IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No: 1041 of 2004 Judgment reserved on: 26.12.2007 Date of decision: 2.1.2008 Chet Ram ..Petitioner Versus State of H.P. and others ..Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Surinder Sharma, Advocate For Respondents No.1 to 3: Mr. M.S.Chandel, Advocate General With Mr. R.M.Bisht, Dy. Advocate General For respondent No. 6: Mr. Shrawan Dogra, Advocate Per Deepak Gupta, J. This petition has been filed in the public interest. The petitioner has complained about misutilization and mis-application and wastage of the funds of Panchayat Maggar Padhru. The case of the petitioner is that an amount of Rs. 98,000/- out of the Panchayat funds has been sanctioned by the Block 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 Development Officer for construction of an Inn (Sarai) at Kameshwar Mandir. The complaint of the petitioner is that not only has the amount not been properly used, but also that the Sarai has been constructed on the forest land in total contravention of the directions of the Apex Court in T.N.Godavarman Thirumulkpad Vs. Union of India and others (1997) 2 SCC 267. Respondents No. 4 and 5 have not appeared in this court despite notice. The petitioners allege that after the Block Development Officer released the funds, they made representations to various officials including the Sub Divisional Officer (Civil), Mandi, Deputy Commissioner, Mandi, but to no avail. After the pleadings in the case were complete this court had passed a detailed order on 1.12.2005 which reads as follows:- “There is a specific allegation made in para (18) of the writ petition that on 9th July, 2003, the petitioner and other residents of the area made a representation to the Sub Divisional Officer (Civil) Sadar, Sub Division, Mandi, H.P. brining to his notice that the proposed construction was being raised on the forest land. In reply to this para, the respondents have admitted that the construction was being raised on the forest land. The respondents alongwith their reply have annexed a document Annexure R-II addressed by the Sub Divisional Officer © 3 Sadar, District Mandi to the Deputy Commissioner, Mandi, District Mandi, saying that the construction work of Sarai was being done on the land which was described as Undemarcated Protected Forest (UPF) in the revenue record and under the possession of the Forest Department. A copy of the Jamabandi for the yar 1995-96 Muhal Magar/278, Tehsil Sadar alongwith Aks Tatima was also enclosed for the perusal of the Deputy Commissiner. Learned counsel for the respondents pointed out from the record that the sanction for the construction of the sarai was given n 11.3.2003 whereas the construction came to be completed on 15.6.2004, meaning thereby that the construction was allowed to be raised despite the fact that it had been brought to the notice of the Deputy Commissioner on 30th July, 2003 that the construction of the Sarai was being raised on the Forest Land. In such circumstances, we are of the view that the concerned Deputy Commissioner must be asked to give his explanation as to how he permitted the construction to be raised on a forest land without seeking permission in this regard from the Central Government. Since the said Deputy Commissioner by name has not been impleaded as party-respondent, therefore, Sh. J.C. Sharma, IAS (who was the Deputy Commissioner at that relevant time) is impleaded as party-respondent No. 6 to this writ petition. Notice be issued to him to explain 4 as to how he permitted the construction to be raised on the forest land though the fact that the construction was being raised in the forest land was brought to his notice. Notice be also issued to him to show cause why the amount spent on the construction of Sarai be not recovered from his salary. A copy of the order alongwith the copy of the writ petition be sent to the respondent No. 6, who is to file reply-affidavit on or before 3rd January, 2006. Copy dasti.” After Mr. J.C.Sharma, the then Deputy Commissiner was impleaded as a party he filed an affidavit stating therein that a proposal to construct the Sarai was received in the office of Additional Deputy Commissioner, Mandi and complaint was also received and that the sanction for construction was granted by the Additional Deputy Commissioner on 17.12.2002. According to him he was not concerned with the grant of construction of Sarai. Thereafter we had issued notice to Mr. Devesh Kumar, who was the Additional Deputy Commissioner, Mandi during the aforesaid period. He has also filed his reply and according to him he had sanctioned the amount on the basis of the reports submitted by the Block Development Officer, Balh and Sub Divisinal Officer(Civil), Sadar. He has further stated 5 that he has dealt with the file only twice on 7.11.2002 and 17.12.2002 and at that time the field agencies had not brought to his notice the fact that the Sarai was proposed to be constructed on forest land. Undisputedly the Sarai has been constructed on forest land. This is totally against the law laid down by the Apex Court in T.N.Godavarman Thirumulkpad’s case supra. The Apex Court in no uncertain terms has held that no forest land can be diverted for non forest use without the permission of the Central Government. It would be appropriate to quote some observations of the Apex Court in the aforementioned case :- “4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word “forest” must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land”, occurring in Section 2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 6 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. x x x x x x x x x x x x. 5. We further direct as under: 1. In view of the meaning of the word “forest” in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any “forest”. In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith.” It is thus obvious that the construction of the Sarai which is admittedly a non forest activity amounts to diversion of forest. The same could not have been done without the permission of the Central Government. Since no such permission has been obtained, we feel that the said construction must be demolished and the forest land restored to its original use. We accordingly direct that Sarai raised on forest land shall be demolished on or before 28th February, 2008. We hold the respondent No. 3 responsible for compliance of our orders. We further direct the respondent-State through the Secretary Panchayati Raj to hold an inquiry into the matter and fix the responsibility on the erring officials. The amount disbursed out of the funds of Panchayat shall be recovered from the erring officials and the said amount 7 shall be utilized for afforestation of the land in question. This inquiry be completed positively on or before 30th June, 2008. The Deputy Commissioner, Mandi shall file his affidavit in respect of demolition of the property on or before 12th March, 2008 and the matter be listed in court for this purpose on 15th March, 2008. The Secretary, Panchayati Raj shall file his affidavit giving the result of the inquiry by 9th July, 2008 and for consideration of the same the matter be listed on 12th July, 2008. The writ petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ), J. January 2, 2008(K) ( V. K. Ahuja ), J. 8 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No. 1041 of 2004 Chet Ram Petitioner Versus State of H.P. and others Respondents Judgment for consideration, please. ( Deepak Gupta ),J. I agree/do not agree ( V.K. Ahuja ), J. For pronouncement of judgment, list on January 2, 2007. ( Deepak Gupta ),J. Court Secretary