JUDGMENT Aloke Chakrabarti, J.
1. Petitioners represent the residents of village Kinigadl and the respondent No. 4 represents the village Gawani both within the district of Pauri Garhwal. Villagers of Gawani filed application on 4.3.1956 to form a Forest Panchayal in the Forest which is situate within the sal assi boundary of thetr village and the petitioners' viliage raised objection. The Sub-Divisional Magistrate rejected the application on 18.2.1958 and the appeal preferred by villagers of Gawani was allowed. The revision filed was dismissed. Villagers of Kimgadi village filed Suit No. 43 of 1960 which was ultimately decreed on 17.12.1966 recognising customary right of the villagers of Kimgadi in respect of the concerned forest. The first appeal before the learned District Judge was dismissed followed by dismissal of the second appeal filed before this Court. The residents of village Gawani filed application on 17.12.1979 before the Sub-Divisional Magistrate concerned for forming Forest Panchayat. The villagers of Kimgadi village filed objections but such objections were not upheld and, therefore, the villagers of Kimgadi village filed appeal which was rejected. Revision filed against it having also failed, the present writ petition was filed.
2. Respondents filed counter-affidavit and rejoinder-affidavit was also filed.
3. Heard Mr. M. S. Negi learned counsel for the petitioners and Mr. S. Dhulia, learned counsel for the respondent No. 4.
4. It has been contended on behalf of the petitioner that afler the civil court recognised the customary right of the villagers of Kimgadi in respect of the disputed forest land and existence of common boundary between the two villages, the villagers of Kimgadi village are entitled to take part in the election of Forest Panchayat in respect of the said forest land. Reliance was placed in this respect on Rules 3 and 6 of Kumaun Panchayat Forest Rules as it then stood a copy whereof has been annexed at Annexure-10 to the writ petition. Learned counsel for the petitioners further contended that as customary right of the petitioners has been accepted by the civil court in respect of the disputed forest land, they are to get benefit from the said land and, therefore, under Rule 6 of the aforesaid Rules they are entitled to take part in election of a Forest Panchayat.
5. Learned counsel for the respondent. No. 4 contended that rights were decided by the concerned authorities long back in the year 1960 and the said finding could not be overruled in future particularly when the civil suit neither did nor could decide any right in respect of Forest Panchayat as such civil suits are barred. Learned counsel for the respondent No. 4 placed much reliance on the definition of sai assi boundary and contended that the villagers of Kimgadi village are not entitled to take part in the election of Forest Panchayat particularly when they have already formed a Forest Panchayat in respect of the said disputed forest land to the extent the same is in possession of the villagers of Kimgadi village.
6. After considering the contentions of the learned counsel for the respective parlies and considering the materials on record. I find that although claim of the present petitioner in respect of election of Forest Panchayal was rejected by the Commissioner Kumaun Division on 25.3.1960 (Annexure-2 to the writ petition) but such order was passed holding that the residents of village Kimgadi do iiol have any right under Rule 6 on the facts then available. Thereafter the villagers of Kimgadi vilfage filed Civil suit wherein findings were arrived at holding that boundary of village Gawani and Kimgadi is common and they have right of Cauchar. Grass, Pasture, Panghat, etc.. In respect of the disputed forest and on such findings, suit was decreed declaring that the suit land lies within the common boundary of village Kimgadi and Gawani and residents of village Kimgadi have right of Gauchar, Grass, Pasture. Panghat, etc. along with the residents of Gawani, Admittedly, the first appeal and the second appeal against the said judgment and decree filed by the residents of village Gawani failed.
7. In view of the aforesaid, the earlier order of the authorities concerned rejecting the claim of the villagers of village Kimgadi has no application and such finding of the civil court having attained finality remained binding on all concerned. Admittedly further, the civil suit did not deal with any right of the villagers of the said two villages in respect of Forest Panchayat. But, aforesaid findings of the civil court have a bearing in respect of right of formation of Forest Panchayat. Relevant Rules known as Kumaun Panchayat Forest Rules have been annexed at Annexure-10 to the writ pefilion and both parties agree that the said rules apply in the present case. The respective parties relied on the said rules and particularly Rules 3, 5 and 6 thereof. The said Rules are as fallows :
"3. Two or more resident hissedars, khaikars, or persons who belong to fhe agricultural or artisan classes, who or whose family have resided for twelve years immediately preceding the application in the village within whose sal assi boundary the land applied for lies, may apply to the Deputy Commissioner for the settlement of a scheme of management of any area lying within the sal assi boundary of their village or villages within which their rights of user have been recognised by judicial decision or in a forest settlement provided thai no land shall be declared to be panchayat forest if one third or more of the resident hissedars and khaikars of the village or villages, within which the area lies, enter objection to the scheme.
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5. Oh the date so fixed or on any subsequent date to which the proceedings may be postponed, the Deputy Commissioner shall visit the locality and shall hear the claims and objections, if any, on the spot and decide the same, if there is any dispute as to the sal assi boundary, he may decide the same in a summary manner and proceed wilh the demarcation of the proposed panchayati forest on the basis of his own decision. Such decision wilt be liable to modification by a competent revenue court, but it shall not be necessary for the Deputy Commissioner to wait for the final decision of a suit before forming a provisional pachayatl forest. He may reject or accept the application in whole or in part, and may prescribe conditions on which the same will be accepted, recording his reasons for the action taken.
6. The Deputy Commissioner shall then call upon the sal assi residents of the area or others who will benefit thereby or both, to assemble at a convenient place and time, and shall call on the persons so assembled to elect a panchayat before him. This shall consist of not less than three nor more than nine panches. When the panches have been duly elected, they shall select a sarpanch from among themselves."
8. Upon consideration of the said Rules, 1 find that Rules 3 and 5 deal with procedure for forming Forest Panchayat. None of the provisions contained in the said two rules indicate anything for which the villagers of Kimgadi village can be denied their right to participate in the election for Forest Panchayat for the disputed forest land. Rule 6 clearly provides that the Deputy Commissioner shall call upon the sol assi residents of the area or others who will benefit thereof or both io assemble at a convenient place and time and shall call on the persons so assembled to elect a panchayat before him. Therefore, persons who can participate in such election are the sal assi residents as also others who will benefit from the concerned area. Findings of the civil courts indicate that village Kimgadi has a common boundary with village Gawani and the villagers of Kimgadi village have some rights along with residents of village Gawani in respect of the disputed forest land. Therefore, the villagers of Kimgadi village are also to benefit from the said area. In view of the aforesaid, 1 do not find any reason as to why the claim of the villagers of Kimgadi village to participate in the election of Forest Panchayat can be denied.
9. The learned counsel for the respondent No. 4 contended that the villagers of Kimgadi village have already formed a Forest Panchayat and, therefore, they cannot take part in the Forest Panchayat to be formed by the villagers of village Gawani. I do not find any force in the said contention as none of the aforesaid rules prohibits petitioners in the case of formation of Forest Panchayat of the disputed land.
10. The contention of the respondent No. 4 that the village Kimgadi does not come within the definition of sal assi boundary is also not acceptable as both the villages have been found to be having a common boundary and there is no material to conclude that village Kimgadi is not within sal assf boundary. On the said question, learned counsel for the respondents placed reliance on the relevant portions of the Manual of the Land Tenures of the Kumaun Division. A portion of the aforesaid indicates that the aspect of sal assi boundary was discussed therein and the relevant portion thereof is as follows :
".....In 1880 (Sambat) Mr. Traill carried out a great so-called "measurement of the whole province and included all land of whatever description within the nominal boundaries of the villages, so that, however, far the forest stretched on any side of a village, the limit of that village extended through the forest until it met the boundary of some other village. There was no actual measurement of the forests and only an estimate of the cultivated blocks. These boundaries are known as the sal assi boundaries. They were merely convenient divisions of the district, as nominal allotment of waste" (Mr. Batten), and conveyed no proprietary right over waste and forest land to the villagers, though in most cases they corresponded with the village customary sphere of grazing and timber rights especially in the more closely cultivated tracks. Though these boundaries, as now understood, are always called Mr. Traills' sal assi boundaries, Mr. Bockett says (Garhwal report, paragraph 8) that they had existed "from time immemorial". They have in the course of time become move and more identified with the customary rights of the villagers, and the settlement papers (e.g., appendix to Chapter I), note the customary grazing lands and sources of fuel and timber either as being within the village boundary, or as in specifically named areas outside the boundary."
11. The aforesaid also shows that sal assi boundary mere recognised customary rights and in the present case with regard to the disputed forest land customary rights of the villagers of Kimgadi village have been declared along with the residents of village Gawani. Therefore, it appears that villagers of both the villages have same right in respect of forming forest panchayat and the claim of the villagers of village Kimgadi cannot be denied.
12. Further contention has been made by the learned counsel for the respondents that while the second appeal was dismissed by this Court in respect of the said judgment of the civil court though customary right was confirmed but it amounted to rejection of the claim of the villagers of village Kimgadi for forming Forest Panchayat. A copy of the said judgment has been annexed as C.A, 1 to the counter-affidavit filed by the respondent No. 4. But, a perusal of the said Judgment indicates that the same was only considering the effect on formation of Forest Panchayat in view of the rights declared by the trial court. The said judgment did not actually decide any right of formation of Forest Panchayat by villagers of any of the said two villages.
13. In view of the aforesaid findings, the writ petition succeeds and is allowed. The impugned orders dated 4.7.1980. 8.1.1986 and 13.11.1986 at Annexures-6. 8 and 9 respectively to the writ petition are hereby quashed and the respondent No. 1 is directed to pass appropriate order in respect of formation of Forest Panchayat in accordance with law. There will be no order as to costs.