IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2187 of 2007 (M/S) Sri Mahesh Chand, Krishna Nand Tiwari, Sons of Late Madhwa Nand Tiwari, Resident of Village Koli Kulari, Post Office Kot Kendri, District Champawat. ….. Petitioners. Versus 1. State of Uttarakhand through Secretary Forest Department, Dehradun. 2. Divisional Forest Officer, Forest Division, Champawat. ….. Respondents. Sri S.K.Posti, learned counsel for the petitioners. Sri K.P. Upadhyay, learned Additional Chief Standing Counsel the State for the respondents. Date June 09, 2008. Hon’ble B.S.Verma, J. Sri S.K.Posti, learned counsel for the petitioners and Sri K.P. Upadhyay, learned Additional Chief Standing Counsel for the State-respondents. This writ petition has been filed for the following reliefs:- A. Issue a writ, order or direction in the nature of certiorari calling the record of the case and to quash the order dated 13.10.2006 (filed as Annexure-11) and order dated 17.10.2007 (filed as Annexure-10) passed by the respondent No.2. B. Issue a writ, order or direction in the nature of mandamus directing the respondent No.2 to grant the permission to the petitioner to cut these trees, which have become dangerous to the life and property of the petitioners. C. Issue any suitable order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case. D. Award cost of writ petition to the petitioners. Brief facts, giving rise to the present writ petition, are that the petitioners have applied for permission to cut eight trees, which are situated in plot nos. 507, 511, 522 and 524 belonging to the petitioners and the trees have become dangerous to life and property of the petitioners. Petitioner Krishna Nand Tiwari also filed Writ Petition No. 1083 of 2007 (M/S) before this Court, wherein this Court vide order dated 30-8-2007 directed the Divisional Forest Officer, Forest Division Champawat to take a decision on the application of the petitioner for cutting of trees in accordance with law within a period of four weeks from the date of production of certified copy of this order and it was also directed that the application shall be decided on the basis of the report of the authority concerned by a speaking order. In compliance of this Court’s order dated 30-8-2007, the Divisional Forest Officer Champawat Forest Division Champawat has passed the order dated 17-10-2007, wherein it was stated that the disposal of the application was made vide order dated 13-10-2006 and all the facts were considered therein and there is no need to decide the application afresh. It was also stated that if the order is passed afresh, then it would amount to reopening of the matter. Learned counsel for the petitioners has contended that the order dated 13-10-2006 (Annexure No. 11) was passed by the D.F.O. Champawat in compliance of the Court’s order dated 14-12- 2004 passed in Contempt Petition No. 249 of 2004, wherein it was ordered the “District Magistrate” Champawat is directed to complete the demarcation proceeding within three weeks from today and thereafter the concern Authority will give permission to the petitioner to cut the dry trees of his land.” A team of revenue department and consolidation was constituted and the proceedings for demarcation were initiated, but the team gave its report that the demarcation is not possible and recommended for re-settlement of the village. The Divisional Forest Officer Champawat has ignored the report of Lekhpal and it has been observed by him that the Lekhpal seems to be in collusion with the petitioner. It is not disputed that the petitioner had earlier also applied to cut ten trees standing in his own land. Permission was granted in pursuance of this Court’s order passed in Contempt Petition. A reference to this effect was also made in the order impugned dated 13-10-2006. I have heard Sri S.K. Posti, learned counsel for the petitioners and Sri K.P. Upadhyay, learned Additional C.S.C. for the State-respondents. The admitted fact of the case are that proceedings under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 were initiated before the Prescribed Authority against the petitioner Madhawanand Tiwari, which was decided by the Prescribed Authority on 31.12.1999 and the notice under Section 4(1) of the said Act was withdrawn. Aggrieved by the order dated 31.12.99, the State of Uttaranchal preferred an appeal before the District Judge, Pithoragarh. The appeal was dismissed vide order dated 24-8-2000. Aggrieved by the order of the appellate court as well as the Prescribed Authority, the State filed Writ Petition No. 617 (M/S) of 2002, State of Uttaranchal Vs. Madhvanand Tiwari and others. The writ petition was also dismissed by the learned single Judge of this Court by order dated 11-6-2003. Further aggrieved by the order passed in Writ Petition, the State also preferred a Special Leave Petition, which too was dismissed by the Hon’ble Apex Court. After dismissal of the S.L.P., the petitioner filed a Writ Petition to issue a writ of mandamus to direct the respondent to give permission to the petitioner to cut the trees in pursuance to the application moved by the petitioner. It is pertinent to mention that the father of the petitioners Madhvanand Tiwari filed Writ Petition No. 99 of 2002 (M/ B) before this Court for permission to cut the trees. This Court passed the order dated 3-3-2004 to the following effect:- “In view of the aforesaid facts and circumstances, the respondents are directed to reconsider the application of the petitioners in the light of the judgment passed by this Court in writ petition no. 617 (M/S) 2002 within a period of six weeks from the date of filing the certified copy of this order.” Compliance of the Court’s order was not made by the respondents. Then the petitioner (father of present petitioners) filed Contempt Petition No. 249 of 2004. During the pendency of contempt proceedings, permission was given by the Divisional Forest Officer. So far as the ownership of the land on which the trees are standing is concerned, these eight trees are standing in the same land, which was the subject matter of the earlier proceedings under the Public Premises Act and the proceedings came to an end after the order of the Apex Court dismissing the Special Leave Petition of the State. The application was earlier moved to cut ten trees and the stand of the petitioners is that these eight trees are also standing in the same land on which ten trees were standing. The Divisional Forest Officer in the garb of proceedings of demarcation is not allowing the application of the petitioners and has rejected the same on the ground that the demarcation is not possible. In the similar facts and circumstances, during contempt proceedings pending before this Court, the Divisional Forest Officer granted the permission, but has refused to grant permission for eight trees, for which application was moved subsequent to the earlier application. The petitioners have also applied before the Up Zila Adhikari. The report was sought through Tahsildar from Patwari. The spot inspection was made and spot map was prepared. It was recommended in the report that the trees are dangerous to life and property of the petitioners. The report of the Patwari was recommended by the revenue inspector as well as Tehsildar concerned, but in the garb of demarcation report, the report of the revenue officers was ignored and the application was rejected. One more ground to reject the application of the petitioners was that the land is a joint land, while the Lekhpal made spot inspection that co-tenure holders of the land have also given no objection to cut the trees in favour of the petitioners and the co- tenure holders have also written to the D.F.O. that they have no objection if permission is granted to the petitioners. The petitioners have also annexed the endorsement of the Village Pradhan who has also recommended that the trees are dangerous to life and property and disposal of the trees be made. From a bare perusal of both the impugned orders dated 17-10-2007 and October 13, 2006 passed by the Divisional Forest Officer, it is obvious that they have been passed on the basis of the report of Lekhpal, which was recommended by the Revenue Inspector and Tehsildar. The ground of demarcation, which was taken in the impugned orders had also been taken in the contempt proceedings before this Court and this Court rejected the plea taken by the D.F.O. that demarcation is not possible and permission was granted in the contempt proceedings. The dispute whether the land belongs to the petitioner or the State has been finally decided in the proceedings under the Public Premises Act. It is not disputed that plot Nos. 491 to 533 belong to the petitioners. It is obvious from a perusal of the entire record that the land is the Bhumidhari land of the petitioners and co-tenure holders have already given no objection to cut the trees as mentioned earlier. The application was moved to the respondent no.1 for permission to cut the trees standing over plot nos. 507, 511, 522, and 524. In addition to above, it is pertinent to mention that there is ample evidence on record to show that the trees sought to be cut are dangerous to life and property of the petitioners and no permission can be refused under Section 5 of the U.P. Protection of Trees in Rural & Hill Areas Act, 1976 it the trees are dangerous to human life and property. Section 5 reads as under:- “5. Permission to fell or removes trees:- The competent authority may on the application of any person entitled to fell a standing tree or to cut, remove or otherwise dispose of a fallen tree, after making such inquiry, as it thinks fit, grant permission to him to do so: Provided that such permission shall not be refused if the tree constitutes danger to person or property: Provided further that except in such area as may be notified by the State Government in this behalf such permission shall not be required for the felling of any tree with a view to appropriating the wood or leaves thereof for bona fide use for purposes of fuel, fodder, agricultural implements or other domestic use: Provided also that such immediate steps as are necessary to remove any obstruction or nuisance or to prevent any danger may be taken without such permission”. In view of these facts particularly the report of Patwari that the trees are dangerous to life and property of the petitioners, which was recommended by the Revenue Inspector, Tehsildar and the Up Zila Adhikari coupled with the endorsement of the Village Pradhan, the orders impugned dated 17-10-2007 (Annexure-10) and dated 13-10-2006 (Annexure-11) passed by the Divisional Forest Officer Champawat on the ground that demarcation was not made are bad in law and are liable to be set aside and the application of the petitioner for permission to cut eight trees is liable to be allowed. The writ petition deserves to be allowed. The writ petition is allowed. The impugned orders dated 17-10-2007 and dated 13-10-2006 (Annexure Nos. 10 and 11 respectively to the writ petition) are set aside. The respondent no.2 is directed by a writ of mandamus to grant permission to the petitioners to cut the eight trees within a period of eight weeks from the date of production of certified copy of this order. Costs easy. All pending applications stand disposed of. (B.S. Verma, J.) RCP