National Green Tribunal
Jagdish Chandra Pandey vs State Of Uttarakhand on 16 November, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
M. A. No. 79/2022 & M. A. No. 80/2022
In
Original Application No. 197/2020
Jagdish Chandra Pandey Applicant
Versus
State of Uttarakhand & Ors. Respondent(s)
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Mohan Chandra Joshi & Ors. Applicants in M.A.s
Date of hearing: 16.11.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Anil Kumar Chandel, Advocate in M.A 79-80/2022
ORDER
1. These application applications in substance seek review of order of this Tribunal dated 25.02.2022 in O.A. No. 197/2020, Jagdish Chandra Pandey v. State of Uttarakhand & Ors.
2. By the said order, the Tribunal considered the grievance against violation of environmental norms during construction of Kotila-Gawad-
Suraikhet Motor Road in Tehsil Dwarahat, District Almora, Uttarakhand, particularly illegal cutting of trees and dumping of muck. The joint Committee of Principal Chief Conservator of Forest (HoFF), Uttarakhand and the State PCB gave its factual report dated 30.07.2021, 1 acknowledging violations. The Tribunal accordingly directed remedial action and filing of action taken report. Operative part of the order dated 05.08.2021 is as follows:-
"xxx ....................................xxx .....................................xxx
4. From the above, it is seen that violations include illegal cutting of trees, construction of road without permission, construction in forest area beyond the sanctioned area and dumping of muck on reserved forest without requisite sanction. Action taken is merely lodging of range case against the Executive Engineer, PWD, charge sheet against the Range Officer, Forest Guard/Beat Officer and seeking Departmental action against Executive Engineer, Assistant Engineer and Junior Engineer of PWD for illegal felling of trees.
5. We have heard learned counsel for the State PCB and considered the report substance of which has been quoted above. In view of serious violations found, action initiated against the violators is highly inadequate. Illegal cutting of trees, construction of road on forest land and dumping of muck in reserved forest area calls for serious and meaningful action. Failure to take stringent action encourages lawlessness. No criminal case appears to have been registered though offences are shown to have been committed.
6. Accordingly, we direct the Secretary of PWD, Uttarakhand to review the actions taken and take further suitable coercive measures against the law violators, following due process of law. The State PCB and Forest Department also need to review the inadequacy of action on their part in exercise of their respective statutory authority. Coercive measures may include recovery of compensation on 'Polluter Pays' principle and restoration of the concerned forest area. The said departments may file their action taken reports within one month with the Chief Secretary, Uttarakhand. The Chief Secretary may file a consolidated action taken report in the matter within three months by e-mail at judicial- [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."
3. Thereafter, action taken report dated 02.02.2022 filed by the State PCB was considered on 25.02.2022. It was directed that further follow up restoration action may be taken, which may be monitored by the Principal Secretary, Forest Department, Uttarakhand atleast once in a month till satisfactory compliance. Action to be taken was to include plantation against tree cutting, restoration of water courses, scientific muck disposal at identified sites and recovery of environmental 2 compensation from violators, to be used for restoration work. The report considered was as follows:-
"I. Uttarakhand Forest Department:
In compliance of orders of the Hon'ble NGT dated 11.09.2020, the Forest Department has constituted a two members Committee comprising of Shri Praveen Kumar Conservator of Forest, North Kumaon, Almora and Shri Harish Chandra Joshi, Assistant Scientific Officer, Uttarakhand Pollution Control Board. After field inspection and perusal of available records, the Committee found that the user agency initiated the road construction work without complying to the conditions under which the in-principle permission was given for the transfer of forest land by the competent authority. Illegal cutting of trees and disposal of muck in Reserved Forests causing damage to the local biodiversity. The committee has also fixed responsibility of the then In-charge Range Officer, Section Officer (Forester) and the then Beat Officer (Forest Guard) for failing to stop the construction of said road before proper sanction was received form competent authority, and also for failing to stop the illegal felling and damage to 232 unmarked trees, along with concerned officers of user agency i.e. Public Works Department (PWD), Construction Division, Ranikhet.
Said Factual Report and Action taken Report is already filed before the Hon'ble NGT. Copy of joint report of the Committee is annexed herewith as Annexure-1.
Further, Forest Department initiated departmental enquiry against the then In-charge Range Officer, Dwarahat Range; Section Officer (Van Daroga) and Van Rakshak (now- Van Daroga) for negligence of their duties and issued Chargesheet on dated 22.12.2020. Considering the Charge-sheet and reply of above said Forest Officials, the Investigating Officer (Divisional Forest Officer, Civil & Soyam Forest Division, Almora) found that said Forest Officials have had failed to ensure effective control over illegal felling of trees and other illegal activities of the User Agency. The Said Officers were also unable to stop illegal road cutting in their respective work areas and also not informed about the incident to higher officials. As departmental punishment, the Enquiry Officer recommended the stoppage of two annual increments with Cumulative effect from the date of issue of order i.e. 23.11.2021, of all three Forest Officials. On the recommendation of the Enquiry Officer, the Conservator of Forest, North Kumaon, Almora issued punishment order vide his letter No. 1948/1-15-7 dated 24.11.2021. Copy of orders issued by Investigating Officer are annexed herewith as Annexure-2 (1 to 3).
Assessment of Damage Compensation and Proposed Mitigation measures:
In compliance to the direction dated 05.08.2021 of the Hon'ble National Green Tribunal, New Delhi, the Divisional Forest Officer, Almora Forest Division, Almora assessed the damage caused to forest area during the said construction of road by the User Agency and the damage caused has been evaluated to the tune of Rs.43,01,650.86 (Rupees Forty three lacs one thousand six hundred fifty and paise eighty six only). Subsequently, in order to honour the directions completely, passed by this Hon'ble Tribunal, the Executive 3 Engineer, Construction Division, Public Works Department, Ranikhet and Chief Engineer, Public Works Department, Dehradun were asked to deposit compensation amount vide letters dated 06.09.2021, 22.11.2021 & 23.11.2021.
The Divisional Forest Officer, Almora has proposed restorative works for the damage caused to environment. The said proposal includes reclamation of degraded forest area by planting 1600 trees against affected 399 trees in the vacant places in the area and the muck disposal sites. The estimated cost of said works is about 23.42 Lacs.
For rejuvenation of two natural water sources that were damaged during the construction of the said road, the construction of 5- Checkdams, 9-Chal-Khal (rain water impounding structures) and 3- water ponds for water conservation have been proposed in affected areas. The estimated cost of said works is about Rs. 20.00 Lacs. The action taken/reply submitted by the Uttarakhand Forest Department is annexed herewith as Annexure-3.
Further, Public Works Department, Dehradun vide its letter re. no. 2234/3008fo0iz0/2021/2021 dated 22.12.2021 expressed their reservation regarding the calculation of compensation imposed by the Forest Department. Copy of letter dated 22.12.2021 of Public Works Department is annexed herewith as Annexure-4.
II. Public Works Department (PWD) Uttarakhand:
Public Works Department considered the facts that while construction of Kotila-Gwad-Suraikhet motor road, conditions of in- principle approval of the Ministry of Environment, Forest and Climate Change, Regional Office, Dehradun for transfer of forest land have been violated along with illegal cutting of trees and cutting of road in additional to approved alignment. Muck generated form road cutting was also disposed in forest area. During the investigation, in addition to others, indulgence of officers/Engineers of Construction Division, PWD, Ranikhet were also reported.
The Competent Authority of Public Works Department, after due consideration of facts, granted permission under section197(1)(b) of Indian Penal Code, 1973 for cognizance of offence and trial against three officers before the Designated Court under the law. Copy of order issued by Public Works Department ref no. 1565/III(1)/2021- 4(42) Ri.Ya./2021dated 01.09.2021 is annexed herewith as Annexure-5.
Copy of action report of submitted by the Public Works department vide letter dated 26.11.2021 is enclosed as Annexure-6.
Further, Public Works Department, Dehradun vide its letter re. no. 2234/3008V.Pr./2021 dated 22.12.2021 expressed their reservation regarding calculation of compensation imposed by the Forest Department and environmental compensation imposed by the Uttarakhand Pollution Control Board. Copy of letter dated 22.12.2021 of Public Works Department is annexed herewith as Annexure-4.
III. Uttarakhand Pollution Control Board:
4In compliance of the order dated 05.08.2021 of the Hon'ble Tribunal, the Uttarakhand Pollution Control Board (UKPCB) assessed the environmental compensation based on field inspection and observation, made by the Joint Committee in the matter. It was evident from the report of Joint Committee that the User Agency had illegally disposed the muck generated form the said motor road cutting in reserved forest blocks. Therefore, considering the nature of deliberated violation, the matter was considered for imposition of an environmental compensation as per criteria and procedure decided by the State Board in its 23rd Board Meeting held on dated 29.11.2019, in pursuance of Hon'ble Tribunal order in the matter of O.A. No. 593/2017. UKPCB assessed an environmental compensation of Rs. 18.75 Lakh and issued directions to show cause under section-33(A) of the Water (Prevention and Control of Pollution) Act, 1974 and under section-31(A) of the Air (Prevention and Control of Pollution) Act, 1981 to the user agency i.e. Officer-In-Charge, Public Works Department, Construction Division, Ranikhet, Distt. Almora stating that why an environmental compensation of Rs. 18.75 Lakh not be imposed against the user agency, vide letter ref.
no. UEPPCB/HO/Gen-183-484/2021/81 dated 30.09.2021. Copy of directions issued by UKPCB is annexed herewith as Annexure-7.
The Executive Engineer, Public Works Department, Construction Division, Ranikhet, Distt. Almora submitted its reply vide letters dated 14.10.201 and 02.12.201 enclosing with replies of than Executive Engineer, Assistant Engineer and Upper Assistant Engineer in the said matter. It is evident from the replies of than Assistant Engineer and Upper Assistant Engineer, that single road cutting (3-meter width) was done in reserved forest area and muck generated was dumped along the road side which eventually proposed to disposed at designated dump sites. Some part of stored muck along the road side may would have come down due to specific hilly terrains and rains. Replies of the Executive Engineer dated 14.10.2021 and 02.09.2021 were duly considered by the Board and observed that muck generated from the said road cutting has not been disposed at designated/identified places. Therefore, Uttarakhand Pollution Control Board confirmed its directions under section-33(A) of the Water (Prevention and Control of Pollution) Act, 1974 and under section-31(A) of the Air (Prevention and Control of Pollution) Act, 1981 issued to the user agency i.e. Officer-In-Charge, Public Works Department, Construction Division, Ranikhet, Distt. Almora vide letter dated 10.12.2021 and directed to deposit an environmental compensation of Rs. 18.75 Lakh to UKPCB within 30 days. Copy of directions issued by UKPCB is annexed herewith as Annexure-8. Said directions issued by the UKPCB are yet to be complied.
The Executive Engineer, Public Works Department, Construction Division, Ranikhet, District Almora has informed that the matter of deposition of an environmental compensation is referred to higher officials and further action will be taken accordingly. Copy of reply submitted by Executive Engineer is annexed herewith as Annexure-
9. 5
4. We have heard learned counsel for the applicants Mohan Chandra Joshi and others, who are serving or former officers of PWD and who are alleged to be involved in the violations such as cutting of trees. On the basis action has been initiated against them by the higher authorities in the State. A writ petition was filed against such action before the Uttarakhand High Court which was dismissed as withdrawn on 20.07.2022 with liberty to move this Tribunal.
5. Contention of the applicants is that they were not parties before the Tribunal and their liability has not been determined by the Tribunal.
6. It is true that this Tribunal has not recorded any finding against the applicants but once it was shown to the Tribunal that there were violations such as cutting of trees and unscientific dumping of muck to the detriment of environment, there was no bar for the Tribunal to direct remedial action without determining which particular officer was involved, leaving this task to the concerned authorities. Thus, there is no error in the view of the Tribunal to give cause of action to the applicants to seek review of Tribunal's order.
7. If according to the applicants, there is error in the view of the higher authorities, their remedy is not against NGT order but against order of such authorities before any appropriate forum.
Accordingly, the applications are disposed of without prejudice to any other remedy of the applicants, as per law.
Adarsh Kumar Goel, CP 6 Sudhir Agarwal, JM Prof. A. Senthil Vel, EM November 16, 2022 M. A. Nos. 79/2022 & 80/2022 in O.A. No. 197/2020 A 7