The Uttarakhand High Court has taken suo motu cognizance in the matter of illegal felling of trees in areas of Kaladhungi to Bajpur, U.S. Nagar i.e., notified jungle areas. It has directed the State Government to take appropriate action for the same.

A Division Bench comprising Justice Sharad Kumar Sharma and Justice Pankaj Purohit said, “Though this Court should have issued positive directions for taking of a disciplinary action by the State against the Principal Secretary, Forest, and by the Principal Secretary, Forest himself, as against the other subordinate Forest Officials, but this Court, being conscious of its jurisdiction, which it is exercising in the PIL, is not passing any positive direction, but rather directing the State to take an action against the erring officials, who are here before us by proceedings in accordance with the provisions of Government Servants (Discipline and Appeal) Rules, 2003. … Owing to the above, this PIL is laid to rest, with the direction to the State Government, and the Principal Secretary, Forest, to take an appropriate action as recommended above in accordance with the Rules of 2003.”

The Bench also said that the dereliction in performance of the assigned official duties in itself is a professional misconduct, and at least, the Senior Officers of the department cannot say, and have an excuse, that they were not aware of law, because ignorentia of law is non excusat.

Senior Advocate Arvind Vashistha and Amicus Curiae Harshpal Sekhon represented the petitioner while Advocate General S.N. Babulkar and Standing Counsel Yogesh Chandra Tiwari represented the respondents.

Upon the cognizance being taken by the High Court, the matter was registered as PIL (Public Interest Litigation), and ultimately it was nominated by orders of Acting Chief Justice before the court. The prime concern was that the people even belonging to the urbanized aboriginal areas, adjoining the forest areas, were found rampantly plundering the forest produce for their personal gains without there being any checks and controls being exercised by the officials of the Forest Department, who were duty bound and were supposed to otherwise discharge their duties in accordance with the provisions of Indian Forest Act of 1927, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the Rules framed thereunder.

On the aforesaid issue being taken, the concerned Divisional Forest Officers of their respective Zones assigned to them, were called upon, and ultimately, the Court looking to the seriousness of the issue, had appointed an Amicus Curiae by an order in November month of 2023, to assist the Court, in arriving to a rightful decision with regard to the issue as raised in the PIL. The Court in this regard noted –

“… this Court has observed in the various orders passed earlier during the proceedings of the PIL, that it had been a common experience, that where the people, who are not even legally entitled to gather and collect the fallen woods or to cut the forest trees, have been found to be picking wood or cutting trees in notified forest areas, without their being any valid authority being vested with them in accordance with the prevalent laws. In fact, what was more of concern was the inaction on the part of the Principal Secretary, Forest, and his other subordinate officials, including the DFOs of concerned areas, against them the cognizance was taken They too have derelicted in performance of their official duties vested upon them under law, resulting to rampant shrinking of forest areas.”

The Court observed that the personal rights given to the class of persons under the Act of 2006, do not vest a right of commercial plundering of woods from the forest areas. It further observed that it is not only that the Section 6 in itself is a self-contained provision, which has its own mechanism for determination, which provides for the constitution of various committees at various levels laying down the parameters for determining, as to who would be entitled for the protection of the right contemplated and protected under the said Act, which admittedly, has never been done, nor shown to be even done by top bracketed elite officials of the Forest Department.

“… the determination of class of “Scheduled Tribes” and “other traditional forest dwellers”, cannot be done at the whims and fancies of the officials of the Forest Department or their Guards posted at the different ornamental posts, who owe an official responsibility under their service law, to exercise checks and controls, that illegal picking and collection of forest woods or cutting of forest trees should not be permitted, which they have utterly failed”, it said.

The Court also noted that there is nothing on record filed by the respondents by way of their response, that any such action or exercise of classification has been taken under Section 6, ever since the promulgation of the Act, notifying the same on December 29, 2006 and hence, it completely shows inaction on part of all the officials of the Forest Department.

“… the Act of 2006 itself uses the word “recognition”. Recognition, under its literal sense means, an identification of a legally enforceable right, meaning thereby, for giving a person a statutory right under law for availing the benefits protected under an Act of 2006. … We are agonized in observing that the act of inaction, at the hand of respondents, that none of the procedure contemplated under Rules 9 and 10 of constitution of the Monitoring Committee and such other various Committees for the purposes of achieving the object of identification of the “other traditional forest dwellers “ and “Scheduled Tribes” had yet been done by the State and its agencies or instrumentalities, who have been conferred with the responsibility under Chapter-IV of the Act of 2006, and their determination as contemplated under Rule 11 of the Rules framed under the Act. No permission could be granted to extract any forest produce by anyone whatsoever”, further said the Court.

The Court said that there has been an inaction on the part of the officers of the Forest Department right from its pinnacle to the ground level officers, for not paying any heed to the intent of the Rules and the Act, to meet the laudable object it intended to achieve to protect the forest from its generalized plundering by any person according to their own need and without there being any check and control, as if forest being an unsheltered widow.

“… an absolute slumber prevailed with the respondents for last more than the three decades at least, when the State has not taken any action to resort to any of processes provided for the determination or verification as contemplated under Chapter-IV to be read with Rule 11 of the Rules of 2006. … This Court cannot ignore this vital fact, that the issue involved is of a wide public implication. The inaction on part of State officials cannot be safeguarded or ignored by this Court, on the basis as argued, that this Court should extend sympathy while exercising its equitable jurisdiction. The sympathy is not nor could ever be taken as a substitute to a process of enforcement of law”, added the Court.

Accordingly, the High Court directed the State to undertake the entire exercise within a period of two months.

Cause Title- Suo Motu PIL in the matter of illegal felling of trees areas of Kaladhungi to Bajpur, U.S. Nagar. v. Chief Conservator of Forest Kumaon, Nainital and others

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