National Green Tribunal
Residents Of Village Danawab Talhati vs State Of Rajasthan on 7 August, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 1051/2018
(With report dated 20.03.2020)
Residents of Village Danawab Talhati Applicant(s)
Versus
State of Rajasthan Respondent(s)
Date of hearing: 07.08.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Respondent(s): Mr. Ashish Kumar, AAG for Nagar Palika
ORDER
1. An action taken report was sought from Principal Chief Conservator of Forest (HoFF), Rajasthan and Nagar Palika, Abu Road, District Sirohi with reference to the allegation of the illegal construction in the buffer zone and Eco-Sensitive Zone by construction of Commercial complex near Brahma Kumari Ashram Gate No. 3 at Abu Road, District Sirohi, Rajasthan.
2. Accordingly, the Forest Department, Rajasthan has filed its report on 20.03.2020 inter-alia stating as follows: 1
"A complaint was addressed to PCCF (HoFF), regarding encroachment of the area of the Mount Abu wildlife sanctuary by Brahma Kumari organization and constructing multi-storeyed buildings. APCCF and CWLW forwarded the letter to DCF Wildlife Mount Abu to expedite the verification of boundary especially on the southern side (Annexure IV).
The DCF Wildlife, Mount Abu, through District Collector & Magistrate, got a joint survey team constituted on 25.09.2017 and surveyed the area in complaint from 05.10.2017 to 16.10.2017 and gave report to Tehsildar Abu road that a total of 5 bigha of reserve forest land of Mount Abu wildlife sanctuary is encroached in block 1, gram Abu no. 2 Taking cognizance of the report, forest range officer, Abu Taleti has filed an FIR 2064/35 dated 18.10.2017 U/S 34(A) of Wildlife (Protection) Act, 1972 against (i) Brahma Kumari secretary general, WRST managing trustee, shantivan, Abu road and (ii) Manager, Brahma kumara sanstha (Annexure V).
DFC, Wildlife Mount Abu, vide letter 2230 dated 23.10.2017 made ACF as investing officer and ordered to furnish a report. ACF, Mount Abu issued notices to Brahma kumar secretary general, manager, brahma kumara sanstha and Shri. Shashi kant, s/o Gangaram on 02.11.17, 10.11.17, 16.11.17, 17.11.17 and 22.11.17 to defend the case. No one turned up from the Brahma kumara sanstha to defend the case. Based on the report of investigating officer, DCF Wildlife, Mount Abu gave one more notice dated 24.11.17 to the (i) Brahma kumar, secretary general, (ii) manager Brahma kumara sanstha and (iii) Shri Shantiram s/o Ganga ram to appear before and defend the case on 04.12.2017. On non compliance the date is again extended to 11.12.17. Upon no response one more notice is served to attend on 20.12.17. No evidence in favour of Brahmakumari Sanstha was shown to forest department inspite of repeated notices.
DCF Wildlife, Mount Abu, decided the case on 26.12.17 u/s 34 (A) of Wildlife (Protection) Act, 1972 and gave a speaking order for the eviction of the land and demolish the permanent structures on 4 bigha 10 biswa land in khasra no. 419 totaling 4 bigha 20 biswa of reserve forest land (Annexure VI).
S.B Civil writ petition was filed against the order of DCF, Wildlife, Mount Abu, in Hon'ble High Court of Judicature, Jodhpur, Rajasthan and subsequently withdrew it 03.05.2018. AAG, Shri Rajesh Panwar in his opinion dated 10.05.2018 on the withdrawn writ petition wrote "That during course of court hearings, the matter was listed various times whereby the pleading from the both the side were duly completed and the matter was further posted for hearing, wherein, the petitioner moved an application seeking withdrawal of the writ petition. The Hon'ble Court while allowing the application dismissed the writ petition as withdrawn with liberty to file fresh in 2 case the need so arises. I have perused the said order passed in the petition, after due consideration, I am of the opinion that the writ petition stands dismissed as withdrawn, whereby the orders dated 26.12.2017 and 02.01.2018 passed by DCF (Wildlife), Mount Abu comes into force and are very much valid in the eyes of law. It is further important to note that the respondent authorities now are nowhere restrained from demolishing the illegal construction made by the petitioners. Also it is advised to initiate appropriate action against the petitioners for obtaining land/title in violation of Tenancy law. Thus I'll recommend the officer In-charge to act upon the present opinion and take appropriate steps following the due process of law. "(Annexure VII).
The undersigned, upon the opinion of AAG, wrote to District Collector and Magistrate on 01.11.18 to execute the DCF wildlife order dated 26.12.17 and to appoint karyapalak magistrate to oversee the demolition. The Collector and Magistrate, Sirohi directed to remove the encroachment on 17.11.2018 and 18.11.2018 and appointed Sub- Divisional officer, Mount Abu as Karyapalak Magistrate on 15.11.2018. District Superintendent of Police through his letter 2763- 64, dated 15.11.2018 wrote to the undersigned to keep the encroachment removal after the Elections to the State Assembly. The Collector and Magistrate, Sirohi through letter no. 6602-605 dated 16- 11-18 directed Tehsildar, Aburoad to stop the process of encroachment removal till 15.12.2018. The undersigned once again wrote to the Collector and Magistrate, Sirohi to appoint karyapalak magistrate to remove encroachment removal: The communications with respect to encroachment removal are marked as (Annexure VIII).
The PBKEVV, through World Renewal Spiritual Trust, accepted that some part the two multi-storied buildings fall in the encroached reserved forest land of Mount Abu Wildlife sanctuary and applied for the diversion of forest land of the sanctuary for non forestry purposes. Wildlife clearance for diversion of 1 ha for proposal no.FP/RJ/Others/2525 dated 24/5/2018 for existing building Manmohini and proposal no. FP/RJ. Others/2527/2018 dated 25/05/2018 for diversion of 1 ha land for the existing building Anand Sarovar (Annexure IX &X). Both the proposals are incomplete and the reply given to the EDS are unsatisfactory.
Meanwhile, the World Renewal Spiritual Trust, had filed a S.B Civil Writ petitions No. 18564/2018 and 18569/2018 versus State of Rajasthan through Principal Secretary forest, PCCF and CWLW. The District Collector. The DCF Wildlife, Mount Abu and ACF Wildlife. Mount Abu accepting that encroachment has taken place and pleaded that without deciding the diversion proposal and without sending the same to the Central Government, the respondents are trying to demolish some part of the property of the petitioner. Till next 3 date, no coercive action shall be taken against the petitioner (Annexure XI & XII).
The undersigned, regularly checked the online proposals, and issued EDS and got unsatisfactory and illogical replies. Upon instruction online for submission of 10 Hard copies for each proposal, the User Agency willfully is not prepared to submit them as they took stay from Hon'ble High Court of Judicature, Jodhpur to not to demolish the two multi-storeyed buildings without sending the proposal to the Central Government. Submission of 10 copies of hard copies of the diversion proposals is not complied by the use agency till date inspite of repeated reminders without which the proposals cannot be forwarded for forest clearance (Annexure XIII).
The WRST also filed a S.B Civil contempt petition under Article 215 of the Constitution of India read with section 12 of the Contempt of the courts Act 1971 through S.B Civil Writ Petition No. 1777/2018 in S.B Civil Writ Petition No. 18569/2018 (Pending) V/s 1. Shri Balaji Kari, DCF (Wildlife) Mount Abu. A show cause notice was issued to the respondents as to why contempt proceedings may not be initiated against them (Annexure XIV).
In the S.B Criminal Writ Petition no. 43/2019 (World Renewal Spiritual Trust Vs. State of Rajasthan & Ors., the petitioners pleased in the Hon'ble Court of Judicature that (i) the FIR NO. 2064/35 dated 18.10.17 in respect of Khasra No. 410, 416, 419 situated in Van Khand Gram Abu 2 of wildlife sanctuary be kindly ordered to be quashed, ii) the impugned order passed by the DCF Wildlife, Mount Abu on 26.12.2017 be declared illegal and ordered to be quashed and set aside, iii) the respondents may kindly be restrained from interfering with the peaceful possession of the land and further be restrained from demolishing the construction made by the petitioner. The status of the cases in the High Court of Judicature, Jodhpur, Rajasthan is marked as (Annexure XV)."
3. The Municipal Council, Abu Road, District Sirohi has filed an affidavit to the effect that the matter is to be dealt with by the Urban Improvement Trust and the Forest Department.
4. In view of the above, to avoid conflict of orders, we do not find it appropriate to continue the proceedings before this Tribunal when the matter is pending in the High Court and interim order is operative. The applicant is at liberty to take remedies in the pending matter before the 4 High Court of Rajasthan or against the orders of the High Court at any higher forum.
The application is accordingly disposed of, without prejudice to the remedies of the applicant, as aforesaid.
Adarsh Kumar Goel, CP S. P. Wangdi, JM Dr. Nagin Nanda, EM August 07, 2020 Original Application No. 1051/2018 SN 5