National Green Tribunal
Shyam Sunder vs Union Of India Ors on 18 July, 2013
EFORE THE NATIONAL GREEN TRIBUNAL
(PRINCIPAL BENCH), NEW DELHI
Application No. 7/2013 (THC)
18th July, 2013
CORAM:
1. Hon'ble Shri Justice V.R. Kingaonkar
(Judicial Member)
2. Hon'ble Dr. P.C. Mishra
(Expert Member)
3. Hon'ble Shri P.S. Rao
(Expert Member)
4. Hon'ble Shri B. S. Sajwan
(Expert Member)
B E T W E E N:
1. Shyam Sunder S/o Hori Lal
R/o Village Ashokpur
Post Manona, Pargana Kurawali
District Mainpuri, UP- 205001
....Appellant
AND
1. Union of India
Through Secretary
Ministry of Environment & Forests
Government of India, Paryavaran Bhavan
CGO Complex, Lodhi Road, New Delhi- 110003
2. State of U.P
Through Principal Secretary (Forests)
Govt. of Uttar Pradesh, Bapu Dham,
Lucknow, U.P- 226001
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3. Division Forest officer, Mainpuri
District Mainpuri, U.P. 205001
4. District Magistrate, Mainpuri,
Distt. Manipur, U.P.- 205001
5. Hindustan Petroleum Corporation Ltd. (HPCL)
Through Senior Regional Sales Manager
Sanjay Place Agra, U.P. 282002
6. Arpan Kumar S/o Sh. Jaiveer Singh
R/o Village, Gangapur Mohammadpur, P. S. Kurawali
Distt. Mainpuri, U.P. 205001
.........Respondents
(Advocates appeared: Mr. R. K. Singh, Advocates for Appellant,
Ms. Neelam Rathore with Mr. Vikramjeet, for Respondent No.
1 Mr. Amit Kumar Singh along with Mr. Abhishek Chaudhary,
Advocates for Respondent No.2 and 3, Mr. Anuj Puri, Advocate
for Respondent No. 5, Ms. S Ravi Shankar, Ms. Sargam & Ms.
Sangita, Advocates for Respondent No. 6)
J U D G M E N T
1. This is an application filed under Section 14 and 18 of the National Green Tribunal Act, 2010. The Applicant - Shyam Sunder, claims to be aggrieved person on account of alleged violation of provisions of the Forest (Conservation) Act, 1980, and particularly with the issuance of 'No Objection Certificate' (NOC) dated 21.12.2012, by District Magistrate, Mainpuri (UP).The applicant seeks compliance to the provisions of the Forest (Conservation) Act, 1980, by the concerned Authority prior to 2 such grant of NOC before establishment of Petrol Pump outlet alongside National Highway No. 91 (NH-91) which may require the use of forest land for non-forestry purpose. The applicant further seeks directions to Divisional Forest Officer, Mainpuri to register First Information Report (FIR) under the provisions of Forest (Conservation) Act, 1980 for offenses punishable under the Forest (Conservation) Act against District Magistrate Mainpuri, Hindustan Petroleum Ltd and Arpan Kumar s/o Mr. Jaiveer Singh.
2. For the sake of convenience applicant will be referred hereafter as Shyam Sunder, Respondent No. 1 will be referred as MoEF, Respondent No. 2 will be referred as State, Respondent No. 3 will be referred as DFO, Respondent No. 4 will be referred as District Magistrate, Respondent No. 5 will be referred as HPCL and Respondent No. 6 will be referred as Arpan Kumar. So, also the Forest (Conservation) Act, 1980, will be referred as the FC Act.
3. A few undisputed facts may be set out before highlighting conspectus of realm of dispute. The facts which are not in dispute are as stated hereunder.
In exercise of powers under provisions of Sub-section (1) of Section 29 of Forest Act, 1927, the State declared area between 711.3 to 742 miles, falling within Mainpuri District, alongside NH-91 as Protected Forest. A Notification dated 10.02.1960 was 3 issued in this behalf (Annex A-1). HPCL desired opening of 208 petrol retail outlets at various places within territory of State of Uttar Pradesh and Uttrakhand, including one between 237-240 Mile stone sites, by side of NH-91 at Village Kurawali, District Mainpuri. In pursuance to such policy decision, HPCL issued an advertisement dated 29th June, 2009 for appointment of dealers for the sale of petrol and petroleum products on certain conditions and sought appropriate lands for that purpose. In response to such advertisement, Arpan Kumar offered his land bearing Gata No. 405 situated by side of NH-91 for establishment of petrol outlet. The proposal was accepted by the HPCL. Arpan Kumar, thereafter, submitted an application to the District Magistrate, Mainpuri for NOC to set up proposed retail petrol outlet. The District Magistrate granted NOC by communication dated 21.12.2012. In the meanwhile, DFO by communication dated 13.09.2012 directed Arpan Kumar to obtain NOC for installation of petrol outlet. According to the DFO, a part of the land is within protected forest in the proximity of the NH-91. The DFO requested the District Magistrate vide letter dated 20.10.2012 that before granting of NOC to install Petrol outlet, guidelines issued by the Government should be taken into account. The District Magistrate called upon Arpan Kumar and HPCL to obtain NOC under the provisions of the FC Act, as a condition for the NOC issued by him on 21.12.2012.
4. Briefly stated, case of the applicant is that without obtaining the NOC under the FC Act, Arpan Kumar commenced 4 felling of trees from the adjacent protected forest. Moreover, HPCL and Arpan Kumar (lessee and lessor, respectively) started construction activities at the site, even though the Forest Department had not issued the NOC. Hence, he made a written representation to the DFO which is pending for consideration. The applicant submitted a written representation to HPCL regarding necessary compliance of the FC Act. He also brought to the notice of HPCL that the proposed installation of petrol outlet was violative of Section 2 and 3 of the FC Act. The representation was unheeded to by the concerned authorities
5. The applicant further alleges that the Petrol Retail Outlet Station cannot be installed at the site, in view of the guidelines issued by the Government of India vide its letter dated 15.07.2004. The Petrol Retail Outlet cannot be installed without maintaining a minimum distance of 5 KM in between two such outlets. The installation of Petrol Retail Outlet would require cutting of not less than 100 trees. The HPCL and Arpan Kumar have clandestinely cut down a large number of trees in order to prepare road to have access to the Petrol Retail Outlet. Consequently, he alleges that in order to protect the environment and also in view of the guidelines of the Government of India (GoI), the proposed installation of Petrol Retail Outlet cannot be allowed to go ahead. It is in such circumstances that the applicant sought intervention of the NGT in order to quash NOC dated 21.12.2012. The other prayers sought by the applicant are of incidental nature.
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6. No Reply affidavit was filed by the MoEF. By filing their common reply, the State and District Magistrate resisted the application. According to them, the report of Forest department does not show any tangible material so as to dislodge the claim of HPCL and Arpan Kumar. They, further asserted that the guidelines provided by the Government of India (GoI), have been duly followed. It is alleged that Petrol Retail Outlet falls out of the boundary of the city. The site of Petrol Retail Outlet is located at right hand side of the NH-91. They denied that permission was necessary from the GoI to get forest clearance. They submitted that NOC was issued by the District Magistrate on basis of the absence of report of the DFO. They denied that grant of the NOC to start business of the Petrol Retail Outlet at the site deserves to be stopped, altered or otherwise. They denied truth in to all the material averments made by the applicant. Hence, they sought dismissal of the application.
7. By filing separate reply HPCL also sought dismissal of the application. According to HPCL, there is neither violation of the Environment (Protection) Act, 1980, nor Arpan Kumar has cut down large number of trees. It is further alleged that construction of the Petrol Retail Outlet has started only after NOC is given by the District Magistrate. It is stated that the request letter of the HPCL is pending before the Competent Authority. It is also stated that the application is filed without there being any case made out by the applicant. The construction work is commissioned by HPCL after the NOC was received from District Magistrate. It is 6 denied that large number of trees have been felled by the person, who is owner of the agricultural field, where the proposed site is located. It is contented that the present application is false, vexatious and frivolous. Consequently, HPCL too sought dismissal of the application.
8. No reply has been filed by the other respondents.
9. We have heard learned Counsel for the parties. We have gone through the documents placed on record. In our opinion following issues need determination.
(i) Whether NoC dated 21.12.2012 has been granted in violation of the provisions of the Forest (Conservation) Act, 1980 and without following relevant guideline issued by the GoI?
(ii) Whether some trees have been illegally felled from protected forest and the area is cleared which caused damage to the environment?
10. At the threshold, let it be noted that the Applicant has placed on record a copy of the Notification dated 10th February, 1960. Perusal of the Government Notification issued by Van Vibhag of Uttar Pradesh Government goes to show that at Mainpuri in all 12 sites alongside of the road and railway feeder have been notified as protected forest. The notification squarely covers the area between Mile No. 711.3 & 330.742 as protected forest. We are mainly concerned with this particular area which is alongside of the G.T. Road. The G.T. Road, which is abbreviation of Grand Trunk Road (NH 91), is admittedly the National Highway 7 No. 91. It appears that land bearing Gata No. 405 owned by Arpan Kumar falls between 711.3 and 742 miles within the territory of district Mainpuri alongside NH-91. Therefore, the inescapable conclusion which can be drawn is that the land adjacent to the land of Arpan Kumar, which is proposed to be used for establishment of petrol pump (outlet) of HPCL is a part of notified protected forest.
11. The contention of contesting Respondents (HPCL and Arpan Kumar) is that the land was already cleared. They have come out with a case that due to establishment of petrol pump (outlet) in the land, there is no likelihood of felling of trees. Another submission of HPCL is that mere use of open land for egress and ingress of vehicles from the NH-91 (G.T. Road) to reach petrol pump (outlet) does not require forest clearance/permission. It is contented that mere using of the open space for egress and ingress of vehicles, does not amount to diversion of the forest land nor it will cause any harm to the environment. They relied upon NoC dated 21.12.2012 issued by the District Magistrate, Mainpuri (Annex A-9).According to them, the NoC issued by the District Magistrate is sufficient for the purpose. They pointed out that the District Magistrate made it clear that, if necessary, HPCL Ltd shall take a separate NoC from the Forest Department. So, according to them, no such separate NoC is needed. However, they have further alleged that a separate application has been submitted for NoC and proceeding is pending with the competent authority for the grant of Clearance/permission under the FC Act. 8
12. At this juncture, it is important to note that the District Magistrate issued NoC dated 21.12.2012. The NoC reveals that no report was obtained from Forest Department. What transpires from the record is the report of the District Forest Officer, Mainpuri, submitted to the District Magistrate before grant of NoC dated 21.12.2012 by him. By letter dated 5.12.2012 Shri O.P. Gupta, DFO, Mainpuri issued a communication dated 5.12.2012 addressed to the District Magistrate, Mainpuri that he had received letter dated 3.5.2012 along with reminder letter dated 26.11.2012 without copy of the site plan and relevant documents. He informed to the District Magistrate that due to non-availability of the site plan and required documents of the land in question on which petrol pump (outlet) was to be installed, the report cannot be submitted. By way of precaution, however, he had submitted a photocopy of the guidelines dated 14.05.2012 and 25.9.2012 issued by the Government of India. In his earlier letter dated 20.10.2012, the DFO, while enclosing a copy of GoI guidelines dated 14.5.2012, had requested the DM, Mainpuri to take these guidelines into consideration while granting NoC for Petrol Pump Outlet along the National Highway. The record further shows that by letter dated 13.9.2012, the DFO, Mainpuri informed Arpan Kumar that he shall not undertake any illegal activity without NoC of Forest Department. Needless to say, Arpan Kumar was very well aware that without obtaining Clearance under the FC Act from the Forest Department the installation of Petrol pump(outlet) in his land could not be legally undertaken. 9
13. Once it is found that the District Magistrate had called for the report of the Forest Department and that the DFO Mainpuri had clarified that Arpan Kumar should make available the documents of ownership of the land in question along with the site plan, undue haste was committed by the District Magistrate while issuing NoC dated 21.12.2012. So also, in the last paragraph of the said NoC, the statement made by the District Magistrate that "No report has been submitted by the Forest Department" is factually incorrect. Thus, it is explicit that the District Magistrate issued NoC dated 21.12.2012, without obtaining appropriate report of the DFO, Mainpuri. In this context, it is worthy to note that DFO, Mainpuri had issued letter dated 23.12.2011, addressed to the District Supply Officer with a copy to the District Magistrate that it was necessary to obtain NoC from Forest Department for establishment of Petrol Pump alongside the National Highway which are notified as Forest. This was followed up with letters dated 20.10.2012 and 5.12.2012 from the DFO to the DM, Mainpuri reiterating that for setting up petrol pumps NoC from Forest Department under FC Act is essential. Copies of above communication which was given to the District Magistrate, Mainpuri for information and necessary action is placed on record. It goes without saying that the office of the District Magistrate was made aware that the petrol pump (outlet) which was sought to be established alongside of NH-91 needed Clearance /permission from the Forest Department under the FC Act. The legal formality needed was within the knowledge 10 of the District Magistrate, Mainpuri. It was expected that he could await the report of the DFO in this context. We are of the opinion that the District Magistrate, Mainpuri made undue haste in issuing the NoC and has given incorrect information that no report was sought from the department of Forest. Such conduct of the District Magistrate is unbecoming of a responsible officer.
14. Perusal of the photographs and FIR prepared by the Beat Officer, Mainpuri, indicate that Arpan Kumar was found carrying on with construction work of new petrol pump. It is also noticed that access road for reaching the petrol pump(outlet) from the NH-91 was prepared by illegally cutting down trees, including one Sheesam tree. The photographs show that the land has been cleared and probably all the trees standing there have been felled and removed. Obviously, the illegal clearing of the forest land by Arpan Kumar or someone else is brought on surface of the record. We are not much concerned with the identity of person who had cut down the trees from that part of land because trial of the said criminal case will take care of such aspect.
15. It is argued by Learned Counsel for HPCL and Arpan Kumar that permission (NoC) from the Forest Department is necessary only if a part of protected forest has to be cleared or diverted for "non-forestry" use. They submitted that there is no forest cover at the site of the proposed petrol pump (outlet).However, it is important to note that DFO, Mainpuri gave a report to the Divisional Directorate, SF Division, Mainpuri in pursuance to certain queries which were sought in the context of subsequent 11 application made by HPCL for grant of NoC. The Communication of DFO, Mainpuri clearly shows existence of following facts:-
1. The proposed land bearing Gata No. 405 itself is not within protected forest but it is adjacent to NH-91(G. T. Road) which is notified as protected forest under Uttar Pradesh Government, Notification dated 10.02.1960.
2. The proposed site plan shows that the entry and access road for egress and ingress will pass through protected forest.
3. On the proposed exit road there is one Papri tree by the side thereof which will have to be felled.
4. On 28.1.2013, eight trees from the protected forest were illegally felled about which FIR was lodged against Arpan Kumar and one Hari Singh.
16. The report clearly indicates that there was illegal felling of eight (8) trees from the protected forest area for clearing the site to have access to the proposed petrol pump(outlet). There cannot be two opinions about the fact that already a part of protected forest was converted for "non-forestry" use without prior permission of the competent authority.
17. We are of the opinion that HPCL and Arpan Kumar, in all probability, stage-managed grant of NoC by the District Magistrate without due permission for use of a part of the protected forest for "non-forestry" purpose. The mere fact that District Magistrate stated at the fag-end of the impugned NoC that , if so needed, NoC shall be obtained separately from the forest department will not and cannot make the act of the District Magistrate bonafide, legal and proper. The guidelines issued by the GoI which were sent to him prior to the issuance of 12 NoC by him were also not taken into account by the District Magistrate.
18. It appears that the area was already cleared. Whether there was any tree standing of forest species alongside the NH-91 or that it was a vacant land does not make any difference. In the case of "T.N. Godaverman Vs UoI & Ors" (1997) 2 SCC 267 the Apex Court held that if any land is notified as protected forest then it has to be treated as 'forest' in the eye of law. It is not necessary, therefore, to examine whether actually there were trees of forest species at the site in question. Once the land alongside NH-91 is declared as protected forest, it is manifestly clear that any use thereof for "non-forestry" purpose is impermissible without permission granted by the competent authority. In our opinion, the contention of HPCL and Arpan Kumar about absence of need for permission is fallacious and unacceptable.
19. At this juncture, it would be useful to reproduce Sec. 2 of the Forest (Conservation) Act, 1980, for purpose of ready reference. It reads as follows:-
Section 2. Restriction on the dereservation of forests or use of forest land for non-forest purpose.
Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing-
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;13
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.
Explanation - For the purpose of this section, "non- forest purpose" means the breaking up or clearing of any forest land or portion thereof for-
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) any purpose other than reafforestation;
but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.
20. There are certain guidelines set out for the purpose of establishment of a retail petrol outlet near a National High Way. The relevant guidelines are placed on record by HPCL [Annex. R- 57 (colloy)]. By letter dated 15th July, 2004, the MoEF (F.C. Division) clarified that there shall be distance of 5 Km between two petrol pumps/outlets if they are on same side of the NH. Still, however, it is further clarified that such a condition will not be applicable if 'no tree felling" is involved. Taking cue from this part of above mentioned communication of the MoEF, learned 14 counsel for HPCL submits that the distance between other petrol outlet, which is already in existence, and the proposed outlet/petrol filling station cannot be an impediment in the way of establishment of its retail petrol outlet. We do not agree. As stated before, eight (8) trees were already cut down from the area for clearance before laying of approach road and exit road. We are not much concerned with who did it. The fact remains that said trees were cut down and removed from the site.
21. It is worthy to mention here that by letter dated 8 th February, 2013, the DFO informed Executive Sales officer of HPCL that permission under the FC Act cannot be granted for setting up of a new petrol pump (outlet) at the proposed site since it is within 5 km of the existing petrol pump and involved felling of trees. Upon careful consideration of the record it may be gathered that the trees were hurriedly cut down in order to clear the area with a view to avoid seeking the clearance under the FC Act. The attitude of Arpan Kumar and HPCL in proceeding with activities for establishment of such petrol pump without prior clearance under the FC Act appears to be reprehensible. In our opinion, the NoC granted by the District Magistrate, Mainpuri is illegal in as much as the same was issued without prior grant of the clearance under the FC Act and without even awaiting for report of the District Forest Officer. The impugned NoC dated 21st January, 2012 is thus bad in law and will have to be quashed.
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22. One of the contention put forth by Learned Counsel for HPCL and Arpan Kumar is that the applicant is employee of another rival petrol pump owner and that the application is filed out of business rivalry. It is argued that the application is not an aggrieved person. It is contented that the application is a proxy litigation, stage managed by the business rival of Arpan Kumar. Be that may as it is, it does not give any right to HPCL and Arpan Kumar to establish the proposed petrol pump against legal norms. Their illegal acts cannot be legalized or regularized only because the application appears to be outcome of business rivalry between Arpan Kumar and employer of the applicant. Hence, we are not impressed by this line of argument advanced by learned counsel for HPCL and Arpan Kumar.
23. It may be gathered from counter affidavit of Arun Kumar Chaturvedi (Forest Range Officer) that he conducted site inspection in compliance of letter dated 19.7.2012 issued by the Divisional Forest Officer, Mainpuri. He reported that Arpan Kumar was duly warned not to go ahead with the proposed establishment of petrol pump without NoC of the Forest Department. The Affidavit of the Forest Range Officer shows that eight (8) trees were found cut and felled at the site. This affidavit of the Forest Range Officer (Arun Kumar) belies claim of Arpan Kumar and HPCL that there was no felling of trees. We are at pains to note that HPCL is also trying to justify the illegalities committed by Arpan Kumar while commencing with the proposed work for establishment of the Petrol Pump (outlet). 16
24. Now, it remains to be seen whether the relief sought by the applicant can be granted or that it falls outside the jurisdiction of this Tribunal. Learned Counsel for HPCL and Arpan Kumar vehemently argued that application is pre-mature because permission under the FC Act is already applied for and therefore the NoC issued by the District Magistrate, Mainpuri cannot be now challenged. It is true that, the impugned order dated 21.12.2012 will be operative only on grant of the FC. Still, however, it is important to note that stance adopted by Forest Range Officer in counter affidavit filed on behalf of Respondent No. 2 and 3, clearly indicates that the permission under FC Act cannot be granted without the approval of the Central Government. He further stated that action under the Indian Forest Act 1927 has been initiated because already eight (8) trees were found cut and fallen. What we find from the record is that there is a different stand taken by the DFO, from that of the District Magistrate. In our opinion, the District Magistrate attempted to assert his authority by circumventing the regular procedure of getting report from the DFO. According to the Learned Counsel for HPCL & Arpan Kumar, that present application does not fall within provision of the NGT Act, 2010. We find it difficult to accept such contention put forth by them. We may refer to section 14 (1) & (2) of National Green Tribunal, Act, 2010 "Sec. 14. Tribunal to settle disputes. (1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including 17 enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.
2. The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass orders thereon.
25. A plain reading of Sub-Section (1) of Section 14 will make it clear that this tribunal has jurisdiction in respect of all civil cases where substantial question relating to environment is involved. The question involved in the present case is whether provisions of the Forest (Conservation) Act, 1980, are complied with. As stated before, the forest area was cleared by HPCL & Arpan Kumar or rather Arpan Kumar, without obtaining due permission of the Competent Forest Authority. The felling of eight (8) trees for such purpose amounts to breach of section (2) of the Forest (Conservation) Act, 1980. It also involves question pertaining to Environment (Protection) Act, 1986. Hence, it cannot be said that jurisdiction of this Tribunal is not available to the applicant.
26. Though it appears that this is a proxy litigation initiated at the instance of the rival Petrol Pump owner through the Appellant- Shyam Sunder, who is an employee of that rival petrol pump owner , , yet it does not, however, impair merits of the present case. Needless to say, such contention does not help HPCL or Arpan Kumar. Considering the forgoing discussion, we have arrived at the conclusion that NoC dated 21.12.2012 is malafidely issued by the District Magistrate, Mainpuri by 18 suppressing material fact regarding report of the DFO. In our opinion, such a fraudulent act will make the NoC dated 21.12.2012 an illegal document.
27. In the result, we allow the application and quash the NoC dated 21.12.2012 issued by Respondent No. 4 (District Magistrate). The application is accordingly disposed of with no order as to costs.
.........................................., JM (V. R. Kingaonkar) ........................................., EM (Dr. P.C. Mishra) ........................................., EM (P.S. Rao) ........................................., EM (B. S. Sajwan) 19