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Himachal Pradesh High Court · body

2009 DIGILAW 746 (HP)

KULDIP SINGH CHAUHAN v. BALBIR THAKUR

2009-08-28

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.-The present petition has been preferred for initiating action against respondents No. 1 to 3 for the violation of the directions issued by this Court in CWP No. 1358/2001. 2. The precise case of the petitioner is that respondents No.1 to 3 are instrumental in construction of road in Sharoli Jungle without seeking the mandatory permission under the provisions of the Forest (Conservation) Act, 1980 and also for felling of trees despite the directions issued by this Court on 29.5.2007 whereby green felling was prohibited in the entire State of Himachal Pradesh. Respondent No.1 has filed the reply. He has denied his involvement in illicit felling of trees in Sharoli Jundge (Mandal Beat). Respondent No.2 has also filed reply to the petition. He has admitted in his reply that certain people of surrounding villages, including respondent No.1 started construction of a road in Mandal Beat and as many as 29 kail saplings were damaged. Accordingly, the damage report was prepared and that a sum of Rs. 23,925/- was recovered towards damages. Accordingly, the JCB, which was in possession of the Forest Department, was released after the receipt of fine and compensation. Respondent No.3 also filed reply. According to him, the tenders were floated on 10.4.2008 for the work in question i.e. C/O link road from Bakan Nallah to village Kohali. These were to be opened on 25.5.2008. However, the same stood cancelled due to technical reasons on 17.5.2008. The petitioner has also filed supplementary affidavit whereby he has given the details of five link roads, which were constructed without the permission under the Forest (Conservation) Act, 1980. The ‘no objection certificates’ as per the contents of the supplementary affidavit had been issued by the Range Forest Officer, Sarswati Nagar for construction of these roads. The ‘no objection certificates’ are marked as Annexures PC-1 to PC-5. The petitioner has also placed on record the photographs reflecting the damage caused to the forest wealth while undertaking the construction of the roads in question. The petitioner has reiterated in the rejoinder filed to the reply filed by respondent No.1 that the road was constructed in Panchayat, Mandal. According to the contents of rejoinder, the illicit felling has taken place in forest Sharoli and Dulu. 3. The petitioner has reiterated in the rejoinder filed to the reply filed by respondent No.1 that the road was constructed in Panchayat, Mandal. According to the contents of rejoinder, the illicit felling has taken place in forest Sharoli and Dulu. 3. What emerges from the pleadings of the parties is that the road in question was constructed despite the mandatory directions issued by this Court from time to time in CWP No. 1358/2001. An LPA was preferred against the judgment of this Court dated 23.11.2007. The Division Bench of this Court upheld the judgment except that respondent-State and the Corporation were permitted to remove fallen and diseased trees. Respondent No.1 though has denied his involvement in the illicit felling of trees, but it is evident from the damage report placed on record that he was involved in illicit felling of trees and he has paid the damages amounting to Rs. 23,925/-. Respondent No.2 has also admitted in the reply that respondent No.1 along with other persons was involved in illicit felling of trees. Respondent No.1 is the Pradhan of the Gram Panchayat, Mandal. Respondent No.2 is the custodian of the forest wealth in his area. He was supposed to be very prompt to take action against the persons who were involved in felling of trees. In the supplementary affidavit filed by the Additional Chief Secretary (Forest), it has come that respondent No.2 was not involved in any manner since his subordinates have issued the ‘no objection certificates’. According to the contents of the supplementary affidavit, the officers, namely Pratap Singh, Jia Lal, Hiteshwar and Surinder Kumar were involved in issuing the ‘no objection certificates’ and against them action has been initiated. 4. The Court after taking into consideration the material placed on record has added the Principal Secretary (PW) and Principal Secretary (Forests) to the Government of Himachal Pradesh vide order dated 10.7.2009. 4. The Court after taking into consideration the material placed on record has added the Principal Secretary (PW) and Principal Secretary (Forests) to the Government of Himachal Pradesh vide order dated 10.7.2009. The Court had issued the following directions to the newly added respondents: (i) Whether necessary permission under the Forest (conservation) Act, 1980 was ever sought and granted by the authorities while initiating the construction work of the link roads mentioned in the supplementary affidavit; (ii) In case no permission was ever granted by the authorities under the Forest (Conservation) Act, 1980, why the Forest Range Officer, Sarswati Nagar has issued ‘no objection certificate’ and what action, including disciplinary action has been taken against him; (iii) Whether the construction has been carried of the roads in question through the agency of Public Works Department or by the contractor. In case the construction has been carried by the agency of the Public Works Department, the names of the officers, who have undertaken the construction of the link roads without the permission under the Forest (Conservation) Act, 1980 are to be disclosed giving their rank as well. In case the construction has been undertaken by the contractor(s) his/their name(s) be disclosed; (iv) The Principal Secretary (PW) and Principal Secretary (Forest) shall give the details of all the roads and link roads which have been constructed through the State of Himachal Pradesh without the necessary permission contemplated under the Forest (Conservation) Act, 1980; (v) The Principal Secretary (Forest) is further directed to explain the manner in which the trees, which have been illicitly felled while undertaking the construction of the road, have been disposed of.” 5. Respondents No.4 and 5 filed supplementary affidavit as directed by this Court vide orders dated 10.7.2009 and 28.7.2009. 6. The Principal Secretary (PW) has undertaken on behalf of the State of Government by way of this affidavit that the Public Works Department/State shall not undertake construction of any road in violation of the Forest (Conservation) Act, 1980 and the action shall be initiated as per law against the defaulters/erring officers/officials, who have constructed the roads in violation of the Forest (Conservation) Act, 1980. It will be apt to reproduce paras 4 and 5 of the affidavit filed by the Principal Secretary (PW) on 28.7.2009: “4. It will be apt to reproduce paras 4 and 5 of the affidavit filed by the Principal Secretary (PW) on 28.7.2009: “4. That as far as the position with regard to necessary permission contemplated under the Forest (Conservation) Act, 1980 is concerned, the deponent on behalf of Public Works Department/State undertakes that henceforth no road shall be constructed by the Public Works Department in violation of Forest (Conservation) Act, 1980. 5. That with regard to violation if any found to have been committed of Forest (Conservation) Act, 1980 while constructing public roads by the Public Works Department, the Deponent undertakes that action as provided under the law shall be initiated against the defaulting/erring officers/officials who have constructed the said road(s) in violation of Forest (Conservation) Act.” 7. Respondent No.5 also filed supplementary affidavit on 29.7.2009. It has been admitted by respondent No.5 that no permission under the Forest (Conservation) Act, 1980 was sought for the construction of the link roads mentioned in the affidavit filed by the petitioner. It has come in this affidavit that the Deputy Ranger, who was holding the charge of Sarswati Nagar and Sh. Jai Prakash, Deputy Ranger, Sarachali Block have issued ‘no objection certificates’ at their own level without the information of the Divisional Forest Officer for the construction of the roads mentioned in the supplementary affidavit of the petitioner. It has come in the affidavit that 80 roads/link roads were constructed throughout the State of Himachal Pradesh without necessary permission under the Forest (Conservation) Act, 1980. Out of these 80 roads, no permission has been sought in respect of 67 roads/link roads whereas 13 roads forest land diversion of which was either under process or had been accorded in principal approval by the Government of India had been constructed without waiting final approval of the proposal from the Government of India under the Forest (Conservation) Act, 1980. The Additional Chief Secretary (Forests) filed supplementary affidavit on the basis of directions issued on 29.7.2009. In this affidavit, the number of roads constructed without the permission has gone up from 80 to 116. The Principal Secretary (PW) also filed the affidavit in sequel to order dated 29.7.2009. In his affidavit, it is stated that 47 roads alleged to have been constructed by the Himachal Pradesh Public Works Department in violation of the Forest (Conservation) Act, 1980. The Principal Secretary (PW) also filed the affidavit in sequel to order dated 29.7.2009. In his affidavit, it is stated that 47 roads alleged to have been constructed by the Himachal Pradesh Public Works Department in violation of the Forest (Conservation) Act, 1980. The deponent had sought for additional four weeks time to supply the information. The Principal Secretary (PW) filed the affidavit on 11.8.2009. In this affidavit, the numbers have increased to 75 roads, which were constructed by the Public Works Department. 8. The Court issued detailed directions to the respondents i.e. respondents No.4 and 5 on 6.8.2009 to supply the complete information of the roads which were constructed in violation of the Forest (Conservation) Act, 1980 and the proposed action against the defaulters. The Additional Chief Secretary (Forests) filed an affidavit on 11.8.2009. It was for the first time that in this affidavit it has come that the Deputy Commissioner has been requested to initiate the action against the Patwaris, who had issued ‘no objection certificates’ in violation of law. The matter was also referred to the Principal Secretary (RD) to the Government of Himachal Pradesh for initiating action against the Block Development Officer, Jubbal for construction of roads undertaken by him in violation of the Forest (Conservation) Act, 1980. 9. A bare perusal of the affidavit filed by the Additional Chief Secretary (Forests) dated 16.8.2009 reveals that 98 roads have been constructed in the forest areas without seeking the permission under the Forest (Conservation) Act, 1980. It is a startling figure. The details of these roads are placed on record vide Annexure A-I with the supplementary affidavit dated 16.8.2009. Similarly, the construction of the roads has been undertaken by the authorities in which forest land diversion proposal was either under process or principal approval has been accorded but the roads were constructed without waiting for the final approval from the Government of India. This information has been placed on record vide Annexure A-II. The perusal of this Annexure A-II reveals that in the process of construction of these 18 roads, in all, 1513 trees have been felled by the authorities without the prior permission of the competent authorities under the Forest (Conservation) Act, 1980. 10. This information has been placed on record vide Annexure A-II. The perusal of this Annexure A-II reveals that in the process of construction of these 18 roads, in all, 1513 trees have been felled by the authorities without the prior permission of the competent authorities under the Forest (Conservation) Act, 1980. 10. It is evident from the information supplied by respondent No.4 and 5 that 116 roads have been constructed in the State of Himachal Pradesh without seeking mandatory permission under the Forest (Conservation) Act, 1980. Out of them, 75 roads have been constructed by the Himachal Pradesh Public Works Department under the supervision of the Block Development Officers after sanctioning of the amounts by the respective Deputy Commissioners. The Pradhans of Gram Panchayats like respondent No.1 are also instrumental in construction of roads in negation of rule of law. It was imperative for the Deputy Commissioners and other agencies of the State to ensure that no road is constructed without permission from the Government of India under the Forest (Conservation) Act, 1980. The officers/officials of the Forests Department, Himachal Public Works Department and the Contractors to whom the work was assigned are guilty of undertaking the construction of roads despite the mandatory directions issued by this Court from time to time and also in violation of the Forest (Conservation) Act, 1980. Respondent No.1, as discussed hereinabove, has indulged in illicit felling of trees which resulted in issuance of damage report. As sum of Rs. 23,925/- stood recovered from him. Respondent No.2 was not involved directly in granting the ‘no objection certificate’ as per the supplementary affidavit filed by the Principal Secretary (Forests). The ‘no objection certificates’ have been issued by the persons, who are not authorized to do so as per the contents of the supplementary affidavit filed by respondents No. 4 and 5 by the Patwaris, Deputy Rangers, Forest Guards etc. The stern action is to be taken against those persons, who have failed to abide the directions issued by this Court punctually and also violated the Forest (Conservation) Act, 1980. 11. The Principal Secretary (PW) has in a very bold manner undertaken to take action against the defaulting officers/officials. He has also undertaken that the State Government and Public Works Department shall not construct any road in violation of the Forest (Conservation) Act, 1980. 11. The Principal Secretary (PW) has in a very bold manner undertaken to take action against the defaulting officers/officials. He has also undertaken that the State Government and Public Works Department shall not construct any road in violation of the Forest (Conservation) Act, 1980. The action has also been initiated by the Forests Department by punishing officers involved in illicit felling of trees in Sharoli and Dulu forest areas. In this case the action is also to be taken against the Block Development Officers, who have undertaken the construction of the roads on the basis of various schemes floated by the Centre/State Governments after the money was sanctioned by the respective Deputy Commissioners in violation of the mandatory provisions of the Forest (Conservation) Act, 1980. The respondents have supplied the information in piecemeal to the State Government after the issuance of repeated directions. Since the information as directed was not forthcoming, the Central Bureau of Investigation was arrayed as respondent No.7. 12. The Parliament has enacted the Act called “the Forest (Conservation) Act, 1980. Section 2 thereof imposes restrictions on the de-reservation of forests or use of forest land for non-forest purposes. Section 3-B deals with offences by authorities and Government Departments. The Central Government has also framed the rules called “the Forest (Conservation) Act, 2003. Rule 9 thereof provides the mechanism for proceedings against persons guilty of offences under the Act. 13. Accordingly, in view of the observations made hereinabove, respondent No.1 is found guilty of committing contempt of this Court for willful disobedience of the orders passed by this Court in CWP No.1358/2001. Respondent No.2 is absolved/exonerated. Respondent No.3 knowing fully well being a Government Officer that there is a ban on green felling has invited tenders though the same were subsequently cancelled. However, he is directed to be careful in future. 14. Respondent No.1 is the Pradhan of Gram Panchayat, Mandal. He has already deposited the fine imposed amounting to Rs. 23,925/-. Respondent No.1 has been held guilty for committing contempt of the orders passed by this Court in CWP No. 1358/2001. However, instead of sentencing or directing him to pay a fine, the interest of justice will suffice if he is directed to plant at least 500 plants of Deodar on the land to be provided by the Forest Department. 23,925/-. Respondent No.1 has been held guilty for committing contempt of the orders passed by this Court in CWP No. 1358/2001. However, instead of sentencing or directing him to pay a fine, the interest of justice will suffice if he is directed to plant at least 500 plants of Deodar on the land to be provided by the Forest Department. The nourishment of these plants shall be the responsibility of respondent No.1 under the supervision of the Divisional Forest Officer concerned. He shall look after the plants for a period of five years. Thereafter the up-keep of the trees planted by respondent No.1 being Pradhan of Gram Panchayat, Mandal shall be taken over by the Divisional Forest Officer concerned of the area. This will also ensure the participation of the local people in protecting, conserving and preserving the forest wealth of the State of Himachal Pradesh. 15. In view of the specific directions issued to respondent No.1 to plant 500 trees of Deodar, the conviction of respondent No.1 under the contempt jurisdiction shall not in any manner affect the status of respondent No.1 as Pradhan of the Gram Panchayat. It is clarified that no separate proceedings shall be initiated against him. 16. The Court takes judicial notice of the fact that in the process of seeking ‘no objection certificates’ from the agencies constituted under the Forest (Conservation) Act, 1980 is tardy and time consuming. Consequently, respondent No.6 is directed to ensure that as and when the applications for ‘no objection certificate’ are received, the needful be done within a reasonable period so that there is no delay in undertaking the construction of projects through forests areas. The delay in granting the permission escalates the cost of construction and the burden passes on to the tax-payers. 17. The agencies while issuing ‘no objection certificate’ shall also ensure that at least the site is visited once to ensure minimum damage to the forest wealth. They should not merely rely upon the report furnished by the State agencies. 18. Now, the Court has to issue necessary directions to respondent-State to take suitable action against the persons, whose details find mention in the Annexures annexed with the supplementary affidavits filed by respondents No.4 and 5. The persons mentioned in these Annexures resumed the construction of roads without prior permission of the Central Government under the Forest (Conservation) Act, 1980. 18. Now, the Court has to issue necessary directions to respondent-State to take suitable action against the persons, whose details find mention in the Annexures annexed with the supplementary affidavits filed by respondents No.4 and 5. The persons mentioned in these Annexures resumed the construction of roads without prior permission of the Central Government under the Forest (Conservation) Act, 1980. The Principal Secretary (PW) has also undertaken to take disciplinary action against the persons involved in the construction of roads in violation of law. The Additional Chief Secretary (Forests) to the Government of Himachal Pradesh has also suspended three Officers of the Department. The necessary instructions have been issued to the Deputy Commissioner to take action against the Block Development Officer, Jubbal. The directions have also been issued to the Deputy Commissioners to initiate proceedings against the Patwaris, who have issued ‘no objection certificates’ at their own level. 19. Mr. Sandeep Sharma, learned Assistant Solicitor General of India on the previous date of hearing has assured the Court that the action shall be taken against the defaulters who have violated the mandatory provisions of the Forest (Conservation) Act, 1980. 20. It is evident from the contents of Annexure R-3 (Page 124) that the Forest Department has been compounding the matters in violation of section 68 of the Indian Forest Act. The necessary notification for compounding has to be issued by the State Government and the same has to be published in the Gazette. There is no deterrence in the prevailing instructions issued by the State Government. The stern action is required to be taken against the persons, who are involved in illicit felling of trees. The action should be taken departmentally and the prosecution should also be launched against the defaulters. 21. Accordingly, the following directions are issued to the respondent-State: (i) The Himachal Pradesh Public Works Department/State shall not undertake the construction of any road in the forest areas without the mandatory permission under the Forest (Conservation) Act, 1980 as undertaken by the Principal Secretary (PW) in his affidavit; (ii) Stern disciplinary action be taken against the persons as per the undertaking given by the Principal Secretary (PW) against the officers/officials whose details are given in the Annexures filed with the supplementary affidavits while constructing roads in violation of the Forest (Conservation) Act, 1980. The disciplinary proceedings shall be commenced within a period of six weeks and the same shall be concluded as far as possible within a period of one year; (iii) The Additional Chief Secretary (Forests) is also directed to take suitable disciplinary action against the persons, who are involved in granting ‘no objection certificates’ in violation of the Forest (Conservation) Act, 1980 while undertaking the construction of 166 roads. The disciplinary proceedings shall be commenced within a period of six weeks and the same shall be concluded as far as possible within a period of one year; (iv) The Deputy Commissioners in the State of Himachal Pradesh are directed to ensure that the Block Development Officers/Pradhan/Patwaris, who are instrumental in the construction of roads in violation of Forest (Conservation) Act, 1980 are dealt with departmentally. The necessary charge-sheet etc. shall be issued within a period of six weeks and the inquiry be completed as far as possible within a period of one year; (v) Since admittedly 116 roads have been constructed in violation of the Forest (Conservation) Act, 1980, the action under this Act shall also be taken against the persons by the competent authorities prescribed under the Forest (Conservation) Rules, 2003. The action shall be initiated by the prescribed authorities within a period of one month from today. The details of the persons against whom the action is to be taken are provided in the Annexures filed with the supplementary affidavits of respondents No.4 and 5. (vi) The respondent-State is suggested to issue necessary notification under section 68 of the Indian Forest Act dealing with the cases of illicit felling. The Court hopes and trusts that strong action will be taken against the persons, who are involved in the illicit felling of trees. (vii) In order to ensure and supervise that the directions issued are complied with punctually, a committee of following two officers comprising of Mr. P.C. Kapoor, Principal Secretary (PW) Government of Himachal Pradesh and Mr. Upasak, Addl. S.P., Central Bureau of Investigation is constituted. The committee shall file the status report after every three months disclosing the latest status of the disciplinary proceedings initiated against the defaulters for a period of one year; In view of the aforesaid discussion, the petition is disposed of. The pending application(s), if any, also stand disposed. The notices issued to respondents No. 1 to 3 stand discharged. No costs.