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2019 DIGILAW 381 (HP)

Jasbir Singh Guleria v. State Of H P

2019-04-08

SANDEEP SHARMA, SURYA KANT

body2019
JUDGMENT Surya Kant, C.J. - The instant writ petition raises twofold questions. Firstly, the petitioner alleges that a new road is being constructed passing through the forest land in the revenue estate of mauja Kherian, Mohal Amloh, Sub-Tehsil Haripur, District Kangra, H.P., and for the purpose of using the said ''Forest Land'' for ''non-forestry'' purposes, no prior statutory permission from the forest department has been obtained. It is alleged that the road is being constructed with the object to give undue benefit to 7th respondent namely Hoshiar Singh, who is an MLA so that he may commercially capitalize the land, which is abutting the proposed road. The second issue raised by the petitioner in the writ petition is that the 7th respondent has encroached upon land of Bhakra Beas Management Board (in short "the BBMB"), which is utilized for the purpose of storage of backwater and that no action is being taken against him. 2. The BBMB has filed its reply supporting the petitioner''s allegation to the extent that respondents No. 7 and 8 have unauthorisedly occupied about its one hectare land. It is averred that the BBMB has requested the Tehsildar Dehra for demarcation of the land. It is further averred that the exact area on which the unauthorized activities are being carried out by respondents No. 7 and 8 will be carried out after demarcation of the land. A notice under the HP Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (Annexure R-2 Colly.) is also said to have been issued to respondents No. 7 and 8. It is also averred by the BBMB in its reply that respondents No.7 and 8 have not obtained any "No Objection Certificate" from the BBMB for mining and excavating the soil from BBMB area, for constructing and developing their own private land. In this regard also, two letters dated 12.8.2017 and 17.8.2017, have been sent to SDM, Dehra, District Kangra, H.P., to stop the illegal mining by the respondents. In this regard also, two letters dated 12.8.2017 and 17.8.2017, have been sent to SDM, Dehra, District Kangra, H.P., to stop the illegal mining by the respondents. It is also the case of the BBMB that the construction of the road by private respondents No. 7 and 8 within the forest land and area falling under Pong Dam lake Wildlife Sanctuary, which is a National Park Area, is per-se illegal, for under the notification dated 17.11.2015 of the Ministry of Environment, Forest and Climate Change, there is a complete prohibition on construction, felling of trees or trenching of grounds in such area. 3. The State of Himachal Pradesh has in its reply refuted the petitioner''s allegation and it will be useful to reproduce the stand taken by the State Government in para-3 of its reply, the relevant part whereof is extracted below: "It is pertinent to mention here that there are villages of Kherian, Amloh and the other side villages of Balta and Kohli and there is personal land (Malkiat Land) of the villagers between the said villages and forest land (U16D Kohli & Balta forest area) also exist in between these villages. The above mentioned old road in the forest land is shown in forest compartment history file also which is a forest record prior to construction of Beas Dam (Annexure R-1) and the said road start from villages KHERIAN, AMLOH by crossing the forest land as well as villages KOHLI leads upto the main road JAWALI to DEHRA. The said road on the forest land was also used by the villagers fro cultivation of their land, worship in "Gurdwara" which is situated in the Govt. land abutting to said road and same is also in the forest Compartment History file and being used for ingress or egress to the Crematorium Ground which is also situated in the forest land. The people of the locality used the said path/road as matter of right for their routine work because the said path/road is very old and there is no other path except the said road." 4. The people of the locality used the said path/road as matter of right for their routine work because the said path/road is very old and there is no other path except the said road." 4. It is also averred in para-10 of the reply that the allegations against respondents No. 7 and 8 were verified by the forest department and it was found that they have constructed a small house of two rooms and a water pond, whereas on the remaining land, respondents No.7 and 8 are doing agricultural work and that they have planted about thousand plants of different species on their own private land. It has been denied that no hut, hotel or helipad has been constructed by the private respondents. 5. Respondents No. 7 and 8 too have filed their reply/affidavit denying the allegations of the petitioner. They have stated that no encroachment upon forest land has been made and that the land in possession is under their ownership and forest department has no concern with the same. It is also claimed that the writ petition has been filed out of personal vendetta as on the complaint made by respondent No.8, FIR No. 7 of 2016 dated 28.9.2016, under Sections 420, 120-B IPC, 32 & 33 of the Indian Forest Act and Section 13(2) of the Prevention of Corruption Act, has been registered against the petitioner with the State Vigilance and Anti Corruption Bureau, Police Station Dharamshala, for his actions as a Member of BDC and Pradhan of Gram Panchayat. 6. We have heard the learned counsel for the parties at a considerable length and gone through the record. 7. It is true that there is an old enmity between the petitioner and respondent No.8 and this fact stands substantiated from the registration of FIR against the petitioner at the instance of 8th respondent, where allegations of corruption/mis-use of official position etc., are alleged. Nevertheless, it is not necessary for this Court, to comment upon those allegations as the law will take its own course. 8. Assuming that the instant writ petition is nothing, but a counter attack made by the petitioner, we cannot be oblivious of the fact that BBMB authorities have come up with a categorical stand that their land measuring about one hectare has been encroached upon by respondents No.7 and 8. 8. Assuming that the instant writ petition is nothing, but a counter attack made by the petitioner, we cannot be oblivious of the fact that BBMB authorities have come up with a categorical stand that their land measuring about one hectare has been encroached upon by respondents No.7 and 8. The 7th respondent is a public representative and hence such like allegations made by a Statutory Authority do require a deeper, dispassionate and impartial probe. Since the State of Himachal Pradesh as well as the private respondents have categorically denied the allegations of any encroachment upon the BBMB or forest land, we deem it appropriate to direct a team to be headed by the Deputy Commissioner, Kangra, at Dharamshala, which shall also include Tehsildar of the area, one Field Kanungo, one Patwari as well as one Mr. Beli Ram Kaundal, who is a former Member of HP Administrative Services and is known for his expertise in the demarcation of revenue areas, as members of team. The Deputy Commissioner shall remain personally present at the time of demarcation and entire exercise shall be undertaken under his direct supervision. The demarcation shall be carried out after advance notices to BBMB authorities, respondents No. 7 and 8, petitioner as well as Pradhan of Gram Panchayat. The demarcation exercise shall be duly video graphed. A senior Officer of BBMB authority shall remain present during the time of demarcation and he will certify regarding full satisfaction of BBMB authorities about the transparency in demarcation proceedings. 9. It goes without saying that if respondents No. 7 and 8 are found to have encroached upon any part of the BBMB land, forest land or any other public land, they shall have to vacate the same within fifteen days and structure, if any, raised will also be dismantled. This shall be the entire responsibility of the Deputy Commissioner, Kangra to ensure that no public property is allowed to be retained in unauthorized possession of respondents No.7 and 8. 10. As regard to the construction of road, we are of the view that construction of a road does serve the public cause and it facilitates the general public. At the same time, no construction including that of a road can be carried out without following the prescribed procedure as per law. 10. As regard to the construction of road, we are of the view that construction of a road does serve the public cause and it facilitates the general public. At the same time, no construction including that of a road can be carried out without following the prescribed procedure as per law. We have no reason to doubt the stand taken on behalf of the State of Himachal Pradesh that there existed an old road, which is being used by the residents of various villages, but nevertheless, if metaling of the said road through a part of ''forest land'' is required, i.e. for non-forestry purposes, then it is imperative upon the authorities to take prior permission of the Statutory Authority, for which, HPPWD/Forest department, as the case may be, shall apply and seek prior permission and thereafter only road shall be constructed. 11. With these directions, the writ petition is disposed of, so also pending application(s), if any.