National Green Tribunal
Avinash Vidhrohi vs State Of H.P. & Ors on 20 July, 2023
Item No. 04 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(BY HYBRID MODE)
Original Application No. 372/2022
Avinash Vidhrohi Applicant
Versus
State of H.P. & Ors. Respondent(s)
Date of hearing: 20.07.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, CHAIRPERSON
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
Respondents: Mr. Ketan Paul, Adv. for the State of HP with Mr. Sushil Kumar, IFS, Dy.
Conservator of Forests & Mr. Gurcharan Sing, Superintending Engineer,
PWD
Mr. Aaditya Vijay Kumar, Adv. for HPSPCB
Mr. Vijay Sharama & Mr. Shantanu Bhardwaj, Advs. for R - 6
ORDER
1. The issue raised in this letter petition is pruning of branches of 200 fruit bearing mango trees standing on Daulatpur-Gagret Guglehad road done through a contractor without obtaining requisite permission from the Forest Department in violation of protective prohibition order passed by Hon'ble High Court of Himachal Pradesh.
2. Vide order dated 04.07.2022 this Tribunal constituted a Joint Committee comprising of the Regional Office of MoEF at Chandigarh, State PCB, Principal Chief Conservator of Forests, Government of Himachal Pradesh and Deputy Commissioner, Una and directed the Joint Committee to submit Factual and action taken report within two months. 1
3. In compliance thereof, report of the Joint Committee has been filed vide email dated 21.092022. The Conclusion-cum-Recommendation mentioned in the report of the Joint Committee is reproduced as under:-
"X X X X X H. Conclusion-cum-Recommendations of the Committee: After the deliberate conversation and examining the matter on the findings of the incident, the committee concludes that the cutting/pruning of 201 trees has been carried out without any permission and due procedure and had led to the substantial damage. Criminal action has already been initiated by the Forest department as submitted in detail earlier. Committee also discussed about the possibility of levying environmental compensation but it is found that there is no standard guideline/provision according to which environmental compensation can be levied in the matter. Most of the trees are located on the land in possession of HPPWD and department should take action in the matter. HPPWD should also frame proper mechanism for pruning of trees standing on its land along roadside. The joint report is submitted for consideration of the Hon'ble NGT please."
4. In its reply submitted by the Deputy Commissioner, Una it has been submitted that cutting and pruning of 201 trees has been carried out without any permission and due procedure and HP PWD has been directed to frame proper mechanism and regulation of pruning of trees on its land along road side.
5. Representative of the MoEF&CC, DFO and Deputy Commissioner, Una and one representative from the HP PCB submitted the factual report with the following facts:
"D. Brief Incident Report and Report of Forest Department :
Divisional Forest Officer Una vide his letter No. 5935-36 dated 03.08.2022 (copy annexed as Annexure D-1) has submitted that the Range Officers, Amb and Bharwain vide their letters No. 2062/A dated 28.03.2022 and 1898/Bh dated 30.03.2022 respectively had intimated that during the course of inspection from tika Guglehar to Daulatpur and tika Saghnai to Deoli, following trees have been found illicitly lopped/felled without proper permission by HP P.W.D. and their contractor Sh. Rohit Jaswal s/o Sh. Narender Jaswal RIO Dangoh, Tehsil Ghanari, Distt. Una (H.P.).2
Sr. Beat No. of trees No of branches Name of Range No. found cut
1. Jadla 59 108 Amb Range 2. MawaSindhian 67 115 3. Badoh 28 36 4. Gagret 18 44 Total: 172 303
5. Saghnai 29 84 (One tree Bharwain Range totally damaged) Total: 29 84 G.Total: 201 387 Accordingly, FIR No. 022 has been registered in Police Station Gagret on dated 28.03.2022 by the official of Forest Department Gagret regarding incident of illegal lopping/pruning of about 387 branches of 201 no. trees standing roadside without any permission from Forest Department.
E. Report of Police Department :
FIR has been registered in Police Station Gagret on dated 28.03.2022 under Section 379 IPC and Section 32, 33 of Indian Forest Act by the official of Forest Department Gagret regarding incident of illegal lopping/pruning of about 387 branches of 201 no. trees standing roadside by PWD Department through the contractor without obtaining any permission from Forest Department.
The accused Contractor namely Mr. Rohit Jaswal was arrested and was released on bail on dated 11-05-2022 after court accepted the bail plea.
A demarcation report of cutted trees from Saghnai to deoli from Ghanari Tehsil was received on 17/08/2022 vide which it was found out that Tree no. 1 to 6, 10 to 14, 15 to 18, 19 to 23, 24,25 and 29 are situated in the land in the name of HPPWD Department whereas Tree No. 7 is situated in the private land in the name of Kumari Shikha and Tree no. 8 and 9 are situated in the private land in the name of Naresh Kumar.
Demarcation report of cutted trees standing along roadside from Guglehar to Ambota was received from Revenue department on 03/09/2022 vide which it was found out that out of trees cutted in Mawa Sindhia Nichli, Tree no. 48,51,60,61 are situated in the land in the name and kism of Gair Mumkin Sadak, Malkiyat Sarkar Himachal Pradesh and Kabja HPPWD Department while tree no. 49,50,52,53,54,55,56,57,58,59,62,63,65,66 are situated in the private land with kism Gair Mumkin Sadak and Kabja HPPWD Department. In the Piplu Site Tree no. 1 to 15, in the Badehra site Tree no. 16 to 41, in the Oel site Tree no.1 to 20, in the Shivabri site Tree no. 08 to 13, in the Davali Ambota Jindvad site Tree no. 14 to 18 , in the Badoh Site Tree no. 21 to 29, in the Gagret Devnagar Site Tree no. 1 to 07, in the Loharli Nichli Site Tree No. 1 to 09, in the 3 Tatehra Site Tree No. 67, in the Koidi Site Tree no. 42 to 59, in the Kuthera Jaswalan site Tree no. 10 to 47 are situated in the land in the name and kism of Gair Mumkin Sadak, Malkiyat Sarkar Himachal Pradesh andw Kabja HPPWD Department.
Police Report in the matter is annexed as E-I. F. Report of PWD Department:
The Executive Engineer, H.P. PWD Division Bharwain District Una (H.P.). vide his letter No. LO.Ni/Vi/CV/GA/ 7422 dated 16.08.2022 (copy annexed as An nexu re F-I) has reported that maintenance of roads and Government buildings is work area of Public Works Department. He has also reported that the lopping/pruning of trees along the roadside is not done by HPPWD department. Firstly, the draft of estimate of every work which is done by his office is prepared and thereafter tender process is adopted.
The work is awarded to the contractor having lowest rate and thereafter implementation of works is done. The work relating to lopping of trees is not done by HPPWD department and further tender regarding lopping of trees along roadside from Guglehar --Gagret- Daulatpur has not been floated by his office. He has also reported that the right of ownership of trees along the aforesaid roadside is with Panchayat Samiti Gagret.
G. Action Taken till date :
FIR has been registered in Police Station Gagret on dated 28.03.2022 by the official of Forest Department Gagret regarding incident of illegal lopping/pruning of about 387 branches of 201 no. trees standing roadside without any permission from Forest Department.
Police has seized the saw, cutters and axe which are found on the spot and were used for pruning/lopping of trees.
Recovery of lopped branches:
Following forest produce has been seized by the forest officials and stacked at Van Thana, Tatehra and Inspetion Hut at Bhaderkali as per details given below:
Name of Specie Botanical name No No. of No. Volu Stacked at Range, s . of branch of me Block tre es cut logs and es seiz beats ed Amb/ Mango Mangifera 34 108 345 8.00 Van Thana Gagretl Indica cum Tatehra Jadla Shisha Dalbergia 1 m Sissoo Jamun Syzygium cumini 10 Other 14 B.L. 4 Amb/ Mango Mangifera 30 115 429 9.311 -do-
Gagret/ Indica cum MawaSin dia Shisha Dalbergia 6 m Sissoo Jamun Syzygium cumini 11 Safeda Eucalyptus 1 Other 19 B.L. Amb/ Mango Mangifera 16 36 108 2.010 -do- Gagret/ Indica cum Badoh Jamun Syzygium cumini 1 Safeda Eucalyptus 2 Other 9 B.L. Amb/ Mango Mangifera 14 44 132 3.00 -do- Gagret/ Indica cum Gagret Jamun Syzygium cumini 2 Other 2 B.L. Total 17 2 -) 101 4 22.32 1 Amb 303 cum Range Bharwain / Mango Mangifera 25 84 (One 346 9.762 I. HutBhader Daulatpu Indica tree cum kali r/ Saghnai Shisha Dalbergia 1 totally m Sissoo Jamun Syzygium cumini 1 Kehm Lanneacoroman 1 bal delica Desi Morus Alba 1 Toot Total 29 84(One 346 9.762 Bharwain tree cum Range G.Total: 20 1 totally 387 136 0 32.08 3 cum Joint Chargesheet has been prepared by DFO Una against the
concerned Forest Guards i.e. S/Shri Vikrant Kumar, Forest Guard, I/C Jadla beat, Sh. Dinesh Kumar, Forest Guard, I/C MawaSindhia beat, Sh. Pankaj Kumar, Forest Guard, I/C Badoh beat, Sh. TarsemLal, Forest Guard, I/C Gagret beat of 5 Gagret, Block of Amb range and Sh. Gurdev Singh, Forest Guard, I/C Saghnai beat of Daulatpur Block of Bharwain Range for dereliction in performing the Govt. duty.
H. Conclusion-cum-Recommendations of the Committee:
After the deliberate conversation and examining the matter on the findings of the incident, the committee concludes that the cutting/pruning of 201 trees has been carried out without any permission and due procedure and had led to the substantial damage. Criminal action has already been initiated by the Forest department as submitted in detail earlier. Committee also discussed about the possibility of levying environmental compensation but it is found that there is no standard guideline/provision according to which environmental compensation can be levied in the matter. Most of the trees are located on the land in possession of HPPWD and department should take action in the matter. HPP'WD should also frame proper mechanism for pruning of trees standing on its land along roadside."
6. The Deputy Commissioner, Una has further directed the authorities concerned to take action on the following points:
"1. The Sub Divisional Gagret District Una shall expedite the demarcation proceeding of the land under question and to prepare the ownership detail accordingly.
2. The Divisional Forest Officer Una shall prepare & submit detailed report of the developments made till now in the matter, regarding recovery made, total seized woods, species breakup in the matter. Also directed to share the notifications regarding registration of FIR in the matter and regarding 23 species of woods that can be exported without any forest department permission. Further directed to provide/submit attested photographs for comparison.
3. The applicant to share the photographs for evidence if any of JCB employed for lopping/pruning and of officials directing to cut the trees at the spot.
4. The representative of H.P. State Pollution Control Board Una to consult with Central Pollution Control Board Regional directorate to ascertain the possibility about the environmental compensation."
7. Contention of the learned Counsel appearing for the respondent is that a Notification dated 12.02.2021 has been issued by the State Government in Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 2013 and various plant species growing on private land have been 6 exempted from the requirement of Transit Pass. However, procedure for removal and transportation of the forest produce obtained from plants species listed in the schedule and growing on private lands has been notified.
8. Learned Counsel appearing for the Forest Department has submitted that this Notification is only exemption from transit pass, it does not indirectly permit for cutting of the trees.
9. The District Magistrate, vide its report dated 12.06.2023, has submitted that the market rate of green standing trees fixed for the year 2022-23 by Principal Chief Conservator of Forests, Shimla has been taken into account while assessing the damages. The value to the tune of Rs.
463609/- has been calculated and assessed as damages and necessary actions are being taken against person concerned in addition to FIR dated 29.03.2022 registered into Police Station.
10. Principal Chief Conservator of Forests has issued guidelines and instructions in respect of pruning/lopping of trees in rural areas as follows:
"... following standard operating procedures are established for lopping of trees from Govt. and Forest land, ensuring sustainable and environmentally responsible practices and to safeguard the interest of local communities, biodiversity and to enhance transparency and accountability in tree lopping operations:-
1. Lopping will be allowed by DFO of the concerned division in case tree is dangerous to life and property.
2. Owner of land/concerned department will apply for the lopping permission from DFO concerned.
3. A team of forest, revenue, concerned department and representative of the Panchayat/Nagar panchayat will inspect the area and submit the report with recommendation of the branches to be lopped.
4. Lopping of trees should not exceed 1/3rd of the total branches/crown.
5. Divisional Forest Officer will allow the lopping permission on the basis of the report of the team constituted above.
6. Lopping is to be carried out by the concerned department under the supervision of the concerned forest guard.
7. Lopping material to be either used or auctioned by the concerned department."7
11. The Learned Counsel for the applicant has taken reliance of the matter reported as T.N. Godavarman Thirumulpad Vs. Union of India, (1997) 2 SCC 267 at page 269, the Hon'ble Supreme Court has held that:
"The Forest Conservation Act, 1980 was enacted with a view to further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest" must be understood according to its dictionary meaning. This 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 term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof."
12. The National Forest Policy, 1988 stood enunciated pursuant to Resolution of Government of India to be followed in the management of State forests in India. The said Policy stood enunciated because over the years forests in India had suffered serious depletion due to relentless pressures arising from ever increasing demand for fuel wood, fodder and timber; inadequacy of protection measures; diversion of forest lands to non-forest uses without ensuring compensatory afforestation and essential environmental safeguards; and the tendency to look upon forests as revenue earning resource. Thus, there was a need to review the situation and to evolve, for the future, a strategy of forest conservation including preservation, maintenance, sustainable utilization, restoration and enhancement of the natural environment. It is this need which led to the enunciation of the National Forest Policy dated 07 /12/1988.
13. The principal aim of the Policy was to ensure environmental stability and maintenance of ecological balance. The derivation of direct economic benefit was to be subordinate to the principal aim of the Policy. Under 8 essentials of forest management it is stipulated that exiting forests and forest lands should be fully protected and their productivity improved. It is further stipulated that forest cover should be increased rapidly on hill slopes, in catchment areas and ocean shores. It is further stipulated that diversion of good and productive agricultural lands to forestry should be discouraged in view of the need for increased food Production.
14. Under the Policy a strategy was prescribed vide Para 4. The goal is to have a minimum of one-third of the total land area under forest or tree cover. In the hills and in mountains the aim is to maintain two-third of the area under forest or tree cover in order to prevent erosion and land degradation and to ensure the stability of the fragile ecosystem. Under Para 4.2.3, village and community lands, which is the common feature in north- east regions, not required for other productive uses, should be taken up for development of tree crop and fodder resources and the revenue generated through such programmes should belong to the panchayats where lands are vested in them and in other cases such revenues should be shared with local communities to provide an incentive to them and accordingly land laws should be so modified wherever necessary so as to facilitate and motivate individuals and institutions to undertake tree farming.
15. Para 4.4 deals with diversion of forest lands for non-forest purposes. Under the said para it is stipulated that forest land or land with tree cover should not be treated merely as a resource readily available to be utilised for various projects, but as national asset which requires to be properly safeguarded for providing sustained benefits to the community. Diversion of forest land for non-forest purpose therefore should be subject to most careful examination by experts from the standpoint of social and environmental costs and benefits.
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16. The applicant has further argued that, the NGT in the case of Court on its Own Motion Vs. State of Himachal Pradesh & Ors. (Original Application No. 488 of 2014) vide Judgment/order dated 20th January, 2015 enunciated the impact of tree felling on environment, which reads as under:
IMPACT OF TREE FELLING ON EIVRONMENT "Trees play a very important role in maintaining the ecological balance in the biosphere. Since the beginning, trees have furnished us with two of life's essentials, food and oxygen. On an average, one tree produces nearly 260 pounds of oxygen and absorbs up to 48 lbs of carbon dioxide a year. With the evolution of human civilization contribution of trees in making our life comfortable increased several fold, i.e., they provide such us necessities such as clothing, shelter, medicine, and tools. Today, their value continues to increase and more benefits of trees are being discovered as their role expands to satisfy the needs created by our modern lifestyles.
Trees contribute to our environment by providing oxygen, improving air quality, climate amelioration, conserving water, preserving soil, and supporting wildlife. During the process of photosynthesis, trees take in carbon dioxide and produce oxygen we breathe. They provide us with fresh air to breathe, shade in summers, food, and other benefits without which we cannot even think of living. Trees control climate by moderating the effects of the sun, rain and wind. Leaves absorb and filter the sun's radiant energy, keeping things cool in summer. Trees also preserve warmth by providing a screen from harsh wind. In addition to influencing wind speed and direction, they shield us from the downfall of rain, sleet and hail.
Trees lower air temperature and reduce the heat intensity of the greenhouse effect by maintaining low levels of carbon dioxide. Both above and below ground, trees are essential to the ecosystems in which they occur. Far reaching roots hold soil in place and fight erosion. Trees absorb and store rain water which reduce runoff and sediment deposit after storms. This helps the ground water supply recharge, prevent the transport of chemicals into streams and prevents flooding. Fallen leaves make excellent compost that enriches soil. In the present day scenario trees in Urban Environment help in muffling the urban noise. In Suburban Environment's they help in providing shade canopy and noise buffers and also congenial habitat for suburban wildlife, while in the rural environment they protect the crops from wind, control erosion and create diverse plant and animal habitats.
Despite knowing the importance of trees, human beings are still cutting down the trees and forests have started depleting from this beautiful earth. "10
17. Learned Counsel appearing for the applicant has submitted that guidelines issued by the MoEF&CC under the Forest Conservation Act and the Indian Forest Act are required to be taken into account and the respondents are duty bound to protect the trees which are essential for life.
18. Learned Counsel appearing for the contractor has submitted that on the direction of the PWD, the pruning of trees has been done and since he was working under direction of PWD, thus environmental compensation or assessment damage and realization of damage will be in contravention of the contract rules. Since he was working under the command of PWD, thus, the version or contention of the private contractor is to the effect that he is not responsible for payment of damages. It is a matter to be decided by the Department and between the PWD and contractor and State PCB is directed to recover the damages according to the Rules and this amount of compensation/damages shall be utilized for plantation in the area.
19. In view of above discussion, we direct that the Forest Rules/Environmental Rules must be strictly complied with by the respondents and to ensure guidelines issued by the Principal Chief Conservator of Forests for lopping of trees and in case of violation, strict action shall be taken against the violators in accordance with rules.
20. The Original Application is disposed of accordingly.
Sheo Kumar Singh, CP Arun Kumar Tyagi, JM Dr. A. Senthil Vel, EM July 20, 2023 Original Application No. 372/2022 DV 11