Bharat Kumar Jain vs Union of India

Sunil Ambwani, Actg. C.J.

In an endeavour to protect the environment of the Mount Abu Eco Sensitive Zone declared vide Notification dated 25.6.2009 issued under Section 3(2) of the Environment (Protection) Act, 1986, a detailed order was passed by this court on 2.9.2014, in compliance of which the progress report has been filed by the learned Additional Advocate General on 27.10.2014 annexing therewith a list of the constructions, which have been prohibited since first week of September, 2014 alongwith report of details of seizure of nine vehicles including an oil/water tanker No. RJ-24GA/2482 carrying the construction material, in accordance with the provisions of law.

It is reported that the revalidation of the permission from the Monitoring Committee is not feasible, as the Monitoring Committee appointed in the notification approved by Hon''ble Supreme Court has ceased to continue after 24.1.2014, however, all on going constructions have been stopped and this prohibition will continue until further orders by the competent authority. The Monitoring Committee has held fortnightly meetings to execute the directions of the court. The meetings have been held on 13.9.2014, 19.9.2014 and thereafter on 10.10.2014 at Sirohi Collectorate to review the progress and the compliance. So far, 147 permissions have been granted by the Monitoring Committee in its meeting, out of which, 12 pertained to Government projects, 97 for renovations. A total number of 18 out of reported 38 constructions, done over and above the permissible parameters, have been demolished. Of the remaining 17 constructions made beyond the permissible limits are yet to be removed, and in 3 cases matters are pending before the competent courts. The lists have been filed as Annexs. A to E.

It is reported that the Municipal Board, Mount Abu has demolished and removed 317 illegal constructions and roadside encroachments since 25th June, 2009, 15 illegal constructions were identified in Gram Panchayat, Oriya, out of which, 13 have been removed and in two cases, stay orders from the competent court are operating. The police help was taken, wherever demolitions had to take place in accordance with the directions of the court.

It is further reported that the Municipal Board, Mount Abu has launched a drive so as to remove 103 illegal and unauthorized roadside encroachments. About 40 encroachments were reported in Khasra No. 492 of village Salgaon of Abu Sub Division in the year 1995, which were registered in the court of Tehsildar, Abu Road. The Tehsildar has ordered the trespassers to remove the encroachments by order dated 31.8.1996. These encroachments were made on the forest land for which the present status has been sought from the Dy. Conservator of Forest, Mount Abu.

So far as satellite imaging of the construction trees and forest cover, it is reported in para 7 of the compliance report as follows:

"7. SATELLITE IMAGING OF THE CONSTRUCTION, TREES AND FOREST COVER:

As regards the compliance of the directions of the Hon''ble Court about satellite imaging, the Divisional Commissioner, Jodhpur convened a meeting on 13.9.2014 for reviewing the compliance of the directions of the Hon''ble Court issued by order dated 2.9.2014 wherein Dr. Ashok Gehlot, Project Director, State Remote Sensing Center Jodhpur was also present who informed that 0.50 resolution image is not available from ISRO satellite so the images have to be purchased from the foreign satellite, and if ISRO is asked to purchase the images from foreign satellite, it may take 2-3 months to get the image. Processing and comparing it with the earlier image to find out the variations and changes will take a further one month for analysis. Therefore, imaging and studying the variations on monthly basis is technically not possible. He further informed that an expenditure of Rs. 7.2 lakhs will be incurred for one time image of the entire zone which may further fluctuate as per the exchange rate of American dollars. This amount will be needed for every subsequent exercise respectively.

The State Government took a decision to proceed for 1 meter resolution image instead of 0.50 meter resolution image.

On the aforementioned ground, the Project Director, Department of Science and Technology, sent the revised proposals to the Divisional Commissioner on 7.10.2014 giving estimate of Rs. 3.80 lakhs for one time study and the cost of four times studies in a year mast cost Rs. 15.20 lakhs. A copy of the letter dated 7.10.2014 is submitted herewith and marked as Annex. R/10. Accordingly, the Director of Local Bodies has given a sanction for startup of activity vide letter dated 22nd October, 2014, a copy whereof is submitted herewith and marked as Annex. R/11.

Apart from the above, there are vital issues that must be considered and consulted as far as putting satellite images in public domain is concerned, looking to the national security with the authorities of Indian Air Force, Indian Army and C.R.P.F., as there exist huge establishments of these military and para-military forces in Mt. Abu town."

The petitioners have raised strong protest over the effective removal of encroachments. It is submitted that large number of constructions are still going on and that the identified encroachments and constructions even after the cut off date, have not been removed.

It is submitted that incorrect reports have been generated and their actions have been replaced by old and outdated reports taken for removing illegal constructions and encroachments.

The application has been filed to permit construction of toilets in the schools, which are being made in pursuance to the directions given by the court and for construction of toilets in the villages, which will be absolutely essential under the various schemes of the State Government.

Prima facie, we are satisfied with the first compliance report and the action taken by the Monitoring Committee.

In order to make our directions more effective, we issue following additional directions to be carried out by the respondents:

(i) The powers of the Monitoring Committee, which has ceased to continue after 24.1.2014, will now be vested in the Divisional Commissioner (the then Chairman of the Monitoring Committee) as Chairman with two more members to be nominated by him. It will be open to him to choose the members from the District Administration and the Municipal Council;

(ii) The monthly meeting of the Monitoring Committee will be held regularly in which the Monitoring Committee will not only review the progress but also consider any objections that may be filed and issue appropriate orders for removing the unauthorized constructions and encroachments, which have not been removed so far or which have been made subsequent to the orders passed by the court;

(iii) The Deputy Conservator of Forest, Mount Abu will be an invitee member of the Monitoring Committee. He is directed to coordinate with the Committee with regard to protection of Eco Sensitive Zone and for removing the encroachments and recovering possession of the forest land. He will provide expert assistance with regard to forest matters for protection of Eco Sensitive Zone and will also carry out the orders of the court for removing encroachments and illegal constructions from the forest area. He will be provided with the police help by the Monitoring Committee to carry out its directions;

(iv) We are satisfied with the steps taken for satellite imaging of the construction, trees and forest cover. The State Government informs that an amount of Rs. 15.20 lacs would be incurred for the cost of one year''s resolution image of 1 meter resolution instead of 0.50 meters for quarterly review. The steps for purchasing images from foreign satellite by I.S.R.O. may be carried out of 1 meter resolution, for quarterly review;

(v) The Monitoring Committee will constitute a Sub Committee of Experts, who are well versed with the study of satellite images to identify new constructions, which may have escaped the attention and removal of trees, which may have been felled, despite clear prohibition in the Eco Sensitive Zone;

(vi) For construction of toilets or for repairs in the public buildings, which are necessary, the applications may be made for obtaining permission from the Monitoring Committee, which will evaluate such request and permit constructions. At the time of giving such permission, the Monitoring Committee will also incorporate in its report the extent of construction carried out alongwith photographs to find out whether any excessive constructions beyond permission or beyond permissible rules have been made;

(vii) The satellite images of the area, excluding the areas covered by defence establishments will be put on the website for the general public to evaluate and submit their objections with regard to any fresh constructions, mining, removal of green cover, or any activity of environmental degradation;

(viii) The objections filed in compliance report will be considered by the Monitoring Committee and that in the next compliance report, the respondents will file their response on the objections with regard to each of the alleged new constructions, which have been pointed out in the objections; and

(ix) It is made clear that if any new constructions have been found or raised after the date of Notification i.e. 25.6.2009, the Monitoring Committee awaiting response to the notices for demolition will be is authorized to seal such constructions.

List the matter on 5th February, 2015, on which day, the next compliance report will be filed alongwith reports of the Monitoring Committee.