Mansukh Ram Kashyap and Others vs State of Himachal pradesh and Others

V.K. Mehrotra, J.—Petitioner Mansukh Ram Kashyap along with 20 other persons, most of whom belong to different villages in District Solan, filed this petition under Article 226 of the Constitution on September 11, 1979, in which, primarily, the constitutional validity of the provisions of the Himachal Pradesh Land Preservation Act, 1978 (for brief, "the Act") was assailed by them. The Petitioners felt aggrieved by, what they described as, the Notification issued by the Divisional Forest Officer, Solan (Respondent No. 3) dated March 13, 1979 (Annexure-B) imposing restrictions upon certain rights of the Petitioners in regard to the use of land and trees standing on their private property. They also objected to the issuance of certain directions through Notification of May 30, 1979 (Annexure-A) u/s 3 of the Act in respect of some areas in District Kangra. Both these annexure related to areas to which the Petitioners did not belong. As such, they filed with their affidavit-in-rejoinder copies of notifications dated January 19, 1979 (Annexure-A) and dated February 6, 1979 (Annexure-B) relating to areas in District Solan and District Sirmaur (to which Petitioners Nos. 8 to 12 belong) respectively.

Though the writ petition contains averments, mostly irrelevant, of a general nature, yet, the challenge is basically confined, as said by us earlier, to the constitutional validity of the Act. One of the grounds put forward in the writ petition was founded upon the absence of any rules having been framed by the State Government in exercise of powers in that regard contained in Section 21 of the Act. And, thus, resulting, according lo the Petitioners, in an unguided exercise of discretion by the State Government. However, during the pendency of the petition the Himachal Pradesh Land Preservation Rules, 1983, (hereafter," the Rules") were framed and published in the H.P. Gazette (Extraordinary) dated August 27, 1983, through a Notification of June 1, 1983, which came into force with immediate effect. The grievance of the Petitioners in that respect, therefore, became redundant.

The Himachal Pradesh Land Preservation Act, 1978 has been enacted as "an Act to provide for the better preservation and protection of certain portions of the territories of Himachal Pradesh", in terms of its preamble. It received the assent of the President of India on August 4, 1978 and was published in the H.P. Gazette (Extraordinary) dated August 26, 1978.

The statement of Objects and Reasons attached to the H.P. Land Preservation Bill (No. 8) of 1978 [published in the H.P. Gazette (Extraordinary) dated April 8,1978, at page 326] says:

The Punjab Land Preservation Act, 1900, the object of which is to provide for the better preservation and protection of certain areas subjected to soil erosion, is in force in the areas added to Himachal Pradesh u/s 5 of the Punjab Reorganisation Act, 1966. The Mandi State Anti-Erosion Act, 2004 B.K. is in force in the areas which (were) comprised in the erstwhile princely State of Mandi. In the remaining areas of Himachal Pradesh there is no such corresponding law. With a view to bring about uniformity, it is intended to have one unified law on the subject for the whole of Himachal Pradesh. The Bill seeks to achieve the aforesaid object.

Sd/-

Minister-in-charge.

Section 2(a) defines land, saying,

(a) "land" means land within any area preserved and protected or otherwise dealt with in the manner provided in this Act and includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth."

A "right-holder" is defined in Section 2(f) thus:

(f) "right-holder" includes:

(i)persons not being tenants or mortgagees having rights to, or in land; and

(ii) persons having rights of collection of forest produce or of grazing of pasture; and

Section 2(g) says that:

(g) "erosion" includes the removal or displacement of earth, soil, stones or other materials by the action of wind or water.

Chapter II, consisting of Sections 3 - 9, deals with Notification and Regulation of Areas. Section 3 says that:

Whenever it appears to the State Government that it is desirable to provide for the conservation of sub-soil water or the prevention of erosion in any area subject to erosion or likely to become subjected to erosion, the State Government may, by notification published in the Official Gazette, make a direction accordingly.

Section 4 gives the State Government power to regulate, restrict or prohibit by general or special order, within notified areas, certain matters like clearing or breaking up or cultivating of land, quarrying of stone or burning of lime; cutting of trees or timber or collection or removal of any forest produce other than grass save for bona fide domestic or agricultural purposes of a right holder in such area; the setting on fire of trees, timber or forest produce; the admission, -herding, pasturing or retention of sheep, goats or camels; the examination of forest produce passing out of any such area; and granting of permits to the inhabitants of towns and villages situated within the limits or in the vicinity of any such area to take any tree, timber or forest produce for their own use there from or to pasture sheep, goats or camels or to cultivate or erect buildings therein and the production and return of such permits by such persons. Section 5 enables the State Government to regulate, restrict or prohibit temporarily similar activities in respect of any specified villages or part or parts thereof comprised within the limits of any area notified u/s 3. Section 6 empowers the State Government to direct, by general or special order, execution of works and taking of measures like the leveling, terracing, drainage and embanking of fields; the construction of earth works in fields and ravines; the provision of drains for stream water; the protection of land against the action of wind or water; the training of streams; and the execution of such other works and the carrying out of such other measures as may be necessary, in the opinion of the State Government, for carrying out the purposes of the Act. The power to require the owner or occupier of land to execute the work or take measures, as may be specified, in respect of an order issued u/s 6, within a specified time, is conferred upon the Deputy Commissioner u/s 9. Objections can be filed by any person aggrieved by an order made in exercise of powers u/s 6 upon the service of notice of an order upon him which will be dealt with by the Deputy Commissioner after making an enquiry as contemplated by Section 11 and compensation shall be payable to the person in respect of any of his right which is restricted or prohibited in consequence of an order made under Sections 4, 5 and 6. An order passed by the Deputy Commissioner is subject to an appeal u/s 15. Any breach of any regulation made, restrictions or prohibitions imposed, order passed or requisition made under Sections 4, 5, 6 or 9 or obstruction or insistence, in any manner whatsoever, to the execution of anything which may be done in exercise of power to enter upon, survey and demarcate local areas notified u/s 3 is made punishable u/s 16 as an offence. The power to compound an offence has been given to a gazetted forest officer empowered in that behalf by the State Government u/s 19. Section 21 confers upon the State Government power to make Rules generally for the purpose of carrying into effect all or any of the provisions under the Act or regulating procedure or enquiry therein. By Section 22, the Punjab Preservation Act 1900 and the Mandi State Anti-Erosion Act, 2004 B. K. were repealed.

The object of the Act being to provide for the better preservation and protection of areas which are subject to soil erosion, including the removal or displacement of earth, soil, stones or other materials by the action of wind or water, it cannot be said, as was attempted on behalf of the Petitioners, that regulation, restriction or prohibition of activities of the nature mentioned in Sections 4 and 5 temporarily or requiring the execution of the works and taking of measures mentioned in Section 6, contemplated by the Act is, in any manner, unreasonable. It is common knowledge that areas in a hilly State, like Himachal Pradesh, are prone to soil erosion. The prevention of erosion in any areas subject to such erosion or likely to become subject to it is in public interest. So also a provision for the conservation of sub soil water.

Section 3 does not confer upon the State Government any arbitrary or unanalyzed discretion to notify an area therein. The notification can only be made where it appears to the State Government that it was desirable to ensure conservation of sub-soil water or prevent erosion in an area which is subject to it or is likely to become subject to erosion. Section 7 of the Act, which provides, that:

Every order made under Sections 4, 5 or 6 shall be published in the Official Gazette and shall set forth that the State Government is satisfied, after due inquiry, that regulations, restrictions, prohibitions or directions contained in the order are necessary for the purpose of giving effect to the provisions of this Act.

ensures that the satisfaction of the State Government in this regard is arrived at only after due enquiry by it. The State Government can legitimately be trusted with exercise of a discretion in this regard because the discretion has been conferred upon it and not upon any petty official acting on its behalf.

The power to regulate, restrict or prohibit activities of the nature contemplated by Sections 4 and 5 can be exercised for a temporary period. That too, after providing for compensation in respect of any right of a person which is restricted or prohibited by an order made under these provisions.

A look at Section 4 reveals that the cutting of trees or timber, or the collection or removal or subjection to any manufacturing process of any forest produce other than grass is not completely prohibited. A right-holder can do so for bona fide domestic or agricultural purposes. Besides, as is clear from Clause (g), there is a provision for grant of permits to inhabitants of towns and villages situated within the limits or in the vicinity of any such area to take any tree, timber or forest produce for their own use there from or to pasture sheep, goats or camels or to cultivate or erect buildings therein. Thus the restrictions are not absolute and they take care of the interest of the right-holders and of the inhabitants of the towns and villages situate within the limits or in the vicinity of a notified area.

Constitution (44th Amendment) Act, 1978, was enforced with effect from June 20,1979. By it, Articles 19(1)(f) and 31(2) were deleted. Instead, Article 300A was inserted in the Constitution. The operation of the Constitution (44th Amendment) is prospective in nature. The validity of any law made prior to June 20, 1979, is thus open to challenge for contravention of Articles 19(1)(f) and 31(2). This is not in doubt in view of the repeated pronouncements of the Supreme Court beginning with a 7 Judge decision in Tara Prasad Singh and Others Vs. Union of India (UOI) and Others,

The provisions of the Act noticed by us, when read in the light of the objects there of, clearly amount to a reasonable restriction within the meaning of Article 19(6) of the Constitution upon the temporary curtailment of rights guaranteed by Article 19(1)(f). Compensation is provided for temporary deprivation of these rights. Quite clearly, there is no violation of Article 31(2) either.

In the return, filed on behalf of the State Government in November, 1979 in the present case, it has been stated clearly that no notifications had been issued under Sections 5, 6 and 9 of the Act. The notifications, which have been issued under Sections 3 and 4, were for some areas in District Solan and had been issued by the State Government after "the position was properly assessed and a report was submitted by the Chief Conservator of Forests, H.P. pointing out the gravity of the situation and extent of erosion resulting in loss of life by soil erosion and property which necessitated the State Government to make notification " and that "before issuance of notifications necessary enquiry was made.."

The restrictions imposed by the notifications are for a period of 30 years whereby the State Government regulated, by restrictions, and prohibited fallings in private areas subject, however, to the following:

Provided that there will be no restriction on the use of forest produce for bona fide, domestic purposes of fuel, fodder:

Provided further that the owners may for their bona fide domestic and agricultural use fell up to 5 trees each year without permission, up to 10 trees with written permission of the concerned Range Officer and more than 10 trees with written permission of the Divisional Forest Officer concerned:

Provided further that the trees for sales shall be felled in accordance with the 10 years felling programmed, which will be framed by the Officers of the Forest Department and approved by the State Govt, subject to the condition that trees used for timber will be felled after obtaining permission of the Divisional Forest Officer concerned up to 50 trees in a year, of the Conservator of forests up to 100 trees in a year, of the Chief Conservator of Forests, up to 200 trees in a year and of the State Government for more than 200 trees and that for other trees the permission will be accorded by the Divisional Forest Officer concerned in accordance with the 10 year felling programmed:

Provided further that any person felling the trees either for domestic or agricultural use or for sale shall be required to plant at least 3 trees for one tree felled. In case, however, a fruit orchard is planted in such area, it shall be planted according to the norms laid down by the State Horticulture Department for complete stoking of the area.

It has also been pointed out that H.P. Forest Produce Transit (Land Routes) Rules, 1977, had already been superseded by the H.P. Forest Produce Transit (Land Routes) Rules, 1978, which were notified through notification dated November 20, 1978. This notification only regulated the transit of forest produce. The Executive instructions issued by the Conservator of Forest/Divisional Forest Officer were only to ensure that no illicit felling took place in the Government land. The instructions have been issued in exercise of powers delegated to them under the provisions of the Indian Forest Act, 1927, and the Rules framed thereunder. No Executive instructions had been issued under the H.P. Land Preservation Act. 1978.

It has also been stressed in the Return that the notification issued u/s 4 only temporarily regulates the felling of trees in the private areas under "Ten Years Felling Programme" for the purpose of sale. It was only to avoid indiscriminate felling of trees for the better preservation of land and conservation of area. However, it was wrong that any restrictions had been imposed, upon the admission, herding, pasturing or retention of cattle generally other than sheep, goats and camel etc. or upon the cultivation of land, by the notification issued under this Section.

We have no reason to doubt the averments made in the Return nor was any material placed on behalf of the Petitioners which could cast any doubt thereon.

We are of opinion that the provisions of the Act are not invalid on any of the grounds mentioned in the petition. Nor, do notifications dated January 19, 1979, and February 6, 1979 (Annexures ''A'' and ''B'' to the rejoinder affidavit) call for quashing. We are not inclined to intervene in the matter for we feel that the Petitioners have not been able to make out any ground for it.

The petition is dismissed.

Costs on parties.