Notification issued by the government to be acted upon till its operation is put in abeyance or rescinded legally: Himachal Pradesh High Court

While hearing a case on the purchase of Dry Khair trees from private land, the court held that the notification which was issued by the government has to be acted upon till its operation is put in abeyance by the issuance of another notification or it is legally rescinded.  This judgment was passed in the case of Davinder Kumar vs. State of H.P. and others [CWP No.981/2019] by a Single Bench consisting of Hon’ble Justice Ajay Mohan Goel.

The case of the petitioner is that he was registered as the Forest Contractor and intended to purchase Dry Khair trees from different owners from their Malkiti Lands. Applications were filed by the owners as per the procedure to respondent no. 4  and the same procedure for grant of felling trees was adhered to by calling for the reports from the Range Officer as also Revenue Agencies. According to the petitioner, the ownership of trees standing on such land vested in the owner, and such entries were recorded in the revenue papers. The staff of the Forest and Revenue department submitted reports stating that the land in question was not part of forest land. Further no felling permission as given and on an inquiry by the respondent it was found that Respondent no.3 forwarder the case to respondent no. 2 for necessary guidelines. Respondent no. 2 observed that a comprehensive management plan was required with approval from competent authorities for felling trees from private land. Since the same was not done, necessary action should be taken. The petitioner claims that the provisions of the Forest conservation act, 1980  is not applicable to dry trees, because if they are permitted to be removed they will die and cause lass to private landowners and the state exchequer. In this regard, 2 writ petitions were filed 1034/2011 and 1191/2011.

After hearing both the parties to the case, the High Court observed that as per the arguments of the Additional Advocate General, the petitioner’s case was not being processed by the Authorities by communicated dates 2019. The court also put forth a query to the state regarding the operation of the 1999 notification and was informed the operation of notification was not rescinded. Thus the court observed that since the notification of 1999 was in force, cases of landowners submitted by the petitioner have to be scrutinized by the government in view of the contents of said notification. Further simply because the 2019 communication was contrary to annexure P1 the scrutiny of cases of landowners cannot be stalled in the light of contents.

The High court held that before the issuance of the notification, forest produce or trees on private lands were considered to be belonging to the government. After the present notification, the landowners become owners of the same on their land. The Right conferred upon the landowners cannot be arbitrarily denied by the state government not acting upon 1999 notification.

Thus the petition was partly allowed by directing the respondents to process the case of landowners on the basis of 1999 notification. The high court however refrained from making any observation on the outcome of the applications submitted and the appropriate authority would take necessary steps.

The high court concluded by holding, “in case the land owners so choose, the can file the petition through their Attorney, be it General or Special, however, the petitioners have to be land owners, in any case.”

Click here to read the Judgment.

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