Uttaranchal High Court: The Division Bench of Sharad Kumar Sharma* and Pankaj Purohit, JJ., opined that the dereliction in performance of the assigned official duties was a professional misconduct, and at least, the Senior Officers of the department could not say, and have an excuse, that they were not aware of law, because ignorentia of law is non excusat. The Court held that the head of the department, i.e., Principal Secretary, Forest, and other subordinate senior officials were conscious of their responsibilities, but still they had knowingly persisted to continue the forest to be plundered by persons not eligible and that too for decades together. The Court thus directed the State to take action against the erring officials in accordance with the provisions of Government Servants (Discipline and Appeal) Rules, 2003.
The Court noted that 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 discharge their duties in accordance with the provisions of Forest Act, 1927, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (‘2006 Act’) and the Rules framed thereunder.
The Court observed that where the people, who were not even legally entitled to gather and collect the fallen woods or to cut the forest trees, were found to be picking wood or cutting trees in forest areas, without their being any valid authority being vested with them in accordance with the prevalent laws. The Court was concerned regarding the inaction on the part of the Principal Secretary, Forest, and his other subordinate officials, including the DFOs of concerned areas, against whom the cognizance was taken. The Court opined that the officials had derelicted in performance of their duties vested upon them under law, resulting to rampant shrinking of forest areas.
The Court opined that 2006 Act had certain checks and controls, which were mandatorily supposed to be exercised on the class of persons, as it was provided and classified in 2006 Act as to who could access the forest area for the purposes of collecting the forest woods for their personal needs, within the prescribed limit. The personal rights given to the class of persons under the 2006 Act did not vest a right of commercial plundering of woods from the forest areas.
The Court opined that the law must meet the need of time and social ecological changes, and what had been experienced was that gradually, the forest areas of the State were shrinking, and on the contrary, it was advocated without any logical basis based on any credible material relied by the Advocate General, that for the purposes of development of the State, there had to be an equitable economic development too, and that must be given precedence over the rights of the protection of forest as contemplated under the Forest Act, 1927 and the 2006 Act.
The Court opined that the definition of the “other traditional forest dwellers” under Section 2(o) of the 2006 Act, gave a pre-qualification, that they must be the person who had been traditionally residing over three generations in the forest areas and that too prior to 13-12-2005. The Court opined that there had to be prior satisfaction of these parameters by the officials of the Forest Department before granting any right of collecting forest woods, as safeguarded under the 2006 Act, or even under any of the existing law before granting the forest dwellers the right to collect wood from the forest areas.
The Court opined that the determination of class of “Scheduled Tribes” and “other traditional forest dwellers”, could not 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. For the said purposes, the 2006 Act had provided a self-contained mechanism under Chapter-IV, as to in what manner the identification of such “other traditional forest dwellers” or the “Scheduled Tribes”, would be made for the purposes of protecting their rights under the 2006 Act.
The Court noted that Section 6 of the 2006 Act provided 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 2006 Act, but the Court stated that no such committee was ever constituted to determine as to who would be the actual traditional forest dwellers or a Scheduled Tribe, who could be protected by the rights conferred upon them by the 2006 Act.
The Court observed that none of the procedure 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 had been conferred with the responsibility under Chapter-IV of the 2006 Act.
The Court opined that the inaction on the part of State officials could not be safeguarded or ignored by this Court and this Court could not extend sympathy while exercising its equitable jurisdiction. The sympathy was not nor could ever be taken as a substitute to a process of enforcement of law. The Court observed that the forest post guards were found not properly uniformed, rather were found sleeping and on a call being made to the Ranger, no heed was paid by him too. This itself spoke about connivance in league with officers, and their aptitude of working.
The Court held that the presumption under law would be that when an authority was heading the Department, the knowledge of law, and its regulatory measures would be presumed to be there in knowledge. Thus, the Court directed the State to take action against the erring officials in accordance with the provisions of Government Servants (Discipline and Appeal) Rules, 2003.
[In the matter of illegal felling of trees areas of Kaladhungi to Bajpur, In Re, Writ Petition (PIL) No. 190 of 2023, decided on 28-12-2023]
Advocates who appeared in this case:
For the Petitioner: Arvind Vashistha, Senior Advocate; Harshpal Sekhon, Amicus Curiae
For the Respondents: S.N. Babulkar, Advocate General; Yogesh Chandra Tiwari, Standing Counsel
*Judgment authored by: Justice Sharad Kumar Sharma
