STATE OF HIMACHAL PRADESH AND ORS.versusMANGAT RAM AND ORS.

            STATE OF HIMACHAL PRADESH AND ORS.                              A
                            v.
                   MANGAT RAM AND ORS.

                          OCTOBER 24, 1994

         [M.N. VENKATACHALIAH, CJ. ANDS. MOHAN, J.]                         B

     Himachal Pradesh Land Preservation Act, 1978-Section 7-HP Land
Preservation Rules, 1983-Rule 4 (2) (e)-Himachal Pradesh Land
Revenue Act, 1973-Sections 17, 107-Purchase of land for raising
orchards-demarcation of land for marking and cutting of trees-Assistant
Collector Gr. II is competent person to effect demarcation-His report is C
final-Revisional powers of Financial Commissioner are circumscribed by
statutory provisions-Rules not applicable to lands in Theog Forest
Division.

    The respondent purchased land in Tehsil Theog, District Shimla D
from private owners for the purpose of planting an apple orchard
during the year 1981-1982. The area is surrounded by thick forests
from all sides. In order to raise an apple orchard felling of trees was
required in the said area.

    Some of the respondents made an application for demarcation of E
the land in question for the purposes of marking and cutting of trees.
The Assistant Collector Grade II on 7th December, 1987 carried out
the demarcation. He submitted the report with the noting that the
verification of the report is required to be done by Senior Land
Revenue Officer.
                                                                            F
     Thereafter on 14th December, 1989, the lands were demarcated.
This was duly informed to the respondents. Since the State was not
satisfied by the demarcation done by the Additional Collector the land
was again demarcated by the Assistant Settlement Officer. He
submitted a report stating that the felling was permissible under 10 G
years programme during 1999-2000.

     The respondents filed Writ Petition for a direction to carry out and
finalise the demarcation and a further direction to issue necessary
permission to cut and remove the trees. The High Court allowed the
Writ Petition holding that the report of As~istant Collector Gr. II was     H
                                   97
    98                    SUPREME COURT REPORTS          [1994] SUPP. 5 S.C.R.

A   final. It directed the appellants to accord sanction to the respondents
    for clear felling of trees within a period of one month.

         The State has filed this appeal against the judgment of the High
    Court. It is alleged that the report of the Assist.ant Collector cannot be
    treated as final since u/s 17 of the Himachal Pradesh Land Revenue
B   Act, 1973, the Financial Commissioner has got unlimited revisional
    powers. Where, therefore, at his direction there were further reports of
    the Assistant Settlement Officer and Additional Collector, reliance
    cannot be placed on the report of the Assistant Collector Grade II.
    Besides, the report of the Assistant Collector contained so many
    infirmities and Rule 4 (2) (E) prohibits felling even for the purposes of
c   raising an orchard.

         Respondents submitted that the Assistant Collector Grade II had
    the necessary authority u/s 107 of the Revenue Act and that power is
    exercisable only by him and no one else. If that is the final report, the
    question of Financial Commissioner exercising revisional powers u/s 17
D   of the Revenue Act could not arise. It was further submitted that the
    permission to fell trees had been given in several other cases and the
    bar of 10 years felling programme cannot be applied in this case. Right
    from the date of purchase these respondents have been vigorously
    pursuing their application for permission to fell trees, merely because
E   of the pendency of that application with the 10 years programme as
    .1989-90 cannot be made applicable. Such a programme must relate to
    1932-83 during which year there was no bar.

         Disposing of the matter, this Court

        HELD 1.1. The report of the Assistant Collector Grade II is final.
F
    The Assistant Collector Grade II is the competent person to effect
    demarcation. His report is final. Assistant Collector Gradt II is a
    Revenue Officer as defined u/s 4 (17) r/ws 7. Therefore, such an
    Assistant Collector Grade II is the competent authority to exercise
    statutory powers under the Act. He can define the limits of any estate
G   or of any holdings, fields or other portion of any estate. (101-G, 102-D)

        1.2. The revisional powers of the Financial Commissioner could not
    be exercised merely because the Assistant Collector Grade II has stated
    that the demarcation could be got verified from th~ Senior Revenue
    Officer. The revisional power of the Assistant Commissioner are
H   circumscribed by the statutory provision. (102-E)
               ST A TE OF H.P. v. MANGAT RAM [MOHAN, J.)                      99

     1.3. Rule 4 (2) (e) cannot be pressed into service in this case as these A
Rules have no application to the lands in Theog Forest Division. It is
also not correct to contend that the respondents will have to wait to fell
the trees in accordance with 10 years programme till 1999-2000.
Merely because the application of the respondent was pending with the
appellant, the respondents cannot be made to suffer. However, the
respondents will have to conform to the order passed by the Secretary B
(Forests) to the Govt. of Himachal Pradesh in Order No. Fts. (A)
3-1181-Part II, Shimla - 2, of Sept., 1984. (102-F-G)

    CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7062 of
1994.
    From the Judgment and Order dated 30.9.92 of the Himachal Pradesh C
High Court in C.W.P. No.106of1990.
    B. Datta and N.K. Shanna for the Appellants.
    Kapil Sibal, K.K. Lahiri, M.D. Adkar and Ejaz Maqbool for the
Respondents.
    The Judgment of the Court was delivered by                                      D
    MOHAN, J. Leave granted.
     The respondent purchased land measuring 132 bighas 15 biswas in
Khasra Nos: 9012 to 9015 in Cudah, Pargana Pachhad, Tehsil Theog,
District Shimla from private owners for the purpose of planting an apple
orchard during the year 1981-82. The Government of Himachal Pradesh                 E
owns about 35 bighas in Khasra No. 90/l. The above area is surrounded by
thick forests from all sides. In order to raise an apple orchard felling of trees
was required in the said area. Such a felling is regulated by the provisions
of Himachal Pradesh Land Preservation Act, 1978 (hereinafter referred to
as the Act). This Act provides for better preservation and protection of
certain portions of territories. Under Section 7 of the Act Regulations have        F
been made. That inter alia provides the trees for sale shall be felled in
accordance with l 0 years felling programme. That programme, in tum,
required to be framed by the officials of the Forest Department which is
ultimately approved by the State Government. Rule 4 (2) (e) of the
Himachal Pradesh Land Preservation Rules, 1983 (hereinafter referred to as
the Rules) provides that no clear felling of the trees shall be allowed even        G
for the purpose of raising orchards.

    Some of the respondents made an application for demarcation of the
land in question for the purposes of marking and cutting of trees. The
Assistant Collector Grade II on 7th December, 1987 carried out the
demarcation. On' :8th Jariuary, 1988 he submitted the report with the noting        H
    100                     SUPREME COURT REPORTS            [1994] SUPP. 5 S.C.R.

A   that the verification of the report is required to be done by Senior Land
    Revenue Officer. Without such a verification no action will be proper. It
    was further <>tated that in view of the intricacies in the demarcation and
    interest of the Government the land in question in which thousands of trees
    of deodar, kali, tosh, broad leaved are standing and which was fixed in
    dense forest and also for the purposes of exchange, private sale,
B   compensations of trees etc. and before giving order for counting of trees,
    for any purpose, marking, cutting, the verification of this demarcation by
    Senior Land Revenue Officer with the help of Sajra Musabi in the presence
    of the Forest Department and also in the presence of Tehsildars who had
    earlier given demarcation is in the interest of Government and absolutely
    necessary. In view of the above observation of Assistant Collector and since
C   no test of marking of trees was done, the Forest Department for want of the
    above particulars could not give the felling orders.

         Thereafter on 14th December, 1989, the lands were demarcated. This
    was duly informed to the respondents. Since the appellants were not
    satisfied by the demarcation done by the Additional Collector the land was
D   again demarcated by the Assistant Settlement Officer. He submitted a report
    in the first week of November, 1990. He was of the view that the felling
    was permissible under l 0 years programme during 1999-2000. The
    respondents were informed of the same and were directed to approach the
    competent authority or to wait till the forest bid opens for the year 1999-
    2000.
E
         Under these circumstances, the respondents filed C.W.P. No. 206 of
    1990 for a direction to carry out and finalise the demarcation and a further
    direction to i!:sue necessary permission to cut and remove the trees. A
    further direction was prayed for that in case it was not possible for the State
    Government to grant permission it might be asked to take over the entire
F   forest after paying the market value thereof.

         The appellants took a. stand that since the report of the Assistant
    Collector Grade II contained so many infirmities the permission to fell the
    trees could not be granted. Such a permission could be granted only during
    1999-2000 under the I 0 years programme.
G
        By the impugned judgment dated 30th September, 1992 the High 1Court
    allowed the writ petition holding that the report of Assistant Collector
    Grade II was final. Eschewing the reports of the Assistant Settlement
    Officer and the Additional Collector it directed the appellants to accord
    sanction to the respondents for clear felling of trees within a period of one
H   month. Aggrieved by this judgme_nt the appellants have come up in appeal.
              STATE OF H.P. v. MANGAT RAM [MOHAN, J.]                    101

     Before us the following contentions are raised by learned counsel for A
the appellants:

    The report of the Assistant Collector cannot be treated as final since
under Section 17 of the Himachal Pradesh Land Revenue Act, 1973
(hereinafter referred to as Revenue Act) the Financial Commissioner has
got unlimited revisional powers. Where, therefore, at his direction there       B
were further reports of the Assistant Settlement Officer and the Additional
Collector, reliance cannot be placed on the report of the Assistant Collector
Grade II.

     Besides, the report of the Assistant Collector contained so many
infirmities.                                                          C
     In any event, Rule 4 (2) (e) prohibits felling even for the purposes of
raising an orchard.

     In opposing this it is submitted that the Assistant Collector Grade II
had the necessary authority under Section 107 of the Revenue Act. That D
power is exercisable only by him and no one else. If that is the final report,
the question of Financial Commissioner exercising revisional powers under
Section 17 of the Revenue Act could not arise.

     Besides, the permission to fell trees had been given in several other
cases. The bar of 10 years felling programme cannot be applied in this case.    E
Right from the date of purchase these respondents have been vigorously
pursuing their application for permission to fell trees. As was rightly
pointed out by the High Court, having failed to secure the necessary
permission sought in their application earlier, the same request was
reiterated in the year 1989-90. Merely because of the pendency of that
application with the appellant the 10 years programme as in 1989-90 cannot      F
be made applicable. Such a programme must relate to 1982-83 during
which year there was no bar.

     On a careful consideration of the above, we are not in a position to
differ from the High Court in relation to its finding that the report of the
Assistant Collector Grade II is final. The Assistant Collector Grade II is the G
competent person to effect demarcation. His report is final. Section I 07 of
the Revenue Act reads as under:

                "l 07. Power of Revenue Officers of define boundaries. -
                (I) A Revenue Officer may, for the purpose of framing any
                record or making any assessment under this Act or on the H
      102                     SUPREME COURT REPORTS            [1994] SUPP. 5 S.C.R.

 A                    application of any person interested, define the limits of any
                      estate, or of any holding, field or other portion of an estate,
                      and may, for the purpose of indicating those limits, require
                      survey marks to be erected or repaired.

                      (2) In defining the limits of any land under sub-section (1),
 B·                   the Revenue Officer may, cause survey-marks to be erected
                      on any boundary already determined by, or by order of any
                      Court, Revenue Officer or Forest Settlement Officer, or
                      restore any survey-marks already set-up by, or by order of
                      any Court or any such officer."

 C        It is not denied before us that Assistant Collector II Grade is a Revenue
      Officer as defined under Section 4 (17) read with Section 7 (Classification
      of Revenue Officers). Therefore, such an Assistant Collector Grade II is the
      competent authority to exercise statutory powers under the Act. He can
      define the limits of any estate or of any holdings, fields or other portion of
      any estate.
 D
           The revisional powers of the Financial Commissioner could not be
      exercised merely because the Assistant Collector Grade II has stated that
      the demarcation could be got verified from the Senior Revenue Officer. The
      revisional powers of the Financial Commissioner are circumscribed by the
      statutory provision.
 E
            We are unable to accept the contention of the learned counsel for the
      ~ppellants that Rule 4 (2) (e) of the Rules of 1983 will have any application
      to the facts of the present case. These Rules have no application to the lands
      in Theog Forest Division. That is why the respondents relied on the
      permission granted by the appellants in Balson Range for marking and
. F   felling of trees to many persons from the respective lands. Therefore Rule 4
      (2) (e) cannot be pressed into service. ·It is also not correct to contend that
      the respondents will have to wait to fell the trees in accordance with l 0
      years programme till 1999-2000. Merely because the application of the
      respondent was pending with the appellant, the respondents cannot be made
      to suffer. However, we make it clear that the respondents will have to
 G    conform to the order passed by the Secretary (Forests) to the Govt. of
      Himachal Pradesh in Order No. Fts (A) 3-1/81-Part II, Shimla-2, dated the
      Sept., 1984. It inter a/ia states:

                      "Provided also that any person felling the trees either for
                      domestic or agricultural use or for sale shall be required to
 H                    plant at least 3 trees for one tree felled. In case, however, a
              STATE OF H.P. v. MANGAT RAM [MOHAN, J.]                 103

               fruit orchard is planted in such area, it shall be planted A
               according to the nonns laid down by the State Horticulture
               Department for complete stocking of the area."

    It is open to the appellant to prescribe such conditions as are
pennissible under the above proviso and all other regulations/ notifications
governing the issue.                                                         B
     The appeal is accordingly dismissed in the above tenns. However,
there shall be no order as to costs.

A.G.                                                    Appeal dismissed.
                                                                            c