Amit Kholia vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Dushyant Mainali, learned counsel for the petitioner and Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand and with their consent, the writ petition is disposed of at the stage of admission.

This writ petition has been filed by a public spirited citizen who claims to be the Founder of a Social Welfare Group called as "Haldwani Online 2011 Established". He has invoked the jurisdiction of this Court under Article 226 of the Constitution of India, seeking a direction to the respondents to take immediate steps to remove girdles, metal wires, metal nails, electric wires, cable wires, plastic sheeting, hoardings and sign boards from trees, or any other object which causes any harm and damages trees; a writ of mandamus directing the respondents to strictly enforce the provisions contained in the Indian Forest Act, 1927, the U.P. Municipalities Act, 1916, the U.P. Municipal Corporation Act, 1956, the Uttarakhand Prevention of Defacement of Public Property Act, 2003, and the Uttarakhand Panchayat Raj Act 2016, relating to maintenance, preservation, plantation and prohibition of defacement and damage to trees falling in all the Municipal areas, all the Municipals Corporation areas and all Panchayat areas etc; a writ of mandamus directing the respondents to protect trees, throughout the State of Uttarakhand, from damage being cause to them by drilling of holes, boring, use of poisonous substance to their roots etc; a mandamus directing the respondents to initiate the process of enumeration of trees throughout the State of Uttarakhand besides taking remedial steps for protecting trees from disease and decay; a writ of mandamus directing the respondents to ensure that all Municipal Authorities, Panchayat Authorities, Forest Authorities and District level Authorities display the data of the applications received for felling of trees, and the number of trees permitted to be removed/cut, on the online web portal available in the public domain.

Mr. Dushyant Mainali, learned counsel for the petitioner, has drawn our attention to certain photographs enclosed with the writ petition which disclose several hoardings being affixed on trees some of which are by public authorities themselves. Learned Counsel would also draw our attention to the provisions of the Uttarakhand Prevention of Defacement of Public Property Act, 2003 (hereinafter referred to as the "2003 Act") and The Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976 (for short the "1976 Act") in this regard.

The 2003 Act was made in public interest to provide for the prevention of defacement of public property, and for matters connected therewith or incidental thereto. Section 2(b) of the 2003 Act defines "Defacement" to include impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other manner whatsoever, and the word "deface" to be construed accordingly. Section 2(c) defines "Public Property" to include, among others, trees. Section 4 makes an offence punishable under this Act cognizable; and Section 5 confers power on the District Magistrate to take such steps as may be necessary for removing any mark from any public property. Section 6 confers power on State Government to make rules, and Section 7 gives the 2003 Act overriding effect over other laws in force.

The 1976 Act is an Act to provide for regulation of felling of trees and replanting of trees in rural and hill areas of Uttar Pradesh (now Uttarakhand). Section 3 (v) defines "fell a tree", with its cognate expressions, to mean cutting, girdling, lopping, pollarding or damaging a tree in any other manner.

Relying on these provisions, the petitioner contends that "defacement of trees" would include impairing and disfiguring a tree in any manner whatsoever; and that it is obligatory for the State Government to ensure compliance of the law. Both these enactments were made with the laudable object of protecting trees and preventing its defacement. The photographs, filed along with the writ affidavit, show that not only private individuals, but also public officials, have indulged in such acts of defacement.

Since the primary obligation, to ensure compliance with the law, is on the Executives, we direct both respondent Nos. 5 & 6 to, forthwith, issue necessary instructions by way of a circular informing all officials under their control of the provisions of these enactments, and impress upon them the need to ensure that defacement of trees, in any manner is prevented. Necessary directions shall also be issued by them to public servants not to indulge in any act of defacement of trees, and to take strict action against those who violate the Law.

We hope and trust that necessary instruction in this regard shall be issued to all concerned by respondent Nos. 5 & 6 at the earliest, preferably within a period of two months from the date of production of a certified copy of this order.

The writ petition is, disposed of, accordingly.

No costs.