Residents Of Village Gram Sabha ... vs State Of Uttarakhand And Others
2023 Latest Caselaw 2152 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (M/S) No. 2258 of 2023
Residents of Village Gram Sabha Syon Malla
                                  .............Petitioner

                              Versus

State of Uttarakhand and others ...........Respondents
Present:-
              Mr. Devesh Upreti, Advocate for the petitioner.
              Mr. H.M. Raturi, Deputy Advocate General with Mr.
              Tarun     Lakhera,    Brief     Holder      for the
              State/respondent nos.1 to 5.



                           JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to order

dated 20.06.2023, passed by the respondent no.5,

whereby an application filed on behalf of the petitioner

seeking permission to fell trees has been rejected.

2. Heard learned counsel for the parties and

perused the record.

3. On behalf of the residents of Gram Sabha Syon

Malla, Tehsil Ranikhet, District Almora instant petition

has been filed. It is the case in the petition that Gram

Pradhan of Village Gram Sabha Syon Malla did move an

application seeking permission for felling the Pine trees in

the village area with the assurance that they would plant

trees in lieu thereof. This application was moved on

05.09.2022, on which, an inquiry was conducted. The

forest officials recommended that, in fact, the Pine trees

are dangerous to the crops, but finally by the impugned

order, the application has been rejected.

4. Learned counsel for the petitioner would

submit that the rejection has been made on wrong

premise. The permission was sought on behalf of the

petitioner under the provisions of The Uttar Pradesh

Protection of Trees in Rural and Hill Areas Act, 1976 ("the

Act"), but in the impugned order, the amended provision

of the Act, as was applicable in the State of Uttar Pradesh

in 2001, has been quoted which is not applicable in the

State of Uttarakhand.

5. Learned counsel would submit that any

amendment made by the State of Uttar Pradesh in the Act

after creation of the State of Uttarakhand would not per

se apply in the State of Uttarakhand. He would submit

that Section 5 of the Act, as applicable in the State of

Uttarakhand is as follows:-

"5- Permission to fell or remove trees-

The competent authority may, on the application of any person entitled to fell a standing tree or to cut, remove or otherwise

dispose of a fallen trees, after making such inquiry, as it thinks fit, grant permission to him to do so:

Provided that such permission shall not be refused if the tree constitutes danger to person or property:

Provided further that except in such area as may be notified by the State Government in this behalf such permission shall not be required for the felling of any tree with a view to appropriating the wood or leaves thereof for bona fide use for purposes of fuel, fodder, agriculture implements or other domestic use:

Provided also that such immediate steps as are necessary to remove any obstruction or nuisance or to prevent any danger may be taken without such permission."

6. Learned counsel also raised the following

points in his submissions:-

(i) The forest officials reported that the Pine trees

is dangerous category of tree because it's

needle destroy the crops.

(ii) There is no provision in the Act that each

individual should make a separate application.

(iii) Pine tree is not restricted category of trees.

(iv) There is no ban on the permission of cutting

Pine trees in the holders. The order has been

based on some assumptions that there may be

problem with regard to the ownership and

complaint in future.

7. Instant case depicts a very strange story. The

petition has been presented in represented capacity by

one Bhuwan Chandra Joshi. "No Objection Certificate"

(Annexure No.1) is purportedly signed by the Village

Pradhan and after its signature there are few more

signatures on it. According to it the villagers had

authorized Village Pradhan to seek permission for felling

trees in their holdings. It bears no date on it. The Village

Pradhan himself cannot give "No Objection" to himself.

Who are these villagers? Who have purportedly signed on

Annexure No.1?

8. The part of Annexure No.1 is a kind of power of

attorney, by which, Village Pradhan has purportedly

authorised Bhuwan Chandra Joshi to take action in this

matter. It is dated 25.12.2022, but prior to it, it is the

case of the petitioner that the Village Pradhan himself had

applied for permission to fell trees on the holdings of the

villagers. It is true that on the application filed by the

Village Pradhan of Gram Sabha Syon Malla, the Forest

Officer inquired into the matter and observed that, in fact,

permission has been sought to fell about 100 Pine trees.

Annexure No.11 is the report. It also says that the trees

may be kept in a dangerous category.

9. The impugned order although quotes amended

provisions of the Act, but that per se may not be a ground

to vitiate the order. Section 5 of the Act, as applicable has

already been quoted hereinabove.

10. In the impugned order the respondent no.5 has

recorded that the application for felling trees should be

given by a person on whose land the trees are standing;

there should be separate applications; joint applications

may not be entertained for such purpose. In point no.6 of

the impugned order, the respondent no.5 has recorded

that since permission for felling down huge numbers of

trees has been sought, it may, in future, create problems

with regard to ownership of the trees. It has also been

apprehended that joint application may give rise to

boundary disputes and complaints. Learned counsel for

the petitioner would argue that it is an assumption.

11. The Act provides procedure for taking

permission to cut trees. The power of attorney holder,

even could not explain as to what is his interest in the

felling of trees in Gram Sabha Syon Malla. Even for the

sake of arguments Annexure No.1 is taken as true to

reveal that villagers have authorized the Village Pradhan,

Gram Sabha Syon Malla to take action in this matter, it

cannot be stretched to the extent that Village Pradhan

may authorized Bhuwan Chandra Joshi to file a petition.

Though, as observed, Annexure No.1 is purportedly

signed by the Village Pradhan authorizing the Village

Pradhan to act on behalf of the villagers and after

signature of the Village Pradhan there are few signatures

without revealing, as to who these persons are. Are they

owner of any property in the village? If so, how many trees

are standing in their property? This Annexure No.1 per se

may not be taken for granted that the trees, for felling of

which, the permission is sought are standing on their

lands.

12. Section 5 of the Act inter alia provides that the

competent authority on an application of any person

entitled to fell a standing tree or to cut it otherwise, etc.

may after making such inquiry grant such permission.

The impugned order records that since the application is

joint, there may be boundary disputes in future. The

number of trees, as stated, is huge. In such cases, first

and foremost it is required to be ascertained as to in

whose land the trees are standing? Who is the owner of

the land? Has the application been filed by the owners?

And if so, what are the reasons for seeking such

permission? Why to cut the trees? It is only thereafter,

perhaps the competent authority, may be in a position to

take a decision under Section 5 of the Act, so as to grant

or not to grant the permission to fell down the trees.

13. In the impugned order, this is what is stated by

the respondent no.5. He has written that a joint

application may not ascertain, as to in whose land the

trees are standing? Who is the owner? These

apprehensions are not mere apprehensions. They are, in

fact, genuine concern. Factually speaking, the respondent

no.5 has not denied permission for felling trees. By the

impugned order, the respondent no.5 has expressed that

application by each individual should be preferred. If the

respondent no.5, who is a person competent under the

Act to consider such application, raised such concern, it

may not be said that it is a baseless and based on

assumption.

14. The Court fails to apprehend, as to what

prevent an individual to move an application seeking

permission to fell the trees, if it really causes harms to his

crops? In fact, this Court apprehends that it is a design

by someone to cut the trees for other purpose. Therefore,

this Court does not see any reason to make any

interference in this matter. Accordingly, the petition

deserves to be dismissed at the stage of admission itself.

15. The petition is dismissed in limine.

(Ravindra Maithani, J.) 09.08.2023 Sanjay