Champawat to grant permission to the writ petitioner to remove/transport the fallen trees from his land. But, inspite of the order passed by appellant No. 2, the Divisional Forest Officer, Champawat (appellant No. 1) did not give permission to the petitioner. Thereafter, the petitioner filed a Writ Petition No. 1294 of 2014 (M/S) before this Court. Learned Single Judge allowed the writ petition on 08.12.2014 and directed the appellant No. 1 to issue necessary permission to the petitioner to transport/remove five fallen trees mentioned in the application within 15 days from that day. Aggrieved by the said decision, present special appeal has been preferred. 3. Case of the appellant before us is that the petitioner failed to prove the title of the land on which trees were found and the learned Single Judge erred in issuing direction to the appellant No. 1 to grant permission to the petitioner to transport/remove fallen trees. It is the case of the appellants that the title of ownership of land is not clear as is found from the report of Sub Divisional Magistrate, Tanakpur vide letter dated 13.02.2015. It is the case of the appellants that the title of ownership of land is not clear as is found from the report of Sub Divisional Magistrate, Tanakpur vide letter dated 13.02.2015. It is also the case of the appellants that petitioner himself cut the roots of the trees as a result of which trees fell down and penalty was imposed upon the writ petitioner. He deposited the penalty in the proceedings awarded against him for violation of Forest Conservator Act. Thus, guilt of the petitioner was proved and in such circumstances, permission could not be granted and the rejection of permission by appellant No. 1 is justified. 4. Section 6 of U.P. Protection of Trees Act, 1976 provides procedure for obtaining permission to fell or remove trees. Section 6(2) of this Act provides that the competent authority shall give his decision in the case of an application in respect of any tree other than a tree growing in forest, grove, or public premises, within ninety days from the date of receipt of such application and in the case of an application in respect of a fallen tree within seven days from the date of receipt of such application. Sub Section 3 of Section 6 further provides that if the competent authority fails to give his decision within the time allowed by sub-section (2), the permission referred to in Section 5 shall be deemed to have been granted. Again sub-section 4 of Section 6 of the said Act provides that any person aggrieved from the decision of the competent authority under sub-section (2) may make a representation within thirty days from the date of such decision, to the Revising Authority and his decision on such representation shall be final. 5. In the present case, we find that penalty/fine was imposed upon the petitioner felling the trees is in contravention of the Act. Such fine was deposited by him. Competent authority is empowered to grant permission for removing such trees. For this purpose, ownership and possession of the trees is to be seen. In this regard, the revisional authority/appellant No. 2 passed an order on 24.02.2014. In the said order, appellant No. 2 relied on the report of the concerned forest officers and also on the report of Sub Divisional Magistrate wherein they have said that petitioner is owner and in possession of the trees. In this regard, the revisional authority/appellant No. 2 passed an order on 24.02.2014. In the said order, appellant No. 2 relied on the report of the concerned forest officers and also on the report of Sub Divisional Magistrate wherein they have said that petitioner is owner and in possession of the trees. This order of revisional authority was never challenged and became final. Therefore, there was no occasion before the appellant No. 1 for not following the order of Conservator of Forest. We also find one report of Tehsildar dated 16.11.2003 in which he found the land as Naap land of the petitioner. This report was countersigned by Sub Divisional Magistrate, Tanakpur. These officers are revenue officers. Their report regarding ownership of the petitioner over the land is sufficient for the purpose of grant of permission. Therefore, at subsequent stage, the plea that the petitioner was not a Co-Bhumidhar in possession of the property in question, cannot be permitted to be raised. 6. Apart from above, we find the action of appellant No. 1, not permitting the petitioner to remove the trees, as highly objectionable. This amounts to insubordination and misconduct. In our view, the subordinate authority is duty bound to follow the order passed by the higher authority. In case violation of superior authority’s order is permitted, there will chaos and anarchy and it will not be possible to run the administration and it will collapse. Administration discipline requires that subordinate officer must comply with the superior officer. A Full Bench of Allahabad High Court in Tara Prasad Mishra vs. State of U.P. and Others, (1990) 2 UPLBEC 905, held as follows: “20. It cannot be disputed that the whole set up of democratic system is based on the principle of rule of law. It is the duty of the State who act through their officers to maintain the rule of law and for maintaining the rule of law they have to act in accordance with certain norms and discipline. The basic principle of administrative law and discipline is that the subordinate officer must comply with the orders passed by the superior officers. If subordinate officers started flouting orders of the superior officers then the whole system of administrative discipline would collapse which leads to disorder and the result would be that the entire structure of administration as the rule of law will fall down. If subordinate officers started flouting orders of the superior officers then the whole system of administrative discipline would collapse which leads to disorder and the result would be that the entire structure of administration as the rule of law will fall down. No doubt the superior officers in those circumstances can take disciplinary action against the subordinate officers as well as implement their orders by getting another person posted in his place but this remedy cannot be said to be efficacious as will not protect the interest of a third person. The third person remains in the midst as to whether he should obey the orders passed by the superior officer or implement the orders passed by the subordinate officer. In these circumstances a third person in my opinion can come to Court and pray for suitable directions in order to clarify his position as well as in order to save himself from unnecessary harassment or any other disciplinary action. 21. If subordinate officers started flouting orders of superior officers then there will be no rule of law and in these circumstances in order to maintain the rule of law the Court can issue a writ or direction to the officers concerned to give effect to the orders passed by the superior officers in order to maintain administrative discipline which is the basic structure of rule of law. A writ of mandamus is generally issued to an administrative authority, State or any of its officers to compel him to do his duty in accordance with law or the norms.” The Hon’ble Supreme Court in Union of India vs. Ramlakshi Finance Corporation Ltd. (1992) Supp (1) SCC 443 has held as follows: “6. Sri Reddy is perhaps right in saying that the officers were not actuated by any mala-fides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala-fides but with the fact that the officers, in reaching their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal. The High Court has, in our view, rightly criticized this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is no “acceptable” to the department-in itself an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws.” 7. Therefore, if order passed by the authority is not acceptable to the department, in that event, only remedy available is to approach the higher authority or challenge the same, but in no event the order of the higher authority should be flouted by the subordinate authority. The subordinate authority is bound to follow the same. 8. In view of above discussion, we dismiss the special appeal. 9. No order as to costs.