National Green Tribunal
Mr.Zafar Abbas vs State Of Uttar Pradesh on 15 March, 2023
Item No. 1 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Original Application No. 704/2022
(I.A No. 231/2022 & I.A No. 296/2022)
1. Mr. Zafar Abbas,
S/o Late Shri Mohd. Mehdi,
R/o G-32/1, Shaheen Bagh,
Jamia Nagar, New Delhi - 110025,
Email ID:- [email protected],
Mob:- 9718671707. ...Applicant
Versus
1. State of Uttar Pradesh,
Through Secretary,
Environment, Forest and Climate Change Department,
17, Rana Pratap Marg, Narhi, Civil Lines,
Lucknow, Uttar Pradesh 226001,
Email ID:- [email protected].
2. Uttar Pradesh Shia Central Waqf Board,
817, 8th Floor, Indira Bhawan, Ashok Marg,
Hazratganj, Lucknow, Uttar Pradesh 226001,
Email:[email protected].
3. District Magistrate, Meerut
Lalkurti Bazar,Police Lines,
Meerut,Uttar Pradesh 250001,
Email ID: [email protected]. ...Respondents
Counsel for Applicant:
Mr. Mehmood Pracha, Mr. Jatin Bhatt and Mr. Sanawar, Advocates.
Counsel for Respondent:
Mr. Bhanwar Pal Singh Jadon, Mr. Rovin Singh Solanki and Mr. Chetan
Jadon, Advocates for respondents no. 1 and 3.
Mr. Varchaswa Singh, Advocate for respondent no. 2.
PRESENT:
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-2-
Judgment Reserved on:- 19.01.2023
Judgment pronounced on :- 15.03.2023
Application under Section 18 (1) read with Sections 14, 15 and 19 of
the National Green Tribunal Act, 2010
JUDGMENT
1. The applicant- Jafar Abbas has filed the present application under Section 18(1) read with Sections 14, 15 and 19 of the National Green Tribunal Act, 2010 seeking the following reliefs:
"A. Pass appropriate orders directing Respondent No.1 to ensure that the entire area of 40 bighas of Khasra No. 15/1 village Nangla Tashi is demarcated and all encroachment and building material lying on the land is removed.
B. Pass any other or further orders as this Hon'ble Tribunal deems fit and proper in the fact and circumstances of the case."
2. The applicant has made the following factual averments in the application:
" Facts in Brief:
1. That the Applicant is the owner of 40 bighas agricultural land in Khasra Nos. 15/1 situated in Village Nangla Tashi Qasampur Kankar Kheda Meerut, Uttar Pradesh (hereinafter referred to as the `subject land'). Hereto annexed and marked as ANNEXURE A is a copy of Khatauni 1359 fasli of year 1952 recording the Applicant's father as Seerdar and ANNEXURE B is a copy of Order of the Chakbandi Officer dated 24.07.1971 declaring the Applicant's father as Bhumidar, which also records Waqf-ul-Aulaad of the Applicant's father.
2. That there has been no cultivation on the subject agricultural land, which is full of old trees, shrubs, herbs and wild grass. The said land has remained in its natural organic state for over more than 70 years and is rich in flora, fauna wildlife and biodiversity.
3. That the subject land is a popular grazing ground for cattle, wildlife (neelgai), hare other local herbivores and is a natural habitat for birds, endangered species of reptiles, other small animals and various species of regional/local flora and fauna.
4. That it has recently come to the knowledge of the Applicant, who resides in Delhi, that the Uttar Pradesh Shia Central Waqf Board is misusing its authority over the Waqf-ul-aulaad land and allowing unknown third parties to encroach and disturb the ecology O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.-3-
and the environment of the subject land which is a natural habitat for various important species of flora fauna and wildlife. It is submitted that at the behest of Respondent No.2, a builder is trying to occupy and convert a part of the said land situated in Khasra No.15/1 situated in Village Nangla Tashi Qasampur Kankar Kheda Meerut, into a residential colony. He has commenced the work by digging out the wild grass and running JCB Machines to uproot trees, flatten the soil by levelling the land for constructing the roads. It has also come to the Applicant's knowledge that the builder is planning to bore tube wells for supply of water for construction purposes. Hereto annexed and marked as ANNEXURE C (Colly) are copies of photographs showing the present condition of the subject land.
5. The Applicant had also submitted a representation on 09.09.2022 to this Hon'ble Tribunal, apprising it about the environmental hazards. Hereto annexed and marked as ANNEXURE D is a copy of representation sent on 09.09.2022.
6. That the act of constructing a residential colony on agricultural land and the further act of disturbing a natural organic environment biodiversity habitat, which has sprung up naturally and left undisturbed for over 70 years, will have severe environmental ramifications. Not only will it have a detrimental effect on the flora and fauna, and biodiversity, but it will also negatively affect recharge of ground water and result in depletion/ruination of ground water table, causing irreversible damage to the environment and requires urgent intervention of this Hon'ble Tribunal. Hence, the Applicant has filed the present application inter alia on the following grounds which may be read without prejudice to one another:
GROUNDS A. Because the construction of an illegal residential colony on agricultural land is leading to destruction of a biodiversity rich area which is the habitat of various species of flora and fauna, and which has developed and remained in its natural state for over 7 decades. B. Because the construction of an illegal residential colony on agricultural land is depriving the local herbivores of a convenient grazing ground and will disrupt the food chain as well as the food web causing irreversible damage to the environment including loss of biodiversity in the area.
C. Because the illegal construction will destroy agricultural land which is pristine, full of green cover, including full grown trees. It will convert a natural carbon sink into a sink of concrete and is bound to increase the carbon footprint in the locality, which already contains around 23,000 industrial units including pharmaceutical industries. D. Because the subject agricultural land and its rich biodiversity play a vital role in maintenance and recharge of ground water levels in the locality.
O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.-4-
E. Because digging and installation of tube wells will cause depletion of the ground water table in the area which is already in critical/semi critical condition and will result in irreversible damage to the environment.
F. Because loss of habitat will lead to increased human-animal conflict and pose a risk to the inhabitants of the village. G. Because the National Green Tribunal Act, 2010 empowers this Hon'ble Tribunal to pass orders in matters pertaining to environment protection and conservation of environment. H. Because if the illegal conversion of agricultural land into residential colonies is permitted, the construction activity will lead to waste generation, significantly deteriorate the soil quality in the area and increase the pressure on land. Moreso as builder mafia is carrying out similar activities in other areas of green land of village Nangla Tashi Qasimpura and soon all green land will become a concrete jungle."
3. Vide order dated 27.09.2022, the District Magistrate, Meerut was impleaded as respondent No.3 and notices were ordered to be issued to the respondents.
4. Vide order dated 11.10.2022, status quo regarding possession and existing position of the land was ordered to be maintained and the District Magistrate, Meerut was also directed to get the land in dispute video-
graphed immediately on receipt of the order.
5. The applicant filed I.A. No. 296/2022 alleging that Patwari deputed by the District Magistrate, Meerut to video-graph the land in dispute made a partial video recording and advised the applicant to withdraw his application. The applicant was also threatened by about ten persons of doubtful character present there.
6. Vide order dated 23.11.2022 this Tribunal ordered that a copy of the application be sent to the District Magistrate, Meerut, who was directed to ensure that the land in question is completely video-graphed to record its existing position and to take such further action as may be considered appropriate and I.A No. 296/2022 is disposed of accordingly. O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-5-7. In compliance thereof status report along-with two CDs has been filed on behalf of the District Magistrate, Meerut by post which was received on 28.11.2022.
8. The relevant part of the Status Report filed on behalf of the District Magistrate, Meerut is reproduced as under:-
"egksn;] Ñi;k ek0 jk"Vªh; vf/kdj.k ds le{k Jh tQj vCckl }kjk izLrqr izkFkZuk i= la[;k 704@2022 tQj vCckl cuke m0iz0 jkT; o vU; es ek0 vf/kdj.k }kjk ikfjr vkns'k fnukad 11-10-2022 ftldh izfr ek0 vf/kdj.k }kjk bZ&esy ds ek/;e ls ftykf/kdkjh egksn; ,oa ofj"B iqfyl v/kh{kd egksn;] esjB dks vkns'k ds visf{kr vuqikyukFkZ izsf"kr dh x;h gS] dk lUnHkZ xzg.k djus dk d"V djsa] mDr lEcU/k es lknj voxr djkuk gS fd xzke uxykrk'kh dkleiqj ijxuk o rglhy esjB ftyk esjB fLFkr [kljk la[;k 15@1 dk jktLo vfHkys[kh; fooj.k fuEuor gS % 01- Tks0p0vk0i= 45 dk voyksdu fd;k x;k rks fLFkfr fuEuor gS % [kkrk [kljk jdck ¼ch?kk esa½ Js.kh [kkrsnkj dk uke la[;k la[;k 349 15d 07&03&00 1d eq0 gjthr ppay f<Yyks vkfn 184 15[k 02&08&00 1d folkjr iq= vysnkn vkfn 107 15x 3&00&00 1d /kekZuUn iq= Qrg flag 572 15?k 13&01&05 5¼3½ catj iz'uxr Hkwfe [kljk la[;k 15?k jdck 13&01&05 ch?kk pdcUnh izfØ;k esa catj xkao lHkk lEifRr ds :i NksMh+ x;h tks tks0p0vk0i= 45 esa [kkrk la[;k 572 ij vafdr gSA 02- [krkSuh o"kZ 1384 rk 1390 Qlyh ds [kkrk 598 ij [kljk la[;k 15?k jdck 13&01&05 ch?kk Js.kh 5¼3½ M- catj vafdr gS rFkk ifjorZu dkWye esa uk;c rglhynkj }kjk okn la[;k 130 o 134 vkns'k fnukad 19&09&1978 ds vUrxZr dqVhj m|ksx gsrq O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.-6-
[kljk la[;k 15 jdck 05&00&00 ch?kk Hkwfe eSllZ vfHkuUnu nkl tSu ,.M dEiuh] 215 osLV ,.M jksM esjB dSUV }kjk vfHkuUnu nkl tSu fuoklh 215 osLV ,.M jksM esjB dSUV o 07&00&00 ch?kk Hkwfe eSllZ ,u Ms;jh] jsyos jksM esjB }kjk iqfur dqekj tSu fuoklh jsyos jksM esjB ds uke vafdr gSA 03- blds mijkUr lqijokbZtj dkuwuxks jksgVk dh fjiksVZ fnukad 16&07&1980 o ftyk 'kkldh; vf/koDrk ¼jktLo½ dh jk; izkIr djds ijxukf/kdkjh] esjB us fnukad 13&07&1981 dks lks&eksVks dk;Zokgh fu;e 115ih ds vUrxZr dk;Zokgh fd;s tkus gsrq vij ftykf/kdkjh ¼iz'kklu½] esjB dks vk[;k izsf"kr dh x;hA 04- ijxukf/kdkjh] esjB dh vk[;k ij U;k;ky; vij ftykf/kdkjh ¼fo0@jk0½] esjB us okn la[;k 12@1981 ljdkj cuke vfHkeU;q nkl tSu o eSllZ ,u Ms;jh] jsyos jksM+ esjB }kjk iqfur tSu o ,y0,y0lh xzke uaxykrk'kh dkleiqj vUrxZu /kkjk 115ih m0iz0t0fo0 ,oa Hkw0O;0vf/k0 ds vUrxZr ;ksftr gqvk rFkk i{kdkjksa dks fu;ekUrxZr viuk viuk i{k j[kus gsrq uksfVl fuxZr fd;s x;sA i=koyh ij miyC/k lk{;ksa dk ifj'khyu dj U;k;ky; vij ftykf/kdkjh ¼fo0@jk0½] esjB us vkns'k fnukad 14&04&1982 ikfjr fd;k x;k] ftles dqVhj m|ksx dk;Z u fd;s tkus ij vkoaVu fujLr fd;k x;kA 05- U;k;ky; vij ftykf/kdkjh ¼fo0@jk0½] esjB ds vkns'k fnukad 14&04&1982 ds fo:) vij vk;qDr] esjB e.My esjB esa fuxjkuh ;ksftr dh x;h] tks fnukad 25&06&1982 dks fujLr dh x;hA 06- ek0 mPpre U;k;ky; esa fo'ks"k flfoy vihy la[;k 1595@2009 vfHkeU;q nkl tSu cuke cksMZ vkWQ jsosU;w ;ksftr dh x;hA ek0 mPpre U;k;ky; ds vkns'k fnukad 06&03&2009 }kjk okn dks fjek.M djrs gq;s vij ftykf/kdkjh ¼foRr½] esjB dks funsZf'kr fd;k x;k fd i{kdkjksa dks lqudj okn dk xq.k&nks"k ij fuLrkj.k fd;k tk;sA 07- ek0 mPpre U;k;ky; ds vkns'k fnukad 06&03&2009 ds vuqikyu esa i{kdkjksa dks lk{; dk volj iznku fd;k rFkk mudks lquk x;k mlds mijkUr U;k;ky; vij ftykf/kdkjh ¼foRr@jktLo½] esjB us fnukad 17&01&2011 dks vkns'k ikfjr fd;s] ftlesa iwoZ ikfjr vkns'k fnukad 14&04&1982 dh iqf"V dh x;hA O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.-7-
08- U;k;ky; vij ftykf/kdkjh ¼foRr@jktLo½] esjB us fnukad 17&01&2011 ds fo:) U;k;ky; vij vk;qDr] esjB e.My esjy es fuxjkuh la[;k 42@10&11 Jh;ka'k dqekj vkfn cuke ljdkj nk;j dh x;hA U;k;ky; vij vk;qDr] esjB e.My esjB us fnukad 25&01&12 dks fuxjkuh cyghu ,oa vk/kkjghu gksus ds dkj.k fujLr dhA 09- U;k;ky; vij vk;qDr] esjB e.My esjB esa fuxjkuh la[;k 42@10&11 Jh;ka'k dqekj vkfn cuke ljdkj esa ikfjr vkns'k fnukad 25&01&2012 ds fo:) ekuuh; mPp U;k;ky; esa ;ksftr flfoy fel0 fjV ;kfpdk la[;k& lh 16781 o"kZ 2012 Jh;ka'k dqekj tSu vkfn cuke m0iz0jkT; o vU; ;ksftr fd;k x;k] tks ek0 mPp U;k;ky; esa fopkjk/khu gSA 10- U;k;ky; lgk;d dysDVj ¼izFke Js.kh½@vij uxj eftLVªsV ¼r`rh;½] esjB esa okn la[;k 10@32@93 vUrxZr /kkjk 229ch teh0fo0vf/k0 oDQ mYy vkSykn cuke ljdkj vkfn fnukad 03&07&1991 dks iz'uxr Hkwfe [kljk la[;k 15@1 ds lEcU/k esa ;ksftr fd;k x;kA tks U;k;ky; }kjk fnukad 19&07&1983 dks okn fl) djus es oknh foQy gksus ij okn fujLr dj fn;k x;kA 10- U;k;ky; lgk;d dysDVj ¼izFke Js.kh½@vij uxj eftLVªsV ¼r`rh;½] esjB ds vkns'k fnukad 19&07&1993 ds fo:) U;k;ky;
vij vk;qDr ¼U;kf;d½] esjB e.My] esjB es vihy la[;k 90@92&93 oDQ mYy vkSykn cuke m0iz0ljdkj vkfn ;ksftr dh x;hA vij vk;qDr ¼U;kf;d½] esjB e.My] esjB us fnukad 06&10&1994 dks vkns'k ikfjr dj voj U;k;ky; ds vkns'k fnukad 19&07&1993 fujLr djds oDQ mYy vkSykn dks la0 Øe.kh; Hkwfe/kj ?kksf"kr dj fn;kA ftldk jktLo vfHkys[k [krkSuh o"kZ 1397 rk 1402 Qlyh ds [kkrk la[;k 651 ij veynjken dh izfof"V dh x;hA 11- vij vk;qDr ¼U;kf;d½] esjB e.My] esjB ds ikfjr vkns'k fnukad 06&10&1994 ds fo:) U;k;ky; jktLo ifj"kn] m0iz0] dSEi esjB es f}rh; vihy la[;k 32 ¼tsM½ 95&96 uxj egkikfydk esjB cuke oDQ my vkSykn o fuxjkuh la[;k 136 ¼tsM½ 95&96 eqUuk cuke oDQ my vkSykn nk;j gqbZA U;k;ky; jktLo ifj"kn] m0iz0] dSEi esjB us ikfjr vkns'k ¼U;kf;d½] esjB e.My] esjB ds ikfjr vkns'k 06&10&1994 dh iqf"V dh x;hA O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-8-12- U;k;ky; jktLo ifj"kn] m0iz0] dSEi esjB ds ikfjr vkns'k fnukad 02&03&2001 ds fo:) ek0 mPp U;k;ky;] bykgkckn esa fjV ;kfpdk la[;k 16547@2001 eqUuk yky cuke cksMZ vkWQ jsosU;w] m0iz0 vkfn ;ksftr dh x;hA ek0 mPp U;k;ky;] bykgkckn ds LFkxukns'k fnukad 03&05&2001 ds vUrxZr U;k;ky; jktLo ifj"kn] m0iz0] dSEi esjB ds vkns'k fnukad 02&03&2001 o U;k;ky; vij vk;qDr] esjB e.My] esjB ds ikfjr vkns'k fnukad 06&10&1994 LFkxu fd;s x;sA ek0 mPp U;k;ky;] bykgkckn ds vkns'k fnukad 11&10&2007 dks ;kfpdk fuLrkfjr dj nh x;h] mDr vkns'k dh izfr vizkIr gSA ftles ek0 mPp U;k;ky;] bykgkckn esa iquLFkkZiu izkFkZuk i= fnukad 07&05&2013 dks nkf[ky fd;k x;k] tks yfEcr gSA 13- mijksDr fcUnq&10 esa vafdr U;k;ky; lgk;d dysDVj ¼izFke Js.kh½ @vij uxj eftLVªsV ¼r`rh;½] esjB ds ikfjr vkns'k fnukad 19&07&1993 dk voyksdu djus ls fofnr gqvk fd [kljk la[;k 15 iqjkus [kljk la[;k 12 ls cuk gSA ftlds lEcU/k esa [kljk 1359 Qlyh dk voyksdu fd;k x;k rks fofnr gqvk fd [kljk la[;k 12@1 dk jdck 27&05&05 egky dayk [ksoV la[;k 3 pupy flag vkfn o fo'kkjr vkfn rFkk tQj egsanh vkfn vafdr gS ftlesa dsoy 01&03&00 ch?kk es Qly vkSj 'ks"k jdck catj <kd ds :i esa vafdr gSA [kljk 12@2 jdck 00&15&15 fcLokalh lM+d jsy nkSjkyk QkeZ o [kljk la[;k 12@3 jdck 00&08&00 fcLok eq0 eqjknu vkfn ftles Qly vafdr gS] ik;s x;s gSaA 14- U;k;ky; lgk;d dysDVj ¼izFke Js.kh½@vij uxj eftLVªsV ¼r`rh;½] esjB ds ikfjr vkns'k fnukad 19&07&1993 ds vUrxZr f'k;k oDQ cksMZ es oDQ dk iathdj.k 04&02&1992 es gkuk vafdr gSA lkFk gh ;g vafdr gS fd 53 o"kZ ckn iathÑr djk;k x;k gSA 15- ek0 mPp U;k;ky;] bykgkckn esa iz'uxr izdj.k ds lEcU/k esa fjV ;kfpdk la[;k& lh 16781 o"kZ 2012 Jh;ka'k dqekj tSu vkfn cuke m0iz0jkT; o vU; fopkjk/khu gS rFkk fjV ;kfpdk la[;k 16547@2001 eqUuk yky cuke cksMZ vkWQ jsosU;w] m0iz0 vkfn ek0 mPp U;k;ky;] bykgkckn ds vkns'k fnukad 11&10&2007 dks ;kfpdk fuLrkfjr dj nh x;h] mDr vkns'k dh izfr vizkIr gSA ftles ek0 mPp U;k;ky;] bykgkckn esa iquLFkkZiu izkFkZuk i= fnukad 07&05&2013 dks nkf[ky fd;k x;k] tks yfEcr gSa 16- iz'uxr Hkwfe dk oDQ eqroYyh }kjk veu ,UVjizkbZtst }kjk vCnqy okfgn vkfn ds i{k esa foØ; i= fnukad 15&04&2017 dks O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-9-iathÑr djk fn;k x;k rFkk iz'uxr Hkwfe ds lEcU/k esa ek0 mPp U;k;ky; esa okn fopkjk/khu gSA iz'uxr Hkwfe ek0 mPp U;k;ky;] bykgkckn esa fjV ;kfpdk la[;k 16547@2001 eqUuk ykyk cuke cksMZ vkWQ jsosU;w] m0iz0 vkfn nk;j dh x;h] tks ek0 mPp U;k;ky;] bykgkckn ds vkns'k fnukad 11&10&2007 dks ;kfpdk fuLrkfjr dj nh x;h] mDr vkns'k dh izfr vizkIr gSA ftlesa ek0 mPp U;k;ky;] bykgkckn esa iquLFkkZiu izkFkZuk i= fnukad 07&05&2013 dks nkf[ky fd;k x;k] tks ek0 mPp U;k;ky; esa fopkjk/khu gSA blds vfrfjDr fjV ;kfpdk la[;k& lh 16781 o"kZ 2012 Jh;ka'k dqekj tSu vkfn cuke m0iz0 jkT; o vU; tks ek0 mPp U;k;ky; esa fopkjk/khu rFkk fjV ;kfpdk 35520 o"kZ 2018 eSllZ veu ,.Vjizkbtst o vU; cuke m0iz0jkT; vkfn ek0 mPp U;k;ky; esa fopkjk/khu gS] ftlesa fnukad 01&12&2022 fu;r gS mDr fjV ;kfpdk 35520@2018 es ek0 mPp U;k;ky; ds vkns'k fnukad 31&10&2018 esa LFkxukns'k ikfjr fd;s x;s gSA ek0 vf/kdj.k }kjk vkns'k fnukad 11&10&2022 ikfjr djds jktLo xzke uxykrk'kh dkleiqj ijxuk o rglhy esjB o ftyk esjB fLFkr fookfnr Hkwfe [kljk la[;k 15@1 {ks=Qy 3-304 gSDVs;j ij vfxze vkns'kksa rd ;FkkfLFkfr dk;e djkus ,oa iz'uxr Hkwfe dh vkosnd ,oa iz;qÙkjnkrk&2 ds izfrfuf/k;ksa dh mifLFkfr esa ohfM;ksxzkQh djk;s tkus gsrq funsZf'kr fd;k x;k gSA mijksDr ds lEcU/k esa lknj voxr djkuk gS fd ek0 vf/kdj.k ds vkns'k dk vuqikyu djk;s tkus gsrq mPpkf/kdkfj;ksa ds vkns'k ds Øe esa fnukad 18&11&2022 dks vkosnd ,oa izR;qÙkjnkrk&2 dh vksj ls mifLFkr ft;k vCckl tksfd jktLo vfHkys[k orZeku [krkSuh o"kZ 1427 rk 1432 Qlyh ds [kkrk la[;k 430 es crkSj eqRoYyh vafdr gS] dh mifLFkfr es ekSds dh ohfM;ksxzkQh dh x;h gS ¼ohfM;ksxzkQh dh lhMh o QksVksxzk¶l layXu gS½A blds vfrfjrd Jh tQj vCckl }kjk ek0 vf/kdj.k ds le{k izkFkZuk i= vkbZ0,0 la0 296@2022 izLrqr dj mYys[k fd;k x;k gS fd "Patwari deputed by the District Magistrate, Meerut to Video-graph the land in dispute made a partial video recording and advised the applicant to withdraw his application. The applicant was also threatened by about ten persons of doubtful character present there."
O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-10-mijksDr ds lEcU/k es lknj voxr djkuk gS fd ek0 vf/kdj.k ds iwoZ vkns'k fnukad 11&10&2022 o fnukad 23&11&2022 ds vuqikyu es ekSds ij Hkwfe dh iqu% ohfM;ksxzkQh fnukad 27&11&2022 dks djk;h x;hA ftlds lk{; Lo:i ekSds dh ohfM;ksxzkQh dh lhMh voyksdukFkZ layXu gSA layXud % 01 & ohfM;ksxzkQh lhMh fnukad 18&11&2022 02 & fofM;ksxzkQh lhMh fnukad 27&11&2022 03 & fofM;ksxzkQh ds le; mifLFkfr i="
9. Reply has been filed on behalf of respondent no. 1 by Divisional Director, Social Forestry Division, Meerut vide email dated 29.11.2022. The relevant part of the reply filed on behalf of respondent no. 1 is reproduced below:-
"reply/short affidavit on behalf of the respondent no-1 alongwith affidavit.
X X X X
7. .... That in compliance of the statutory duties which are assigned under the law and order of this Hon'ble Tribunal, That the answering respondent performed their duties with utmost sincerity and took necessary steps in compliance of the order of this Hon'ble tribunal. It is submitted that the above investigation done through Sub Divisional Director, Social forestry, Meerut. It is further submitted that through the letter 93/35-3 dated 12.10.2022 Sub - Divisional Forest officer, Meerut, has been informed that enquiry has been concluded on the Khasra no. 15/1 and it is revealed by the enquiry that roads for cutting the colony were found on the spot, Soil and bricks were lying on the spot. That there is no evidence of any tree being cut on the spot. No tree was found cut on the spot. It is submitted that statements were recorded from the people living nearby during the investigation. It has been told by the persons present on the spot that no tree has been cut. There were bushes, grass and pits found on the respective land. The land is situated on the right track of Meerut - Sardhana road .The photographs of the spot and the statement of the people living nearby are annexed in this reply. True copy of the photographs and statements of the people living nearby the subjective land are annexed herewith as ANNEXURE R 1
8. That after intense examination and inspection of the spot in compliance of the order dated 27.09.2022. A letter no. 2253/35-3 dated 16.11.2022 has been sent to Forest Conservator/ Regional Director, Social Forestry, Meerut Circle, Meerut by Divisional Director, O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.-11-
Social Forestry Division, Meerut regarding the intense inspection of the spot and request him to apprise about the same to the Chief conservator of Forest, U.P. for necessary actions in the sequence of the order dated 27.09.2022 passed by the National green tribunal.True copy of the letter no 2253/35-3 dated 16/11/2022 are annexed herewith as ANNEXURE R2..."
10. Reply mentioning additional facts has also been filed on behalf of respondent no. 1 by the DFO, Meerut vide email dated 15.12.2022 and the relevant part of the same reads as under:
"X X X X It is submitted that a joint field visit alongwith revenue officials & others was done by Sub Divisional Officer (SDO) , Social Forestry division Meerut . In the report( Enclosure 1) letter no 149/35-3 dated 08-12-2022 SDO suggested that if the said land khasra no 15/1 remains in present condition ground covered by grasses & wild bushes it will increase local water recharge capacity. If remains unaffected by human interventions would provide shelter for wildlife & improve local environment which in turns positively affect local residents. SDO suggested to brief honble Court about these additional facts .
Enclosures :
1. SDO report
2. Photographs of field visit"
11. Reply has been filed on behalf of respondent no. 2 vide emails dated 29.11.2022 and 15.12.2022. The relevant part of the reply of respondent no.
2 is reproduced below:-
"X X X X
3. APPLICANT IS BHU MAFIA, WANTS TO WRONGFULLY
SELL THE SUBJECT LAND
That the present original application of the applicant under reply is neither tenable nor maintainable in the eyes of the facts and law, both the present applicant is a bhumafia of grave extent and happens to be a person having catena of criminal antecedent having evil intentions and ulterior motives towards the subject land and various other such lands which the applicant have been illegally selling, creating rights and interest and making agreements to sell without any such entitlement from the competent authority and without any locus towards the subject land which makes the applicant a fraud and mala fide person and O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-12-therefore, the application of the applicant under reply deserves sheer dismissal on this sole ground alone.
4. APPLICANT HAS CRIMINAL ANTECEDENTS, RESPONDENT NO. 2 IS SHEER VICTIM OF HIS SUBSTANTIAL CRIMINAL ACTS That the application of the appellant under reply deserves to be dismissed with exemplary costs for the reasons that the applicant has no cause of action for it and has approached this Hon'ble Tribunal with unclean hands and utmost mala fide to extort the entire waqf property including the subject land and gain huge wrongful profits, which the applicant has been doing since long period of decades and is habitual to such criminal acts and activities thereby making the answering respondent no. 2 a victim of his criminal and cheating acts, after filing the present afterthought, ulterior motivated, bogus, sham and bonanza litigation against the respondents and creating sheer prejudice, falsely, and obtaining favorable orders.
5. CHEATING BY PERSONATION AND MISLEADING THIS HON'BLE TRIBUNAL That the application of the appellant under reply deserves to be dismissed with exemplary costs on the sole legal ground that the applicant has cheated by personation and has committed a sheer social offence of fraud by misleading this Hon'ble Tribunal and appearing in its front after, deliberately and falsely, mentioning himself as the "Bhumidhar" in the subject land without any locus in it and thereby, the applicant has committed a sheer act of fraud not only upon the respondent, but also upon this Hon'ble Tribunal in the light of the landmark Judgment of Apex Court in S.P Chengalvaraya Naidu vs Jagannath: 1994 AIR 853, 1994 SCC (1) 1 contending, "Non disclosure of material facts and documents amounts to fraud not only upon the opposite party but also upon the Hon 'ble Court"
6. MISUSING LAW AS A WEAPON FOR THE SATISFACTION OF PERSONAL WRONGFUL PROFITS That the application of the appellant under reply deserves to be dismissed with exemplary costs on the sole legal ground that the present application under reply is a deliberate and gross misuse of law and abuse to its due process which can be made unequivocally evident from the fact that when the applicant, despite being restrained by the competent authorities and despite concerned orders of Hon'ble High Court of Judicature at Allahabad, has come before this Hon'ble Tribunal by falsely making arid portraying the subject land as an environmental concern upon which the applicant has evil eyes and is also facing legal as well as quasi legal O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-13-proceedings which are pending against him and his accomplices, as specified in the below mentioned paras.
7. That the applicant has approached this Hon'ble Tribunal bypassing the catena of litigation and prosecution under heinous sections of IPC, 180 which are already pending against him pertaining to his criminal activities in the subject and has falsely portrayed it to be an environmental concern, unconstitutionally and unlawfully, and has obtained favoring orders from this Hon'ble Tribunal after creating prejudice and has made a sheer attempt to commit such illegal and unwarranted criminal acts indirectly, which he couldn't do directly, as per law.
8. That the actual, true and cogent facts and circumstances are expedient to be brought before this Hon'ble Court to for the proper and judicial adjudication of this case according to which it is submitted that the subject land happens to be a land of Waqf al aulaad which was maintained and administered by the respondent no. 2 through the then Mutawalli namely, Karablai Abbas S/o Late Sh. Sayeed Asgar Hussain, and after his death, by Raza Abbas S/o Lt. Sh. Karablai Abbas and ultimately, by Zia Abbas, S/o Lt. Sh. Karablai Abbaswho, at present, happens to be the Bhumidhar of the subject land as per the latest Khasra and Khatauni which is annexed herewith.
The copy of the latest Khasra Khatauni records available on National Informatics Centre, U.P. State Unit, Lucknow is annexed herewith as Annexure R 1.
9. That it came to the knowledge of the respondent no. 2 that the erstwhile Mutawalli namely, Zafar Abbas, i.e., the appellant herein has caused sheer misuse of his powers and capacity and it was found that during the year 2003 and so on, the appellant committed sheer acts of encroachment and illegal sale of the waqf property representing himself as the absolute and independent owner of the land belonging to the answering respondent no. 2. The gravity of this sheer offences committed by the appellant herein can also be made unequivocally evident from the fact that vide Letter dated 31.12.2007, the respondent no. 2 apprised the said fact of illegal sale of huge area of 5,000 square yards by the appellant to some namely, Vinod Kumar, S/o Sh. Atar Singh, without any permission from the board, i.e., the respondent no. 2 herein, to the District Magistrate, Meerut and also received unwarranted amounts of Lacs of Rupees against the said ikrarnama and in this the respondent no. 2 suffered huge damages.
The copy including the agreements and sale deeds illegally executed by the appellant without permission of the board, is annexed herewith as Annexure R 2.
1.0. CRIMINAL ANTECEDENTS OF APPELLANT O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-14-That it is then upon the aforementioned letter of the respondent no. 2 dated 31.12.2007 and upon the order of the Apar Ziladhikari, Meerut District dated 24.03.2008 that the possession of the waqf land was given back to the then mutawalli namely, Karablai Abbas and the FIR dated 12.06.2008 and dated 19.09.2008 u/s 420/467/468/471/379 IPC and 4/10 of Forest Act was lodged against the appellant herein as well as his accomplices for their common intended acts of sheer cheating, forgery and criminal breach of trust committed by the appellant in pursuance of his evil intentions and ulterior motives only.
The copy of the aforementioned letter along with the copy of all the FIRs and Order of Apar Ziladhikar, Meerut District dated 24.03.2008 and the statements of Nirikshak dated 21.06.2008 held in this regard are annexed herewith as Annexure R 3 (Colly.).
11.PERMISSION OF THE BOARD That vide the orders/ permission of the respondent no. 2 dated 11.03.2008 and 14.03.2008, the above named Mutawalli namely, Zia Abbas was permitted and authorized u/s 51 of Waqf Act, 1995 to part land and sale land from the subject land via deed, giving the mukhtiyarnama to other person, appointing the advisor pertaining to the subject land, filing suit pertaining to the subject land and appointing the Advocate, sale the subject land vide orders dated 14.03.2008.
The copy of the orders dated 11.03.2008 and 14.03.2008 duly passed by the respondent no. 2 in favor of then Mutawalli namely, Karablai Abbas is annexed herewith as Ann exure R 4.
12. That the appellant herein, being habitual to encroach, forge and fabricate documents and take unwarranted mesne profits out of the land of the respondent no. 2, kept on doing such sheer criminal acts against the respondent no. 2 as well as other innocent persons of the society by cheating them by impersonation arid as such, another FIR dated 05.04.2013 bearing FIR No. 260/ 2013 was lodged against the appellant herein and his 5 other accomplices U/S 420 IPC and 198 ZLRA but even thereafter, the evil intentions, over acts and ulterior motives of the appellant to illegally usurp the property belonging to the respondent no. 2 and making the wrongful profits to himself and his accomplices never came to an end and as such, he kept on committing sheer criminal hurdles and acts for the satisfaction of his vendettas and ulterior motives, till date.
13.That the aforementioned permission given by the respondent no. 2 was, accordingly delegated and remain continue to be given to the subsequent Mutawallis of the subject land from time to time, including but not limited to the letter dated 02.03.2015 permitting the construction on the subject land, which can be made unequivocally evident from the catena of Orders and letters issued O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-15-by the answering respondent no. 2 in the subject land including the letter of the respondent• no. 2 dated 08.04.2015 addressed to the then Mutawalli namely, Zia Abbas, permitting construction and other welfare activities in the interest of the subject land in the respondent no. 2.
The copy of the relevant orders/ document making the continuity of permission to the subsequent Mutawallis and official letter of respondent no. 2 is annexed herewith as Annexure R 5.
14. CLARIFYING JUDGMENT OF HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD IN QUESTION TO SUBJECT LAND AND ITS RIGHTS That the malafide, habitual criminal nature and overt acts of criminality being committed by the appellant herein against the respondent no. 2 and the subject land can also be made, unequivocally evident from the fact that the appellant herein opted to raise vehement quarrels with the coming mutawallis from time to time and left no stone unturned to stop and bifurcate the duties of the respondent no. 2 and the mutawallis therein and misled the respondent no. 2 and set the entire constitutional machinery in motion, falsely and maliciously, and misused law as a weapon in his hands for the satisfaction of his ulterior motives which caused sheer damages to the subject land arid the respondent no. 2, however, upon the kind intervention of the Hon'ble High Court of Judicature at Allahabad in the writ petition bearing Writ C. No. 26134/ 2017, titled, "M/s Arnan Entreprises and Anr. Vs State of UP and Ors", the Hon'ble High Court passed an order dated 12.09.2019 in favor of the respondents and against the appellant herein and his deliberate discrepancies.
The copy of the Order dated 12.09.2019 passed by the Hon'ble High Court of Judicature at Allahabad in the writ petition bearing Writ C. No. 26134/2017, titled, "M/s Aman Entreprises and Anr. Vs State of UP and Ors" is annexed herewith as Annexure R 6.
15. That vide order of the board dated 27.02.2020, Mr. Zia Abbas was made the mutawalli in replace of then Mutawalli namely, Raza Abbas for the next 3 years and the entire continuing powers him on the subject land pertaining to its lease/ sale/ exchange/ construction and other such power were given in his hands and as such, the respondent no. 2 has absolute powers for any use of the land, including the stated land, for the welfare of the Waqf board and in its interest.
16. APPELLANT A HABITUAL OFFENDER That it is unequivocally proven fact that the appellant herein is a habitual offender having criminal antecedents and is adamant to create hurdles and disturb the possession of the subject land and is not allowing the authorities, who are duly allowed to construct O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-16-shops and chardiwaris in the subject land for carrying out the necessary expenses of the waqf and in its welfare only and is impersonating himself as the absolute and independent owner of the subject land to create third party interest in it illegally without the authority or permission from the respondent no. 2 and as such, all the mutawallis of the subject land from time to time has been complaining of the appellant to higher authorities being a disturber and Bhumafia of the region having influential persons sitting in the pivotal places in the Government which caused sheer damages and loss of opportunities to the respondents. As such, a letter dated 13.12.2021 was also written by the previous Mutawalli of the subject land to the concerned Rajya Mantri against the appellant and upon this, the cognizance was taken into consideration by the Prashasanik Adhikari as well and to The District Magistrate, Sadar, Meerut vide complaint dated 21.03.2022.
The copy of the several complaints and representations and their cognizance dated 16.12.2021 by the Prashasanik Adhikari and other authorities along with other relevant documents/ correspondence are annexed herewith as Annexure R 7.
17. That vide its letter dated 22.07.2022, the present Mutawalli of the subject land, made a detailed complaint to the City Magistrate, Nagar Aayukt, Meerut and vide letter dated 27.07.2022 to the Up Ziladhikari in the terms of the aforementioned Judgment of the Hon'ble High Court of Judicature at Allahabad and previous proceedings seeking strict criminal action against the appellant herein and his accomplices for making false representations and complaints, deliberately, to disturb the waqf and usurp its property illegally by not allowing the respondent no. 2 to carry out necessary works in the subject land which is pending for adjudication before the Authorities.
The copy of the letter dated 22.07.2022 made by present Mutawalli to the City Magistrate, Meerut and other authorities is annexed herewith as Annexure R 8.
18. That maliciously, the appellant, without having any locus standi or bona fide, filed the present malicious and afterthought original application before this Hon'ble Tribunal and obtained prejudiced orders from it after misleading and crooking the facts and concealing the pivotal ones, thereby, committing a sheer misuse of the law as a weapon for the appellant for the satisfaction of his ulterior motives to usurp the subject property and usurp wrongful profits therefrom which is unconstitutional, malicious and bad in law and this fact, primarily, deserves sheer consideration by this Hon'ble Tribunal.
19. CRIMINAL ATTACK BY APPELLANT DURING COMPLIANCE OF ORDERS OF THIS HON'BLE COURT O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-17-That to the worst of the criminal nature, overt acts and intentions of the appellant herein, the present Mutawalli of the subject land namely, Zia - Abbas, when, upon the call of authority and in compliance of the orders of this Hon'ble Tribunal, went to the subject land for its photography on 18.11.2022, the appellant, under his unwarranted agitations from legal recourses pending against him and in pursuance of his ulterior motives, raised a vehement brawl with the mutawalli and others and subsequently, the appellant and his accomplices, criminally attacked the Mutawalli and other using sharp weapons already brought by them at the time of inspection by Lekhpal with the sole intentions to kill him whilst and left him in dying situation after inflicting vehement and serious life threatening injuries upon him at the arrival of his brother after which he was admitted in hospital in a serious situation and is still undergoing treatment of the injuries suffered by him in the said criminal attack by the appellant. This fact can be made unequivocally evident from the fact that an FIR dated 18.11.2022 bearing FIR No. 867 of 2022 u/s 324/ 352/504/308 IPC was registered against the appellant and his accomplices in Kankerkhera Police Station, Meerut which is pending for adjudication.
The copy of the FIR dated 18.11.2022 bearing FIR No. 867 of 2022 u/s 324/ 352/504/308 IPC registered against the 'appellant in Kankerkhera Police Station, Meerut is annexed herewith as Annexure R 9.
20. That in the light of the actual facts and circumstances of the case and the cogent proofs and material records present before this Hon'ble Tribunal, it is expedient and proper in the interest of justice that the present application of the appellant under reply may kindly be disposed as dismissed being malicious, unwarranted, lack of locus and lack of cause of action that can be attributed in favor of the appellant."
12. Respondent no. 2 has filed additional documents vide email dated 15.12.2022. Copy of the police complaint dated 14.12.2022 has been filed by the applicant on 14.12.2022.
13. Vide order dated 16.12.2022, an opportunity was granted to Mr. Varchaswa Singh, Advocate for Respondent No. 2 to file authorization empowering him to represent Respondent No. 2. In compliance to the said directions, Vakalatnama along with Office Memorandum dated 21.12.2022 duly signed by the Chairman, U.P. Shia Central Waqf Board has been filed O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-18-vide email dated 04.01.2023. However, copy of resolution passed by the UP Shia Central Waqf Board in this regard has not been filed.
14. The Applicant filed Interim Application no. 231 of 2022 with the Original Application for the following interim directions:
"A. Pass appropriate orders directing Respondent No.1 to ensure that no further activity of construction or any activity related to construction is allowed to be carried out in Khasra No. 15/1 situated in village Nangla Tashi Qasampur Kankar Kheda Meerut, Uttar Pradesh.
B. Direct initiation of penal action initiated against all violators including lodging of FIR against them.
C. Pass any other or further orders as this Hon'ble Tribunal deems fit and proper in the fact and circumstances of the case."
15. Notice of the above said interim application was given to the Respondents which has been opposed but no reply thereto has been filed by the respondents.
16. Claiming that Interim application could not be filed in the Registry due to some technical problem, the applicant filed the same on 19.01.2023 seeking following interim directions:-
"A. Take on record the request for investigation dated 16.01.2023, addressed to Additional Chief Secretary, Minority Welfare and Muslim Waqf Department, Government of Uttar Pradesh; B. Direct the Additional Chief Secretary, Ministry Welfare and Muslim Waqf Department, Government of Uttar Pradesh, to initiate an urgent inquiry into the matter, take stringent action against the wrongdoers, and inform the Tribunal of the same; C.Pass any other or further orders as this Hon'ble Tribunal deems fit and proper in the circumstances of the cases. "
17. The applicant was directed to file the same in the Registry if so desired but the same was not filed in the Registry.
18. The applicant has submitted in the interim application that on 10.11.2022, advocate appearing on behalf of Respondent No. 2 (UP Shia O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-19-Central Waqf Board), informed the Hon'ble Tribunal that he had filed Aadhar Card of AR of Respondent No. 2, copy of the Tauliyat Identity Certificate issued by Respondent No. 2, with copy of order dated 06.07.2022, and Vakalatnama on behalf of Respondent No. 2. However, the documents filed by the advocate as well as the Vakalatnama pertained to a stranger i.e. one Ziya Abbas, who seemed to have misrepresented himself as the UP Shia Central Waqf Board. Based on the said misrepresentation, said Ziya Abbas made various submissions on 11.10.2022, 23.11.2022, 29.11.2022 and 16.12.2022 to the detriment of the Applicant's case. When this fact was pointed out to this Hon'ble Tribunal, a fresh Vakalatnama signed by the Chairman of the UP Shia Central Waqf Board was filed along with an Office Memorandum dated 21.12.2022. However, no Resolution of the UP Shia Central Waqf Board was filed. The Applicant made a complaint to the Additional Chief Secretary, Minority Welfare and Muslim Waqf Department, Govt. of Uttar Pradesh, requesting for investigation into the conspiracy of appearing Ziya Abbas before the NGT on behalf of Uttar Pradesh Shia Central Waqf Board without any authority. In view of the fact that a serious attempt has been made to play fraud upon this Tribunal by signing vakalatnama and swearing affidavit on behalf of UP Shia Central Waqf Board. The applicant has accordingly prayed for issuance of directions to the Additional Chief Secretary, Minority Welfare and Muslim Waqf Department, Govt. of Uttar Pradesh, to initiate an urgent inquiry and take stringent action against all the person responsible for playing fraud upon the Tribunal in pursuance of their criminal motives.
19. We have heard arguments addressed by the learned Counsel for the applicant and learned counsel for the respondents no. 1 and 2 and we have gone through the material on record carefully.
O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-20-20. In their arguments, learned Counsel for the parties have reiterated their respective stands taken in the original application and interim applications filed by the applicant and replies filed by respondents no. 1 and 2 respectively.
21. So far as the interim application is concerned, it is pertinent to observe that the applicant has claimed that reply, documents and Vakalatnama have been filed by the learned Counsel for the respondent no. 2 at the instance of a stranger namely Zia Abbas, who is alleged to have misrepresented himself as the authorised representative of UP Shia Central Waqf Board. The applicant has already made complaint in this regard to the Additional Chief Secretary, Minority Welfare and Muslim Waqf Department, Govt. of Uttar Pradesh, requesting for investigation into the conspiracy of appearance of Zia Abbas before the NGT on behalf of Uttar Pradesh Shia Central Waqf Board without any authority. The claim of the applicant is vehemently opposed by the learned Counsel for the respondent No.2. In view of the disputed position, we do not consider it appropriate or necessary to issue any such direction as prayed for by the applicant. However, the applicant shall be at liberty to avail appropriate remedies in accordance with law for redressal of his grievances in this regard. Accordingly, the interim application filed on 19.01.2023 for interim directions is dismissed.
22. In the present case the applicant has claimed himself to be owner in possession of the land in dispute and made averments regarding illegal encroachments and cutting of the trees and vegetation existing over the land in dispute by the respondent no. 2 and land mafia including Zia Abbas.
Respondent no. 2 has disputed the claim of the applicant. Report filed by Tehsildar on behalf of District Magistrate, Meerut shows that there are number of litigation pending regarding the ownership and possession of the land in dispute in which orders have been passed by Hon'ble Allahabad High O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-21-Court and various other Courts. In the revenue record the land in dispute is recorded as Banjar. The applicant has made allegation that illegal change of land use by carving out of the residential plots. This Tribunal does not have the Jurisdiction and is not required to adjudicate upon the questions regarding ownership and possession and change of use of the land in dispute, injunction against construction and removal of encroachments and construction and the parties, who are already availing legal remedies, shall also be entitled/at liberty to avail appropriate remedy in accordance with law regarding the same.
23. The applicant has claimed that number of trees and shrubs and other vegetation existing in the land in dispute. The case involves substantial questions relating to environment in respect of the claim of illegal cutting of trees/vegetation from the land in dispute.
24. The Uttar Pradesh Protection of Trees Act, 1976 was enacted to provide for regulation of felling of trees and replanting of trees in Uttar Pradesh. Section 3 (xi) defines "tree" and the same reads as under:
"3.Definitions- In this Act, unless there is anything repugnant in the context:
X X X X X "Tree" means any woody plant whose branches spring from and are supported upon a trunk or body and whose trunk or body is not less than five centimeter in diameter at height of thirty centimeters from the ground level and is not less than one meter in height from the ground level, and the expressions ''timber trees'' and ''fruit trees'' means respectively the trees of the species specified in Schedule I and Schedule II respectively; Provided that the State Government may by notifications add to or modify the Schedules;
X X X X X"
25. Section 4 of the Uttar Pradesh Protection of Trees Act, 1976 places restriction on felling and removal of trees and permission is required under Section 5 to fell or remove trees. Section 6 lays down the procedure for O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.-22-
obtaining permission to fell or remove trees while Section 7 imposes the obligation to plant trees. Section 8 makes provision for plantation in blank area. Section 9 ensures implementation of directions given under Sections 7 and 8. Section 10 provides the penalty for felling or removal of trees in contravention of Section 4. For facility of reference the above referred provisions are reproduced as under:-
"4. Restriction on felling and removal of trees. - Except as provided in this Act or the rules made thereunder, no person shall-
(a) fell any tree standing on any land, whether included in a holding or not;
(b) cut, remove or otherwise dispose of any tree other than a tree which is completely dead and has fallen without the aid of human agency on any such land.
5. Permission to fell or remove trees. - The competent authority may, on the application of any person entitled to fell a standing tree or to cut, remove or otherwise dispose of a fallen tree, after making such inquiry, as it thinks fit, grant permission to him to do so :
Provided that such permission shall not be refused if the tree constitutes danger to person or property :
Provided further that except in such area as may be notified by the State Government in this behalf such permission shall not be required for the felling of any tree with a view to appropriating the wood or leaves thereof for bona fide use for purposes of fuel, fodder, agricultural implements or other domestic use :
Provided also that such immediate steps as are necessary to remove any obstruction or nuisance or to prevent any danger may be taken without such permission.
6. Procedure for obtaining permission to fell or remove trees. - (1) Every application under Section 5 shall be in writing and shall be made in such manner and contain such particulars as may be prescribed.
(2) The competent authority shall give his decision in the case of an application in respect of any tree other than a tree growing in forest, grove, or public premises, within ninety days from the date of receipt of such application, and in the case of an application in respect of a fallen tree within seven days from the date of receipt of such application. (3) If the competent authority fails to give his decision within the time allowed by sub-section (2), the permission referred to in Section 5 shall be deemed to have been granted. (4) Any person aggrieved from the decision of the competent authority under sub-section (2) may make a representation within thirty days from the date of such decision, to the Revising Authority and his decision on such representation shall be final.
O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-23-(5) Every permission granted under this Act shall be in such form and subject to such conditions, including taking of security for ensuring regeneration of the area and replanting of trees or otherwise, as may be prescribed.
7. Obligation to plant trees. - Every person, to whom permission has been granted under this Act to fell, cut, remove or dispose of any tree, shall be bound to plant and tend two trees in place of every tree in the area, from where such tree has been felled, cut, removed or disposed of by him under such permission :
Provided that the competent authority may for reasons to be recorded in writing, permit lesser number of trees to be planted, or trees to be planted in any different area, or exempt any person from the obligation to plant or tend any tree.
8. Plantation of trees in blank area. - (1) Where the Divisional Forest Officer is of opinion, on the basis of the report of a revenue officer, not below the rank of a Sub- Divisional Officer, or a Horticulture Officer, not below the rank of a District Horticulture Officer, or a Soil Conservation Officer not below the rank of Bhoomi Sanrakshan Adhikari or any forest officer not below the rank of Assistant Conservator of Forest, or otherwise that trees should be planted in a blank area, he may issue a notice to the owner, occupier or tenure-holder (hereinafter referred to as claimant) of such area to show cause why trees should not be planted in such area as may be specified in such notice.
(2) The notice referred to in sub-section (1) shall be given in such form and shall contain such particulars and shall be served in such manner as may be prescribed.
(3) The Divisional Forest Officer, may, after considering the cause, if any, shown by the claimant, direct him to plant such number and class of trees as may be specified in the direction.
(4) Any person aggrieved from any direction given under sub- section (3) may within 30 days from the date of such direction, prefer an appeal to the Conservator of Forests concerned, whose decision shall be final.
9. Implementation of directions given under Sections 7 and 8. - (1) Every person who is under an obligation to plant trees under Section 7 or to whom any direction has been given under Section 8 shall start preparatory work within ninety days, from the date of the permission or the date of receipt of direction, as the case may be, and shall plant the trees in accordance with such direction in the next following rainy season or within such extended time as the Divisional Forest Officer concerned may allow.
(2) In case of default by such person the Divisional Forest Officer may cause trees to be planted and may, recover the cost of plantation from such person in the prescribed manner.
10. Penalty for felling or removal of trees in contravention of Section 4. - Whoever fells or causes to be felled any standing tree, or cuts, removes or otherwise disposes of any fallen tree, in contravention of the provisions of Section 4, or contravenes any condition of any permission granted under this Act, shall be punished with imprisonment O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-24-which may extend to six months or with fine which may extend to one thousand rupees or with both."
26. In the present case in compliance of order dated 11.10.2022 the land in dispute was video-graphed. We have seen the video CD of the land in dispute and we find that the land in dispute has very less number of trees.
In reply filed on behalf of respondent no. 1 it has been mentioned that there is no evidence regarding cutting of trees from the land in dispute. No direction is, therefore, warranted for alleged past violations of illegal cutting of trees. However, In view of the above referred statutory provisions, the trees existing over the land in dispute cannot be cut without requisite permission and in compliance with the statutory provisions.
27. In the present case the land in dispute is recorded as banjar. As per para 01A of Chapter 5A of the UP Land Records Manual land which is not cultivated for the last five years is recorded in the revenue record in the sixth year as banjar. Section 80 of the Revenue Code, 2006 lays down the procedure for change of land use. Banjar land can be reclaimed for cultivation or can be utilized for industrial or residential purpose with the permission of concerned Authorities. In case of change of land use, vegetation on banjar land can also be cleared with permission of concerned Authorities and compliance with conditions imposed. In the present case in compliance of order dated 11.10.2022 the land in dispute was video-
graphed. We have seen the video CD of the land in dispute and we find that the land in dispute has very less number of trees and has vegetation which was not deliberately planted but has grown wildly and includes weeds. In accordance with such use of land in dispute as may be permitted, vegetation existing over the same will be liable to be protected or cleared with permission from the concerned Authority. Even though in additional reply DFO has mentioned that if the said land khasra no 15/1 remains in present condition ground covered by grasses & wild bushes it will increase local O. A. No. 704/2022 Zafar Abbas vs. State of Uttar Pradesh & Ors.
-25-water recharge capacity. If remains unaffected by human interventions would provide shelter for wildlife & improve local environment which in turns positively affect local residents. But we find that the observations in the additional reply are applicable only if land in question will remain pristine/undisturbed which is ruled out in view of the fact that the clearance of vegetation would solely depend on the legal user of the land in question. If the land is to be preserved as banjar land, then vegetation may be protected but if the land is to be put to some other use for agricultural or residential or industrial purposes, the vegetation will be liable to be cleared with the permission of the Competent Authorities.
28. In view of the above, the original application and interim application no. 231/2022 are disposed of with no order as to costs with the directions that no tree/green vegetation standing over the land in question shall be cut/cleared without obtaining permission from the Competent Authorities.
29. A copy of this order be supplied to the parties/learned Counsel for the parties by email for information/compliance.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM March 15, 2022 AG