National Green Tribunal
Sushil Kumar Jain vs The Principal Secretary West Bengal ... on 3 September, 2024
Item No.01 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.173/2024/EZ
In the matter of:
Sushil Kumar Jain
Son of Late B. C. Jain,
Residing at Ground Floor,
Flat No.D2 & 106,
Rajat Gardens,
21, Ballygunge Park Road, P.S. Karaya,
Kolkata - 700019
.... Applicant(s)
Versus
1. The Principal Secretary,
Government of West Bengal,
Department of Environment
"Prani Sampad Bhavan",
5th Floor, LB-2,
Sector III,
Kolkata - 700098
2. The Member Secretary,
West Bengal Pollution Control Board,
Paribesh Bhavan
10A, LA Block, Sector-3, Bidhan Nagar,
Kolkata - 700106
3. Senior Environmental Engineer & In-Charge,
Kolkata Regional Office,
West Bengal Pollution Control Board,
"Mani Square", Block No.8IT, Western Side,
8th Floor, 164/1, Maniktala Main Road,
Kolkata - 700054
4. District Magistrate,
Collectorate Building,
South 24 Parganas,
Alipore South 24 Parganas,
Kolkata - 700027
5. The Officer-in-Charge,
Karaya Police Station,
52, Karaya Road,
Lower Range, Beckbagan,
Ballygunge,
Kolkata - 700019
6. Divisional Forest Officer,
South 24 Parganas, New Administrative Bldg,
1
4th Floor, 12, Biplabi Kanai Bhattacharjee Sarani,
South Block, Alipore,
Kolkata - 700027
7. Rajat Garden Residents' Association,
Served through the Secretary being Shri Amit Bagri, Secretary,
Flat - 103 & 505 and
President and Committee member Shri Alok Tiberwal
Flat - 301 & 406 having its address at
Rajat Gardens, 21 Ballygunge Park Road,
P.S. - Karaya,
Kolkata - 700019
.... Respondent(s)
Date of hearing: 03.09.2024
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s) : Ms. Amrita Pandey, Adv. (in Virtual Mode)
ORDER
1. Heard Ms. Amrita Pandey, learned Counsel appearing (in Virtual Mode) for the Applicant.
2. The Applicant is stated to be a flat owner in a ground floor flat being Flat No. D2 and 106, Rajat Gardens, 21, Ballygunge Park Road, P.S. - Karaya, Kolkata - 700019. It is stated that at the time of construction of the building at premises No.21, Ballygunge Park Road, Kolkata-700019 there were fully grown trees standing there and the same were protected during construction of the apartments and made part of the common area by the Promoter for beautification of the building which was constructed about 21 years ago i.e. 2002. It is stated at that time there were large number of trees in the premises which was also shown in the brochure of the building at the time of selling the flats. It is, however, alleged that the Respondent No.7 has started removing/felling the trees or cutting its branches so that the trees may finally wilt or dry out and the open space is being converted into a concrete space by clearing vegetation. It is stated that the 2 uprooting of the trees is in violation of the West Bengal Trees (Protection and Conservation in Non-Forest Areas) Act 2006 and no prior permission has been sought as required under Section 5 of the Act.
3. It is stated that the Applicant has also made a complaint to the Municipal Commissioner of Kolkata Municipal Corporation on 03.07.2024, copy of which has been filed at page 44 and 45 of the paper book. Reference has also been made to an order passed by the Hon'ble Calcutta High Court dated 26.07.2021 in a similar case arising out of WPO No.242 of 2021 Mr. "Soumitra Kanti Dey versus The State of West Bengal & Anr.". The order of the Hon'ble High Court at Calcutta has been filed as Annexure-'G' (page 59 of the paper book) and reads as under: - "WPO No.242 of 2021
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIDINAL SIDE MR. SOUMITRA KANTI DEY VERSUS THE STATE OF WEST BENGAL & ANR.
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The Court :- The writ petitioner has been charge-sheeted under the provisions of Section 11(1) of The West Bengal Trees (Protection And Conservation In Non-Forest Areas) Act, 2006 arising out of Case No. 70 of 2017 dated 27th February, 2017. He has been charged with cutting about 63 trees under the garb of removing stagnant water.
The writ petitioner has applied for compounding of the offence in terms of Section 16 of the said Act of 2006. It is submitted that the hacking of trees occurred in course of compliance with a notice of the Kolkata Municipal Corporation to remove stagnant water that accumulated in the property to discourage disease-carrying insects.
The cutting of trees has nothing to do with the removal of accumulated water. Yet under the garb of removing water, as many 3 as 62 (sixty two) trees have been cut. Compounding has also been sought on the ground of the petitioner is a first time offender and that he is willing to replant double the number of trees in the said plot or anywhere else that the Forest Department may direct.
It appears that the owners had intended to construct a seven star hotel at the said premises.
While the entreaties made by the petitioner appear to be attractive, one cannot loose sight of the fact that each tree, totaling 62 (sixty two) in numbers has left a permanent wound on the environment. Irreparable damage has been caused to society by the conduct of the petitioner.
Given the heinous crime committed this Court the impugned order dated 5th January, 2019 does not otherwise call for interference.
However, considering the fact that punishing the writ petitioner with limited amount of imprisonment under the 2006 Act would not bring back the trees, compensating the State/Forest Department/Society would be just and fair penalty, penance and retribution. The compensation shall be used to develop the environment in general and maintenance of better vigil against illegal tree felling. This Court is, therefore, inclined to permit compounding of the aforesaid offences mentioned in the aforesaid charge-sheet only upon payment of Rs.40 (Forty) crores to the respondent no.2 within a period of 15 days from date. The petitioner and/or the owner of the property M/s. Emaar India Limited would additionally have to plant and ensure growth of about 100 trees on the said premises at No.11 Russel Street, Kolkata - 700071.
It is made clear that the payment of the said amount would not ipso facto entitle the petitioner to develop the property. The same would be subject to permission of all the authorities under all applicable Statutes and Rules.
With the aforesaid direction, the writ petition is disposed of."
4. We, accordingly dispose of this Original Application with the direction to the Municipal Commissioner of Kolkata Municipal Corporation to decide the Applicant's complaint dated 03.07.2024 at page 44 and 45 of the paper book, in accordance with law having regards to the provision under West Bengal Trees (Protection and Conservation in Non-Forest Areas) Act 2006, within a period of one 4 month i.e. by 15.10.2024. Needless to say, the Municipal Commissioner will hear the Respondent No.7, Rajat Garden Residents' Association as well as the Applicant before any order is passed.
5. Ms. Amrita Pandey, learned Counsel for the Applicant shall communicate this order to the Municipal Commissioner, Kolkata Municipal Corporation within one week.
6. In the meantime, no trees, standing on the property in question, shall be cut without the permission of the Municipal Commissioner, Kolkata Municipal Corporation.
7. There shall be no order as to costs.
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B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM September 3, 2024, Original Application No.173/2024/EZ SKB 5