WRIT PETITION 2989 of 2010 on 31 December 2012

1. Shri Ram Dass son of Shri Debnu resident of Village & Post Office Khagna, Tehsil Chopal, District Shimla, Himachal Pradesh, through his son & his General Power of Attorney Shri Sunil Kumar. Khagna, Tehsil Chopal, District Shimla, Himachal Pradesh, through his son & his General Power of Attorney Shri Sunil Kumar.

2. Shri Sunil Kumar son of Shri Ram Dass, resident of Village & Post Office Khagna, Tehsil Chopal District Shimla, H.P. Office Khagna, Tehsil Chopal District Shimla, H.P.

Versus

…..Petitioners.

1. State of Himachal Pradesh through Principal Secretary (Forest) to the Government of Himachal Pradesh, Shimla-2. the Government of Himachal Pradesh, Shimla-2.

2. Divisional Forest Officer, Chopal, Forest Division Chopal, District Shimla, Himachal Pradesh. Shimla, Himachal Pradesh.

3. Divisional Manager, Himachal Pradesh State Forest Corporation, Forest Working Division Chopal, District Shimla. Forest Working Division Chopal, District Shimla.

4. Tehsildar, Chopal, District Shimla, Himachal Pradesh.

5. Naib Tehsildar, Chopal, District Shimla, Himachal Pradesh.

6. Shri Sanjay,

7. Shri Ajay,

8. Ms. Dimple,

9. Ms. Poonam and

10. Smt. Raksha widow of late Shri Kumbh Dass, residents of Koteshwari Bhawan, Below Monal Public School, Sanjauli, Shimla-Koteshwari Bhawan, Below Monal Public School, Sanjauli, Shimla-

6. …..Respondents.

Civil Writ Petition under Article 226 of the Constitution of India

Coram

The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No.

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1Whether reporters of Local Papers may be allowed to see the judgment? No.

For the petitioners: Mr. Ramakant Sharma and Mrs. Devyani Sharma, Advocates.

For the respondents: Mr. P.M. Negi, Dy. AG, for respondents No. 1 to 5.

None for the remaining respondents.

V.K. Sharma, J.(Oral).

The petitioners, who alongwith private respondents No. 6 to 10, are co-owners in joint possession of the land bearing Khewat No. 2, Khatauni No. 3, Khasra Nos. 10, 28, 30, 32, 33, 35, 51, 54, 62, 64 and 68, Plots 11, measuring 01-18-40 hectares, Khewat No. 17 min, Khatauni No. 24, Khasra No. 577, measuring 00-60-86 hectares, Khewat No. 16 min, Khatauni No. 22, Khasra No. 424, measuring 00-38-32 hectares and Khewat No. 3, Khatauni No. 4, Khasra No. 36, measuring 00-03-36 hectares, vide jamabandi for the year 2008-2009, Annexure P-1, situate at Mohal Nauhra Thalan, Patwar Circle Khagna, Tehsil Chopal, District Shimla, H.P., to the extent of seven shares, the remaining one share belonging to the private respondents, applied for grant of permission for felling trees standing in the aforesaid land under the Ten Years’ Felling Programme. Their request was forwarded by the Divisional Manager, Himachal Pradesh State Forest Corporation, Forest Working Division, Chopal, to the Divisional Forest Officer, Chopal Forest Division, Chopal, vide letter dated 03.03.2010, Annexure P-2. However, the matter was referred back by the Divisional Forest Officer, Forest Division, Chopal, to the Divisional Manager, Forest Corporation Working Division, Chopal, vide letter dated 06.03.2010, Annexure P-3, raising three fold objections, viz. non filing of the requisite affidavits of all the co-sharers, certificate from the Patwari regarding land not being nautour and loan having been raised against the land.

2. The requisite certificate with regard to their being no entry in the latest revenue record qua the land in question, being nautour land, has been filed alongwith the petition as Annexure P-4. Annexures P-5 and P-6 are no objection certificates from UCO Bank, Chopal, in favour of the petitioners to the effect that the said bank has no objection for grant of permission to fell the trees on the mortgaged land subject to the rider that the sale proceeds thereof are routed through the said bank. As far as filing of the requisite affidavits by all the co-sharers is concerned, suffice it to say that in case a co-sharer and that too of a small share, as in this case, objects to grant of permission for felling, such permission cannot be stalled qua the remaining majority share holders and the authorities can always consider granting permission only to the extent of the share of the applicant(s) in the land in question.

3. In view of the above, the petition is disposed of with a direction that subject to resubmission of the application for grant of permission under the aforesaid Programme by the petitioners to respondent No. 2, Divisional Forest Officer, Chopal, Forest Division, Chopal, through respondent No. 3, Divisional Manager, Himachal Pradesh State Forest Corporation, Forest Working Division, Chopal, alongwith aforesaid certificates issued by the Patwari, Patwar Circle, Khagna, Tehsil Chopal, District Shimla, and the Branch Manager, UCO Bank, Chopal, within 15 days from the date of receipt of copy of this judgment, respondents No. 1 to 3/competent authority shall consider the same and take further action in the matter in accordance with law within further 45 days, after affording an opportunity of being heard to the petitioners and private respondents No. 6 to 10, if so desired.

4. Since it is stated by the learned counsel for the petitioners that the Ten years’ Felling Programme was up to 31[st] March, 2010, which period is already over and in the interregnum initially the matter remained under process and thereafter this Court was seized of the matter, respondent No. 1 shall consider the case for grant of deviation as per Rules.

5. The petition, as also pending CMP(s), if any, stand disposed of.

Copy dasti.

December 31, 2012 (virender)

(V.K. Sharma) Judge