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2018 DIGILAW 113 (UTT)

Manoj Kumar v. State of Uttarakhand

2018-03-19

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT : K.M. JOSEPH, J. This is a Public Interest Litigation. The reliefs sought in the Writ Petition are as follows :- “(I) Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities to stop the construction of the house colony in the fruit belt of village Jassaganja. (II) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 5, 6 & 7 directing them to take the legal action against the responsible persons under the provisions of Uttar Pradesh Promotion & Protection of Fruit Trees (Regulation of Harmful Establishments & Housing Schemes) Act, 1985.” 2. Briefly put, the case of the petitioner is as follows:- 3. The State of Uttarakhand vide its notification dated 23.05.2002 had declared certain villages as fruit belt area while exercising its power under Sub-clauses (2) & (3) of Section 3 of Uttar Pradesh Promotion & Protection of Fruit Trees (Regulation of Harmful Establishment and Housing Schemes) Act, 1985 (hereinafter referred to as ‘the Act’). The Village Jassaganja was included under the area of Fruit Belt on 18.09.2002. It is the case of the petitioner, inter alia, that one Virendra Singh sold the property to the 12th respondent. The 12th respondent started felling fruit trees standing thereon for the purposes of construction of Housing Colony. The petitioner made complaints to the Divisional Forest Officer. He sought information under the Right to Information Act from the Divisional Forest Officer, Ramnagar as to whether any permission was granted by the Forest Department. The villagers of Village Jassaganja alongwith their Gram Pradhan had sent a letter to the Chief Minister complaining felling of the fruit trees in the declared area of fruit belt. The Hon’ble Minister of Agriculture, Horticulture, Veterinary and Fisheries intimated the petitioner that directions have been issued to the Chief Forest Conservator, Kumaon to take necessary action. The petitioner also asked some information from the Office of Assistant Collector, Ramnagar and Horticulture Department regarding the illegal felling of fruit trees. The Incharge, Horticulture Department informed the petitioner that Village Jassagnaja had been declared as fruit belt area on 18.09.2002 and the permission for felling of trees in this belt could only be given by the Forest Department and not by Horticulture Department. The Incharge, Horticulture Department informed the petitioner that Village Jassagnaja had been declared as fruit belt area on 18.09.2002 and the permission for felling of trees in this belt could only be given by the Forest Department and not by Horticulture Department. There is inaction on the part of the respondents authorities to restrain the illegal act of respondent No. 12 and, on the said basis, the Writ Petition has been filed. 4. The 4th respondent, namely, Divisional Forest Officer, Tarai West Forest Division Ramnagar, District Nainital has filed a counter affidavit. He has disowned administrative control over the Agricultural land, in question, and stated that it is the Revenue Department, who looks after the agricultural land and maintains its records. 5. A counter affidavit is filed by respondent No. 2, Additional Secretary, Department of Horticulture, Government of Uttarakhand, Dehradun. It is stated that 12th respondent has not taken any permission from the Horticulture Department for felling of trees in the fruit belt area. No recommendation for felling of trees in fruit belt area of Village Jassaganja situated in the Khasra numbers, in question, has been made by the Horticulture Department to the Forest Department. It is also stated that under the Act, Horticulture Department has no authority to proceed under the Act. The duty of Horticulture Department is only to maintain the records of fruit trees. There is a reference to CA-1, joint inspection report dated 13.09.2011. It is mentioned that no permission has been granted by the Department of Horticulture for felling of trees in the fruit belt area. It is also stated that since the Horticulture Department has no control over the fruit belt area, as such, no action under the Act could be taken by the Department. 6. In the counter affidavit filed by respondent No. 7 on behalf of respondent Nos. 5 and 6 also, it is inter alia stated that information was received in the Office of the Prescribed Authority regarding illegal construction of housing colony being made by respondent No.12. The report of the Junior Engineer dated 4th December, 2010, showed that on a spot examination, he found that illegal colony by the name Radhey Bihar Colony is being constructed on 15.50 acres of land and 77 plots have been demarcated on the plot. CA-2 purports to be the report submitted by the Junior Engineer. The report of the Junior Engineer dated 4th December, 2010, showed that on a spot examination, he found that illegal colony by the name Radhey Bihar Colony is being constructed on 15.50 acres of land and 77 plots have been demarcated on the plot. CA-2 purports to be the report submitted by the Junior Engineer. On the report, it is said that the Prescribed Authority had issued notice under Section 10 of the U.P. (Regulation of Building Operations) Act, 1958. 7. Annexure CA-3, Case No. 51/34 of 2010 was registered in the Court of Prescribed Authority under U.P. (Regulation of Building Operations) Act, 1958. It is pending in the Court of S.D.M. for its final disposal. It is stated that the 12th respondent has repeatedly absented himself from the proceedings and as such the case was proceeded ex-parte. It is also stated that the construction activities have been carried out on the land, in question. It is further stated that the 12th respondent purchased the land from respondent Nos. 8, 9 and 10 and thereafter moved an application under Section 143 of UP ZA & LR Act, 1950 The same is got declared as non agricultural land. The application was allowed. It is stated that action can only be taken by the Forest Department. There is no recommendation from the Horticulture Department or the Forest Department prior to the felling of the trees by the 12th respondent in Village Jassaganja which was notified as a fruit belt area. Relevant paragraph of the report dated 13.09.2011 reads as follows : ^^mijksDr iz'uxr Hkw[k.M ds [kljk uEcj 297] jDok0 388 gs0] 298 jDok 0-149 gs0] 300 jDok 0-047 gs0] 304 jDok 0-215 gs0] 305 fe0] jDok 0-158 gs0] ,oa [kljk ua0 313 jDok 0-032 gs0 dqy jDok 0-989 gs0 Hkwfe e/;s ekSds ij vke ds 7 dVgy 2 yhph 3 dqy 12 isM [kMs ik;s x;s rFkk dPpk jkLrk fufeZr gS ftl ij orZeku esa lhlh ekxZ fuekZ.kk/khu gS rFkk ,d dejk iDdk cuk gS 'ks"k Hkwfe esa dgha dgha Hkou fuekZ.k gsrq cqfu;knsa Mkyh xbZ gSA^^ 8. The 12th respondent has filed the counter affidavit. It is his case inter alia that Annexure 1 and 2 to the writ petition are not notification to declare Village Jassaganja as a fruit belt area. The 12th respondent has filed the counter affidavit. It is his case inter alia that Annexure 1 and 2 to the writ petition are not notification to declare Village Jassaganja as a fruit belt area. It is the case that annexure No. 2 to the Writ Petition contains name of village Jassanganja at serial number 16 but it does not say that aforesaid village has been declared as a reserved area. He has a definite case that as on date of registered sale deed, only 22 trees were standing which are existing at present also. The land has been duly converted into non agricultural land under Section 143 of the U.P. Z.A. & L.R. Act on 05.07.2011. 9. We heard Mr. Jagdish Singh Bisht, learned counsel for the petitioner, Mr. M.S. Tyagi, learned counsel for 12th respondent and Mr. J.C. Pandey, learned Brief Holder for the State of Uttarakhand. 10. Undoubtedly, the Act in question is meant to be implemented. Indeed it is the duty of the Executive to implement the law made by the competent Legislature. The complaint in this case relates to felling of trees in the areas covered by the Act without any permission as required under law. 11. The case of the 12th respondent is that his application under Section 143 of U.P. Z.A. & L.R. Act has been allowed. He further brings to our notice that though an order has been passed under the U.P. Regulation of Building Operations Act, the matter is pending in Appeal before the Collector/Appellate Controlling Authority. The appeal is of the year 2016. 12. The 12th respondent has a case that in fact the father-in-law of the petitioner and others have also put up construction contrary to the Act. Learned Counsel for the petitioner would, however, point out that the construction made by the father-in-law may not attract the Act as the word “Housing Colony” has been defined to exclude constructions for one own resident. Whatever that be, we are only concerned with the enforcement of the Act in an area to which the Act applies. 13. We notice that in fact Section 8 of the Act provides ample power to the Authorities. There is also power of removing difficulty by Government contained in the Act. There cannot be any dispute that the Act is meant to be enforced. 14. 13. We notice that in fact Section 8 of the Act provides ample power to the Authorities. There is also power of removing difficulty by Government contained in the Act. There cannot be any dispute that the Act is meant to be enforced. 14. As far as the particular case is concerned, we have noticed the prayers regarding construction which is being made. An appeal has been filed by the 12th respondent and the same is pending consideration before the Statutory Authority. We would think that there cannot be any further construction by the 12th respondent. At the same time, we cannot also direct the demolition to be undertaken in so far as the appeal is pending. In such circumstances, we dispose of the Writ Petition as follows : The respondent Nos. 5 to 7 will ensure that there will be no construction of the Housing Colony in the fruit belt of Village Jassangaja, which is contrary to the Act by the 12th respondent. We further direct that action as per law will be taken against any construction of Housing Colony contrary to the Act in the said village by anyone. Indeed, there will be direction to respondent Nos. 5 to 7 to take appropriate action against all persons in terms of the Act by availing of all the powers available to them under the Act. As far as construction made by the 12th respondent is concerned, since an appeal is pending before the Authority, we do not think that we can direct the action to be taken as against 12th respondent in regard to the construction which has been made and for which an order has been passed against him. We direct that the Appellate Authority will dispose of the appeal within a period of two months from the date of production of certified copy of this judgment. Depending upon the decision to be taken by the appellate authority and subject to any order which may be obtained by the 12th respondent by availing statutory remedy or otherwise, action will be taken, if it is found by the Authority that the construction has been made in violation of the Act.