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2015 DIGILAW 332 (UTT)

NAGENDRA DUTT JAGURI v. STATE OF UTTARAKHAND

2015-07-01

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : K.M. Joseph, C.J. (Oral) Petitioner, by way of present Public Interest Litigation, seeks the following prayer: “a. Issue a writ, order or direction in the nature of Mandamus directing the respondents to cancel the construction of link road of NIM Band to Tok Pokhari of Village Panchayat Dang for the safety of dense Forest area and safety of life of the villagers and other general public of the area and maintain the ecological system of the area for safety from the natural calamity.: 2. Briefly put, the case of the petitioner is as follows: Petitioner claims to be a public spirited citizen. According to the petitioner about 1600 pine, quercus and rhododendron trees will be cut down in the forest area for only construction of 800 meter road in the area. The proposed link road is in violation of the directions of the Forest and Environment Department of the Government of India and also the directions of the State Government. In fact, Annexure-1 is a judgment passed in another Public Interest Litigation, relating to the very same road. Therein, this Court, inter alia, has held as follows: “4) Learned counsel for the parties, and learned counsel for the intervener agreed that this writ petition may be disposed of summarily, today. 5) Since, learned counsel for the parties state that the necessary clearance from the concerned departments (including the Forest Department) have already been obtained for construction of the road, this Court is of the view that it is not just and proper to interfere with the development activities, undertaken by the State in the interest of the villagers, for whom, the road is being constructed. 6) Therefore, this writ petition is summarily disposed of, with the observation that while constructing the Dang Pokhari road, it would be kept in mind that no more trees shall be cut, except the trees for which, sanction has been given by the department concerned (CLMA No. 4897 of 2009, CLMA No. 5614 of 2013 and CLMA No. 5615 of 2013, also stand disposed of).” 3. It is submitted that Village Dang is a village within the territorial jurisdiction of Tehsil and Block Bhatwari District Uttarkashi. Pokhari is a Tok (sub village) of Village Panchayat Dang, which is situated about 500 meters away in west side from Village Dang. It is submitted that Village Dang is a village within the territorial jurisdiction of Tehsil and Block Bhatwari District Uttarkashi. Pokhari is a Tok (sub village) of Village Panchayat Dang, which is situated about 500 meters away in west side from Village Dang. The population of Village Dang is near about 800 and the population of Tok Pokhari is nearly 230 (30 families). It is stated that in the meeting of the panchayat, it did not demand any particular line or alignment for the proposed road. The distance from NIM band to Tok Pokhari is about one kilometer and this area is densely covered by the green trees of pine, quercus and rhododendron. It is stated that in the year 1980, the poor villagers of Village Dang started a plantation over this forest land and in these 29 years by hard labour and with a great love and affection for the green trees, the villagers have grown this forest, which is to be cut down. It is stated that direction was given for a fresh survey on the basis of various grievances of the villagers. It is further submitted that the Executive Engineer of PWD directed the Assistant Engineer and Junior Engineer to conduct a fresh survey. There were representations given as Annexures -6 and 7. There is a reference to a monthly magazine, inter alia. Photographs are also produced. 4. A counter affidavit has been filed in the matter, wherein, it is, inter alia, stated as follows: The Commissioner, Garhwal Mandal gave financial and administrative approval for construction of various roads / bridges in District Uttarkashi. Item No. 3 mentioned in the letter dated 18.10.2004 was in respect of the construction of road from Village Dang to Tok Pokhri. It is pointed out by the learned Government counsel and also the Executive Engineer, who is, in fact, present in the Court that the actual proposed road will start from NIM and it will touch Dang and then go to Pokhri. It is further stated that the financial approval granted vide Annexure-CA-2 was for the purpose of the survey work and for the forest land. It is further stated that the financial approval granted vide Annexure-CA-2 was for the purpose of the survey work and for the forest land. After obtaining the financial and administrative approval from the Commissioner, Garhwal Mandal, the Superintending Engineer, 13th Circle Public Works Department, Uttarkashi addressed a letter to the Executive Engineer, Provincial Division, Public Works Department Bhatwari, whereby he approved the first alignment on which the construction of the proposed road was to be made (Annexure CA-3 28.01.2005). The Divisional Forest Officer forwarded the proposal for a change of use of the forest land as submitted by PWD to the Government of India for permitting the change of the use of the forest land and to transfer 0.630 hectare of forest land to the Public Works Department for construction of Dang to Tok Pokhari motor road in District Uttarkashi. Permission was granted for transferring 0.630 hectare of forest land to the Public Works Department (Annexure-CA-4). The decision of the Government of India was communicated to the Government of Uttarakhand vide Annexure-CA-5. There is a reference to Annexure-1 judgment. It is further stated that only 469 trees will be cut down, for which sanction has been granted by the Central Government by granting permission for transferring 0.630 hectare of the forest land to PWD. A certificate has also been provided that the plantation in the double area which is to be transferred, will be made by the forest department, for which the amount is also deposited by the Public Works Department. CA-7 is the certificate of compensatory plantation, which mentions that against 469 trees, which will be cut, around 2000 trees will be planted. 5. No doubt, it is true that there is an order, by which, the President of the Local Bar was asked to inspect and he has submitted a report that more trees than mentioned in the counter affidavit will be cut. Another counter affidavit is filed by the Assistant Engineer, P.W.D., as authorized by respondent nos. 5 and 6. Therein, it is stated that the alignment suggested by the petitioner from Guddugardh to Village Pokhari was considered, but the same was not finalized due to objections and hence, the same was rejected. Another counter affidavit is filed by the Assistant Engineer, P.W.D., as authorized by respondent nos. 5 and 6. Therein, it is stated that the alignment suggested by the petitioner from Guddugardh to Village Pokhari was considered, but the same was not finalized due to objections and hence, the same was rejected. It is submitted that on other optional site Manera on NH 108, there is heavy land slide zone near Manera which will highly disturb the natural slope of nearby hill and disturbance can pose devastating situation as such this alignment is also ruled out. It is stated that CA-3 is a report of the geologist and it is stated that the alignment is finalized only after the approval of the geologist. 6. To the report of the President of the Association, an affidavit has been filed, on the direction of this Court, saying that about 750-800 trees will be cut down. 7. We heard the learned counsel for the petitioner and the learned Government Pleader. 8. The concern of the learned counsel for the petitioner appears to be cutting of the forest trees. He would also refer to the map produced at Page 74 to contend that there is another road available from Pokhari and there is no need to cut so many forest trees in such circumstances. 9. Per contra, the case of the learned Government pleader is that it is necessary to connect Pokhari with NIM, which has an important position in Uttarkashi and the road will commence from NIM and after touching Dang will go to Pokhari. He also would submit that 469 trees alone will be cut or rather the trees allowed to be cut will be cut. 10. We must, first of all, notice that this is a case, where there was another public interest litigation. We have already referred to the manner in which it was disposed of. In other words, this Court permitted the construction of the road to go on subject to the condition that minimum number of trees will be cut. This is yet another public interest litigation in regard to the construction of the very same road. We have already referred to the manner in which it was disposed of. In other words, this Court permitted the construction of the road to go on subject to the condition that minimum number of trees will be cut. This is yet another public interest litigation in regard to the construction of the very same road. That apart, we must remind ourselves of the jurisdiction of the Court, even in public interest litigation, matters of the nature, which are projected before this Court as to when a road is to be constructed, primarily, the report of the competent authority, who is entrusted with the task of planning, estimating, designing or aligning the road, these are all matters which pertain to the executive branch of the Government. The Court would come out only if a palpable case is made out. No doubt, in the context of this case, environmental degradation undoubtedly is projected. But, the Court should also bear in mind the theory of sustainable development and strike a balance between the needs of society as may be considered by the competent authorities and also the need to protect the environment. It cannot be a lopsided or extreme one sided view. In the facts of this case, both for the reasons that the matter has received attention of this Court in another public interest litigation and also for the reason that the petitioner has not made out a case otherwise, the writ petition is found to be without merit and it stands dismissed. No order as to costs.