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Judgment
The issue for consideration is compliance of provisions of the Forest (Conservation) Act, 1980 (FC Act) in the process of construction of a road by the State PWD at Jaminipar, District Almora, Uttarakhand.
Vide order dated 24.02.2020, a report was sought from the PCCF (HoFF), Uttarakhand with reference to the allegations of violation of law by the State of Uttarakhand. The matter was last considered on 02.11.2020, in the light of report of the PCCF (HoFF), Uttarakhand dated 17.10.2020 which merely mentioned that the construction of the road was in public interest. The Tribunal observed that even public interest project requires compliance of environmental norms, including muck disposal. The Tribunal, accordingly, sought a further report from the Regional Office of the MoEF&CC, Dehradun in coordination with the Forest Department of Uttarakhand and District Magistrate, Almora. Operative part of the order is reproduced below:
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While construction of road may be in public interest, as submitted on behalf of the State, the same has to be in compliance with the statutory provisions of the FC Act. Further, the muck disposal has to be consistent with the environmental norms.
In view of the above, it is necessary that a further report be filed by the Regional Office of the MoEF&CC, Dehradun in coordination with the Forest Department of Uttarakhand and District Magistrate, Almora. Such a report may be furnished within three months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. It is made clear that if there is any violation, remedial action may be taken as per law and such action taken may also be mentioned in the report. The report may also mention about the status of muck disposal.
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In pursuance of above, the MoEF&CC has filed its report on 31.08.2021 as follows:
"2.1 Status of muck disposal by the User Agency
It is clear that Stage-II approval under FC Act, 1980 has been granted to State Government for construction of the road by Central Government (MoEF&CC). However, the approval granted is subject to certain conditions mentioned therein. Attention is drawn condition No. 12 & 13 of the Stage-II approval. Condition No. 12 relates to disposal of muck as per the Muck Disposal Plan under the supervision of Forest Department.
It was informed by the representative of user agency that the hill cutting of disputed area falling in the jurisdiction of Jaminipar village was started by user agency after the order of Hon'ble High Court dated 10.01.2020. It was observed during the inspection that the muck generated during the process has not been disposed in the designated area and has been left on the side slopes of the hill.
It is very clear from the above photographs and the field inspection that muck disposal has not been done in accordance with the Stage-II approval granted under FC Act, 1980.
The user agency stated that they had proceeded ahead with the earth cutting and the muck disposal is to be carried out by them in due course as per the muck disposal plan. The muck disposal site has been provided in the non-forest land. It was however seen during the inspection that the status of muck disposal leaves a lot to be desired at the level of User Agency. It was submitted by the representative of user agency that the muck could not be disposed as per the muck disposal plan due to lockdown in the month of March to June 2020 and the monitoring of muck disposal before the lockdown could not be done by the user agency due to ongoing strike of field staff from 02/03/2020 to 19/03/2020.
The user agency has proposed two dumping yards for disposal of muck having total area of 0.596 ha in Nap land (Revenue land). It was however seen that the transportation of muck generated to the designated dumping area has not been done. The muck has been left at source which is evident from the photographs attached. If it remains there till the coming rainy season, then the muck is likely to wash into Gagas river.
(i) Remedial measures: The Executive Engineer/user agency was requested to submit a detailed muck disposal plan. As a remedial action The user agency may be directed to immediately take up steps for control of rolling down of muck by erecting appropriate engineering structures viz. retaining walls and breast walls wherever required and the excess muck generated may be disposed of at the designated muck disposal sites in the non-forest area under the supervision of Divisional Forest Officer, Almora.
(ii) Action to be taken: It is recommended that the Divisional Forest Officer, Almora shall take cognizance of the muck disposal and take action as per FC guideline para 1.21 (iii). The user agency must ensure that the muck disposal as per the muck disposal plan is carried out within next 60 days and a compliance is submitted to the IRO Dehradun thereafter. The muck disposal plan submitted by the executive engineer during field inspection is placed at (Annexure-VII).
2.2 Whether there is violation of the Forest (Conservation) Act, 1980.
(i) In view of the Stage-II approval granted by MoEF&CC under Forest (Conservation) Act, 1980, it cannot be said that the road construction has been carried out in violation of the FC Act, 1980. It is however noticed that there is violation of conditions imposed in the Stage-II approval. The State Government has to take action as per FC guideline para 1.21(iii) (Annexure-VIII) and submit the report to IRO Dehradun for further action to be taken by Regional Empowered Committee (REC).
2.3 Whether there is any remedial action possible for any violation.
There is violation of condition No.12 & 13 of the Stage-II approval granted by MoEF&CC under FC Act, 1980. The remedial action is as follows:
(i) Condition no. 12 (regarding muck disposal): The User Agency was supposed to carry out muck disposal as per muck disposal plan under the supervision of Forest Department, which has not been complied with.
(a) Remedial Measures: For violation of conditions of Stage-II approval granted under FC Act, 1980, FC guideline para 1.21 (iii) is attracted and action may be taken accordingly.
(b) Action to be taken: Since, muck has not been handled properly by the user agency in contravention of the condition No. 12 of Stage-II approval granted under FC Act, 1980, it is recommended that the State Government may submit a detailed report to REC which will take further action based on the analysis of the report.
(ii) Condition No. 13 (regarding removal of trees): The user agency was to remove trees through Uttarakhand Forest Corporation, which has not been fully complied with. It was informed by DFO that the permission for felling of trees was granted to PWD through Forest Corporation as per the condition of the Stage-II approval but the Forest Corporation could remove only 36 trees out of the total 128 trees marked for felling. The remaining 92 trees felling permission was cancelled by DFO, Almora. It was however seen during inspection that there were no trees standing along the alignment. Some of the tree trunks/ stumps were seen along the alignment which were embedded in the muck. It was reported by the villagers present that around 50 trees may have been cut and buried in the muck by the contractor of the user agency.
(a) Remedial Measures: Since trees have been removed without following the prescribed procedure by the contractor of the user agency, therefore it is suggested that the valuation of the trees may be carried out by the Divisional Forest Officer, Almora based on the enumeration records and the cost of timber be worked out accordingly. This amount (cost of timber) may be deposited in treasury as forest revenue. A detailed report on action taken in this regard may be placed before REC for further necessary action as per the provisions of the guidelines (Annexure-VIII).
(b) Action to be taken: The Divisional Forest Officer, Almora Forest Division may be directed to take cognizance of unauthorized felling of trees by the contractor of the user agency under Indian Forest Act, 1927and take action as recorded in para 2.3 (ii) (a) above. The Divisional Forest officer is also required to submit a detailed report before the REC so that appropriate action may be taken for the violation of conditions that were stipulated in the approval accorded under Forest (Conservation) Act, 1980.
Conclusion
As Stage-II approval was granted for the diversion of 7.297 ha forest land for construction of Gagas-Udimahadev-Selapani-Bhikyasain-Marchula Motor Road in favour of PWD Uttarakhand, under FC Act, 1980, no violation of FC Act, 1980 has been found during the inspection. However, based on records available and the field inspection it is evident that the user agency has violated the condition No. 12 &13 of the Stage-II approval and therefore attracts FC guideline para 1.21 (iii). The State Government shall prepare a detailed report on the matter and place it before REC for further action as per law, apart from the action to be taken at their level as indicated at 2.3 (ii) above."
From the above, it is seen that muck disposal has not been done in accordance with the conditions for Stage-II approval. The report
mentions directions issued to the Executive Engineer and also recommends that the Divisional Forest Officer, Almora has to ensure compliance. Violation of the conditions of FC Act is not only the matter of muck disposal but also regarding removal of trees. The report suggests that the valuation of the trees is required to be done and the Divisional Forest Officer has to take cognizance of the violations under the Indian Forest Act, 1927.
We have given due consideration to the report. In view of the acknowledged violations found in the report, the user agency, the PWD, Uttarakhand, has to take remedial action as suggested. Apart from such remedial action, we direct the PWD to deposit a sum of ₹2,00,000/- as compensation for the violations with the PCCF (HoFF), Uttarakhand, within one month which will be the responsibility of the Secretary, PWD, Uttarakhand. The Forest Department may spend the amount for restoration of environment in the area. In view of credible report given after interaction with the PWD, we have not found it necessary to issue notice to PWD but if it is aggrieved by this direction, it will be open to it to move this Tribunal by making out a case against the report.
The application is disposed of.
In view of above order, I.A. No. 123/2021 also stands disposed of.
A copy of this order be forwarded to the Secretary, PWD Department, Uttarakhand and PCCF (HoFF), Uttarakhand by email for compliance.