The Uttarakhand High Court directed the State government to take an action against the erring officials (knowingly persisted to continue the forest to be plundered) who are here before the Court by proceedings in accordance with the provisions of Government Servants (Discipline and Appeal) Rules, 2003.
The Division Bench of Justice Sharad Kumar Sharma and Justice Pankaj Purohi disposed of a Suo Moto Public Interest Litigation (PIL) registered on account of illegal collection and felling of trees in the notified jungle areas.
The prime concern was, that invariably it was seen by this Court, that people even belonging to the urbanized aboriginal areas, adjoining the forest areas, have been found rampantly plundering the forest produce for their personal gains without there being any checks and controls being exercised by the officials of the Forest Department, who are duty bound and were supposed to otherwise discharge their duties in accordance with the provisions of Indian Forest Act of 1927, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the Rules framed thereunder.
The Court has observed in the various orders passed earlier during the proceedings of the PIL, that it had been a common experience, that where the people, who are not even legally entitled to gather and collect the fallen woods or to cut the forest trees, have been found to be picking wood or cutting trees in notified forest areas, without their being any valid authority being vested with them in accordance with the prevalent laws. In fact, what was more of concern was the inaction on the part of the Principal Secretary, Forest, and his other subordinate officials, including the DFOs of concerned areas, against them the cognizance was taken. They too have derelicted in performance of their official duties vested upon them under law, resulting to rampant shrinking of forest areas.
It is observed by the Court that the forest rights are ancestral rights for the land, created under law, not by precedents or tradition, in which, normally the inhabitant, who normally resides, and which has been for ages had been traditionally recognized in a consolidated State forest area, so that their integral survival in the State, particularly in the forest area is maintained, but simultaneously, it has to be primarily aimed for balancing the ecological system. The application of law, has had to be rationally construed under the changed circumstances, and old age law has had to be rationally interpreted with the changed circumstances, which necessitates imposition of restricting and recognizing the rights with the frame work of law.
There has had to be a prior plausible satisfaction of these parameters by the officials of the Forest Department itself before granting them any right of collecting forest woods, as safeguarded under the Act of 2006, or even under any of the existing law so proclaimed by the respondents allegedly granting the forest dwellers the right to collect wood from the notified forest areas. The reason behind it, is that the determination of class of “Scheduled Tribes” and “other traditional forest dwellers”, cannot be done at the whims and fancies of the officials of the Forest Department or their Guards posted at the different ornamental posts, who owe an official responsibility under their service law, to exercise checks and controls, that illegal picking and collection of forest woods or cutting of forest trees should not be permitted, which they have utterly failed. For that purposes, the Act of 2006 itself, has provided a self contained mechanism under Chapter-IV, as to in what manner the identification of such “other traditional forest dwellers” or the “Scheduled Tribes”, would be made for the purposes of protecting their rights contemplated under the Act of 2006 , the Court further observed.
The Court noted that there was never such committee which was ever constituted as such, which could be said to have been constituted so far as to resort to process to determine as to who would be the actual traditional forest dwellers or a Scheduled Tribe, who could be protected by the rights conferred upon them under the Act of 2006.
The Court cannot ignore this vital fact, that the issue involved is of a wide public implication. The inaction on part of State officials cannot be safeguarded or ignored by this Court, on the basis as argued, that the Court should extend sympathy while exercising its equitable jurisdiction. The sympathy is not nor could ever be taken as a substitute to a process of enforcement of law. The State has constituted an independent Department headed by the Principal Secretary, Forest, and the presumption would be, that he since being in the helm of affairs, he would be deemed to be conscious of law and the illegal activities, which had been rampantly going on in the Forest areas, and he will have to shoulder and carry the burden about the issues as already observed above, with regard to the illegal collection of woods from forest areas, and not even that, even cutting of the green trees also, because some of the photographs which they have annexed by the respondents in their defence, it was not the head load which was permitted, rather the persons were found carrying woods from notified forest areas after cutting the green trees, which were having a plain sharp cuts, and not the blunt edge caused by natural felling of branches, when they were found to be carried by e-rikshaws, motor cycles, cycles and other mode of transports.
It cannot be ruled out by the Court that these activities which were consistently carried in nature discussed above, could have at all been possible without the connivance of the Guards posted at the various posts by the Department, headed by the Principal Secretary of the Forest. This Court has personally seen them on a surprise visit. The Forest post guards were found not properly uniformed, rather were found sleeping. On a call being made by one of us to the Ranger, no heed was paid by him too. This itself speaks about connivance in league with officers, and their aptitude of working.
The dereliction in performance of the assigned official duties in itself is a professional misconduct, and at least, the Senior Officers of the department cannot say, and have an excuse, that they were not aware of law, because ignorentia of law is non excusat. The presumption under law would be, that when an authority is heading the Department, the knowledge of law, and its regulatory measures will be presumed to be there in knowledge with the head of the Department, i.e. Principal Secretary, Forest, and other subordinate senior officials, that includes the DFOs of the different areas, and Range Officers, particularly, the areas in question, that they were conscious of their responsibilities, but still they have knowingly persisted to continue the forest to be plundered by persons not eligible and that too for decades together.
Though the Court should have issued positive directions for taking of a disciplinary action by the State against the Principal Secretary, Forest, and by the Principal Secretary, Forest himself, as against the other subordinate Forest Officials, but the Court, being conscious of its jurisdiction, which it is exercising in the PIL, is not passing any positive direction, but rather directing the State to take an action against the erring officials, who are here before us by proceedings in accordance with the provisions of Government Servants (Discipline and Appeal) Rules, 2003.
Owing to the above, the PIL is laid to rest by the High Court , with the direction to the State Government, and the Principal Secretary, Forest, to take an appropriate action as recommended above in accordance with the Rules of 2003.
While issuing the above direction, and as lastly pointed by the Amicus Curiae, that the State may be directed to take an action in accordance with Chapter – IV to be read with Rules 9 and 11 of undertaking the exercise of identifying the “other traditional forest dwellers”, and the “Scheduled Tribes” whose rights are to be recognized under the Act of 2006. The entire exercise is to be undertaken by the State within a period of two months . Lest failing which, they would be liable to be dealt with in accordance with Article 215 of the Constitution of India. During this period, there would be a complete restriction and ban on lifting forest wood from forest areas by anyone.
After conclusion of the judgment, the Advocate General, has requested that the Court should observe, that the exercise under Chapter–IV would be made by the State within the prescribed time without being prejudiced by the findings, which have been recorded by this Court in the above judgment. The said request is accepted by the High Court.