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2018 DIGILAW 1236 (HP)

Court On Its Own Motion v. State Of Hp

2018-07-06

AJAY MOHAN GOEL, SANJAY KAROL

body2018
ORDER Mr. Rajeshwar Goel, Director, Town and Country Planning, states that the development plan for Dharamshala Planning Area, District Kangra, Himachal Pradesh was notified on 27th January, 2018. Prior thereto, previous development plan was notified on 15.06.1994. We notice that under the new development plan, certain areas which were defined as "Core Area" stand re-notified as "Mixed Land Use Area". Before we pass any further order, it would be appropriate and prudent, as is so prayed by learned Advocate General, that the Principal Secretary, Town and Country Planning, to the Government of Himachal Pradesh files his personal affidavit explaining the reasons and circumstances, which led to such change. Also, he shall explain as to whether at the time of taking such decision, the factum of Dharamshala (District Kangra) being prone to earthquake, falling within high seismic zone v/vi, was considered or not. Let such affidavit be filed within a period of two weeks. Record perused and returned. 2. Mr. Deven Khanna, Local Commissioner, states that in his report, he has clearly indicated that there was danger to the trees, not only on the road constructed by HPPWD, but also at several place(s) where construction activity(s) is being carried out by certain individuals. 3. Learned Local Commissioner invites our attention to the news report dated 03.07.2018, in English Daily `The Tribune'', wherein it is stated that one such owner of private land, who was denied permission by the Municipal Corporation to fell the trees, had started raising construction, as a result of which, on account of exposing and weakening of the roots, due to excavation of earth, trees have fallen down. In the given circumstances, we direct Commissioner, Municipal Corporation Dharamshala, to ensure that henceforth no construction activity on private land, wherever there is a tree is carried out without leave of the Court. Each individual can approach this Court. We are constrained to pass this order for the simple reason that despite the Court having issued several directions, continuously since the year 2015, calling upon the authorities to check illicit and illegal felling of trees as also check unauthorised construction, there has been rampant, grave, unauthorised and illegal construction and felling of trees and only pursuant to the orders passed by this Court, such unauthorised structures are now being sealed and demolished. We may also observe that since the year 2015, no action, whatsoever, stands taken against any one of the concerned officer(s)/official(s), who allowed such unauthorised construction to come up at the first place. Also we have noticed, as is apparent from the report of the Local Commissioner, that private individuals are adopting different ways and means of ensuring that trees over their land, which are not only priceless but valuable from environmental point of view, are allowed to be felled/uprooted so as to make it appear that it is on account of natural calamity. 4. At this stage, learned Advocate General points out that based on the report of the Local Commissioner, notices stand issued to 31 individuals, who have violated the statutory provisions, with regard to the construction activity(s). Mr. B.C. Negi, learned Senior Counsel supplements by stating that in fact notices stand issued to 38 violators. Mr. Tara Singh Chauhan, learned standing Counsel further states that notices stand issued to 70 individuals, who allegedly are carrying out their activities in violation of the environmental laws and law pertaining to pollution. This is in addition to action of disconnection of water and electricity taken against 46 violators. 5. Noticing absolute apathy on the part of the Government in taking action against any one of its officer/official, we do not hesitate to record that despite prodding, the Secretary, Town and Country Planning has not taken any action. We would not hesitate in expressing our displeasure on this count. In fact, we are of the view that salaries of all the persons who are supposed to monitor the construction activities, should be withheld, for they have failed to discharge their duties. 6. Learned Amicus Curiae points out that there has been a complete failure on all counts and it is only when this Court passed an order on 03.11.2015, that the Government took decision of posting a Tree Officer. Further, on 28.06.2016, this Court had observed that the status report filed by the Amicus Curiae alongwith CDs was an eye-opener for the respondents. On 02.05.2017, we had observed that Municipality of Dharamshala, being one of the oldest Municipality of the State, established on 06.05.1867, comprising approximately 27 Sq. Kms. of area, was sought to be developed as a smart city under `India''s Flagship 100 Smart City Mission''. On 02.05.2017, we had observed that Municipality of Dharamshala, being one of the oldest Municipality of the State, established on 06.05.1867, comprising approximately 27 Sq. Kms. of area, was sought to be developed as a smart city under `India''s Flagship 100 Smart City Mission''. This Court had indicated the factum of indiscriminate felling of trees in and around Dharamshala, posing to be a threat to the environment and ecology. Only thereafter did the State post certain officers in the office of Municipal Corporation, Dharamshala, so as to monitor illicit felling of trees and raising of unauthorised construction. Further, on 27.06.2017, learned Amicus Curiae had again invited our attention to the CDs sent by the complainant, of the area in question, highlighting the manner in which the provisions of environmental and construction laws were violated with impunity. On 27.03.2018, we had also directed the District Judge, Kangra at Dharamshala to ensure that all appeals/matters, with regard to disconnection of water and electricity, pending in various Courts be heard and decided expeditiously, in accordance with law, for we had found that the violators were endeavouring to procrastinate the proceeding pending before various authorities so as to obstruct and impede the enforcement of the orders passed by this Court. 7. It was only after expressing anguish, vide detailed order dated 03.04.2018, we had appointed Mr. Deven Khanna, Advocate as a Local Commissioner to visit and inspect the entire area falling within the territorial jurisdiction of municipal limits of Dharamshala as also Bhagsunag, Naddi, Mcleodganj and Dharamkot. Pursuant thereto, the Local Commissioner not only videographed the area but also placed his report which stands circulated to all concerned and none has come forward to controvert contents thereof. 8. In fact, as is so stated by the learned Advocate General, now action is sought to be taken pursuant to the said report. On 24.04.2018, when we found that electricity of some of such consumers who had violated the law with impunity was not disconnected, we had directed the Chief Engineer, Himachal Pradesh State Electricity Board Limited (HPSEBL) to personally remain present in Court and on 25.04.2018, Shri Subhash Kumar Thakur, Chief Engineer (OP) North) HPSEBL, Dharamshala had informed us of the action taken in that regard. 9. We are of the view that it is only when the Court is passing orders, the officers / officials are taking action, rather reluctantly. Why so? 9. We are of the view that it is only when the Court is passing orders, the officers / officials are taking action, rather reluctantly. Why so? No explanation is coming forth. We would have directed the salaries of such officer(s) / official(s) not to be released, but are persuaded by the learned Advocate General not to pass such orders today, with the assurance that at the earliest, action against such of those officer(s) / official(s), who permitted such construction to be carried out, would positively be taken by the appropriate authority(s). We clarify that if no such action is taken, we would not hesitate in stopping the salary of the concerned Secretary also. Affidavit be filed within two weeks. In any event, we direct the Director, Town and Country Planning and Commissioner, Municipal Corporation, Dharamshala, to supply list of all the officers of the rank of Junior Engineer(s) and above, who were posted within the municipal limits of Dharamshala, since the year 2010, within two days alongwith their tenure and place of posting. 10. Mr. Deven Khanna, learned Local Commissioner points out that the road referred to in order dated 03.07.2018 is `Mcleodganj to upper Dharamkot'' and not Mcleodganj to Bhagsunag. Ordered accordingly. 11. Learned Advocate General states that pursuant to the orders passed by this Court road from `Mckleodganj to Mountaineering Institute, Dharamshala'' and another road commonly known as Mountaineering Institute road stand inspected and on the said roads, 50 and 15 trees respectively were found to be endangered. He further states that officers of HPPWD shall take immediate action for protecting the same. Let Superintending Engineer (HPPWD) file his personal affidavit/status report and action taken in this regard within a period of three weeks. 12. List on 30.07.2018.