Himachal Pradesh High Court
Court On Its Own Motion vs State Of Hp And Others on 13 July, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPIL No. 121 of 2017 Decided on 13.7.2018 Court on its own Motion ....Petitioner.
.
Versus State of HP and others ... Respondents.
................................................................................................ Coram The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner. : Mr. Deven Khanna, Advocate as Amicus
Curiae.
For respondents : Mr. Ashok Sharma, Advocate General with M/s Ritta
Goswami, Adarsh Kumar Sharma and Nand Lal Thakur, Additional Advocates General.
Sanjay Karol, Acting Chief Justice, (Oral).
Letter petitioner, Mr. Neeraj, who is a practising Advocate at District Courts Chamba and a resident of Chamba town, invited our attention to various acts, omission and commission on the part of the respondents-authorities including the Municipal Committee, Chamba, as also the department of Forest, Government of Himachal Pradesh in allowing felling of trees within Chamba town.
2. On 27th October, 2017, we had passed the following order:-
"On a letter petition, this Court by taking suo moto cognizance, issued notice to the State. Also, an Amicus Curiae was appointed to assist.1
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 17/07/2018 23:01:28 :::HCHP 2
2. It is not in dispute, as is evident from the material placed on record that at least ten green trees were allowed to be felled in and around the main Chaugan of Chamba town, a place having great historical importance and significance. The reason for .
felling of the trees, as is emanating from the record, is that they were leaning. Whether they were otherwise dangerous to public life or property or not is not substantiated by any material on record. Also, whether any trees were planted by way of compensatory measure or not is not emanating from the record.
3. Mr. Deven Khanna, learned Amicus Curiae invites our attention to the directions issued by this Court in LPA No. 152 of 2007, titled as H.P. State Forest Corporation Ltd. Vs. Ram Lal and others, wherein this Court has issued following directions:
r"(1) There shall be no felling of any tree in any forest area in the State of Himachal Pradesh whether private or State Forest except in accordance with the orders given by the Apex Court.
(2) The reports of the Committees appointed under the General Directions of the Apex Court given in its order dated 12.12.1996 require the approval of the Apex Court.
(3) Report of the Committee constituted pursuant to direction No. 3 in respect of specific directions given to the State has to be complied by the State without any further orders from the Apex Court.
(4) The State Government is entitled either departmentally or through the State Forest Corporation to remove fallen trees or fell and remove diseased trees and dry standing timber except from areas notified under Section 18 or Section 35 of the Wild Life Protection Act or any other Act banning such felling or removal of trees.
(5) The State Government or any other authority executing a project shall be entitled to remove and fell trees in case permission has been taken under the provisions of the Forest Conservation Act and other laws applicable thereto.
(6) That felling of trees in all forests shall remain suspended except in accordance with the working plans of the State Government approved by the Central Government.::: Downloaded on - 17/07/2018 23:01:28 :::HCHP 3
(7) Removal of Khair trees from forest land is not permitted till clarification is obtained from the Apex Court.
(8) The order of the Apex Court is applicable to forest lands only."
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4. Our attention is further invited to judgment dated 4 th November, 2014, passed by a Coordinate Bench of this Court in CWP No. 5677 of 2014, titled as Abhimanya Rathor Vs. State of H.P. & Ors. to the following effect:
"......3. The Tree Authority is directed to take a final decision on all the applications after holding inquiry as per Chapter XX of the Act, within a period of one week after the receipt of applications. The Tree Authority shall record convincing and cogent reasons while permitting felling/cutting of trees posing threat to life and property in each case. The Tree Committee is directed to r photograph and videograph the spot while processing the applications. The felling of trees is to be permitted only as a last resort."
5. Whether such method was adopted while felling the tree falling within the municipal limits of Chamba town or not is not emanating from the record.
6. Let the Deputy Commissioner, Chamba and the Divisional Forest Officer, Chamba file their separate affidavits dealing with each one of the averments made in the petition, as also the queries raised by us. Needful be done on or before the next date of hearing.
7. List on 14th November, 2017, when the Divisional Forest Officer, Chamba shall personally remain present alongwith the record. Till then, we direct that no tree within Chamba Municipal limits shall be felled, save and except in accordance with law, without leave of this Court."
3. Thereafter, we had requested one Advocate Mr. Avinash Jaryal to visit the spot for ascertaining the correctness of the report expressing urgency for felling dried up trees within the Chamba town.
::: Downloaded on - 17/07/2018 23:01:28 :::HCHP 4The Divisional Forest Officer, Chamba Forest Division, Chamba vide his affidavit dated 10.11.2017 has clarified that no tree dried or green falling within the Municipal limits of Chamba town was allowed to be .
felled, save and except that on the recommendation of the Tree Committee, permission for lopping of branches and removal of trees was accorded and that too in compliance of the Himachal Pradesh Municipal Act, 1968 and after verification of the spot by the appropriate authorities. Also the Deputy Commissioner, Chamba was seized of the matter and only he after proper verification accorded such permission. The Department of Forest has not accorded any permission for felling of trees. Permissions granted by the Deputy Commissioner on the basis of the Tree Committee, report stand annexed along with the affidavit.
4. We notice that the Additional Chief Secretary (Forest) to the Government of Himachal Pradesh has issued instructions to all stakeholders as under:-
"To:
1. The Pr. Secretary Urban Development to the
2. Government of Himachal Pradesh.
3. PCCF (Territorial) Govt. of H.P.
4. All Deputy Commissioners.
Dated Shimla2, the 20th August, 2011 Subject: Felling of trees outside Shimla Municipal Corporation area.
Sir, References are being received in this office regarding permission of felling of trees outside forest land in the state. The directions in the matter are very clear and therefore it is felt that once this clarification is issued, no such matter ::: Downloaded on - 17/07/2018 23:01:29 :::HCHP 5 should be referred either to this office or the office of PCCF. The Hon'ble High Court of H.P. has passed an order whereby the Deputy Commissioners are competent to allow felling of trees in municipal/ NAC areas in the state. However, this will not apply to Shimla Municipal Corporation where the Tree Committee notified by the Govt. will take such decisions. The Hon'ble High Court has expressed anguish at the reference made by Deputy .
Commissioner Solan whereby he had referred a matter to the Govt. regarding felling of trees in Parwanoo. The court had viewed that the Deputy Commissioner Solan totally abrogated his function and tried to pass on his duty which cast on him. The Hon'ble High Court was also pained to observe that Pr.
Secy (Law) to the Govt. of H.P. had taken a similar view. Therefore, the Deputy Commissioners shall use their judgment and permit the felling of trees which are either causing danger of life and property or mandatorily required for developmental activities within the city limits. In the rural areas in all non forest land permission will be granted by the Conservator of Forest of the area. The DFO shall be involved in inspection of these trees as and when required and the disposal of such trees would be done through the Forest Corporation in case of nationalized species.
Yours faithfully, sd Additional Chief Secretary (Forests) to the Government of Himachal Pradesh."
5. We may also observe that this Court in LPA No. 152 of 2007, titled as H.P. Forest Corporation Ltd. Vs. Ram Lal and others and other batch matters has already issued the following directions, which we reiterate:-
"..........We may summaries our findings in the following terms:"
(1) There shall be no felling of any tree in any forest area in the State of Himachal Pradesh whether private or State Forest except in accordance with the orders given by the Apex Court.
(2) The reports of the Committees appointed under the General Directions of the Apex Court given in its order dated 12.12.1996 require the approval of the Apex Court.
(3) Report of the Committee constituted pursuant to direction No.3 in respect of specific directions given to the State has to be complied by the State without any further orders from the apex court.
(4) The State Government is entitled either departmentally or through the State forest Corporation to remove fallen trees or ::: Downloaded on - 17/07/2018 23:01:29 :::HCHP 6 fell and remove diseased trees and dry standing timber except from areas notified under Section 18 or Section 35 of the Wild Life Protection Act or any other Act banning such felling or removal of trees.
(5) The State Government or any other authority executing a project shall be entitled to remove and fell trees in case .
permission has been taken under the provisions of the Forest Conservation Act and other laws applicable thereto.
(6) That felling of trees in all forests shall remain suspended except in accordance with the working plans of the State government approved by the Central Government.
(7) The order of the Apex Court is applicable to forest land only .............."
6. Under these circumstances, we dispose of the present petition with direction to the Executive Officer, Municipal Council, Chamba as also to the Deputy Commissioner, Chamba (Respondent No.4) to ensure that no tree falling within the Municipal limits Chamba town is permitted to be lopped or felled, save and except, in accordance with law.
7. In view of the above, we see no reason to keep alive the present petition and as such the same is closed. Before parting, we wish to place on record appreciation qua the efforts put in by Mr. Deven Khanna, learned Amicus Curiae, who, on the instructions of this Court, contacted letter petitioner and obtained necessary feedback.
8. Registry is directed to send a copy of this judgment to the Deputy Commissioner, Chamba, H.P. for necessary action as well as to the letter petitioner to enable him to take follow up action with the concerned authority.
::: Downloaded on - 17/07/2018 23:01:29 :::HCHP 7In view of above, the petition stands disposed of, so also pending miscellaneous applications, if any.
(Sanjay Karol) Acting Chief Justice .
(Ajay Mohan Goel)
Judge
13th July, 2018
(Guleria)
r to
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