Man Singh (Dead) By Lrs. vs State of U.P.and Others

Heard Shri Mohd. Ali, the learned counsel for the petitioner and learned standing counsel.

Shri Rameshwar Tiwari, District Forest Officer, North Kheri, who was directed to be present, is present in person before this Court in compliance of the order passed by this Court on 12.9.2005.

This writ petition was originally filed by Shri Man Singh, the petitioner on 11.5.89. He died during the pendency of the petition on 7.9.2004. His legal representatives petitioners No.1/1 to 1/5 have been substituted in his place, who have duty prosecuted this petition.

The prayer made in the petition is for issue of a mandamus commanding the opposite parties No.3 and 4 to issue transit pass to enable the petitioner to lift the timber wood lying in his farm for taking to Lakhimpur city and for quashing the order dated 9.1.89, contained in Annexure No.18 to the writ petition and not to execute the order dated 9.1.1989 passed by the District Magistrate, Kheri.

The petitioner has come forward with the allegations that Gram Panchayat at Udho Nagar resolved in its meeting dated 8.9.1998 and thereby gave a contract to the petitioner to deepen the river ''Suheli'' and remove the stranded timber lying in its water course. He being the highest bidder deposited Rs.20/ in the Gaon Panchayat Fund and extracted the drifted and stranded timber from the said river ''Suheli''. He applied for issue of transit pass on 8.6.1986 for removing the Timber extracted by him from river Suheli. He wanted to remove 6, 7 Truck load timber of Shisham, Khair and Gular, which he had allegedly stored in his farm. The said application which was addressed to the Regional Forest Officer, was sent to the subordinate forest officer for inquiry.

It transpires from the record that on an inquiry, it was found that Shri Man Singh, the petitioner (since deceased) had collected approximately one truck load timber from River Suheli after deposit of Rs.20/ only in Gaon Samaj Fund a very meagre sum, for such a heavy quantity of timber and this aroused suspicion in the mind of the District Forest Officer, North, Kheri, Shri D.V.S. Khari, who wrote letter No.781/311 dated 14.8.87 to the District Magistrate, Kheri requesting for a thorough enquiry in the matter. Sub Divisional Magistrate, Nighashan, who enquired into the matter, recommended for issue of a transit pass to the petitioner subject to the deposit of Rs.2000/ more by him in the Gaon Sabha Fund. The said sum of Rs.2000/ was deposited by the petitioner on 14.3.88 and the District Magistrate, Kheri approved the said proposal of the Sub Divisional Magistrate on 11.4.88. However, the Forest Officer requested the District Magistrate that the Sub Divisional Magistrate has not enquired about the proprietary/status of the timber in question and the Range Officer reported that Shri Man Singh, petitioner has extracted four truck of timber from the river. While the matter was under consideration, Shri Man Singh, petitioner reported the matter to the Principal conservator of Forest, U.P. The Principal Conservator of Forest, U.P. was informed of the whole situation of the case. Shri Man Singh, the petitioner again reported the matter to the District Magistrate, Kheri, who asked for a report from the Divisional Forest Officer vide his letter dated 15.12.88 about the various omissions in the disposal of the said matter, resulting in loss to the public exchequer. He further informed the District Magistrate, Kheri vide letter dated 29.12.1988 that the timber in question was the property of State under Section 45 of the Indian Forest Act. The District Magistrate, Kheri cancelled the sale of timber in favour of the petitioner, vide his order dated 9.1.89. On cancellation of this sale, the said timber being the property of the State was seized by the Range Officer, Majgai on 27.3.1989 and has been given in the supurdgi of one Shri Tahel Singh. The total quantity of timber seized is 14.57 cubic meters and its estimated value is worth Rs.71,500/.

The petitioner''s case is that after the auction by Gaon Sabha and deposit of the sum of Rs.20/ the contract had concluded in his favour and in pursuance of the said contract, he had extracted the stranded timber lying within Udho Nagar Gram Panchayat and was entitled for the transit pass. He while challenging the order passed by the District Magistrate has alleged that the same was passed without affording an opportunity to him and was against the principles of natural justice and that the timber in question was not the property of the State within the meaning of Section 45 of the Indian Forest Act. It was further alleged that under Rule 41 of the U.P. Transit of Timber and other Forest Produce Rules, 1978, the State Government has declared certain areas for the purpose of Section 45 of the Indian Forest Act and river Suheli was not included in the said areas.

The case of the respondent is that Gram Panchayat has no authority to auction the timber drifted away in the river Suheli which originates in Nepal and after traversing through reserve forests of Sumerpur, Sathiyana, Kharsaiya, Kakraha, Gulra Moholi and Udhonagar blocks, emerges in the habitation of the said village Udhonagar. The said drifted wood had flowed with river water and got stranded at the said place in the river, therefore, it as such is the property of the Government. The clearance of sale from certain authorities was obtained illegally after concealing the facts, therefore, there was no question for issuing transit permit. The concerned authorities were apprised of the situation and subsequently the sale was cancelled. The alleged resolution of the Land Management Committee was signed by the Secretary, Navik and Matsya Jevi Samiti Suratnagar, as such it can not be construed to be the resolution passed by the Gram Panchayat under the provisions of U.P. Panchayat Raj Act, Gram Panchayat is entitled to do all things for the maintenance and repair of water ways only. According to para 63(3)(g) of the Gram Samaj Mannual, Gram Samaj has no right to do any such work in perennial river which may result in the change of course of force the acquatic animals to leave their habitat. The deepening of the river is such an activity which can result change in the directions of river. Thus the contract awarded was beyond the jurisdiction of the Gram Samaj, and also did not pertain to the property of the Gram Samaj. The vary fact that through a contract of Rs.20/, the petitioner was authorized to extract public property worth more than sixty thousand rupees, was not acceptable, therefore, the respondent Nos.3 and 4 wrote a letter to respondent No.5 (District Magistrate, Kheri) for setting up an enquiry in the matter. Sub Divisional Magistrate has no authority to direct the petitioner, to deposit Rs.2000/ for the Forest produce. The recommendation made by the Sub Divisional Magistrate was also not binding on the respondent Nos.3 and 4. The Gaon Panchayat was not entitled to auction the drifted timber and the approval, if any, of such an auction is illegal and void and not binding on respondents No.3 and 4.

It is also alleged that the Range Officer has mentioned in his report dated 29.8.87 that about one truck load timber had been extracted from the river, while in annexure it has mentioned that four trucks load timber have been extracted. The correspondence made between the parties and the conservator of forest has not been disputed, but the seizure of the timber in question is said to be justified and in accordance with the provisions of Section 52 of the Indian Forest Act.

The petitioner has filed the rejoinder affidavit.

We have perused the counter affidavit and rejoinder affidavit filed by the parties.

It is contended by the learned counsel for the petitioner that once the contract was concluded in favour of the petitioner by the Land Management Committee and the petitioner has deposited the required amount of highest bid, the same could not be annulled by any other authority and that the petitioner was required to remove the timber lying in the river course and likely to obstruct the water flow and that the recommendation had already been made by the Tehsildar and Sub Divisional Magistrate in favour of the petitioner, so, the forest authorities were not justified in declining to grant the requisite permit to the petitioner.

Learned counsel for the opposite parties has urged that the timber in the river was drifted away with the flow of the water from Nepal through places mentioned above and that it was the property of the State within the meaning of Section 45 of the Indian Forest Act and the Land Management Committee had no jurisdiction to auction such drifted timber. Moreover, in the present case no resolution was passed by the Land Management Committee and the Gram Panchayat and it was signed by one Secretary, Navik and Matsya Jevi Samiti, Suratnagar, who was not at all entitled to hold any such auction.

On consideration of the matter and perusal of the alleged resolution, we find that there was no resolution of Gram Panchayat or the Land Management Committee and the resolution having been signed by the Secretary, Navik and Matsya Jevi Samiti, Suratnagar can not be held to be of Gaon Panchayat authorized under law to hold any such auction. Moreover, this timber was not grown in the river or on the banks of the river in this village. It is undoubtedly drifted timber floated with the current of the river water and to such timber, the provisions of Section 45 of the Indian Forest Act will apply.

For convenience sake Section 45 of the Indian Forest Act is reproduced as under:

�45. Certain kinds of timber to be deemed property of Government until title thereto proved and may be collected accordingly

(1) All timber found as a drift, breached or shrunk;

All wood or timber bearing marks which have not been registered in accordance with the rules made under Section 41, or on which the marks have been obliterated, altered or defaced by fire or otherwise; and in such areas as the State Government directs, all unmarked wood and timber;

Shall be deemed to be the property of Government, unless and until any person establishes his right and title thereto, as provided in this Chapter,

(2) Such timber may be collected by any Forest Officer or other person entitled to collect the same by virtue of any rule made under Section 51, and may be brought to any depot which the Forest Officer may notify as a depot for the reception of drift timber.

(3) The State Government may, by notification in the official Gazette, exempt any class of timber from the provisions of this section.�

In view of the aforesaid provisions of Section 45 of the Indian Forest Act, the timber was the property of the State and the Gaon Panchayat had no right to auction the same. The said timber has been seized by the forest authorities and it is said to have been done in exercise of the power under Section 52 of the Indian Forest Act.

�Section 52 provides that (1) �When there is reason to believe that a forestoffence has been committed in respect of any forest produce, such produce, together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest Officer or Police Officer.

(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence an account of which the seizure has been made;

Provided that when the forest produce with respect to which such offence is believed to have been committed, is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes as soon as may be, a report of the circumstances to his official superior.�

The forest officer has already seized the timber extracted from the river and stored in the farm of the petitioner and for which the transit pass was applied. The said timber being the State property, the pass was rightly refused by the forest authorities and the District Magistrate, Kheri, who had earlier directed the Sub Divisional Magistrate for enquiry and approved his report for deposit of Rs.2000/ in the Gaon Sabha Fund in addition to Rs.20/ already deposited by the petitioner with the Gaon Sabha Fund, cancelled his order when the truth came to his notice. Since the property (timber) was the State property, no right was acquired by deposit of money in the Gaon Sabha Fund by the petitioner and no notice for cancellation of the earlier order was required, because said order was obtained on absolutely false and untenable grounds.

We find no illegality in the order of District Magistrate, Kheri dated 9.1.1989. The petitioner was not entitled to any transit pass and his prayer was rightly declined by the authorities.

We find no substance in this petition, which deserves to be dismissed. The writ petition is dismissed accordingly.

The interim order granted on 12.4.1989, is hereby discharged. The opposite parties shall refund Rs.2020/ with interest @ Rs.6% to the petitioner within six weeks from the date of issue of the certified copy of this order.

(Petition dismissed)