AI Structured Summary
Not yet generated for this judgment
Judgment
Lt. Col. (Retd) Sarvadaman Singh Oberoi, the applicant in this case has invoked Section 14 of the National Green Tribunal Act read with Section 18 to seek following relief.
The material propositions in support of the relief sought basically is the alleged violation of provisions of Forest (Conservation) Act, 1980 and the provisions of Punjab Land Preservation Act 1900.
It is alleged that the applicant has noticed erratic felling of the tree, clearing and levelling of land and construction of kaccha road a large part of the forest area of Mangar village of Faridabad.
It is alleged that Respondent no. 5 - Dev Raj Kamboj is the owner of the land being khasra no. Rectangle (Mushtil) no. 11- kila no. 25/1, 25/2, Rectangle (Mushtil) no. 23 - kila no. 5/1, 5/2, 5/3, 6/2, Rectangle (Mushtil) No. 24 - kila no. 1/1, 1/2, 10/1 situate abating Gurgaon Faribadad road. The land are entered as gair mumkin pahar and is protected by several orders and directions passed by this Hon'ble Tribunal that, Respondent no. 5 has almost felled 1000 trees on the site in question over a period and he is making attempts to clear the land of vegetation. He has produced the photographs taken from December 2015 to April 2016 vide annexure 1.
According the applicant, the site in question is a half a kilometre from the Asola Bhatti Wildlife Sanctuary in New Delhi. the site is also part of contiguous forest between Asola Sanctuary and Mangar Forest Area and the Mangar Bani sacred grove. It is important wildlife corridor which is frequented by wild animals including leopards from Asola Sanctuary. He has relied on the report dated 15.02.2016 of the national daily Times of India to show the several pugmarks of the leopard and cub have been found in the said area.
According to the applicant, the felling of the trees by Respondent no. 5 is to the knowledge of the Forest Department but the Respondent no. 3 - Forest Department have taken no timely action. Several facts and circumstances are narrated to seek action against the Respondent no. 5 and also against the officers of the Forest Department for alleged violation of the Environment Protection Act and relevant provisions of the Forest Conservation Act.
In response to the notice, all the Respondents have entered appearance. Amongst the Respondents, the Respondent no. 5 - Dev Raj Kamboj is a contesting Respondents, therefore, in the first instance we shall refer to the defence taken by the Respondent no. 5. It is as follows:
According the Respondent no. 5, there are no trees in the area which he owns except Mexican Mexquite Tree species known as 'Vilayati Kikar'. He is not involved in cutting of any tree, shrubs and that Respondent no. 1 - Union of India has made a statement in Lok Sabha that the plant in the rich forest area is known as Vilayati Kikar be replaced with other plants. According to him some unknown persons inconnivence with the Forest Department i.e., Respondent no. 3 trespassed on land of the Respondent no. 5 and in this regard complaint was lodged by the Respondent no.5 but no action has been taken. In short, he has alleged the officers of the Respondent no. 3, after investigation have filed a report that felling of tree have been done by unknown offenders. On the basis of complaint given by the Respondent no. 5 himself action has been taken. He has lodged reports for alleged theft of trees from his land but the Forest Department did not take any action, however, after a long time the Forest Department lodged an FIR no. 629/16 Sector-55, Faridabad against Shri Bhim Singh and Shri Rahul S/o of Shri Ratan Singh, Manger Village of Faridabad, on the ground that they were involved in felling / cutting of trees. The Respondent no. 4 did not take any action despite such FIR and have remained silent spectators. It is his case that Respondent no. 4 - Commissioner of Police, Faridabad should have taken proper action against the culprits but that has not been done. It is further alleged by him that the officers of the Respondent no. 3, inconnivence with the land grabbers tried to barricade the way and restrains him (Respondent no. 5) to approach his own land. He has included the applicant as one of the person was against him and harassing him.
As regards allegation of contravention of environment is concern his contention is that the Punjab Land Preservation Act, 1900 (hereinafter called as ''PLP'' Act) was applicable only for 25 years from 11.02.1970 and the period of closure was 25 years, therefore, the said law is not in force and he cannot be accused of its contravention.
As regards Judgment of the Hon'ble Supreme Court in case of T.N. Godavarman's case is concerned, he has taken refuge to say that the facts and circumstances of this case are different and that Judgment is not applicable. He claims himself to be an environmentalist loving nature and claims to have requested the Forest Department to grant him permission to plant trees like Aloevera, Amla, Arjun, Ashok etc., after coming to know of alleged illegal felling of the trees from his land and encroachment by certain person were trying to make a kaccha road. He has referred to the complaint filed by him on 02.04.2016, 05.04.2016 and 30.04.2016 before the Police Station for action. From further details in his statement all that we can decipher is that he is not disputing or denying the allegation in the application that there is a felling of the trees from the land in question. All that he has done is to take a plea that felling of the trees from his land is by some miscreants who trespassed on his land. However, denied making a kaccha road on the land which belongs to him.
The material defence that he has come up now is that he has been prevented from going to his own lands by the Forest Department officers and in this regard he has lodged a complaint. It is also material to note that the Forest Department has registered criminal cases against not only unknown persons about alleged felling of trees from the land of Respondent no. 5 but they were also indicted Respondent no. 5 as one of the accused. He admits that FIR registered on 06.12.2015 is against Dev Raj Kamboj, Nirmal alias Umesh and Dharmbir. The name appearing in the FIR as Dev Raj Kamboj is none else than him. We have perused the copy of the said FIR which reveals that JCB earthmoving machines were seized from the spot that is land owned by Respondent no. 5 for alleged attempting constructing the road on the forest land no matter it was owned by him. The Second FIR registered on 12.01.2016 also shows it is against him along with another person by name Subhash Dhankar. Similarly, FIR registered on 01.04.2016 is also against him and one Shehnaj Singh for cutting and damaging trees and levelling of sand in ditch. From the above said FIRs it is evident that prim facia Respondent no. 5 - Dev Raj Kamboj is accused of illegal felling of the trees and also violating the construction of road in violation of the Punjab Land Preservation Act, 1900 and the provisions of the Forest (Conservation) Act 1980. When attention of learned counsel representing him is drawn he stated that the Respondent no. 5 has questioned the said FIRs before the Hon'ble High Court and stay has been granted. Even though, he has come up with such plea clear its admission that FIR have been registered against him, therefore, we have to proceed on the premise that there is no denial by the Respondent no. 5 to the allegation of destruction of trees from the land in question. As far as the Respondent no. 1 other response is concerned they have also come up with a plea wherein Respondent no. 3-Department of Forest admits of felling of tree from the land of Respondent no. 5 and also about registration of FIRs against him and another person for alleged contravention of Forest (Conservation) Act 1980 as also felling of the trees.
It is material to note in the reply on behalf of the Respondent no. 3 - Department of Forests it is averred that that 4262 acres of land in village Manger, measuring 1132 acres is notified under Section 4 and 5 of Punjab Land Preservation Act, 1900 by Government of Haryana vide notification number S.O.35/P.A.2 1900/S.4/70 dated 11.02.1970 and notification number S.O.48/P.A.2 1900/S.5/70 dated 11.02.1970 respectively. They also referred to the orders of the Hon'ble Supreme Court in similar cases where the Hon'ble Supreme Court directed that no mining will be permitted in the areas in respect of which notification under Section 4 and 5 of Punjab Land Preservation Act, 1900 have been issued and also regarding any other non forest activity. They also referred to the direction of the Hon'ble Supreme Court dated 18.03.2004 in the M.C. Mehta Vs. Union of India and ors case where the same is reiterated in short it is clear admission of the Forest Department also that the land in question owned by Respondent no. 5 - Dev Raj Kamboj is covered under the notification referred to above and consequently no non forest activity is permissible. It admits of no doubt that felling of tree and clearing of any other forest growth is impermissible.
We take notice of the fact that the judgment of this Tribunal in O.A. No.269 of 2016 titled as Haryali Welfare Society Vs. Union of India & ors same issue was considered. By judgment dated 20.07.2015 specific direction is issued by this tribunal and to authority concern not to issue any permission for fragmentation of the area falling in village, Manger Gair Mumkin Pahar District, Faridabad, within which territory the land in question belong to Respondent no. 5 is situate.
The Respondent no. 3 has also admitted that it learnt of illegal forest activity on 3 acres of forest land notified under Section 4 and 5 of Punjab Land Preservation Act, 1900 which lies in rectangle number 23 and 24 in village Manger owned by the Respondent no. 5. There is a categorical statement by the Forest Department that on the night of 05.12.2016 some unknown person were clearing the area. 800 trees/bushes of Prosopis juliflora, Butea monosperma, Zizyphus jojoba species were felled. A Joint inspection of Revenue as well as Forest Department was under taken of the area in question and they have ascertained damage to find out the owner of the land. They identified the Respondent no. 5 is the owner. Following this finding, a forest offence report (damage report) was issued against the violators and FIR was lodged in the jurisdictional police station for violating the direction of this Tribunal. The prosecution list was submitted to the jurisdictional Criminal Special Environment Court, Faridabad which has taking cognignce and the case is pending for consideration. They further state that again on the night of 10.01.2016, the Respondent no. 5 - Dev Raj Kamboj owner of the land with labourers felled 128 trees on the same site against whom forest damage report has been lodge in the jurisdictional police station. The case is now referred to the Special Environment Court in Faridabad and he is facing charges. Again on 31.03.2016, watchers engaged by the Forest Department found few people were hurriedly dumping soil on the land in question and also attempts to fell trees were being made. The staff raised alarm and aborted the clearing attempt. Further details have also mentioned about the incidents. The statement of the Forest Department reveals again the Respondent no. 5 indulge in similar act against whom a fresh forest damage report was registered and a jurisdictional police was requested to take further action. It is submitted before us through the written submission of Forest Department that again on 23.04.2016 one Shri Raj Singh in collusion with Shri Krishnakant Jhakkar resident of Sector 9, Faridabad and the Respondent no.5 - Devraj Kamboj, the land owner cut the barbed wire fencing done by the Forest Department and damaged the pillars erected for fencing. It is alleged that the protective trenches dug on the land for keeping the watch and wands were destroyed by the Respondent no. 5.
In view of the such clear statement of the Forest Department, there is no need to examine the stand of other Respondents in this case.
Combined reading of the statement filed by the Forest Department which contain all relevant information of felling of 100 and 128 trees by the Respondent no. 5 on the various dates. We had given opportunity to the Respondent no. 5 to respond. All that was stated on behalf of the Respondent no. 5 is that though he is the owner of the land in question he is not aware of felling of the trees. He has put up an innocent plea of ignorance of the various incidents of theft and felling of the trees stretch over couple of months from December 2015 till April 2016. However, he admits that in all the forest damage reports filed by the Forest Department he is arraigned as an accused alongwith the others he also admits that upon registration of case FIR has been lodged with the jurisdiction police station and now challan is presented before the Special Environment Court at Faridabad and he has to face trial. Though he admits these facts the defence put by him is he has questioned the FIR in an action before the jurisdictional Hon'ble High Court and stay had been granted in his favour.
The other defence put by him is as he has not felled the tree, he is not required to answer the charges of alleged felling of the tree. The further defence is that the Forest Department is preventing him for going on his own land and in this regard relies on the photographs to show presence of the forest officers on his land but he has not disclosed the circumstance in which Forest Department Officers went over to his land. On other hand, Forest Department has brought out that the Respondent no. 5 has been indulging in non forest activity on the land owned by him which comes within the mischief of Section 4 and 5 of PLP Act and the notification issued by the State of Haryana. It is also clear from the fact that it is not in dispute that several incidents of felling of trees totalling to about more than 100 and 128 were done on various dates and even the forest land is being cleared of the forest growth for formation of road.
The Forest Department has further alleged that the Respondent no. 5 is levelling the forest land obviously for commercial exploitation.
Keeping this admitted fact we have examined the legal position. The land in question owned by Respondent is admittedly a land governed under the notification issued under Section 4 and 5 of PLP Act by the State of Haryana where no non forest activity is permissible and the land requires protected as such as mandated under the provision of different Act. In the given circumstances it is difficult to accept the plea of innocence put forward by the Respondent no 5 that he does not know who has felled the tree and when. Keeping mind the fact that he is admittedly owner of the land and therefore had legal duty to ensure that no illegal activity is committed upon it. An activity and non forest activity which is prohibited on the land in question has been allowed to be done and consequently it is irrelevant who has done it. What matter is who has failed to ensure such activity is not conducted? Obviously as a owner the Respondent no. 5 had to ensure that there is no violation of Environment Protection Act in particular Forest (Conservation) Act, 1980 and the provisions of Punjab Land Preservation Act 1900. Vicarious liability binds him with the legal liability to answer to the incident of contravention of the environment laws. Hence, he has no escape.
As regards other relief in this application is considered, we are of the opinion that there is no need for specific order in this case for the reason several direction in the past have been issued by the Tribunal to Respondents no. 1 to 4 to take effective steps to prevent felling of trees and clearing, levelling of the land covered under Forest (Conservation) Act, 1980 and of Punjab Land Preservation Act 1900.
Similarly several direction have been issued for constitution of team to ensure prevention of illegal activity, therefore, all that is required in this case is to decide the incident of tree felling and contravention of Forest (Conservation) Act, 1980 and of Punjab Land Preservation Act 1900 against the Respondent no. 5.
For the above said reason we are satisfied the material on record substantiates that incident of erratic tree felling was done on the land in question consequent to which at one time 100 tree and another time 128 trees have been cut and destroyed. The Respondent no. 5, therefore, is held responsible for such illegal activity and as such activity directly impacted the environment is liable to pay environmental compensation. We, therefore, proceed to pass the following orders.
The Respondent no. 3 and 4 are directed to proceed with the cases registered against the Respondent no. 5 and other in a proper and meticulous manner and ensure that it reaches a logical end without committing any lapses, investigation or prosecution before the competent court.
The Respondent no. 5 shall pay a sum of Rs. 1,00,000/- as environment damage and deposit the same in the Forest Department within one month from now.
With the above observation Original Application no. 208/2016 is disposed of and consequently the other Miscellaneous applications no 403/2016 which are pending shall also stand disposed of with no order as to cost.