SCA/11805/2000 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.11805 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- =================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO =================================================== KANDARI VILLAGE PANCHAYAT - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) =================================================== Appearance : MR CHIRAG B PATEL for MR BS PATEL for Petitioner(s): 1, MRS RANJAN B PATEL for Petitioner(s) : 1, MS MAITHILI D MEHTA, AGP for Respondent(s) : 1, MR MTM HAKIM for Respondent(s) : 2 - 3. MR PUSHPADATTA VYAS for Respondent(s) : 4, =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 19/11/2008 ORAL JUDGMENT (1) This petition has been preferred by Kandari Village Panchayat, through its administrator praying for quashing and setting aside order dated 03.10.2000 (Annexure-A) made by SCA/11805/2000 2/10 JUDGMENT respondent No.1 in Revision Application No.15 of 1999 under provisions of Section 10 of the Saurashtra Felling of Trees (Infliction of Punishment) Act, 1951 (the Act). (2) In 1995 election of Village Panchayat had taken place and an elected body had come into existence. Sometime in March 1997 one Dabhi Manubhai Bagwandas, resident of Kandari Village, made an application to the Village Panchayat regarding a banyan tree causing obstruction and likely damage that may be caused by the branches of the said banyan tree, in the event such branches fell on the house of the applicant. Pursuant thereto on 14.03.1997 the Village Panchayat assembled and a resolution was passed in the following terms: “Upon discussion on the subject stated in column 4, reading the application of Manubhai Bhagwandas Dabhi etc., and having discussion thereupon, since the branches of the said tree are causing obstruction on the way as well as the same is likely to cause damage to SCA/11805/2000 3/10 JUDGMENT the houses in the surrounding area, the Sarpanch is authorized by this resolution to dispose of the branches of this tree which are causing obstruction.” (3) Accordingly, the tree was cut down. Respondent Nos.2 and 3 herein invited the attention of Mamlatdar, Karjan to the aforesaid Act of felling of the tree and a fine of Rs.300/- came to be imposed on the petitioner-Panchayat for felling of the banyan tree and two fig trees. The petitioner preferred an appeal before Deputy Collector, Vadodara who allowed the appeal. Respondent Nos.2 and 3 went in revision before the State Government and respondent No.1, after hearing the parties and considering the record as well as the evidence produced before him, passed the impugned order by quashing and setting aside the order made by Deputy Collector, Vadodara and restoring the order made by Mamlatdar, Karjan. SCA/11805/2000 4/10 JUDGMENT (4) Learned advocate for the petitioner has assailed the impugned order on the ground that the petitioner-Panchayat had made a resolution on the basis of the application moved by Dabhi Manubhai Bagwandas and, therefore, the order imposing the fine was bad in law. It was submitted that as per provisions of Section 3(1)(a) of the Act Village Panchayat was a body duly empowered by the government to grant permission in writing to fell or to cause to be felled any tree or any portion thereof. It was therefore submitted that the Village Panchayat having acted in accordance with the provisions of the Act after passing a necessary resolution in this regard could not have been fined by the authority. In the passing a reference was also made to the observations made by the Deputy Collector in her order whereby it was stated that a banyan tree did not fall within the category of the prohibited trees under the Act and hence, there was no violation of any provisions of SCA/11805/2000 5/10 JUDGMENT the Act so as to be visited with a fine. (5) Section 3 of the Act as is relevant for the present reads as under: “3. Unauhorised felling of threes prohibited.--(1) Notwithstanding anything contained in [the Code] or in any other law for the time being in force in the State-- (a) no person either by himself or through any other person shall, without the written permission of the Collector or any other officer [or [any Village Panchayat constituted or deemed to be Village Panchayat under the Bombay Village Panchayats Act, 1958] duly empowered in this behalf by the Government, voluntarily fell, appropriate or damage, or cause to be felled, appropriated or damaged, any tree, or any portion thereof [xxx]: (b) any person who contravenes the provisions of sub-clause (a) shall, on conviction by a revenue officer not below the rank of a Mahalkari authorised by Government in this behalf, be liable to fine which may extend to rupees one thousand [and which shall not be less than rupees fifty unless the Revenue officer inflicting such fine considers it improper, for special reasons SCA/11805/2000 6/10 JUDGMENT to be recorded in writing, to inflict such minimum amount of fine]. [(2)Nothing contained in sub-section (1) shall apply to the felling, appropriating or damaging any branch of babool tree for the purposes of using it for causing it to be used for cleaning teeth].” (6) On a plain reading it becomes apparent that the provision is an overriding provision and no tree or any portion thereof can be cut or felled by any person without any written permission of any of the authorities / bodies mentioned therein. The contention that banyan tree does not fall within the prohibited category of trees does not merit acceptance for the simple reason that when the legislature wanted to provide for an exception a specific provision has been incorporated as can be seen from sub-section (2) of Section 3 of the Act whereby babool tree has been specifically excluded. As against that under Section 3(1)(a) of the Act the words used are “any tree, or any portion thereof”, meaning thereby that for felling any tree or any part SCA/11805/2000 7/10 JUDGMENT thereof, inclusive of branches, prior written permission is necessary. (7) Though the learned advocate for the petitioner was not in a position to point out as to whether Kandari Village Panchayat is or is not empowered by the government in this behalf Notification No.TRS-2062/805-A dated 28.02.2962 stipulates that all Talatis and Village Panchayats within the area of their respective jurisdiction excluding forest area, if any, are empowered for the purposes of clauses (a) of sub-section (1) of Section 3 of the Act. Therefore, the next question that would arise is, even if the petitioner- Panchayat is empowered to grant such written permission, whether permission in question was within the four corners of law. (8) Saurashtra Felling of Trees (Infliction of Punishment) Rules, 1961 (the Rules) provide for the modality and the procedure in which an application for felling trees has to be made, SCA/11805/2000 8/10 JUDGMENT processed and granted by a specified officer or an empowered body. Rule 3 sets out purposed for which permission can be given. It is stated that permission under clause (a) of sub-section (1) of Section 3 of the Act may be given for any of the following purposes set out in the Rule. Apparently none of the purposes mentioned in sub-rules (1) to (5A) of Rule 3 of the Rules would cover the present case. However, sub-rule (6) of Rule 3 of the Rules reads as under: “(6) for any other purpose which the competent authority, looking to the circumstances of each case, considers for reasons to be recorded in writing to be bona fide and in respect of which it is a absolutely necessary or reasonable to give permission.” (9) Thus over and above the purposes specified in sub-rules (1) to (5A) of Rule 3 of the Rules, sub-rule (6) lays down a general exception for any other purpose that the competent authority considers to be bona fide and in respect of SCA/11805/2000 9/10 JUDGMENT which it is absolutely necessary or reasonable to give such permission after considering the circumstances of each case and for the reasons to be recorded in writing. (10) In the facts of the present case none of the authorities have even considered the provision of sub-rule (6) of Rule 3 of the Rules nor recorded any finding in this regard. May be because attention was not invited to the said aspect of the matter by or on behalf of the petitioner. However, once there is a specific provision the authority is required to ascertain as to whether, in the facts and circumstances of the case, the said provision is or is not applicable. The authority is required to ascertain and verify whether the reasons recorded by the petitioner-Panchayat in its resolution were bona fide, whether it was absolutely necessary or reasonable to grant such permission in light of the facts and circumstances of the case. The authority SCA/11805/2000 10/10 JUDGMENT has not dealt with the issue by considering the provisions. (11) In the circumstances, the impugned order dated 03.10.2000 (Annexure-A) is quashed and set aside and Revision Application No.15 of 1999 is restored to the file of respondent No.1 for being decided afresh in accordance with law and in light of what is stated hereinbefore. Rule made absolute to the aforesaid extent. There shall be no order as to costs. Sd/- [D. A. MEHTA, J] *** B h a v e s h