Haryali Welfare Society vs Union Of India And Ors

The Applicant Haryana Welfare Society, an organization working in the field of environment has moved this application for following directions:

I. Direct the respondents to withdraw the permission granted for Khasra No. 112//8/2, 9/1, Rakba 08 in Village Manger, District Faridabad, Haryana State.

II. Direct the respondent not to grant any such permission in future.

III. Direct the respondent to do the survey of all non forest activity on non forest area.

IV. Direct the respondents to restore area to natural state.

According to the applicant they were prompted to initiate this proceeding upon a newspaper report in the Hindustan Times dated 05.09.2013, Gurgoan Edition, that the respondent no. 3 Directorate of Town and country planning Faridabad had permitted fencing involving Construction of Damp Proof Course (DPC) around 1 acre plot i.e. Khasra No. 112/8/2/,9/1 rakba 8 in village Mangar, District Faridabad situated in part of ecologically fragile Aravali Forest-Manger Bani vide letter dated June 17th , 2013.

The applicant submits that the area is classified as 'Gair Mumkin Pahar' in revenue record and identified as a recharge zone for ground water by Central Ground Water Board (CGWB) and is a 'deemed' forest being an important wildlife habitat. Such activity, according to the applicant, would cause fragmentation of forest, endangering the movement of wildlife and thus could be detrimental to the environment generally.

The respondent no. 3 has responded to this application. Essentially, the subject matter of this application being a piece and parcel of land in village Manger as described herein above, the owner of the said land-the respondent no. 5 Mrs. Rajni Chawla was allowed to be impleaded to the present application vide order dated 25.09.2013 in M.A. No. 769/2013 , she responded to this application with M.A. NO. 770/2013 and sought dismissal of this application.

The respondent no. 1, MoEF submits that Section 2 of the Forest (Conservation) Act, 1980 provides that no State Government or other Authority shall make, except with the prior approval of the Central Government, any order directing:

i) That any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved.

ii) That any forest land or any portion thereof may be used for any non- forest purpose.

iii) That any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government. And

iv) That any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re-afforestation.

And the MoEF has been due diligent in protecting the forests.

Learned Counsel appearing on behalf of the MoEF submitted that the Hon'ble Supreme Court, vide order dated 12.12.1996 in Writ Petition (Civil) No. 202/1995 in the matter of T.N. Godavarman Thirumulpad versus Union of India and Others acknowledged that the Forest (Conservation) Act, 1980 was enacted with a view to check further deforestation resulting in ecological imbalance and, therefore, the provisions made therein for Conservation of Forest and for matters connected therewith must apply to all forests irrespective of the ownership and of classification thereof. The Hon'ble Apex Court, further observed that the word "Forest" must be understood according to dictionary meaning and such description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The Hon'ble Apex Court further observed that terms 'forest' not only as understood in dictionary sense but also any area recorded as 'forest' in the Government record irrespective of the ownership.

The Hon'ble Apex Court further directed that "Each State Government should constitute within one month an Expert Committee to (i) identify areas which are "forests" irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the land of such forest (ii) identify area which were earlier forests but stand degraded, denuded and cleared; and (iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons.

The Hon'ble Apex Court in their order dated 18.03.2004 in the Writ Petition (Civil) No. 4677 of 1985 in the matter of M.C. Mehta versus Union of India and others , Learned Counsel appearing on behalf of MoEF submitted and further directed that the areas covered under notification issue under Section 4 and 5 of Punjab Land Preservation Act, shall be treated as forest and for the use of it for non -forestry purpose, it would be necessary to comply with the provisions of the Forest (Conservation) Act, 1980. With reference to the order dated 06th July, 2011in the I.A. No. 1868 of 2007 in the matter of Lafarge Umiam Mining Private Limited and Others in the Writ Petition (Civil) No. 202 of 1995 in the matter of T.N. Godavarman Thirumulpad versus Union of India and Others, Learned Counsel appearing on behalf of the MoEF submitted that Expert Committee was expected to identify areas which are forest irrespective of whether they are so notified, recognized and classified under any law and irrespective of land of such forest and the areas which were earlier forests but stand degraded, denuded and cleared, shall be culminated in preparation of Geo-referenced district forest maps containing the details of the location and boundary of each plot of land that may be defined as "forest" for the purpose of Forest (Conservation) Act, 1980.

The respondent No. 3 Directorate of Town and Country Planning, an Authority exercising powers under Section 9 and 12 of Punjab Scheduled Roads And Controlled Areas Restrictions on Unregulated Development Act , 1963 in its reply dated 19.09.2014 revealed that it had informed the owner of the land in question that for the purpose of agriculture fencing along the boundary of the land with DPC can be made, since there was no violation of any section of the said Act 41 of 1963; and that it was clearly mentioned in the letter dated 17-06-2013 passing over the said information that such information will not provide any immunity from any Acts/Rules of any other Department applicable to the land in question and thus no permission was granted by the respondent no. 3 for construction activity other than for the purpose of agriculture. The reply further reveals that the owner of the said land had raised the boundary wall instead of DPC and fencing, and the respondent no. 3 has initiated action by issuing show cause notice dated 18-09-2013 calling upon the owner of the land in question to stop further construction activity and to show cause why he should not be ordered to restore the land in question.

The respondent no.5, the owner of the land in question had resisted the present application with M.A. No. 770/2013 dated 18-09-2013, she has in unequivocal terms pleaded before us to take her statement on record that she would not carry out any activity in the land in question without having appropriate orders/approvals/permissions from the concerned authorities Except revealing the fact that she had legally purchased the land in question which according to her is non-forest are and not covered under Section 4 or 5 of PLP Act, 1900 and acted upon the approval granted by the District Town Planner dated 17th June, 2013 to erect fencing with DPC and has undertaken extensive plantation work in the said land, there is nothing much of consequence in the said application dated 18-09-2013, She did not offer any comment as to the contention of the applicant regarding the recharge zone and the damage caused to the environment due to her activities in the said land.

Some documents annexed to the application dated 18-09-2013 filed by the respondent no. 5 reveal certain pertinent facts. Sale deed dated 06-06-2013 referred to by the respondent no. 5 as the instrument of Title to the land in question describes the said land as "Gair Mumkin Pahar" land i.e. land having no agricultural activity. In context with this document the letter dated 17-06-2013 of the District Town Planner Enforcement and Vigilance, Faridabad at Annexure E to the said application dated 18-09-2013 makes an interesting reading. It only passes on the information that the outer boundary, DPC and wire fencing can be done only for agricultural purposes and before raising any construction apart from outer boundary, DPC and Wire fencing, it is necessary to obtain permission for the change of land use from their Department and the construction raised at that time is required to be got compounded as per rules. It further categorically informs that passing of such information does not provide immunity from Rules/sub-rules of other Departments. Thus, it is not a permission granted by the respondent no. 3 but merely a communication passing on the information requiring adherence to law. Letter dated 24-06-2013 from Divisional Forest Officer, Faridabad Annexure D to the application reveals that land in question does not fall under section 4 and 5 of PLP Act, 1900 or under Aravali Plantation but is a land falling under general provision under section 4 of PLP Act, 1900 which puts an embargo on felling of forest produce standing on the land.

In this background, we have before us the geo-reference revenue map prepared with GPS and GIS Technology of Village Manger, Faridabad showing forests area under Section 4 and 5 PLPA and Aravali Plantation which is accompanied with the letter dated 25.10.2012 to the MoEF from Principal Chief Conservator of Forest, Haryana. The letter reads that in pursuance to the directions of the MoEF vide letter dated 18.05.2012 the State Government of Haryana has prepared the geo-reference District Forest Map for Faridabad District and the District has total forest cover of 6933.22 Ha which include reserve forest, strip forest and 5513.13 ha of area notified under Section 4 and 5 of Punjab Land Preservation Act, 1900, which are treated as 'forest' for the purpose of Forest (Conservation) Act, 1980 as per the orders of the Hon'ble Supreme Court of India. This letter further states that the geo-reference District Forest Map includes 1132 acres of Manger area notified under Section 4 and 5 of the PLPA 1900 along with other lands. Reading of this map shows that the subject matter of the application the land in question is the 'Gair Mumkin Pahar Land' indicated in red color amidst the area shown as 'Gair Mumkin Pahar'.

The learned Counsel appearing on behalf of MoEF, however submits that the exercise of identifying the "forest" as per the dictionary meaning is not yet complete, though the process of settling the parameters for the purposes of identifying the 'forest' as per the dictionary meaning as envisaged by the Hon'ble Apex Court has been completed after taking into consideration the views of all the States/Union Territories and is awaiting the approval from the Hon'ble Apex Court.

In given situation, we feel that the identification of the forest on application of the approved parameters vis-à-vis the subject matter of the land in question, may take considerable time. However, the fact remains that as of today the land in question is a part of Gair Mumkin Pahar Area, where formerly no agricultural activity of whatsoever nature was being carried out. Virtually, there was no human interference in the said area and had allowed growth of Flora species as generally found in forest/denuded forest. However, as of today it appears due to real estate pressure the anthropogenic activity in the said area has increased. No wonder therefore, persons are bent upon fragmenting the pieces of land for real estate development and in the process they are erecting fences around the plots of their ownership. In these circumstances, pending the decision in the matter whether it is a forest land or not, any such anthropogenic activity which may promote the fragmentation and consequent construction on such lands would be deleterious to fragile environment in the said area - Aravali Hill Region. Considering such danger to ecologically fragile area we had passed an order dated 01.04.2014 directing the respondent no. 5 owner of the property not to raise any construction temporarily or otherwise inside the barbed wire fencing or carry out any non forest activity in that area further, and allowed the respondent no. 5 applicant to erect barbed wire fencing along its boundary with clear undertaking that if ultimately the land is found to be forest land the owner will not claim any compensation or benefit for putting the barbed wired fencing and upon decision taken identifying the forest areas the land in question shall vest in the State in accordance with law without any benefit to the owner non- applicant respondent no. 5 in this regard.

We had also directed the State Government not to issue any permission to fragmentation of areas in Village Manger, particularly gair mumkin pahar area, in the District, Faridabad till next date of hearing and any case without the leave of the Tribunal.

In our considered opinion this application can, therefore, be disposed of with the similar directions to the concerned respondents pending the decision regarding the character of the land, whether forest or not, and further with the liberty to approach the appropriate forum for appropriate relief in the matter of such decision that would be taken in respect of the said character of the land in the manner known to law.

To Curtail the mischief of transgressing the provisions of Forest Conservation Act, 1980 we also feel it just and necessary to pass directions requiring the State and it's authorities particularly, respondent no. 2 the State, respondent no. 3 Directorate of Town and Country planning and respondent no. 4 Department of Forest to ascertain and verify whether the land in respect of which they proposes to pass any order or direction has been identified as forest land or not, and not to grant any order, direction or aproval in contravention of the Forest Conservation Act, 1980.

Before we part with this Judgment we find from the record that the labour of one Karamvir Singh, contractor of the Respondent no. 5 -owner of the land in question, engaged for erecting the fencing around the land had felled 24 trees (22 trees of muscat (prosopis juliflora) and 2 trees of Dhak (Butea Monosprma) local species of Aravali Hills and this offence of cutting trees was compounded on payment of lowly sum of Rs. 4,560/. The record further reveals that Mr. Karamvir Singh had admitted this fact and had got the offence compounded as per the provisions of section 68 of the Indian Forest Act 1927 read with section 4(c) of the PLP Act 1900. The Principal Chief Conservator of Forest, Haryana in his affidavit dated 28th March, 2014 confirmed these facts and proceeded to state that Rs. 4,560/- is not the price of the trees which have been cut. He has tendered unconditional apologies on behalf of the respondent no. 3 the Department of Forest and assured that no efforts will be spared to protect the forest and environment in the area falling within his jurisdiction. In the given set of circumstances we hold respondent no. 5 vicariously liable for the damage sustained to the environment on account of such tree felling. The respondent no. 5 ought to have expected such consequences of undertaking construction of boundary wall in ecologically fragile area. We therefore, invoke 'polluter pay principle' and hold respondent no. 5 liable for 10 times payment made for compounding the offences i.e. Rs. 50,000/-towards compensation for the damage caused to the environment.

We therefore, direct;

That the respondent no. 1, MoEF and respondent no. 2, State of Haryana shall take appropriate decision in respect of the matter of identification of Forest areas in Gair Mumkin Pahar/Manger Bani in District Faridabad, particularly in keeping with the directions passed by the Hon'ble Apex Court from time to time viz. dated 12.12.1996 in Writ Petition (C) No. 202 of 1995 T.N. Godavarman Thirumulpad versus Union of India and Others and order dated 06.07.2011 in W.P. (Civil) No. 4677 of 1985 in the matter of M.C. Mehta Vs. Union of India as expeditiously as possible and shall submit the report identifying the forest areas before the Tribunal immediately after the decision as aforesaid is taken.

Till such decision is finally taken and the land in question is identified as to whether it is a forest or not the respondent no. 5 shall not raise any construction, temporarily or otherwise, inside the said land or carry out any non forest activity in the said land.

No DPC or wall construction around the boundary of the said plot may be erected till such decision is finally taken. Existing construction of boundary wall, if any, shall be removed forthwith by the respondent no. 5.

The respondent no.5 shall pay an amount of Rs. 50,000 to the Environment Relief Fund and remit such amount as per Rule 35 of the National Green Tribunal Practice and Procedure Rules, 2011.

If the said land is identified as the 'forest land' as aforesaid, the respondent no. 5 the owner of the plot shall remove all such wall/fencing or the DPC raised for erecting the fencing and restore the land to its original condition.

Permission for putting a barbed wired fencing along the property granted vide order dated 01.04.2014 was only an interim arrangement in respect of the land in question and in no way can be construed as a blanket permission to erect fencing around lands in the area.

The State Government or any authority shall not issue any permission for fragmentation of the area falling in Village, Manger Gair Mumkin Pahar District, Faridabad, without the leave of the Tribunal.

The respondent no. 2 the State, respondent no. 3 Directorate of Town and Country planning and respondent no. 4 Department of Forest shall ascertain and verify whether the land in respect of which they propose to pass any order or direction has been identified as forest land or not as aforesaid and shall not pass any order or direction in contravention of Forest (Conversation) Act, 1980.

Parties shall be at liberty to take recourse to appropriate legal remedies against the decision taken by the State/Central Government in the matter of identification of the forest land in gair mumkin pahar area.

The application stands disposed of with no order as to cost.

M.A. No. 770/2013, 980/2013 and 166/2014 also stands disposed of accordingly with the disposal of the Original Application.