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2009 DIGILAW 93 (HP)

DHUMIYA-GANGA SANGHARASH SAMITI v. JHUNJUNWALA

2009-03-03

R.B.MISRA, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, Judge (Oral):-Heard and gone through the record. 2. Respondents are alleged to have committed civil contempt of this Court, by disobeying order dated 11th September, 2007, operative part of which reads as under: “In view of the aforesaid facts, we feel that a prima-facie case is made out for stopping further construction activity at site in so far as the project being undertaken by respondent No.7 is concerned. We accordingly direct that until further orders from this Court, further construction and other activities at the Project site by respondent No.7 shall stay.” 3. When the aforesaid order was passed in CWP No.1421 of 2007, present respondents were not party. They were impleaded as party to the said writ petition, only on 18th September, 2007, on their own asking, after they came to know about the passing of the aforesaid order, dated 11th September, 2009. 4. Respondents then approached this Court for the modification of the aforesaid order. This Court on 26th September, 2007, passed an order constituting a Committee, for inspection of the site and authorizing the Deputy Commissioner, the convener of the said Committee, to pass appropriate orders, with regard to the resumption of the work, based on the report of the Committee. Relevant portion of the order, dated 26th September, 2007, reads as follows: “To Achieve the aforesaid, we hereby direct that a Committee comprising of the following shall visit the project site, both from Allian side as well as Duhangan side. It shall visit first the Allian side and then the Duhangan side. The inspection from the Allian side shall be completed first and thereafter the Duhangan side. The Committee’s composition is as under:- (1) Deputy Commissioner, Kullu, (2) Conservator of Forests, Kullu, (3) Chief Engineer, HP PWD, Mandi, (4) An Officer of the rank of S.E. or Chief Engineer from HPSEB, conversant with the affairs relating to hydel project, to be nominated by the Chairman for this purpose. (5) Senior Environment Officer, Department of Environment and Scientific Technology, Government of Himachal Pradesh, Shimla. (6) Senior Environment Planner, Pollution Control Board, Shimla. We direct the Charman, HPSEB to ensure that the Officer representing HPSEB, well conversant with the hydroelectric projects, is nominated latest by 12:00 noon tomorrow. Mr. J.K. Verma, has undertaken to communicate this direction to him by 4:00 PM today. (6) Senior Environment Planner, Pollution Control Board, Shimla. We direct the Charman, HPSEB to ensure that the Officer representing HPSEB, well conversant with the hydroelectric projects, is nominated latest by 12:00 noon tomorrow. Mr. J.K. Verma, has undertaken to communicate this direction to him by 4:00 PM today. The Deputy Commissioner, Kullu, shall be the convener/coordinator of this Committee and shall be responsible to call, organize and conduct the meetins as well as to organize the inspections/ visits of the sites. The inspections/visits of the project sites shall take place on Friday, 28th September, 2007 and endeavour shall be made to complete the same that day itself. If, however, it is not possible to do so, it may resume the next day, i.e. 29th September, 2007 and day after etc. till it is completed. The Committee shall ensure that respondent No.8 has complied with all the directions issued by the State Government from time to time except the direction with respect to the construction and road cutting work beyond RD 5200-7000 in Duhangan site. We are told that work on this site is in progress. We are saying so because Mrs. Dua states before us that respondent No.8 undertakes to complete this work also within one month from today. Upon inspection, if the Committee finds that compliance has been made by respondent No.8 except with respect to the aforesaid item of work, the Deputy Commissioner, Kullu, shall after recording the minutes of the meeting of the Committee issue a communication to respondent No.8 to resume work, first from Allian site and thereafter from Duhangan site. The entire inspection work, the recording of minutes and the issuance of the aforesaid communication, depending upon the compliance by respondent No.8 shall be completed before 4th October, 2007. On the next date, the report of the Committee alongwith the record of the proceedings shall be filed in the Court. The petitioner as well as respondent No.8 shall be at liberty to make their presentations to this Committee during the course of its visits/ inspections so as to put forth before the Committee, their points of view.” 5. The Committee constituted, in terms of the aforesaid order, dated 26th September, 2007, visited the site on 28th and 29th September, 2007 and finalized the report on 30th September, 2007. The Committee constituted, in terms of the aforesaid order, dated 26th September, 2007, visited the site on 28th and 29th September, 2007 and finalized the report on 30th September, 2007. In terms of the report of the Committee, Deputy Commissioner passed an order on 1st October, 2007, Annexure P-8, relevant portion of which is reproduced below: “ALLIAN SIDE (a) The work on Allian side can be resumed from the date of issuance of this letter. (b) The compliance with respect to the environmental clearance for additional forest land at Bhujdhar, Tukra No.6, measuring 0.87 hectare pending with the Central Empowered Committee shall be obtained by you within the specified period i.e. till 29th November, 2007; and report to the concerned authorities. DUHANGAN SIDE (a) On Duhangan Side, the Committee observed that the compliance by your Company to the directions issued by the State Government from time to time, is not satisfactory from RD 5200 to RD 7000. The restoration work from RD 5200 to RD 7000 mainly stabilisation of slopes and development of muck dumping site at Khanoon, has not been completed. These works are required to be undertaken before resumption of works on Duhangan side could be allowed. Therefore, before allowing resumption of works on the Duhangan side, you are directed to complete the restoration works from RD 5200 to RD 7000 and also complete the requisite work for the development of dumping site and pasture at Khanoon. These works should be completed within a period of one month from the date of this letter as sought by you from the Committee. However, work upto RD 5200 can be resumed from the date of issuance of this letter.” 6. After the issuance of the aforesaid order, dated 1st October, 2007 (Annexure P8), by the Deputy Commissioner, respondents are alleged to have constructed road between RD 7000 and RD 13000, without having been allowed to do so by the Deputy Commissioner or even without approaching the Deputy Commissioner to construct the road beyond RD 7000. This way they are alleged to have committed contempt of this Court and disobeyed the order dated 11th September, 2007, read with order dated 26th September, 2007 and the order dated 1st October, 2007, of Deputy Commissioner, based on the Committee’s report. 7. Respondents deny having committed any contempt. This way they are alleged to have committed contempt of this Court and disobeyed the order dated 11th September, 2007, read with order dated 26th September, 2007 and the order dated 1st October, 2007, of Deputy Commissioner, based on the Committee’s report. 7. Respondents deny having committed any contempt. According to them, this Court was approached by the writ petitioners alleging that they (respondents) had not been complying with the directions/instructions, pertaining to protection of environment, issued by the government, while constructing/restoring the road between RD 5200 and RD 7000. According to them, the order, dated 11th September, 2007, and the subsequent order dated 26th September, 2007, of this Court, as also the order of Deputy Commissioner, dated 1st October, 2007, are not with regard to the road beyond RD 7000 and that the said orders pertain only to the portion of the road between RD 5200 and RD 7000 and, hence, there is no question of disobedience of order of this Court, dated 11th September, 2007, read with the aforesaid order dated 26th September, 2007, and Deputy Commissioner’s order dated 1st October, 2007. 8. We find a great deal of force in the submissions made on behalf of the respondents that the order of this Court, which has allegedly been disobeyed, does not pertain to the construction/restoration of road beyond RD 7000. There is an order issued by the Government of Himachal Pradesh, Department of Environment & Scientific Technologies, Annexure R-9. The order is dated 31st August, 2007, or say a date prior to the date of issuance of this Court’s order dated 11th September, 2007, which is alleged to have been disobeyed. Now, as per this order, Annexure R-9, the instructions, which were being issued to the executors of the project, were only with respect to portion of the road between RD 5200 and RD 7000 and two curves at RD 3800 and RD 4000. It was only in respect of this portion of the road and the two curves that the writ petitioners alleged that directions/instructions of the government were not being observed and provisions of Environment Protection Act were being violated. 9. It was only in respect of this portion of the road and the two curves that the writ petitioners alleged that directions/instructions of the government were not being observed and provisions of Environment Protection Act were being violated. 9. Though order dated 11th September, 2007, passed by this Court itself does not make any reference whether it pertained to the road between RD 5200 and RD 7000 or it covered some other portions of the road also, but order dated 26th September, 2007, makes the things clear. By this order, the Committee was inter alia directed to ensure that the respondents had complied with all the directions issued by the State Government from time to time, except the direction with respect to the constructions and road cutting work beyond RD 5200-RD 7000 and Dohangan side. That means, the scope of the Committee was to see whether there was proper compliance of the directions issued by the State Government from time to time, with respect to the road between RD 5200 and RD 7000 only and not the road beyond RD 7000. The Committee also noticed this fact in its report Annexure P-4, the relevant portion of which reads as follows: “TERMS OF REFENCE OF THE COMMITTEE As per the orders of Hon’ble High Court the Committee had to conduct the inspection of project site of M/s. AD Hydro Power Limited, Prini, Manali HPL and submit report on the following items: The Committee shall ensure that respondent No.8 i.e. M/s. AD Hydro Power Project, Manali has complied with all the directions issued by the State Government from time to time except the directions with respect to the work after 7000 RD in Duhangan site. Upon inspection, if Committee finds that compliance has been made by respondent No.8 i.e. M/s. ADPHL except w.r.t. aforesaid items of work, the Deputy Commissioner Kullu shall after recording the minutes of the Committee issue a communication to Respondent No.8 to resume work first from Allian side and thereafter from Duhangan side. The entire inspection work, the recording of minutes and issuance of the aforesaid communication i.e. communication to the respondent no.8, depending upon the compliance by the respondent no.8, shall be completed before 4th October, 2007. On the next date, the report of the Committee alongwith the record of the proceedings shall be filed in the Hon’ble Court. The entire inspection work, the recording of minutes and issuance of the aforesaid communication i.e. communication to the respondent no.8, depending upon the compliance by the respondent no.8, shall be completed before 4th October, 2007. On the next date, the report of the Committee alongwith the record of the proceedings shall be filed in the Hon’ble Court. The petitioner as well as respondent No.8 shall be at liberty to make their presentations to this Committee during the course of its visits/inspections so as to put forth before the Committee their point of view.” The Committee noticed this fact in its report, Annexure P-4, also, while rejecting the request of the petitioners to the Committee to visit the project site beyond RD 7000. The Committee observed that the scope of inspection was limited to the portion of the road between RD 5200 and 7000. 10. From the abovestated position, it is clear that vide this Court order dated 26th September, 2007, the Deputy Commissioner, who was convener of the Committee, was supposed to have passed the instructions regarding the resumption of work, based on the report of the Committee, only with respect to the portion of road between RD 5200 and RD 7000. If that is so, Deputy Commissioner’s order dated 1st October, 2007, to the extent it says that the resumption of work on Duhangan side of the road would be allowed only after the restoration work from RD 5200 to RD 7000 is complete, is beyond the scope of the authority given to him by this Court, vide order dated 26th September, 2007. Therefore, the respondents cannot be said to have disobeyed this Court’s order dated 11th September, 2007, read with subsequent order dated 26th September, 2007 and the order dated 1st October, 2007, Annexure P-8, of Deputy Commissioner, Kullu. Consequently, the contempt petition is dismissed. In view of the disposal of the main petition, pending applications, if any, also stand disposed of.