National Green Tribunal
Prof Dr Sanjev Bagai vs Department Of Environment Gnctd on 19 January, 2023
Item No. 9 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Original Application No. 911/2022
I. A. No. 14/2023 and I. A. No. 16/2023
Prof. Dr. Sanjeev Bagai & Ors. ...Applicants
Versus
Department of Environment, GNCTD & Ors. ...Respondents
Date of hearing: 19.01.2023
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER.
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER.
Applicants: Ms. Anu Monga, Mr. Shobhit Sharma and Mr.
Shubham Khanna, Advocates with Prof. Dr. Sanjeev
Bagai and Mr. Rajit Kumar, Applicants in person.
Respondents: Ms. Jyoti Mendiratta, Advocate for Respondents No. 1,
3 and 5, with Mr. Navneet Kumar Srivastava, DCF
(West) and Mr. Nitesh Sharma, S.P.A. (Legal)-
Department of Forest and Wildlife.
Ms. Puja Kalra Advocate for Respondents No. 2, 4, 7 &
8.
Ms. Kritika Gupta, Advocates for Respondent No. 6-
DDA with Mr. Vikas Singh, Assistant Director,
Horticulture, Division-IV and Mr. Parhlad Ahirwar,
Section Officer (Horticulture), DDA.
Ms. Ekta Mehta and Ms. Akansha Agarwal, Advocates
for respondents no. 18-Vasant Vihar Residents Welfare
Association with Mr. Gurpreet Singh Bindra,
President of Vasant Vihar Residents Welfare
Association.
Notice to Respondents No. 9, 10 and 11 not issued so
far.
Application under Section 14 and 15 of the National Green Tribunal Act, 2010.
ORDER
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
2
1. Prof. Dr. Sanjeev Bagai and others have filed the present application under Section 14 and 15 of the National Green Tribunal Act, 2010, seeking issuance of directions to respondents no. 1 to 6 to take appropriate remedial and penal action against respondent no. 12 to 17 for illegal act of cutting, felling and pruning of trees in Vasant Vihar with consequential reliefs as mentioned in the prayer.
2. The applicants have submitted that some trees were cut/felled in Vasant Vihar on 30.09.2022 without any permission and a complaint dated 28.10.2022 was lodged in this regard by applicant no. 1 with various authorities. On 18.11.2022, the applicants received a Whatsapp Communication from respondent no. 14 stating that there are around 7000 trees in Vasant Vihar pruning of which was long due and the pruning would start from 21.11.2022. It was further stated that Municipal Corporation of Delhi (MCD) does not have the means to carry out pruning and had conveyed its inability to carry out pruning of trees in Vasant Vihar. The applicants raised objections to the same and also sought information from the MCD under the Right to Information Act, 2005 but did not receive any response. The contractor engaged by respondents no. 12 to 17 started pruning of trees in Vasant Vihar w.e.f. 20.11.2022 without obtaining requisite permission under the Delhi Preservation of Trees Act, 1994 and the Guidelines dated 01.10.2019 for pruning of trees. The applicants made complaints to the concerned authorities but no action has been taken on the same.
3. In the course of hearing, notices were ordered to be issued to Respondents No. 1 to 8 and 18.
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
3
4. Replies have been filed by Respondent No. 2-MCD vide email dated 02.01.2023, respondent No. 18-Vasant Vihar Residents Welfare Association vide email dated 02.01.2023 and respondent no. 3 vide email dated 13.01.2023. Short Status report has been filed by respondent no. 6 vide email dated 17.01.2023. Rejoinders to the replies of respondents no. 4 and 18 have been filed by the applicant vide emails dated 18.01.2023.
5. The applicants have filed Interim Application No.14/2023 seeking initiation of proceedings under Section 340 of the Code of Criminal Procedure, 1973 (for short the Cr.P.C.) against Respondent No. 18- Vasant Vihar Welfare Association for knowingly, willfully, deliberately and intentionally making false and incorrect statements before this Tribunal supported by affidavit on oath with a view to prejudice and interfere with the due course of judicial proceedings; to obstruct the administration of justice and to deceive this Hon'ble Tribunal.
6. The applicants have submitted in the application that respondent no.18 has, with clear oblique motive to mislead, approached this Tribunal with unclean hands and has knowingly, willfully and purposely made repeated incorrect and false statements in its reply dated 02.01.2023 to the Original Application. Claim made in resolution dated 28.12.2022 attached with the reply regarding the `office bearers' of respondent no.18 having authorised its President Mr. G.S. Bindra to sign and file said reply on its behalf is completely false as in terms of Clause 31 of the said Memorandum of Association only `managing committee' of respondent no. 18 has power to authorise any person to sue or be sued on behalf of respondent no. 18; and not its `office bearers' as is being claimed in the Reply.
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
4
7. The applicants have tabulated the false statements allegedly made in the reply filed on behalf of respondent no. 18 which tabular statement is reproduced as under:-
R18 issued contradictory statements/ letters/ applications with respect to pruning of trees being undertaken by R18 itself.
However, R18 Reply mentions:
1) pruning is being undertaken by R18 under supervision of MCD;
2) pruning is being undertaken by MCD and PWD; and
3) pruning is being undertaken by MCD with support from R18 R18 REPLY Communications by R18 to residents of Vasant Vihar and other government agencies including R3, R7 Para I(7) page 4 of R18 Reply "The WhatsApp message dated pruning is being undertaken by 18.11.2022 the Municipal Corporation of Delhi in compliance of order dated [Annexure A-3 Colly to Original 21.12.2022 of this Hon'ble Application] Tribunal." "... We had been following up the matter with MCD, but they do not Para II(2) page 5 of R18 Reply "The have the means to carry out pruning had been done within the pruning at this scale. SO VVWA boundary of law and under the HAS DECIDED TO STEP IN AND supervision and control of the CARRY OUT THE PRUNING appropriate authorities." THEMSELVES"
Para III(2) page 5 of R18 Reply "It "...1. VVWA has engaged the is stated that no pruning of more services of a skylift on hire charges. than 15.7 cm was undertaken by Chandrapal who recently retires the answering Respondent" from MCD, has been engaged to carry out the pruning"...
Para III(3) page 6 of R18 Reply "3 ...It is reiterated that pruning was "5. The work shall be supervised by done with the approval and under the block representatives and they the control and supervision of the may be contacted for any issue." concerned authorities..."
WhatsApp message dated
Para III(4) page 6 of R18 Reply "... 21.11.2022
pruning which was undertaken
under the supervision and control [Annexure 2 herein]
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs.
Department of Environment, GNCTD & Ors.
5
of the appropriate authorities..." "Dear Residents, Pruning is
successfully started from F block
Para IV(2) page 9 of R18 Reply "It today. Permission has been
is again reiterated that the activity granted from govt. in writing.
of pruning undertaken by the Horticulture team along with its
Respondent No.5 was as per law seniors are there with sky lift"
and under the active supervision
and control of the concerned R18 Letter dated 01.12.2022 to
authorities and its officers." R3/ DCF
[Annexure R-1 of Reply to Original
Application]
"... we are carrying out pruning of
our trees in Vasant Vihar..."
Para IV(3) page 10 of R18 Reply "...in no case would the pruning
be greater than 15.5 cms be
"... it is reiterated that pruning carried out"
was undertaken under the
active supervision and control of R18 Notice to residents dated
the concerned authority and 23.12.2022
ancillary services were (Annexure 3 Colly herein)
facilitated by the Respondent No. "...Pruning is being carried out by
18." VVWA in the larger interest of the
residents..."
Para V page 11 of R18 Reply
"...pursuant to the order dated WhatsApp message dated
21.12.2022 passed by this Hon'ble 23.12.2022 of R18 MC member
Tribunal, the Municipal (after the first hearing before the
Corporation Delhi has undertaken Hon'ble NGT)
the work of pruning and there
[Annexure-4 Colly herein]
exists no involvement of the
"Pruning was being done by mcd
Respondent No. 18 in the same."
only
We were facilitating with sky lift
as we have big trees"
Short affidavit of R4
PARA 7
"That as per record of the
department, the said regular
pruning has been undertaken/
carried out w.ef 21/11/2022 till
20/12/2022 under the supervision
of the said officers."
II. R18 issued contradictory statements/ letters/ applications with respect to permission granted/ awaited for pruning of O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
6 trees.
However, R18 Reply mentions:
1. pruning is being undertaken with the approval;
no approval required for pruning.
R8 REPLY Communications by R18 to residents of Vasant Vihar and other government agencies including R3, R7 Para I(2) page 2 of R18 Reply "...For Letter dated 21.11.2022, to R7/ pruning upto 15 cms of grith, no Asst Director Horticulture, MCD permission is required."
[Annexure A-7 of Original Para III(3) page 6 of R18 Reply "3...It is Application] reiterated that pruning was done with "... The matter has been the approval and under the control and discussed at various levels of MCD supervision of the concerned and there is no ambiguity on the authorities..." issue that pruning needs to be carried out."
Para IV(2) page 9 of R18 Reply "...for regular pruning/ general trending up to "...we would request you to give us 15.7 cm, no permission is required..." permission to carry this out." Para IV(2) page 9 of R18 Reply "
is . . .p run ing WhatsApp message dated not in violation of any model of 17.12.2022 conduct and for pruning of up to 15.7 cms, no permission is also required to [Annexure-5 herein] be taken ..." "Anything on A 10 will be done We will not do vasant marg side till we have permission..."
WhatsApp message dated 19.12.2022 [Annexure-6 Colly herein] "As far as pruning for A9 is concerned, that comes under PWD scheme. Our office bearers are in the process of acquiring permissions from authorities."
"Yes PWD we are in process of talking this permission"
WhatsApp messages dated 20.12.2022 [Annexure-7 herein] "A9 street comes under PWD so we have not received any O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
7
permissions for tree pruning A9 street.
Office is working on the permissions. Updates on the same will come next week."
Another message "Yes. We are pursuing that"
III. R18 issued contradictory statements/ letters/ applications with respect to hiring private contractor to carry out pruning.
However, R18 Reply mentions private contractor was not undertaking pruning Para III(4) page 6 of R18 Reply "4... it is WhatsApp message dated denied that pruning was undertaken by 18.11.2022 private contractor. Respondent No. 18 Annexure-3 to Original had only provided the facility of the Application skylift for carrying out the work of pruning which was undertaken under "... We had been following up the the supervision and control of the matter with MCD, but they do appropriate authorities..." 3' line at not have the means to carry out Page 7: "...it is categorically denied that pruning at this scale. SO VVWA huge amount of money was being HAS DECIDED TO STEP IN AND spent on private contractors for this CARRY OUT THE PRUNING purpose." THEMSELVES"
Para III(6) page 8 of R18 Reply ". ..1 . V VW A h a s e ng a ge d t he s e r v i c e s of a s ky l i ft on h i r e c h a rg e s . Ch a nd r apa l wh o r e c e n tl y r e t i r e s f rom MC D, h a s b ee n en ga g ed t o c a r r y ou t t h e p r u n in g "...
"It is denied that any private agency "8. The expenses on the whole was involved for any illegal or unlawful exercise shall be met out of the activity by the answering Respondent." money collected from the yearly Subscriptions"
Para IV(3) page 10 of R18 Reply R18's minutes (annexed as "It is denied that pruning was carried Annexure-8 herein) on by private contractors by the Respondent No.18 ..." "It is proposed to engage a Skylift for the necessary period of 2-3 Hon'ble NGT's Order dated 3.01.2022 months. Shri Chander Pal who Mr. GS Bindra admitted before this was previously employed with Hon'ble Tribunal that VVWA/ R18 paid MCD till he retired has been O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
8 for pruning. This statement recorded engaged to carryout this in NGT's order is at variance with R18 pruning..." Reply under affidavit before this Hon'ble Tribunal -- R18's Letter to R7 dated 21.11.2022 "Para 9... on earlier occasions also pruning was done on requests made by [Annexure A-7 of the Original residents as per decision taken in the Application] meetings of office bearers of the above association including applicant no.3 "VVWA is in the process of and expenses for the same were borne arranging a Trolley to handle by the above said association" the green waste. We are also arranging a Shredder on hire so that there is no build up of green waste. In the long term, VVWA will fund the purchase of Shredder on permanent basis.
The entire expense for the exercise will be borne by VVWA."
IV. R18 issued contradictory statements/ letters/ applications with respect to suspension of pruning owing to letters sent by the Applicants.
However, R18 Reply mentions that the pruning was not suspended on 24.11.2022 R18 REPLY Communications by R18 to residents of Vasant Vihar and other government agencies including R3, R7 Para III(4) page 7 of R18 Reply "4...It is WhatsApp messagedated 24.11.2022 however denied that pruning was suspended on 24.11.2022 on the plea [Annexure-9 herein] that few residents had raised concerns "...6. In view of this, we are regarding prior approval of pruning of constrained to temporarily trees..." suspend the pruning process till the matter is clarified."
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
9
WhatsApp message dated
25.11.2022
Annexure A-9 of Original
Application
"Pruning of trees has just
recommenced"
V. R18 issued contradictory statements/ letters/ applications with respect to pruning undertaken from 21.11.2022 is less than 15.7 cms in girth size. However, R18 Reply fails to mention that several trees were felled/ cut and the same was fully known to R13 i.e. the signatory of R18 Reply.
R18 REPLY Communications by R18 to residents of Vasant Vihar and other government agencies including R3, R7 Para III(2) page 5 of R18 Reply Letter dated 01.12.2022 sent to "...no pruning of more than 15.7 R3 and R7 Cms was undertaken by the answering (Annexure R-1 of the Reply) Respondent..." "... in no case would the pruning be greater than 15.5 cms be carried out"
WhatsApp messages dated 22.12.2022 from residents of vasant vihar -- complaints on excessive and lopsided pruning [Annexure-10 Colly herein] "A walk on A10/A1 I will tell you that this tree trimming contractor Chanderpal is trimming as per his whims only and no rules or logic or with underhand dealings because some trees are barely trimmed and some were chopped 50% or more, he left trees in front of my house with almost no trimming but would not trim a branch or two hanging over the O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
10
plot and in next half hour in next house A11/22 he chopped the tree right upto 40' height from all over to more than 60% and almost denuded it."
"Yes driving down A10 Street I also noted some trees not pruned properly at all."
WhatsApp message dated 23.12.2022 -- complaints on excessive and lopsided pruning [Annexure-4 Colly herein] "Pruning is necessary. No denying that.
But in many cases it has been excessive"
Reply to above message by R12/MC of R18 "I m sorry lop sided i also said But excessive no"
VI. R18 issued contradictory statements/ letters/ applications with respect to handling/ shredding of the green waste. However, R18 Reply states that the green waste is being removed by MCD.
R18 REPLY Communications by R18 to residents of Vasant Vihar and other government agencies including R3, R7 R18's minutes Para IV(3) page 10 of R18 Reply "...It is (annexed as Annexure-8 herein) also submitted that all the wood/ lops/ tops that are created by the pruning, "It may be necessary for us to are being purchase a trolley for carriage of green waste. The necessary removed by Municipal quotation and prices are Corporation of Delhi in their vehicles to available for approval. their nursery for onward use as they deem fit and as per the norms and rules Shredder on hire -- 4000/= per ..." LIAL R18's Letter to R7 dated 21.11.2022 O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
11
[Annexure A-7 of the Original Application] "VVWA is in the process of arranging a Trolley to handle the green waste. We are also arranging a Shredder on hire so that there is no build up of green waste. In the long term, VVWA will fund the purchase of Shredder on permanent basis.
The entire expense for the exercise will be borne by VVWA."
W h ats Ap p m es s ag e d at ed 19.12.2022 [Annexure-6 Colly herein] "...As for its green waste, we are arranging a pick-up for today for the lanes, which have already been pruned"
WhatsApp message dated 24.12.2022 [Annexure-11 Colly herein] "...
The whole exercise is being done with a MCD staff present and they are the ones clearing all green waste."
Short affidavit of R4 Para 7 "That as per record of the department, the said regular pruning has been undertaken/ carried out w.el 21/11/2022 till 20/12/2022 under the supervision of the said officers."
8. The applicants have further submitted that the fact that respondent No.18 is lying on oath is also substantiated from its own stand taken in para 2 page 6 of the Reply wherein firstly there is denial O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
12 by it regarding complaint dated 28.10.2022 made by Applicant No. 1 for illegal cutting of trees in Vasant Vihar at the behest of respondent No.18 but later there is assertion as to police complaint filed vide diary number 78775 with the Vasant Vihar Police Station being under investigation. If respondent No.18 was not aware about any police complaint dated 28.10.2022 then how come it came to know that there is an investigation which is being conducted by the Vasant Vihar Police Station. The unlawful conduct of respondent No.18 is also fortified from the fact that respondent No.18 is circulating false letter and misleading even the Residents of Vasant Vihar by false WhatsApp messages dated 23.12.2022 that "three residents of Vasant Vihar have approached the NGT to suspend pruning". Since no order of suspension of pruning was ever passed by this Tribunal, the said misleading statements knowingly made by respondent No.18 clearly show that respondent No.18 has scant respect towards the orders of this Tribunal. Respondent No.18 is a body who has no fear of law and has deliberately made false and contradictory statements on oath and respondent No. 18 is liable to be prosecuted and punished for committing perjury by intentionally giving false affidavit.
9. While submitting that this Tribunal has power to try and decide the present application in view of Section 195 (1)(b) of the Cr.P.C. and Rule 24 of the National Green Tribunal (Practice and Procedure) Rules, 2011, the applicants have prayed for conducting of a preliminary inquiry and passing direction to initiate proceedings for Perjury under Section 340 of the Cr.P.C. against office bearers/ managing committee of respondent no. 18 (involved in the act of perjury) for intentionally and deliberately making false and incorrect statements before this Tribunal. O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
13
10. Ms. Anu Monga, Mr. Shobhit Sharma and Mr. Shubham Khanna, learned Counsel for the applicants have argued that Section 340 of the Cr.P.C. mandates making of preliminary inquiry by the Court and filing of complaint if the Court is of the opinion that it is expedient in the interest of justice to do so. No notice of the application and opportunity of being heard is required to be given to respondent No.18 (the accused). Preliminary inquiry may be conducted and complaint may be ordered to be filed as against office bearers/managing committee of respondent no.
18. In support of their arguments, learned Counsel for the applicants have relied on the observations in Judgments/orders passed in Criminal Appeal No. 402 of 2005 titled as Iqbal Singh Marwah and Ors Vs. Meenakshi Marwah and Ors. (MANU/SC/0197/2005) decided on 11.03.2005; CWP No. 3886/2000 titled as IRCON International Limited Vs. Union of India (UOI) and Ors. (MANU/DE/1127/2003) decided on 03.12.2023; Writ Petition (S.T) No 4899/2017 titled as Union of India and Ors. Vs. Haresh Virumal Milani, (Manu/MH/0804/2017) decided on 17.04.2017; O.A No. 125/2015 titled as Kashhinath Jairam Shetye and Ors Vs. Jaiprakash A. Shirsaikar and Ors. (MANU/GT/0040/2017) decided on 02.05.2017; and order dated passed on 24.08.2022 in O.A No. 21/2022 titled as M/s Geenland Waste Management Enterprise Vs. State of Jharkhand.
11. On the other hand Ms. Ekta Mehta and Ms. Akansha Agarwal, learned Counsel for the respondent No.18 have argued that the applicants have filed application under Section 340 of the Cr.P.C. out of personal vendetta to wreck vengeance which is not maintainable and the same may be dismissed.
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
14
12. In order to consider the application under Section 340 of the Cr.P.C. for taking action against the respondent No. 18 for commission of offence of perjury. The relevant statutory provisions contained in sections 191, 192, 193, 199 and 200 of the Indian Penal Code, 1860 (for short the I.P.C.) may be noticed which read as under:-
" 191. Giving false evidence.--Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation1.--A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2.--A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
192. Fabricating false evidence.--Whoever causes any circumstance to exist or 1 [makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement,] intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding is said "to fabricate false evidence".
193. Punishment for false evidence.- Whoever intentionally gives false evidence in any of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
15 and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Explanation 1. A trial before a Court-martial is a judicial proceeding.
Explanation 2. An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
Explanation 3. An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, through that investigation may not take place before a Court of Justice.
199. False statement made in declaration which is by law receivable as evidence.- Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.
200 : Using as true such declaration knowing it to be false.- Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.
Explanation - A declaration which is inadmissible merely upon the ground of some informality, is a declaration within the meaning of sections 199 and 200."
13. It may be observed here that the offences punishable under Section 193, 199 and 200 of the I.P.C. are shown in the schedule to the Cr.P.C. to be non-cognizable.
14. Section 195 (i) (b) of the Cr.P.C. bars the Court from taking cognizance of the offences punishable under Sections 193 to 196, 199, O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
16 200, 205 to 211 and 228 alleged to have been committed in or in relation to any proceedings in any Court except on complaint in writing of that Court or its authorised officer or higher Court to which such Court is sub-ordinate and the same reads as under:-
" 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.--(1) No Court shall take cognizance--
X X X X
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate]."
15. Section 195 (3) of the Cr.P.C. which defines the expression ''Court'' for purpose of Section 195 (1) (b) of the Cr. P.C. which reads as under:-
" (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. "
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
17
16. Section 340 of the Cr.P.C., which prescribes the procedure as to how a complaint may be preferred under Section 195 of the Cr.P.C., reads as under:-
"340. Procedure in cases mentioned in section 195- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is nonbailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section
195. (3) A complaint made under this section shall be signed, (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; [(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorised in writing in this behalf.] (4) In this section, "Court" has the same meaning as in section
195."
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
18
17. So far as initiation of proceedings for perjury is concerned the law is now well settled through a catena of the judgments of Hon'ble Supreme Court and may be summarized as under:-
"1. Giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. (See Chajoo Ram v. Radhey Shyam and another, reported in AIR 1971 Supreme Court 1367.)
2. If the court is to notice every falsehood that is sworn to by parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. Again, the edge of such weapon would become blunted by indiscriminate use. (See Thomman v. IInd Additional Sessions Judge, Ernakulam and others, 1994 Cri. L.J.
48.)
3. Mere acceptance or rejection of evidence by itself is not a sufficient yardstick to dub the one rejected as false. Falsity can be alleged when truth stands out glaringly and to the knowledge of the person who is making the false statement. (See Chandrapal Singh and others v. Maharaj Singh and another, reported in 1982(2) RCR(Rent) 425 : AIR 1982 Supreme Court 1238.)
4. Every incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. (See M.S. Ahlawat v. State of Haryana and others : 2000 (1) SCC 278).
5. The gravity of the false statement, the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury. (See Thomman v. IInd Additional Sessions Judge, Ernakulam and others, 1994 Cri. L.J. 48.)
6. Prosecution should be ordered when it is considered expedient in the interests of justice to punish delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial and there must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. (See Chajoo Ram v. Radhey O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.19
Shyam and another, reported in AIR 1971 Supreme Court 1367.)
7. Prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the Court should direct prosecution. (See Chajoo Ram v. Radhey Shyam and another, reported in AIR 1971 Supreme Court 1367 and Santokh Singh v. Izhar Hussain and another : AIR 1973 Supreme Court 2190.)
8. The power given by Section 340 of the Cr.P.C. Should be used with utmost care and after due consideration. Such a prosecution for perjury should be taken only if it is expedient in the interest of justice. (See K.T.M.S. Mohd. and another v. Union of India : AIR 1992 Supreme Court 1831.)
9. The Court must order prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. (See Santokh Singh v. Izhar Hussain and another :
AIR 1973 Supreme Court 2190)."
18. In view of the settled position of law referred to above, prosecution for perjury can be sanctioned even by this Tribunal in glaring cases of deliberate falsehood on a matter of substance where there is reasonable foundation for the charge and conviction is highly likely. Such prosecution can be sanctioned only when it is considered expedient in the interests of justice that the delinquent be punished and not merely to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party.
19. In the present case the averments made in the reply filed on behalf of respondent No.18 are stated to be false with reference to the averments made in whats app messages but who sent the whats app messages by which device by which mobile number and to whom and on which mobile number is not mentioned in the application. The genuineness of the messages and truth of the averments made in the whats app messages is O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.20
not yet established before this Tribunal. Therefore, the averments made in the reply cannot be prima facie said to be false on the basis of the averments made in the whats app messages. The claim in the resolution regarding authorization of Mr. G. S. Bindra President of respondent No. 18 by its Office Bearers for filing of reply on behalf of respondent No.18 cannot be prima facie said to be false due to there being no authorization by the Managing Committee which merely raises question of its legality. Similarly the conduct of respondent No.18 in informing three applicants to have approached this Tribunal can not be said to be unlawful even if there be some wrong communication regarding the nature of relief sought by them being suspension of pruning. Mere knowledge of pendency of investigation by the police on complaint made to it cannot be construed to impute complete knowledge of the contents of the complaint by the person complained against till copy of complaint is supplied. Therefore, such knowledge of pendency of investigation does not by itself prove denial of its contents, before supply of copy of the complaint, to be false. Whats App complaints regarding pruning being unscientific, lop sided or excessive, which are relied upon by the applicants merely constitute a counter claim/statement of facts and do not thereby establish the factum of the averments made in the reply filed by respondent no. 18 be false. The averments made by the applicants in the interim application do not, even in their entirety, make out it to be glaring case of deliberate falsehood on a matter of substance with a reasonable foundation for the charge and high likelihood of conviction and do not, in the totality of the facts and circumstances, make it expedient in the interests of justice that the delinquent be punished. On the other hand the application appears to have been filed at very initial stage of the proceedings merely to gratify feelings of personal revenge and O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
21 vindictiveness and to serve the ends of the applicants as private party. We are, therefore, of the considered view that it is not expedient in the interests of Justice that an inquiry be made into the offences referred to in Section 195 (1) (b) of the Cr.P.C. alleged to have been committed in/in relation to the proceedings in this Tribunal by filing the reply and affidavit by respondent no. 18.
20. We have gone through the Judgments/orders relied upon by learned counsel for the applicants. In Iqbal Singh Marwah (Supra) where after forgery, forged will was produced in the court of the District Judge subsequently and no offence as enumerated in section 195 (b) (ii) of the Cr.P.C. was committed in respect to the said will after it was produced and filed in the Court, it was held by Hon'ble Supreme Court that the bar created by Section 195 (1) (b) (ii) of the Cr.P.C. would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents. In IRCON International Limited (Supra) where affidavit was filed under section 17-B of the Industrial Dispute Acts, 1947 by the employee that he was not gainfully employed and application under section 340 of the Cr.P.C. was filed by the Management against the employee for making false averments in the affidavit and passport and visa of the employee were produced to show that during the period in question the employee was gainfully employed abroad, it was held by Hon'ble Delhi High Court that the false statement fell within the ambit of sections 191, 192 and 193 of the I.P.C. and alleged perjury was deliberate and conscious and conviction was probable or likely and accordingly filing of complaint against the employee was ordered. In Kashhinath Jairam Shetye (Supra) where an order of demolition of illegal construction in the O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
22 property in question was passed by GCZMA and respondent no. 2 made statement before the Western Zone Bench of this Tribunal that he had complied with the direction of GCZMA requiring demolition of the structures, the Western Zone Bench of this Tribunal held that there were sufficient and reasonable grounds for setting the machinery of criminal law in motion for the offence of perjury committed by respondent no. 2 and accordingly granted sanction for prosecution of respondent no. 2 for offence punishable under section 193 of the I.P.C. In Union of India and Ors. (Supra) the question raised was as to whether civil court conducting inquiry under section 340 of the Cr.P.C. has power to call witness and could exercise the power under section 311 of the Cr.P.C. In that case it was held that the Civil Court conducting inquiry under section 340 of the Cr.P.C. has power to call witness and could exercise the power under section 311 of the Cr.P.C. In M/s Geenland Waste Management Enterprise (Supra) counter affidavit was filed by respondent no. 4- Jharkhand State Pollution Control Board (JSPCB) in which the environmental compensation computed was not disclosed. The Eastern Zonal Bench of this Tribunal held that the same amounted to withholding the information from the Tribunal and directed making of the appropriate entries in ACR of the Member Secretary, JSPCB. However, the facts of the present above quoted case are evidently different from the facts of the present case and the observations in the above quoted cases, which are relied upon by the learned counsel for the applicants, are not applicable to the facts of present case and are not of any help to the applicants.
O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
23
21. It follows from the above discussion I.A No. 14/2023 filed under Section 340 read with Section 195 (1) (b) of the Cr.P.C is devoid of any merit and is, accordingly, dismissed.
22. As on the previous date, even today learned counsel for the applicants have submitted that pruning has been done and is being done by respondents no. 12 to 18 without requisite permission and in violation of statutory provisions/norms and such pruning may result in killing of about 7000 trees in Vasant Vihar, New Delhi and learned counsel for the respondents no. 12 to 18 have refuted the allegations and submitted that scientific pruning of trees being essential for their growth is being carried out by the concerned Civic Authorities in accordance with the guidelines issued in this regard.
23. This Tribunal had in its order dated 03.01.2023 made detailed observations regarding the submissions made before it which are reproduced as under:-
"Undisputedly, in the present case, Vasant Vihar Residents Welfare Association has approached the Civic Authorities for pruning of the trees in question in view of the request made by the residents of the locality. In the facts and circumstances of the case, we are of the considered view that the concerned Civic Authorities cannot be restrained from carrying out scientific pruning of the trees, which may be required for proper growth and health of the trees, in accordance with the provisions of the Delhi Preservations of Trees Act, 1994 and Guidelines dated 01.10.2019 issued by the Deputy Conservator of Forest, (HQ)/Member Secretary, Tree Authority for Pruning of Trees under the Delhi Preservations of Trees Act, 1994. In case of any unscientific pruning of the trees in violation of the guidelines, the applicants may avail the equally efficacious remedy of making complaints to the Deputy Conservator of Forest, West Forest Division (Tree Officer) who is directed to take appropriate action in accordance with law in case of making of any such complaint to him. However, in the peculiar facts and circumstances of the case, we do not find any impropriety in the Civic Authorities O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.24
associating the Vasant Vihar Residents Welfare Association in carrying out scientific pruning of the trees. In fact, the environmental problems can be properly resolved with active participation of the members of the public/residents of the locality for protection and improvement of environment. The concerned instrumentalities of the State are required not only to create awareness amongst the members of public/residents of the locality but also to ensure their participation in plantation, protection, maintenance and management of trees by providing men-power/financial resources. In the facts and circumstance of the present case, it will be appropriate if the concerned Civic Authorities allow the office bearers of the Vasant Vihar Residents Welfare Association and residents of the locality including the applicants to participate, by voluntarily providing men- power/financial resources as the case may be, in carrying out scientific pruning of the trees in question as may be considered to be necessary in accordance with the guidelines under proper monitoring/supervision by the officials of the concerned Civic Authorities and Deputy Conservator of Forest, West Forest Division (Tree Officer) and the concerned Civic Authorities may for this purpose also constitute a Tree Management Committee (TMC) with concerned officials and office bearers of the Vasant Vihar Residents Welfare Association and residents of the locality including the applicants volunteering for plantation, protection, maintenance and management of the trees and other vegetation in the concerned area."
24. Vide order dated 03.01.2023, presence of the concerned Deputy Directors (Horticulture), MCD, DDA and PWD respectively and the Deputy Conservator of Forest, West Forest Division (Tree Officer) before this Tribunal was ordered. In compliance thereof Mr. Navneet Kumar Srivastava, Deputy Conservator of Forest, West Forest Division (Tree Officer), Mr. Nitesh Sharma, S.P.A. (Legal)-Department of Forest and Wildlife, Mr. Vikas Singh, Assistant Director, Horticulture, Division-IV and Mr. Parhlad Ahirwar, Section Officer (Horticulture), DDA have appeared before this Tribunal. However, The Deputy Directors (Horticulture), MCD and PWD have not appeared. Mr. Navneet Kumar Srivastava, Deputy Conservator of Forest, West Forest Division (Tree O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
25 Officer) has submitted that no complaint has been made by the applicants to him after passing of order dated 03.01.2023 regarding illegal pruning/butchering of trees as alleged by the applicants before this Tribunal.
25. We have specifically asked learned Counsel for the applicants that when we had specifically observed that in case of any unscientific pruning of the trees in violation of the guidelines, the applicants may avail the equally efficacious remedy of making complaints to the Deputy Conservator of Forest, West Forest Division (Tree Officer) who was also directed to take appropriate action in accordance with law in case of making of any such complaint to him, why complaint regarding illegal pruning with relevant evidence was not made to him but learned Counsel for the applicants could not give any plausible explanation for not making of any complaint to the Deputy Conservator of Forest, West Forest Division (Tree Officer).
26. Applicant No.1 - Prof. Dr. Sanjeev Bagai has appeared today in person and asserted that illegal pruning of trees standing on land owned by MCD/PWD is being done by respondents No. 12 to 18 without any authority/permission through private contractor unscientifically in violation of environmental norms. However, even Applicant No.1 - Prof. Dr. Sanjeev Bagai has not disputed the requirement of pruning of the trees but has reiterated that pruning of the trees has to be done scientifically. On being asked whether the applicants will assist in such scientific pruning of trees or suggest name of any agency which could be engaged by the MCD/PWD/DDA to carry out such scientific pruning applicant No.1 - Prof. Dr. Sanjeev Bagai and learned Counsel for the applicants expressed inability which prima facie makes us to also O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
26 consider, in the course of these proceedings, the bona fides of the applicants and their objectives in pursuing this environmental litigation for dispelling that the same is not one of the many facets of power contest/tussle between rival groups of the members of respondent No.18 Association or residents of the locality.
27. On the previous date Mr. Gurpreet Singh Bindra, President of Vasant Vihar Residents Welfare Association had submitted that on earlier occasions also pruning was done on the requests made by the residents as per decision taken in the meetings of office bearers of the above said association including applicant no. 3 and expenses for the same were borne by the above said association. The respondent No. 18 is directed to produce copies of the relevant record in this regard.
28. Replies to the application be filed by respondents No. 1,2,5,7 and 8 within one month by email at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
29. Respondents no. 1 to 8 and 18 are also directed to file copies of all relevant documents regarding pruning of trees done in the past and being carried on now within one month by email at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
30. List for further consideration on 10.03.2023.
31. The officers duly authorized by the concerned Deputy Directors (Horticulture), MCD, DDA and PWD and the Deputy Conservator of Forest, West Forest Division (Tree Officer) respectively shall remain present before this Tribunal with relevant record on that date. O.A. No. 911/2022 Prof. Dr. Sanjeev Bagai & Ors. Vs. Department of Environment, GNCTD & Ors.
27
32. In the meanwhile, further pruning of the trees, if considered necessary, be carried out by the concerned Civic Authorities, MCD/DDA as the case may be strictly in accordance with the provisions of the Delhi Preservations of Trees Act, 1994 and Guidelines dated 01.10.2019 issued by the Deputy Conservator of Forest, (HQ)/Member Secretary, Tree Authority for Pruning of Trees under the Delhi Preservations of Trees Act, 1994.
33. However, it will be in the discretion of the concerned Civic Authorities, MCD/DDA to associate or not to associate office bearers of the Vasant Vihar Residents Welfare Association and/or other residents of the locality including the applicants volunteering for the purpose by providing the men-power/financial resources, as may be considered appropriate by the concerned Civic Authorities, MCD/DDA.
34. In case of any unscientific pruning of the trees in violation of the guidelines, the applicants may avail the equally efficacious remedy of making complaints to the Deputy Conservator of Forest, West Forest Division (Tree Officer) who is directed to take appropriate action in accordance with law in case of making of any such complaint to him.
35. A copy of this order be forwarded to the applicants and respondents no. 1 to 8 and 18 by email for information/requisite compliance.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM January 19, 2023 AG