National Green Tribunal
Vivek Verma vs State Of Uttarakhand & Ors on 9 September, 2024
Item No.1 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Original Application No.518/2022
Vivek Verma ...Applicant
Versus
State of Uttarakhand & Ors. ...Respondents
Date of hearing: 09.09.2024
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: None for the applicant.
Respondents: Ms. Anjali Rajput, Advocate for State of Uttarakhand
with Mr. Deepak Rawat, Commissioner Kumaon
Division, Ms. Kahkashan Naseem, Additional Secretary
Forest (through VC) and Mr. Chander Shekhar Joshi,
DFO Nainital (through VC).
Mr. Kaushal Gautam and Ms. Vanshika Singh,
Advocates for UKPCB with Mr. Madhukar Parag
Dhakaty, Member Secretary, UPPCB (through VC.)
Mr. Saumitra Jaiswal, Proxy Counsel for Amicus Curie
- Mr. Akash Vashishtha, Advocate (through VC).
ORDER
1. This original application was registered in exercise of suo moto jurisdiction in view of law laid down by Supreme Court in Municipal Corporation of Greater Noida Versus Ankita Sinha and Ors., (2022) 13 SCC 401, under sections 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act 2010').
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2. A letter petition was received by Tribunal on 26.04.2022 from Mr. Vivek Verma, son of Late Shri Madan Mohan Lal Verma, resident of H.No. 191, Bada Bazaar Mallital, Nainital, State of Uttarakhand.
3. Complainant has said that there was large-scale unauthorized cutting of trees in forest area adjacent to Nainital City in the last few years. Some of the trees cut, belonged to endangered species. Unauthorized and illegal felling of trees caused damage to forest area and also adversely affected recharging of Naini Lake from forest area, leading to danger of loss of catchment area of Naini Lake due to destruction of forest.
4. Tribunal being prima facie satisfied that a substantial question relating to environment has arisen out of implementation of the enactments specified in Schedule I of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act 2010') proceeded with the matter but found it appropriate to first obtain a factual report after verification of ground level facts and for that purpose constituted a Joint Committee comprising representatives of Principal Chief Conservator of Forests (HoFF), Government of Uttarakhand; Uttarakhand State Pollution Control Board (hereinafter referred to as 'UKPCB') and Divisional Commissioner, Kumaon Division. The said Committee was required to submit Report within two months.
5. Pursuant to above order, Joint Committee submitted Report through Regional Officer, UKPCB vide email dated 31.10.2022. Report of the Joint Committee shows that Member of Committee visited the site on 23.09.2022 and found cutting of 08 trees near Aroma Hotel Nainital in respect whereto offence under sections 42/43 of Indian Forest Act 1927 was registered vide Case Number 04/NP 2022-23 dated 13.04.2022. It is also said that the land where trees were standing, was 'Nazul', hence Uttar Pradesh Protection of Trees Act, 1988 was applicable. Forest area was transferred 2 by Nagar Palika, Nainital which was within its jurisdiction to Forest Department in 1976 pursuant to Government order dated 29.05.1976. Further 07 trees were found damaged by attempting to dry by human efforts and in respect whereto vide order dated 02.04.2022, ₹ 1 Lakh was recovered as penalty. Information of girdling of trees was communicated by Divisional Forest Officer, Nainital, Forest Division, Nainital to Principal Chief Conservator of Forest (HoFF), Dehradun vide letter dated 04.04.2022. No unauthorized felling of trees was found in the area of Tiffin Top, Land's End and Kilbury Road. In Sukha Tal Car Parking area, 17 trees were cut for developing area as lake recharging Zone and Tourist place at Snowden Compound. 09 trees were found illegally cut, and in respect thereto, a criminal case was registered as Case No. 05/9-P dated 20.04.2022 under Municipal Bye-laws. Some trees cut and left behind were found near Holy Angels School, and in respect thereof, ₹5,000 was recovered towards compounding charges. For maintenance of existing trees in area and greenery, suggestions were made by Joint Committee. The relevant extract of report is reproduced as under:
"मा० रा ीय ह रत अिधकरण म योिजत मूल आवेदन सं ा 518/2022 िववेक वमा बनाम उ राख ड़ रा म पा रत आदे श िदनांक 01.09.2022 के अनुपालन म गिठत सिमित की संयु िनरी ण आ ा एवं कायवाही रपोट।
1. अरोमा होटल नैनीताल के समीप वृ ों का अवै ध पातन के संबंध म-
उ के संबंध म िशकायतकता ारा मा० रा ीय अिधकरण म प के मा म से अवगत कराया गया है िक भूमािफयाओं ारा नगर पािलका े के अ गत - अरोमा होटल के समीप लगभग09 वृ ों का अवैध पातन कर िदया गया है , िजसम कुछ संरि त जाित के वृ भी थे। तद् म म िनरी ण के समय अरोमा होटल, नैनीताल के समीप िन जाित के कुल 08 वृ ों का पातन पाया गया-
1. काकीस 0-10 से०मी० ास वग = 04 वृ हरा
2. काकीस 10-20 से०मी० ास वग = 02 वृ हरा
3. अंगू 0-10 से०मी० ास वग = 01 वृ हरा 3
4. खरसू 0-10 से०मी० ास वग = 01 वृ हरा कुल = 08 वृ X X X X X उपरो वृ ों के अवै ध पातन के संबंध म वन िवभाग के नािमत अिधकारी ारा मौके पर कृत कायवाही के संबंध म सा ों के साथ अवगत कराया गया िक वन े ािधकारी नगर पािलका, रािज नैनीताल ारा वन अपराध सं ा-04/न० पा० 2022-23 िदनां क 13.04.2022 ारा भारतीय वन अिधिनयम-1927 धारा-32/33 तथा न० पा० बाईलोज 1916 के तहत अ ात के िव वन अपराध पंजीकृत िकया गया है । (4-संल क) वन े ािधकारी नगर पािलका रािज ारा कायालय प ां क सं ा -493/27-1 िदनां क 13.04.2022 ारा थाना अ ,म ीताल, िजलानैनीताल को इस करण - दज कराने हे तु प ाचार िकया एफ०आई०आर० मगया था। -संल क)5) गत भूिम रा सरकार नगर पािलका प रषद नैनीताल के / ािम वाली नजूल भूिम है , िजस पर उ र दे श वृ संर ण -अिधिनयम (संशोधन)1988 के ािवधान लागू होते है । साथ ही अवगत कराया गया िक नगर पािलका नैनीताल के वनों का ह ा रण वष 1976 म शासनादे श सं 0-1346/14-तीन-37/72 िदनां क-29 मई, 1976 के ारा वन िवभाग को िकया गया है । उ शासनादे श के र-3 म िकया गया है िक आरि त नजूल भूिम का ािम पूववत शासन एवं नगर पािलका म िनिहत रहे गा। -संल क)6)
2. धामपुर बड पास के े म संरि त जाित के वृ ों -मोदी भवन के आस / का अवैध पातन के संबंध म-
उपरो के संबंध म िशकायतकता ारा मा० रा ीय ह रत अिधकरण म प के मा म से अवगत कराया गया है िक धामपुर बड पास के -मोदी भवन के आस / मािफयाओं ारा लगभग- े पर भू10 संरि त जाित के वृ ों का अवै ध पातन कर िदया गया है । िनरी ण के समय धामपुर बड पास नाप -मोदी भवन के आस / भूिम म07 सुरई के हर वृ ों को गडिलं ग कर सु खाने की कोिशश की गयी थी, िजसमे िन भािवत वृ दे खे गये-
1. सुरई 40-50 से०मी० ास वग =01 वृ हरा
2. सुरई 30-40 से०मी० ास वग =02 वृ हरा 3 सुरई 20-30 से०मी० ास वग =03 वृ हरा
4. सुरई 10-20 से०मी० ास वग =01 वृ हरा कुल = 07 वृ X X X X X 4 िनरी ण के दौरान दे खा गया िक 07 वृ ों की गडिलंग की गयी थी, िजन पर वन िवभाग ारा मौस लगाने के बाद घाव भरे गये है तथा सभी वृ हरे /जीिवत / खडे दे खे गये। अवै ध गडिलंग के संबंध म ूिनिसपल बाय लौज1916 के अ गत िदनां क 02.04.2022 को एक लाख पया जु माने के प म वसूला गया। सं)ल क-7) उ वृ ों म की गयी गडिलं ग के संबंध म भागीय वन अिधकारी, नैनीताल वन भाग, नैनीताल ारा मु ख वन संर क (हॉफ), दे हरादू न को िदनां क 04.04.2022 को प के मा म से अवगत कराया गया है । -संल क)8) X X X X X
3. िटिफन टॉप, लै सए एवं िकलबरी रोड पर वृ ों का अवैध पातन के संबंध म -
िनरी ण के समय िटिफन टॉप, लै सए म सिमित को 0-10 से०मी० ास वग के 02 पुराने कटे पोल वृ आयु लगभग 02 वष पाये गये तथा अ िकसी कार का अवै ध पातन नहीं पाया गया। िकलबरी रोड़ म भी िकसी भी कार का अवै ध पातन िनरी ण के दौरान नहीं पाया गया।
इसके अित र िशकायतकता के साथ िन थानों का भी िनरी ण िकया गया है ।
4. सूखाताल कार पािकग थल- उ थल पर िशकायतकाता ारा अवगत कराया गया िक िनमाण सं था, कु०म०िव०िन०िल०, नैनीताल ारा िनमाण हे तु वृ ों का पातन िकया गया है । िनरी ण के दौरान वन िवभाग ारा अवगत कराया गया िक 1. पौपुलर वृ 40-50 से०मी० ास वग )01 वृ हरा (2. पौपुलर वृ ा 20-30 और 30-40 से०मी० ास वग )16 वृ सूखे कुल (17 वृ ों का पातन पािकग थल, सूखाताल झील म रचािजग जोन तथा टू र थल िवकिसत करने के िलए िकया गया है । कु०म०िव०िन०िल०, नैनीताल आवे दन उपरा वन िवभाग ने अपने कायालय प सं0-5436/31-1 िदनां क-26.05.2022 से िनयमानुसार अनुमित दान िकया है । -संल क)9) X X X X X
5. ोडन क ाउ के पास-
िशकायतकता ारा मौके पर अवगत कराया गया िक ोडन क ाउ के पास भी नाप भू िम म वृ ों का अवै ध पातन िकया गया है । िनरी ण के दौरान ोडन क ाउ के पास नाप भूिम म कितपय वृ ों का पातन िन अनुसार पाया गया।
-संल क)10)
1. पदम 0-10 से०मी० ास वग =01 वृ हरा
2. मकौल 0-10 से०मी० ास वग =01 वृ हरा
3. खरसू 0-10 से०मी० ास वग = 05 वृ हरा
4. खरसू 20-30 से०मी० ास वग = 01 वृ हरा 5
5. खरसू 30-40 से०मी० ास वग = 01 वृ हरा कुल =9 वृ X X X X X गत नाप भूिम पर जाने के िलए मु माग नैनीताल काला)ढु गी माग से लगभग ( 20 मीटर सीढीनुमा लगभग 04 िफट चौड़ा ए ोच रा ा बनाया गया है । मौके पर िवद् युतजल सं योजन भी दे खा गया। पूव म िशकायत ा होने पर वन िवभाग / ारा खरसू जाित का20-30 ास सेमी० का एक वृ कटे पाये जाने पर वन े ािधकारी नगरपािलका रािज०, नैनीताल ारा वन अपराध सं०-05/9-प० िदनां क-20.04.2022 के ारा अ ात के नाम नगर पािलका बाईलॉज 1916 के तहत वन अपराध पंजीकृत िकया गया। -संल क)11)
5. होली ऐंिज ू ल के पास- िनरी ण के दौरान िशकायतकता के ारा होली ऐंिज ू ल के पास पू व म कटे वृ ों के स म िशकायत की गयी। मौके पर पूव म कुछ कटे वृ ों के खूंट दे खे गये िजनका िववरण िन वत है -:
1. काकीस 0-10 से०मी० ास वग =06 वृ हरे
2. ितलौंज 0-10 से०मी० ास वग = 05 वृ हरे ।
कुल =11 वृ थल पर कोई िनमाण काय नहीं दे खा गया। े म झाड़ी आिद ब तायत म ह। वन िवभाग के ारा अवगत कराया गया िक इस थल पर अवै ध पातन के स ंध म वन िवभाग ारा अपराध सं ा-34/ न०पा०-िदनां क /02 नव र, 2021 नगर पािलका बाईलॉज 1916 के तहत मनोज कुमार केयरटे कर के िव पंजीकृत िकया गया है तथा अपराधी ारा जुम ीकार करने के फल प जुमाने के प म ई०-3 सं0-33637 िदनां क-11 नव र, 2021 ारा पाँ च हजार ० ा कर केस भागीय वनािधकारी, नैनीताल वन भाग, नैनीताल ारा शिमत िकया गया।
-संल क)12) करण के मु िब दु , मौका थित, कृत कायवाही के मह पू ण िब दु तथा अवैध पातन आिद की रोकथाम के िलए उपचारा क उपाय -: सुझाव /
1. सिमित ारा दे खा गया िक नैनीताल नगर के थानीय िनवासी, ेस एवं मीिडया हरे वृ ों के कटान के ित अ िधक संवेदनशील है तथा िवभाग को अिधकां श मामलों म थानीय सहयोग तथा उनके ारा थािपत शासिनक व था के तहत हरे वृ ों के पातन आिद की सूचनाएँ ा होती रहती है तथा अिधकां श मामलों म वन िवभाग के र से जुम इ ािद पंजीकृत करते ए तथा जुमाना वसूलते ए रोकथाम की कायवाही की गई है । वन िवभाग को सतत प से े म सि य रहते ए अपराध गिठत होने के दौरान ही अपराध पर िनयं ण करने के िलए शासिनक तं िवकिसत करने की ज रत है ।
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2. वृ ों के अवै ध पातन की िशकायत ा होने की दशा म रत कायवाही करने के िलए वन िवभाग ारा िशकायत िनवारण को का गठन कर संचालन िकया जाय, जो िनगरानी हे तु अ ाधुिनक इले ॉिनक सिवलां स उपकरणों से सुस त हो। को ारा दज िशकायतों का ोरा व कृत कायवाही का िववरण अंिकत िकया जाय।
3. नैनीताल नगर े ा गत अिधसू िचत ह रत जोन व िनमाण ितब त े ों का चारजाये सूचना बोड लगाये / सार हे तु स त होिडग-, िजसके िलए थानों का िच करण िकया जाना होगा।
4. िवगत 20 वष की गूगल इमेजरी के अवलोकन से होता है िक नैनीताल नगर े म आवासीय भवनों का सार ु त गित से हो रहा है । नगर े के िवकास का मा र ान वष 1995 से लागू है जो वतमान म भी भावी है । नये मा र ान म िनमाण काय म भावी िनयं ण हे तु वै ािनक तरीकों का भी समावे श िकया जाना आव क होगा।
5. नैनीताल नगर े ा गत ह रत जोन े म अवै ध िनमाण पर पूण ितब व कठोर द का भी ािवधान रखा जाय।
6. पूव िनिमत भवन, िज मर त व पुनिनमाण की अनुमित दी जा रही है , पूव ीकृत एवं िनिमत े फल अनुसार हो, उसके अित र िनमाण न हो।
7. नगर े ा गत नजूल की भूिम का ािम शासन एवं नगर पािलका म िनिहत होने के कारण नगर पािलका े ा गत थत नजूल भूिम एवं नगर पािलका से बाहर की नजूल भूिम के वृ ों के कटान पर नगर पािलका ारा भी द ा क एवं भावा क काय िकया जाना अपेि त होगा।"
English Translation "Joint committee report in the matter of O.A.No.518/2022 Vivek Verma V/s State of Uttarakhand order dated 01.09.2022 passed by Hon'ble National Green Tribunal.
1. Illegal felling of trees near Aroma Hotel ,Nainital Reference to above, the complainant has informed the Hon'able National Tribunal through a letter that about 09 trees have been illegally felled by the land mafia near Aroma Hotel under the municipal area, which also includes trees of some protected species. During inspection, a total no of 08 trees of the following species were found fallen near Aroma Hotel, Nainital -
1. Kakis 0-10 cm diameter square = 04 Green Trees
2. Kakis 10-20 cm diameter square = 02 Green Trees
3. Angu 0-10 cm diameter square = 01 Green Tree
4. Kharsu 0-10 cm diameter square = 01 green tree Total no of trees = 08 trees 7 Regarding the action taken on the spot by the nominated officer of the Forest Department in relation to the illegal felling of the above mentioned trees, it was informed with evidence that the Forest Officer Municipality, RAJI Nainital registered Forest Crime No. 04/No. Pa. 2022-23 dated 13.04. 2022, a forest crime against unknown persons has been registered under Indian Forest Act-1927 Section-32/33 and National Forest by laws 1916. (Attachment-4) RAJI Forest Range Officer Municipality vide office letter no. 493/27-1 dated 13.04.2022 had sent a correspondence to the Police Station President, Mallitaal, District-Nainital for registering an FIR in this matter. (Attachment-5) The land in question is leased land owned by the State Government/Municipal Council Nainital, on which the provisions of Uttar Pradesh Tree Protection (Amendment) Act-1988 apply. It was also informed that the forests of Nainital Municipality were transferred to the Forest Department in the year 1976 through Government Order No. 1346/14-Three-37/72 dated May 29, 1976. It has been made clear in paragraph 3 of the said government order that the ownership of the reserved leased land will remain vested in the government and the municipality. (Attachment-6)
2. Regarding illegal felling of trees of protected species in the area around Dhampur Band/Modi Bhawan-
Regarding the above, the complainant has informed the Hon'ble National Green Tribunal through a letter that about 10 protected species of trees have been illegally felled by the land mafia in the area around Dhampur Band/Modi Bhawan. At the time of inspection, an attempt was made to dry 07 Surai green trees by girdling them in the measured land around Dhampur Band/Modi Bhawan, in which the following affected trees were seen -
1. Surai 40-50 cm diameter square =01 green tree
2. Surai 30-40 cm diameter square =02 green trees
3. Surai 20-30 cm diameter square =03 green trees
4. Surai 10-20 cm diameter square =01 green trees Total no of trees = 07 trees During inspection, it was seen that girdling of 07 trees was done, on which the wounds were healed after applying moss by the Forest Department and all the trees were seen standing healthy/alive/green. In relation to illegal girdling, a fine of Rupees One lakh was recovered on 02.04.2022 under The Municipal Law 1916. (Attachment-7) Regarding the girdling done in the said trees, the Divisional Forest Officer, Nainital Forest Division, Nainital has informed the Chief Conservator of Forests (H.O.F), Dehradun Vide letter dated 04.04.2022. (Attachment-8)
3. Regarding illegal felling of trees on Tiffin Top, Landsend and Kilbury Road-
The committee found 02 old cut pole trees of 0-10 cm diameter category, about 02 years old at the time of inspection in Tiffin Top, 8 Landsend, and no other type of illegal felling was found. No illegal demolition was found during inspection in Kilbury Road also.
Apart from this, the following places were also inspected along with the complainant.
4. Sukhatal Car Parking Site - As informed by the complainant that trees have been felled for construction by the construction company, K.M.M.V.N.L, Nainital. During inspection, Forest Department informed that 1. Popular tree 40-50 cm diameter class (01 tree green) 2. Popular tree 20-30 and 30-40 cm diameter class (16 trees dry) Fell of total 17 trees, parking The site has been used to develop recharging zone and tourist spot in Sukhatal Lake. After the application of K.M.M.V.N.L, Nainital, the Forest Department has given permission as per rules vide office letter No. 5436/31-1 dated 26.05.2022. (Attachment-9)
5. Near Snowdon Compound-
It was also informed by the complainant on the spot that illegal felling of trees has been done in the land near Snowdon Compound. During inspection, felling of some trees in the measured land near Snowdon Compound was found as follows. (Attachment-10)
1. Padam 0-10 cm diameter square =01 green tree
2. Makol 0-10 cm diameter square =01 green tree
3. Kharsu 0-10 cm diameter square =05 green trees
4. Kharsu 20-30 cm diameter square =01 green tree
5. Kharsu 30-40 cm diameter square =01 green tree Total no of trees = 09 trees To reach the measured land in question, an approximately 20 meter stepped, approximately 04 feet wide approach road has been made from the main road (Nainital Kaladhugi Road). Electricity/water connection was also seen on the spot. Earlier, after receiving a complaint, a tree of 20-30 cm diameter Kharsu species was found cut and the Forest Officer, Municipal Corporation, Nainital registered the case in the name of unknown person vide Forest Crime No. 05/9-P dated 20.04.2022 was registered under The Municipal laws 1916. (Attachment-11)
5. Near Holy Angels School - During the inspection, a complaint was made by the complainant regarding the trees cut earlier near Holy Angels School. On the spot, stumps of some previously cut trees were seen, the details of which are as follows:-
1. Kakis 0-10 cm diameter square =06 green trees
2. Teelonz 0-10 cm diameter square =05 green treeS Total no of trees = 11 trees No construction work was seen at the site. There are bushes etc. in abundance in the area.
It was informed by the Forest Department that in relation to illegal felling at this site, crime number-34/N.P./ Dated-02 November, 2021 was registered by the Forest Department against Manoj Kumar Caretaker under The Municipal law 1916 and the culprit has accepted the same .As a result of accepting the crime, the 9 case was compounded by the Divisional Forest Officer, Nainital Forest Division, Nainital by receiving five thousand rupees as fine vide E-3 No. 33637 dated November 11, 2021. (Attachment-12) Main points of the case, incident situation, important points of action taken and remedial measures/suggestions for prevention of illegal dumping etc.:-
1. It was observed by the committee that the local residents of Nainital city, press and media are very sensitive towards the felling of green trees and in most of the cases the department receives information about felling of green trees etc. with local cooperation and under the administrative system established by them and in most of the cases, preventive action has been taken at the Forest Department level by registering crimes etc. and collecting fines. The Forest Department needs to be continuously active in the area and develop an administrative mechanism to control crime while it is being committed.
2. In order to take prompt action in case of receipt of complaint regarding illegal felling of trees, the Forest Department should form and operate a Grievance Redressal Cell, which should be equipped with state-of-the-art electronic surveillance equipment for monitoring.
Details of complaints registered by the cell and details of action taken should be mentioned.
3.For publicity of notified green zones and construction prohibited areas within Nainital city area, related hoardings/information boards should be installed, for which places will have to be marked.
4. From the observation of Google Imagery of the last 20 years, it is clear that residential buildings are expanding at a rapid pace in Nainital city area. The master plan for the development of the city area has been in force since 1995, which is still effective. It will be necessary to include scientific methods in the new master plan for effective control of construction work.
5. There should be a provision for complete ban and strict punishment on illegal construction in the green zone area under Nainital city.
6. Pre-constructed buildings, which are being given permission for repair and reconstruction, should be as per the pre-approved and constructed area and there should be no construction beyond that.
7. Since the ownership of leased land within the municipal area is vested in the Government and the Municipality, the Municipality will also be expected to take punitive and effective action on the felling of trees on leased land located within the Municipal area."
6. In view of Joint Committee Report and verification of the facts that certain trees were cut illegally, Tribunal found it appropriate to implead following as respondents vide order dated 24.11.2022 (1) State of Uttarakhand through Chief Secretary, Government of Uttarakhand, (2) 10 Principal Secretary, Department of Environment and Forest, Government of Uttarakhand, (3) Principal Secretary, Urban Development, Government of Uttarakhand, (4) Divisional Commissioner, Kummaon, (5) Principal Chief Conservator of Forests (HoFF), Government of Uttarakhand (6) Commissioner, Municipal Corporation, Nainital, and (7) Uttarakhand PCB.
7. Notices were issued to the respondents and they are directed to file their reply/response.
8. Besides, Tribunal also appointed amicus curiae for assisting in the present proceedings since jurisdiction was exercised on a letter petition suo motu and accordingly Shri Akash Vashishtha, Advocate was appointed amicus curiae.
9. UKPCB submitted its response vide email dated 30.01.2023 wherein basically the facts stated by the Joint Committee Report were reiterated.
10. Learned amicus curiae also submitted Report vide email dated 21.04.2023 stating that he visited various spots and stretches in Nainital town on 18.12.2022 and nearby area of Pangot on 19.12.2022. He noticed several detrimental and deleterious dangers to fragile ecology, environment and biodiversity of the lake town. Learned amicus curiae submitted his Report making his observations and recommendations on various aspects as under: -
"REPORT AND SUBMISSIONS ON BEHALF OF THE AMICUS CURIAE X X X X
6. That some of the issues, inter alia, witnessed by the undersigned in Nainital, during his site visit, are as under:
A. MASSIVE TREE FELLING/CUTTING: Numerous trees of different varieties of trees, including Oak and Cedar (Deodar), along some of the stretches, on the steep slopes (36-45 degrees, as per the categorization in IS 14496 [part 2]: 1998: Indian Standard for Preparation of Landslide Hazard Zonation Maps in Mountainous Terrains-Guidelines of the Bureau of Indian Standards), directly leading to the Naini Lake and which also constituted the immediate catchment area of the Naini Lake, was found cut. Large-scale felling of trees was seen in Ayarpatta, 11 Nainital, near Hotel Aroma. On being inquired, the locals informed that a densely vegetated patch of around 25 trees was suddenly cleared overnight some time back, by Hotel Aroma, for creating its Parking zone. The said claims of the locals and the purported involvement of Hotel Aroma could not be verified for paucity of time and information sources.
Massive tree felling was also noted on the roads and stretches near Hotel Naini Retreat, in Ayarpatta, Nainital. As per the locals, Hotel Naini Retreat was one of the biggest hotels in Nainital and the trees in the vicinity were cut at the behest of the hotel for the hospitality giant's commercial interests. This claim also, further could not be verified by the undersigned, for lack of information sources.
(Photographs of some of the spots/stretches in Nainital are annexed herewith and marked as ANNEXURE A-2) RECOMMENDED MEASURES: The claims of the locals about the involvement of Hotel Aroma and Hotel Naini Retreat need verification. An inquiry to this effect must be conducted by the Forest Department.
B. CONSTRUCTION AND INSTALLATION OF HEAVY IRON SHEETS AND GIRDERS ON STEEP SLOPES IN MALLITAL: A giant Iron structure was seen in construction on a steep slope in Ayarpatta, near Hotel Naini Retreat. The massive iron foundations of the platform was rested upon and drilled into the steep slopes, after clearing the entire vegetation on the slopes below. Massive land erosion and landslides were clearly seen on the slopes immediately below the huge iron structure, as a result of this construction and the tremendous load exerted by the platform on the steep, soft slopes below.
The undersigned was informed by the Applicant that the huge structure was being constructed by Hotel Naini Retreat for parking purposes. He further informed that the said construction was being raised without assessing the bearing load of the slopes and that the immediate preliminary effect was already felt and was manifest in the form of landslides just below the iron platform. The slopes of the area were geologically very unstable and since the vegetation was cleared for such construction(s), the absorbing capacity of the hill slopes was drastically weakened. The Applicant said the local people were surprised as to how permissions to raise such large structures were granted by the authorities concerned to the commercial entity.
RECOMMENDED MEASURES: In light of the claims and statements made by the Applicant and other locals, a thorough inquiry is essential to reveal the details of the project proponent, the permissions in place, if any, and the sanctioning authorities and officials.
C. UNTREATED DISCHARGE OF SEWAGE/WASTE WATER INTO STORM WATER DRAINS; UNTREATED DISCHARGE INTO NAINI LAKE:
The undersigned inspected the China Peak-Naini Lake storm water drain in Mallital for around 3 kilometres along its length, in some of the densely populated localities, along which it passes through. It was surprising to note that notwithstanding claims of the Uttarakhand Jal Sansthan of tapping/intercepting the entire sewage, several households were still discharging their 12 sewage/wastewater directly into the storm water drain through conduits/channels/outlets.
The storm water drain into which the sewage/wastewater was caused to be mixed, fall directly into the Naini Lake, thereby, consequently, polluting the lake. The Applicant informed that no water quality inspections are ever carried out by the Uttarakhand Jal Sansthan or by the Uttarakhand Pollution Control Board of the said drain. The Nagar Palika Parishad also assigns no significance to this main storm water drain, the contaminated water of which is discharged directly into the Naini Lake, without treatment.
RECOMMENDED MEASURES: Given the extent of the faecal matter and filth in the said storm water drain, thorough cleaning, thereof, is required immediately. The water quality assessment of the Naini Lake and all channels/drains flowing into it is needed to be conducted by an independent reputed testing laboratory. In view of the significance of the Naini Lake, as also the cluster of lakes around, that is, Naukuchiyatal, Saattal, Bhimtal and Khurpatal, the water quality of all such lakes is urged to be conducted, preferably on a monthly basis or at least once in every quarter, by an independent reputed testing laboratory, in addition to any testing and analysis by the Utttarakhand Jal Sasthan or the Uttarakhand Pollution Control Board, to avoid any manipulations and suppressions of the actual results. This protocol needs to be developed on an urgent basis so as to ensure prevention, control and abatement of pollution in the waters of Naini and surrounding lakes, that is, Naukuchiyatal, Saattal, Bhimtal and Khurpatal.
D. ILLEGAL COVERING OF STORM WATER DRAIN:
The entire storm water drain leading to the Naini Lake was being covered with thick concrete slabs. The reason attributed by some of the shopkeepers in the vicinity to the covering of the drain was the lack of space for traffic movement and congestions that take place because of the narrow road along it.
RECOMMENDED MEASURES: The entire project details of the covering of the said storm water drain is urged to be called upon by this Hon'ble Tribunal, as to how the said construction was carried out in disregard of the observations, Orders and directions of this Hon'ble Tribunal in various cases.
E. RECKLESS DUMPING OF SOLID WASTES:
It is submitted that massive waste dumping was witnessed on and along almost all internal roads as well as the inbound and outbound roads. No compliance of Rule 20 of the Solid Waste Management Rules, 2016, under the Environment (Protection) Act, 1986 was seemed to have been made by the Nagar Palika Parishad, Nainital.
Rule 20 of the Solid Waste Management Rules, 2016 prescribes as under:
―20. Criteria and actions to be taken for solid waste management in hilly areas. - In the hilly areas, the duties and responsibilities of the local authorities shall be the same as mentioned in rule 15 with additional clauses as under:
(a) Construction of landfill on the hill shall be avoided. A transfer station at a suitable enclosed location shall be setup to collect residual waste from the processing facility and inert 13 waste. A suitable land shall be identified in the plain areas down the hill within 25 kilometers for setting up sanitary landfill. The residual waste from the transfer station shall be disposed of at this sanitary The Solid Waste Management Rules, 2016 801 landfill.
(b) In case of non-availability of such land, efforts shall be made to set up regional sanitary landfill for the inert and residual waste.
(c) Local body shall frame Bye-laws and prohibit citizen from littering wastes on the streets and give strict direction to the tourists not to dispose any waste such as paper, water bottles, liquor bottles, soft drink canes, tetra packs, any other plastic or paper waste on the streets or down the hills and instead direct to deposit such waste in the litter bins that shall be placed by the local body at all tourist destinations.
(d) Local body shall arrange to convey the provisions of solid waste management under the bye-laws to all tourists visiting the hilly areas at the entry point in the town as well as through the hotels, guest houses or like where they stay and by putting suitable hoardings at tourist destinations.
(e) Local body may levy solid waste management charge from the tourist at the entry point to make the solid waste management services sustainable.
(f) The department in-charge of the allocation of land assignment shall identify and allot suitable space on the hills for setting up decentralised waste processing facilities. Local body shall set up such facilities. Step garden system may be adopted for optimum utilisation of hill space.‖ (Emphasis supplied) The undersigned did not notice a single hotel, resort, rest house or any other commercial accommodation which had put up hoardings, cautioning or asking the tourists/visitors not to litter in open areas and/or convey other provisions either of the Byelaws framed by the Nagar Palika Parishad or those prescribed under the Solid Waste Management Rules, 2016, under the Environment (Protection) Act, 1986.
It is further submitted that the collection of solid waste management charges from the tourists by the Nagar Palika Parishad at the entry points of Nainital is completely non- existent.
RECOMMENDED MEASURES: In view of the massive dumping taking place in Nainital, strict compliance of Rule 20 R/w Rule 15 of the Solid Waste Management Rules, 2016, under the Environment (Protection) Act, 1986 needs to be ensured. Strict compliance of the Order, dated: 31.08.2018, in O.A. No. 606/2018, In Re: Compliance of Municipal Solid Waste Management Rules, 2016 to the extent applicable, especially, with regard to the setting up of control rooms by the local bodies, be complied with.
This Hon7ble Tribunal, vide Order, dated: 31.08.2018, in O.A. No. 606/2018, had inter alia held as follows:
"23. The Tribunal is also of the view that the best practices may be compiled including setting up of Control Rooms where citizens can upload photos of garbage which may be looked into by an accountable person specified by the Local Bodies at the Local Level and by State Bodies at the State Level. Such information may be made available by the States on the website of the State 14 Committees and if possible on the websites of Local Bodies also. The mechanism of citizens giving and receiving information may be considered. The Committees may also consider, wherever viable, guidelines for using CCTV cameras already installed or installation of fresh CCTV cameras wherever necessary at dumping or other suitable sites and footage of CCTV Cameras may be viewed at regular basis by suitable authorities. All garbage collection van may be GPS enabled to monitor its regular collection and performance audit may be considered and guidelines laid down."
Further, the directions of the Hon7ble High Court of Uttarakhand in WPPIL No. 93/2022, Jitendra Yadav Vs Union of India & Ors., also needs to be complied with, in entirety.
F. DEFUNCT, INEFFECTIVE, IMPROPERLY CONSTITUTED TREE FELLING COMMITTEE:
The Tree Felling (Permission) Committee, also referred to as the Building Construction No-Objection Committee, or the Public Works Committee (as per the Municipality Bye-laws, Nainital) has been re-constituted, vide Order, dated: 20.01.2023, issued by the Divisional Forest Officer, Nainital, for the purposes of recommending lopping of branches of trees and removal/felling of dried/decayed and dangerous trees within the municipal limits. Prior to 20.01.2023, the Tree Felling (Permission) Committee was reconstituted in 2018-19 and 2020.
The Tree Felling (Permission) Committee, Nainital, is, ex facie, more of a political panel than a committee with expert and independent, neutral minds. The very composition of the Tree Felling (Permission) Committee suggests that barring just one environmentalist, most other members, being councilors, are political, or from a hotel/resort establishment. It is beyond comprehension, coherence and reasoning as to what expertise would hotel/restaurant/resort owners lend to the functioning of the Tree Felling (Permission) Committee.
It is reasonably clear from the composition of the aforesaid panel, that political interests and influences of the members thereof are bound to work more than the expert opinion or analysis before granting permission to fell or remove a tree.
In light of the very composition of such a significant committee, a fair and independent deliberation and decision of such an important panel cannot be expected and is highly unlikely, with the current composition.
As per the information furnished by DFO, Nainital, vide Letter, dated: 31.03.2023, in response to the email, dated: 02.03.2023, sent by the undersigned, in the year, 2017¬18, 10 trees were illegally felled with Rs. 28,000 collected as fines. In 2018-19, 21 trees were illegally axed and an amount of Rs. 31,500 was realized against such offences. In 2019-20, 29 trees were cut illegally with a realization of Rs. 78,000. In 2020-21, 07 trees were felled illegally for which Rs. 2 lacs were recovered. In 2021- 22, 31 trees were cut without permissions and an amount of Rs. 1,56,500 recovered against such offences. Significantly, not a single person had been arrested between 2017-18 and 2021-22, 15 for such offences, notwithstanding provisions to that effect in the Uttar Pradesh Protection of Trees Act, 1976.
Further, within the boundaries of Naina Devi Bird Conservation Reserve, 18 forest offences were registered and Rs. 20,250 collected as fines, under the Naina Range while 25 forest offences were entered with a realization of Rs. 32,590 as penalty, under the Koshi Range.
The reply provided by DFO, Nainital, further concedes that in 88 permissions were accorded by the Forest Department as well as the Tree Felling Committee, in 2018-19. In 2019-20, 133 trees were allowed to be cut while in the subsequent year, 2020-21, 46 trees were allowed to be cleared. In 2019-20, as many as 99 sanctions were granted for the felling of trees.
(A True Copy of the Order, dated: 20.01.2023, issued by the Divisional Forest Officer, Nainital, reconstituting the Tree Felling (Permission) Committee is annexed herewith and marked as ANNEXURE A-3) (B True Copy of the Letter, dated: 31.03.2023, sent by DFO, Nainital, to the undersigned, in response to the email, dated:
02.03.2023, is annexed herewith and marked as ANNEXURE A-
4) RECOMMENDED MEASURES: The Tree Felling (Permission) Committee ought to be revised/reconstituted, with more environmentalists, expert members or at least persons qualified in Forestry, Horticulture/Botany/Environmental Science/Agriculture, so as to effectuate an independent, efficacious, reasonable and scientific assessment of each tree felling application or proposal. The Forest Department must consider having experts from institutions such as GB Pant National Institute of Himalayan Environment (NIHE), Forest Research Institute (FRI), Kumaun University etc., as members of the Tree Felling (Permission) Committee. Every application/proposal for tree felling must be scrutinized more rigorously, keeping in mind the micro-ecological and climatic aspects of the area(s) where such tree(s) is/are proposed to be felled.
The said Committee must further be made to operate not only within the municipal limits of Nainital but also outside such boundaries, in the whole of Nainital district, including all Panchayat areas. Such a measure would also prevent illegal felling of trees and shall act as a surveillance mechanism in the areas beyond the municipal peripheries.
The undersigned strongly recommends setting up of such Tree Felling (Permission) Committees in all districts in the State of Uttarakhand.
G. TREES MADE TO DRY UP, SUFFOCATED AFTER BEING COMPACTED WITH CONCRETE; MEAGRE FINES ENCOURAGING OFFENDERS:
The undersigned was informed by several locals that persons desirous of raising constructions on private lands with trees, knowing that they would not be accorded tree cutting 16 permissions by the forest department, usually do not cut such trees and allow such trees to remain within their under- construction premises. Over a period of time, as the tree faces stress and gets weakened owing to being surrounded by building and concrete foundations or materials near its roots system, it dries up on its own in which case it becomes easier for them to apply for removal or cutting with the Forest Department and the permission, in such a scenarios, therefore, becomes all the more easier.
It emerged from the information regarding the working of the Forest Department that in cases of illegal felling of trees (outside forest areas/forest lands), a penalty of only up to Rs. 25,000 per tree was collected from the offender, under the provisions of U.P. Protection of Trees Act, 1976. Such a low-end penal scenario, in fact, encourages people to illegitimately cut a tree for building or commercial purposes, knowing that they would get away by paying a meager fine of Rs. 25000 for a tree, as compared to their business returns and other high stake benefits, than acting as a deterrent for illegal tree cutting or felling.
RECOMMENDED MEASURES: Before levying the penalty for cutting or felling or damaging a tree in any manner, without permission, regard must be held to the present value, intrinsic and instrumental value of trees, ecosystem services rendered by the trees, carbon sequestration benefits, heritage value, etc, in accordance with the Guidelines, framed by the Committee, in terms of the Order, dated: 25.03.2021, passed by the Hon'ble Supreme Court in SLP(Civil) No. 25047/2018, Association for Protection of Democratic Rights & Anr. Vs. The State of West Bengal & Ors.
The penalty for illegally cutting or felling or damaging a tree in any manner must be increased to at least up to Rs. 50000, from the present Rs. 25000.
H. IMPROPER, INCOHERENT RECORDS OF HOTELS/RESORTS /REST HOUSES/HOMESTAYS/LODGES IN NAINITAL:
According to the Letter, dated: 17.04.2023, of the Nagar Palika Parishad, Nainital, to the undersigned in response to his email, dated: 02.03.2023, the Nagar Palika Parishad has informed that Lodging Licenses have been granted, under the provisions of the Sarais Act, 1867 to only 148 hotels and that at present, the registration of new hotels/resorts/guest houses/homestays etc. is being done by the Tourism Department.
It is submitted that contrary to the stated figure of 148 hotels, Nainital has 600-700 hotels /resorts/guest houses/homestays etc. Different numbers of hotels, resorts etc. with different departments such as the Tourism Department, Uttarakhand Pollution Control Board, Uttarakhand Jal Sansthan and the District Level Development Authority are bound to create serious discrepancies in terms of planning, regulation, assessment of wastewater/sewage discharge, number of outlets, waste generation, drainage, drinking water, sanitation, illegal constructions etc. 17 A true and correct assessment of the number of outlets, discharge of wastewater/sewage and generation of waste cannot, thus, be achieved.
(A True Copy of the Letter, dated: 17.04.2023, of the Nagar Palika Parishad, Nainital, to the undersigned in response to his email, dated: 02.03.2023, is annexed herewith and marked as ANNEXURE A-5) RECOMMENDED MEASURES: It is recommended that the Tourism Department, Uttarakhand Pollution Control Board, Uttarakhand Jal Sansthan and the District Level Development Authority remain on the same page in terms of the number(s) of the hotels /resorts/guest houses/homestays etc. and registration thereof, and a regular coordination in this regard as also in the planning, execution and appraisal of various projects, ought to exist. It is urged that the Uttarakhand PCB be directed to furnish the status of Consents to Establish and Consents to Operate of all hotels/resorts/rest houses/home stays etc. operating in Nainital, as on date, under the Air and Water Acts.
7. That Pangot, a hamlet, situated around 15 km from Nainital, is struggling with, inter alia, the issues hereunder:
A. RECKLESSS, UNSCIENTIFIC VERTICAL HILL CUTTING, CAUSING MASSIVE SLOPE EXPOSURE AND EXPOSURE OF ROOTS OF TREES:
At least several hundred trees on the steep slopes along the roads, leading to and emerging from Pangot, were found critically damaged and were on the verge of drying up or falling down. This was due to abrupt, unscientific and reckless vertical hill cutting in the process of road-widening, leading to the exposure of the slopes and permanent slope instability, which eventually exposed the root systems of such trees, along with the other ground vegetation, consequently causing the loosening of top soil and becoming one of the primary reasons for the landslides along that particular part of the slopes.
Several landslides were seen on the stretches and spots where roots of the trees were exposed and vegetation cleared in the process of vertical hill cutting The High Powered Committee, constituted by the Hon7ble Supreme Court, in the Char Dham matter, in its report, also pointed out to this fact.
(Copy of the relevant parts of the High Powered Committee, constituted by the Hon7ble Supreme Court, in the Char Dham matter, is annexed herewith and marked as ANNEXURE A-6) RECOMMENDED MEASURES: The number of trees damaged on the steep slopes along the roads passing through Pangot ought to be determined and appropriate adequate compensatory afforestation measures be put in place, keeping in mind the species of trees damaged. Any hill cutting has to be carried out only after duly factoring in the standards of the hill slope angles, 18 as provided in the Hill Road Manual of the Indian Roads Congress 1998.
B. UNREGULATED CONSTRUCTION OF MULTI-STOREY HOTELS AND RESORTS IN PANGOT:
Though Pangot is squarely situated within the Naina Devi Bird Conservation Reserve, a large number of multi-storey hotel and resort buildings have just been constructed while several others are in the process of construction, on the steep hill slopes, in Pangot. It was informed by some of the locals that most of such constructions were and are being raised, without prior approvals of the Ministry of Environment, Forest & Climate Change, under Section 2 of the Forest (Conservation) Act, 1980 and mandatory approvals from the National Board for Wildlife (NBWL), under the provisions of the Wildlife (Protection) Act, 1972. Massive landslides were also seen in and around Pangot. The information furnished by DFO, Nainital, vide Letter, dated: 31.03.2023, in response to the email, dated: 02.03.2023, sent by the undersigned, states, ―No application regarding construction of Hotels/Resorts/Rest Houses/Lodges/Home Stays of Pangot, Nainital was received by the Office of Divisional Forest Officer, Nainital. There is no record regarding permit for Tourism Activities I Pangot granted by Chief Wildlife Warden, Uttarakhand, Dehradun, under Section 28!) of the Wildlife Protection Act, 1972 ...Hence it is requested to obtain the information of Point No. 4,5 & 6 as per above mentioned letter to the concerning offices."
RECOMMENDED MEASURES:
Since the area in and around Pangot is extremely rich in avian wildlife and biodiversity, it is submitted that it is extremely important to know the status of Environmental Clearances of all such hotel/resort buildings, prior approvals of the Ministry of Environment, Forest & Climate Change, under Section 2 of the Forest (Conservation) Act, 1980, the status of Consents to Establish and Operate thereof from the Uttarakhand Pollution Control Board and the status of wildlife approvals of such large constructions from the NBWL.
It is humbly prayed that directions be issued by this Hon'ble Tribunal to the State of Uttarakhand and its concerned instrumentalities, including the State Pollution Control Board and the State Chief Wildlife Warden to identify the number and size of structures raised within the Protected Area and the MOEF&CC to submit the records in relation to ECs, Wildlife Clearances and Consents to Establish and Operate of all such structures within the Naina Devi Himalayan Bird Conservation Reserve."
11. Learned amicus curiae at the end of the Report made certain general recommendations, as under: -
"A. The Forest Department must constitute a Task Force and set up a 24x7 Helpline Number, a Control Room or Cell, along with a dedicated Online Portal/website/App, equipped with all necessary IT infrastructure, with decentralised monitoring, for 19 receiving and addressing complaints and concerns about tree felling and forest offences. Such a mechanism must operate in the urban as well as rural areas of Nainital district. The State of Uttarakhand must operate this grievance redressal mechanism, in all districts across the state. Such a mechanism needs to be adopted by all States/UTs.
B. Sanctions/approvals to any structure(s) be granted only after thoroughly examining and factoring in the slope angles/slope stability, topography, geological conditions, green cover, hydrological factors such as presence of springs or any other water resources and eco-fragility of that particular area or spot etc. C. Water quality analysis of Naini Lake, along with Naukuchiyatal, Saattal, Bhimtal and Khurpatal Lakes of last two years be called for by this Hon'ble Tribunal.
D. Water quality analysis of Naini Lake, along with Naukuchiyatal, Saattal, Bhimtal and Khurpatal Lakes be conducted, preferably on a monthly basis or at least once in every quarter, by an independent, reputed testing laboratory, in addition to any testing and analysis by the Utttarakhand Jal Sasthan or the Uttarakhand Pollution Control Board, to avoid any manipulations and suppressions of the actual results. This protocol needs to be developed on an urgent basis so as to ensure prevention, control and abatement of pollution in the waters of Naini and surrounding lakes. The data so recorded must be submitted before this Hon'ble Tribunal, on a quarterly basis. Water Quality electronic sign boards/display boards be installed at the entry/access point of Naini Lake, along with Naukuchiyatal, Saattal, Bhimtal and Khurpatal Lakes.
E. No storm water drain, passing through the catchments or other areas and leading to the lakes, be concretized, covered in any manner, whatsoever.
F. Strict compliance of Rule 20 of the Solid Waste Management Rules, 2016, ought to be ensured by the Nagar Palika Parishad, Nainital. The direction contained in Order, dated: 31.08.2018, passed by this Hon'ble Tribunal, in O.A. No. 606/2018, In Re: Compliance of Municipal Solid Waste Management Rules, 2016, with regard to the setting up of Control Rooms, where citizens can upload photos of garbage etc., give and receive information, installation of CCTV cameras at dumping or other suitable sites, be strictly complied with.
G. The Tree Felling (Permission) Committee for Nainital ought to be revised/reconstituted, with more environmentalists, expert members or at least persons qualified in Forestry, Horticulture/Botany/Environmental Science/Agriculture, so as to effectuate an independent, efficacious, reasonable and scientific assessment of each tree felling application or proposal. H. Tree Felling (Permission) Committees must be constituted in all districts in the State of Uttarakhand.
I. The penalty for illegally cutting or felling or damaging a tree in any manner must be increased to at least up to Rs. 50000, from the present Rs. 25000.20
J. Number of trees damaged on the steep slopes along the roads passing through Pangot ought to be determined and appropriate adequate compensatory afforestation measures be put in place, bearing in mind the species of trees damaged. Any hill cutting has to be carried out only after duly factoring in the standards of the hill slope angles, as provided in the Hill Road Manual of the Indian Roads Congress 1998. Since root systems of trees are seen exposed on almost every road/stretch in Uttarakhand owing to abrupt, unscientific and reckless vertical hill cutting in the process of road-widening, which also results in loosening of top soil and landslides, such an exercise needs to be conducted in almost forest division and district in the state.
K. No fresh constructions in Pangot be allowed without forest approvals from the Central Government under Section 2 of the Forest (Conservation) Act, 1980, Consents to Establish and Operate under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 from the Uttarakhand Pollution Control Board and wildlife approvals from the National Board for Wildlife.
L. Master Plans and Carrying Capacity be prepared for Pangot and all other tourist destinations in Nainital, as well as other districts of the state.
M. The recommendations of the seven-member Committee, constituted by the Hon'ble Supreme Court in SLP (Civil) No. 25047/2018, Association for Protection of Democratic Rights & Anr. Vs The State of West Bengal & Ors., be followed in entirety.
N. The Police and the Forest officers must resort to make arrests under Section 13 of the Uttar Pradesh Protection of Trees Act, 1976 in cases where the gravity of the tree felling offence is high, following registration of a case against such person(s).
O. Apart from the forest officers, directions may be issued to Lekhpal, Panchayat Secretary, Police Constable, Assistant Horticulture Inspector or Assistant Soil Conservation Inspector or any officer superior to them to give immediate information related to commissioning of any tree offence and to take all reasonable measures in his power to prevent the commissioning of such offence, in terms of Section 16 of the Uttar Pradesh Protection of Trees Act, 1976.
P. 'Tree Tourism' must be promoted across the state; Heritage lanes/Heritage walks be created around and along Heritage Trees.
Q. The State must set up, what may be called as 'Uttarakhand Natural Heritage Board', for the purposes of identifying and protecting the existing as well as new natural heritage spots/sites. Such a board must have decentralized set- up, with local level committees, comprising environmentalists and persons from local communities.
R. Carrying Capacity of Nainital be determined, based on the present geological, hydrological, physical, topographical, 21 drainage, sanitation, waste management, vegetation, tourist volume and other factors.
S. Biodiversity Management Committee (BMC) must be constituted, for Nainital as well as all other districts, if not already constituted, under the provisions of Biological Diversity Act, 2002.
T. Any fresh plantations or compensatory afforestation must be based on 'Ecosystem approach', 'Ecosystem resilience', where the focus is not on plantation alone but identification of that particular ecosystem, creation/recreation thereof, and takes into account the ground vegetation, middle layer and the canopy density."
12. Divisional Forest Officer, Nainital (hereinafter referred to as "DFO, Nainital") submitted response vide email dated 17.08.2023 on affidavit, stating that in Joint Committee Report, following six matters of illegal felling of trees were reported:-
"i) Illegal felling of Trees near Aroma Hotel, Nainital, District Nainital.
ii) Illegal felling of Trees near Dhampur Band/Modi Bhawan, Nainital.
iii) Illegal felling of Trees near Tifin Top lands and Kilburry Road, Nainital.
iv) Illegal felling of Trees near in Sukhatal Car Parking area, Nainital.
v) Illegal felling of Trees near Snowdan Compound, Nainital.
vi) Illegal felling of Trees near Holy Angel, School, Nainital."
13. Thereafter, in respect of above incidents, DFO, Nainital, submitted reply in para 12 as under:-
"i) Illegal felling of Trees near Aroma Hotel, Nainital, District Nainital- There were 08 trees of different species and diameter class. In this matter Range Case No. 4 /Nagar Palika/2022-23 was registered on 12.04.2022 against Unknown persons under section 32/33 of Indian Forest Act-1927 with Municipal Bye-laws. Mrs. Mamta Chand, Range Officer, Naina was appointed as enquiry officer in the matter by order dated 13-04-2022 of Divisional Forest Officer, Nainital Forest Division, Nainital. The enquiry officer submitted a report on 15-09-2022 in instant matter. The enquiry officer in her report mentioned that the land in question where 08 trees were fall down was a Nazool land and Municipal Committee Nainital has ownership on said land. The enquiry officer found that the said matter is not concerned under Section-32/33 of Indian Forest Act-1927. It was found that the offence is covered under Section-4/10 of Uttar Pradesh Tree Protection Act-1976 with Municipal Bye-laws-1916 22 of Nainital Municipal Committee. which is still enforcing in State of Uttarakhand. It is relevant to mention here that the Section-16 of Tree Protection Act provides that offences are reportable by certain officers. In instant matter no accused was detected. All the recovered wood was on the spot and nobody claimed on the wood. It is necessary to mention here that as per Section-22 of Uttar Pradesh Tree Protection Act-1976 the provisions of the Act are in addition and not overriding. The owner of trees has a duty to file complain against the loss of 08 trees which were illegally cut down but no person has lodge First Information Report in the matter. The enquiry officer recommended further enquiry in the matter and matter is still under investigation and till the date no accused was detected in the matter. Therefore the matter is still pending the Forest Officers are trying to detect the actual accused in the matter. The committee has recommended that Municipal Committee Nainital should take action against the falling of trees in Nazool Land the matter is also communicated to Executive Officer, Nagar Palika Nainital for further action under Indian Penal Code-1860.
ii) Illegal felling of Trees near Dhampur Band/Modi Bhawan, Nainital- There were 07 Surai trees (Cupressus torulosa) was damaged by unknown person on 02-04-2022. In this connection Range Case No. 02/Nagar Palika/2022-23 was registered under Municipal Bye-laws-1916 of Municipal Committee, Nainital. The case was investigated by Forest Officers and it was found that Aparajit Singh Jaimwal S/o Divyashish Jaimwal, R/o Gandhi Nagar, Jammu has taken the responsibility of Girdling of 07 Surai trees (Cupressus torulosa) in private land. The fine of Rupees-1,00,000.00/- (Rupees One Lakh) was recovered through E-3 No. 27046 dated 11-04-2022 from the offender. The money was deposited in relevant Revenue Head of Government of Uttarakhand by Chalan No. 02/Nagar Palika/2022-23 in April 2022.The case has been compounded by the department. It is also relevant to mention here that all 07 Surai trees (Cupressus torulosa) are still standing on the land.
The Forest Department further treated the trees with the help of Moss Grass. The treats are fit and there is no further damage reported regarding these trees. The said position has been reported by three members committee constituted by this Hon'ble Tribunal by vide order dated 01-09¬2022. The status of the case is similar as reported and the trees has been treated by the department.
iii) Illegal felling of Trees near Tifin Top lands and Kilburry Road, Nainital- The three members of joint inspection committee found 02 poles of 0-10 diameter class which were fallen two years ago in Tifin Top area and no falling was found in Kilburry Road region. The three members committee did not report any other illegal felling of trees in the area. Hence no action is required at this point of time.
iv) Illegal felling of Trees near in Sukhatal Car Parking area, Nainital- The three members joint inspection committee found that there 16 trees of Poplar were cut down in Sukhatal Car Parking area of District Nainital. The committee also informed to this Hon'ble Tribunal that the user agency Kumaon Mandal Vikas Nigam (KMVN), Nainital had applied for the permission of falling of these 16 Poplar trees for the construction 23 of Car Parking area for the development of tourism in Nainital. These trees were not cut down illegally. The Divisional Forest Officer, Nainital Forest Division, Nainital vide letter no. 5436/31- 1 dated 26-05¬2022 granted falling permission for these trees. The permission letter dated 26-05-2022 was annexed with the report of three members joint inspection committee report dated 23-09-2022 as annexer-6. Hence in this matter no tree was cut down illegally. The Divisional Forest Officer, Nainital Forest Division, Nainital granted permission for of these trees with accordance to law. A true/ typed/ photocopy of vide letter no. 5436/31-1 dated 26-05¬2022 of Divisional Forest Officer, Nainital Forest Division, Nainital is being annexed herein and marked as Annexure No. 1 of this affidavit.
v) Illegal felling of Trees near Snowdan Compound, Nainital-The tree member's joint inspection committee reported 09 tress of different species were cut down in private land without any permission of competent authority in this regard Range Case No. 05/Nagar Palika/2022-23 was registered for only one Kharsu Tree of 20-30 diameter class. The investigation of crime was handover to Forester Nagar Palika Range, Nainital. In the investigation of crime it was found that 09 trees of different species were cut down on private land. The crime was converted under Section-4/10 of Uttar Pradesh Tree Protection Act-1976. The actual offender of said crime was detected by investigation officer. Rupees 1,00,000/- was recovered from the offender. The money has been deposited to appropriate Revenue Head of Government of Uttarakhand. The crime case no. 05/Nagar Palika/2022-23 has been compound by the Revision Authority, Conservator of Forest, South Kumaon Circle, Uttarakhand Nainital under Section-15 of Uttar Pradesh Tree Protection Act- 1976. The case has been compound by the department and no further action is required now.
vi) Illegal felling of Trees near Holy Angel, School, Nainital- The tree member's joint inspection committee reported 11 tress of different species were cut down in private land without any permission of competent authority in this regard Range Case No. 34/Nagar Palika/2021-22 was registered Mr. Manoj Kumar, Care Taker, Holy Angel School, Nainital. The said land was Private Land & case was registered only for the violation of Municipal Bye-laws-1916 of Municipal Committee, Nainital. It was found that the case was not compounded by Competent Authority and it was reopened for investigation. The investigation of crime was handover to Forester Nagar Palika Range, Nainital. In the investigation of crime it was found that 11 trees of different species were cut down on private land. The Registered Range Case was converted under Section-4/10 of Uttar Pradesh Tree Protection Act-1976. The actual offender of said Case was detected by investigation officer. Rupees 50,000/- recovered from the offender. The money has been deposited to appropriate Revenue Head of Government of Uttarakhand. The Range Case no. 34/Nagar Palika/2021-22 has been compounded by the Revision Authority, Conservator of Forest, South Kumaon Circle, Uttarakhand Nainital under Section-15 of Uttar Pradesh Tree Protection Act-1976. Earlier only 05 thousands was deposited by the offender now 45 thousands additional amount has been deposited in the matter. Total 50,000/- Rupees has been recovered from the law violators. No 24 further action is required in the matter. A true/typed/photocopy of compounding order issued by Conservator of Forest, South Kumaoun Circle, Uttarakhand, Nainital. The compounding order dated 11-08-2023 in Range case no. 05/Nagar Palika/2022-23, Range case no. 02/Nagar Palika/2022-23 & Range case no. 35/Nagar Palika/2021-22 is being annexed herein and marked as Annexure no. 2 of this affidavit.
vii) That the Hon'ble Tribunal directed mention about feasibility and tentative costs of geo-tagging of old trees in Nainital particularly Deodar and Oak trees. In compliance of order dated 03.05.2023 the deponent has directed to Forest Range Officer, Nagar Palika, Range Nainital to do needful in the matter. The forest Range Officer Nagar Palika, Range Nainital directed to all concerned staff to count the Devdar and Oak trees present in Private ,Government and Nazool land which is outside of Reserve and Protected Forests of Nagar Palika Range of Nainital Forest Division, Nainital. After the counting of trees it was found that 2339 Devdar trees, 11943 Banj Oak trees, 3010 Kharsu trees and 7412 Tilonj trees found in Nagar Palika Range Nainital outside the Reserve and Protected forests. It is relevant to mention here that Kharshu and Tilonj are the species of Oak specially found in hill areas. A true/ typed/photocopy of tree counting report is being annexed herein and marked as Annexure No. 3 of this affidavit."
14. It is further said that after counting of trees at Private, Government and Nazul Land (Outside the reserve and Protected Forest of Nagar Palika Range of Nainital Forest Division, Nainital), Forest Range Officer, Nagar Palika, Range Nainital, vide letter dated 06.06.2023 invited proposal and estimated cost regarding geo-tagging of old trees in Nainital from M/s. Oriental Trails, M/s. Visual design, M/s. Design 360 and M/s, Shri Ulka Foundations. Minimum cost was provided by M/s. Oriental Trails Khurpatal Haldwani at the rate of ₹ 11,62,000/- for Geo Tagging of about 24,000 trees in Nagar Palika Range, Nainital.
15. Another reply has been filed by DFO, Nainital vide email dated 23.11.2023 wherein virtually what has been stated earlier is repeated in paras 1 to 17. Thereafter, in reference to Tribunal's order dated 22.08.2023 whereby Forest Department was directed to take action for realization of cost of tress not according to value but according to parameters to be punitive so that no one may dare to cut the tree and to initiate prosecution according to the rules, DFO, Nainital submitted that in State of 25 Uttarakhand, Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976 (hereinafter referred to as "UP Protection of Trees Act, 1976") is applicable. Section 2 thereof provides that said Act shall not be applicable to trees situate in a reserved and protected forest; in respect of such trees situate in a forest or forest land of which notification under Indian Forest Act, 1927 is in force; trees situate in urban areas and trees situate in a government garden or on land held by the government. He has referred to other provisions contained in Sections 4, 10 and 15 of UP Protection of Trees Act, 1976 and said that ownership of trees situated in private land belongs to land holder. Trees cut down by owners of private land are forest produce but not the property of State Government. Government only empowers the Forest Officers to grant permission under section 5 of UP Protection of Trees Act, 1976. If a tree is cut un-authorizedly or with a permission it is an offence under Section 4/10 of UP Protection of Trees Act, 1976 and compoundable under section 15 of the said Act. In the present case, Range Case No. 02/Nagar Palika/2022-23 registered for damaging 07 Surai Trees was compounded by charging ₹ 1 lakh toward compounding charges. So far as 17 trees were cut near Sukhatal Car Parking area, Nainital for that purpose permission was granted by DFO, Nainital vide letter dated 26.05.2022. Similarly, in Range Case No. 05/Nagar Palika/2022-23 where 09 trees were found cut illegally, compounding was allowed by charging ₹ 1 Lakh as compounding charges and once compounding charges levied no further prosecution can proceed. With regard to cutting of 11 trees illegally of different species near Holly Angles School, Range Case No. 34/Nagar Palika/2021-22 was registered and it has also been allowed compounding.
16. Action taken Report vide email dated 25.11.2023 has also been filed by UKPCB which is in respect of the maintenance of sewerage network and STPs. It is said that same has been carried out by Uttarakhand Jal 26 Sansthan and drains leading to Naini Lake are being looked after by the Irrigation Department. Report regarding Maintenance, as replied by UKPCB in para 3 to 9, reads as under :-
"...3. The Secretary, District Level Development Authority (DLDA), Nainital stated that the operation and maintenance of the sewerage network and STPs are being carried out by Uttarakhand Jal Sansthan, and drains leading to Naini Lake are being looked after by the Irrigation Department. The DLDA has been undertaking aeration work since 2007. Biomanipulation of Naini Lake is undertaken by Fisheries College, G.B. Pant Agricultural University, Pantnagar, from time to time. The reply submitted by the Secretary, District Level Development Authority, Nainital is enclosed as Annexure-2.
4. The Executive Engineer of, the Irrigation Department, Nainital replied that 44 perennial / non-perennial drains are leading to Nainital Lake which feed spring water and rainwater/surface runoff into the Naini Lake. No sewer flows into Naini Lake through these drains. The reply submitted by the Executive Engineer, Irrigation Department, Nainital is enclosed as Annexure-3.
5. The Executive Engineer, Uttarakhand Jal Sansthan, Nainital stated that all hotels/homestays located in Nainital town are connected with sewer lines. The sewer of these hotels/homestays and houses passes through the main sewer trunk to the trickling plant located at Hanuman Garhi and thereafter sewer goes to a 5 MLD capacity sedimentation tank located at village Rusi for further treatment. Treated water analysis was conducted during the month of September 2023 through a third party laboratory. The analysis report shows BOD-55 mg/l. Treated water is disposed of on land.
Further, the water supply of the Nainital town is made through 15 tube wells and 4 pumping stations. Direct withdrawal of water from Naini Lake is not done. No illegal withdrawal of water is done by hotels and other commercial establishments. The reply submitted by Executive Engineer, Uttarakhand Jal Sansthan, Nainital is enclosed as Annexure-4.
6. Further, two STPs namely at Hari Nagar (0.45 MLD capacity) and Krishanapur (0.80 MLD capacity) are also operational in Nainital town. Performance assessment of these two STPs is being carried out by UKPCB on a monthly basis. Analysis data of STP's inlet and outlet from January to October 2023 are enclosed as Annexure-5.
7. It is pertinent to mention that the strengthening of sewerage management of Nainital town is under process. Laying of 11.9 Km. trunk sewer line is to be done out of which 7.9 Km. trunk sewer line work i.e., 65%, has been completed. The sewage Treatment Plant (STP) of 17.5 MLD capacity at Rusi village is under construction and is expected to be completed by May, 2025. Copy of the progress report for the month of October 2023 27 submitted by the executing agency to UKPCB is enclosed as Annexure-6.
8. It is respectfully submitted that the water quality monitoring of Nainital Lake, Bheemtal Lake, Sattal Lake, and Naukuchiatal Lake is being carried out by the Uttarakhand Pollution Control Board on a monthly basis. The water Quality characteristics of the lake is observed as 'B' Class of water as per "Designated Best Use Water Quality Criteria" prescribed by Central Pollution Control Board. 'B' Class of water represents "Outdoor bathing (Organized)". Water quality characteristics of lakes from January to October, 2023 is enclosed as Annexure-7.
9. Solid Waste Management: The total population of Nagar Palika Parisad, Nainital is 41377 (as per the 2011 census) and is divided into 15 wards. About 16 MT/day solid waste is generated from the town, out of which about 7.3 MT/day is biodegradable waste, and 8.7 MT/day is non-biodegradable waste. Door-to-door collection of segregated waste is carried out as biodegradable and non-biodegradable wastes. Compost pits have been made for the disposal of biodegradable waste, however, excess waste is being sent to the waste processing facility of Nagar Nigam, Haldwani. Material Recovery Facility (MRF) is provided for the segregation of recyclable waste. About 4.8 MT of recyclable waste have been sent for recycling in this year. No legacy waste dump site is located in the town. Ban on Single Use Plastic (SUP) items is being effectively implemented in the town. The reply submitted by Nagar Palika Parisad, Nainital is enclosed as Annexure-8..."
17. District Magistrate, Nainital also submitted his action taken report by way of affidavit vide email dated 28.11.2023 stating that a sum of ₹ 2,50,000/- has been recovered for illegal felling of trees; Forest Department has already planted 350 trees in Narayan Nagar, Nagar Palika Range, Nainital; upon physical verification, it was found that in Nainital, 258 hotels/homestays were inventoried, of which 140 have valid consent from the UKPCB; 09 are already closed/non-operational; 40 are such where no consent are required and 69 are such where consent has not applied but same are operational. In respect of these 69 hotels, directions have been given by UKPCB to take action under environmental laws.
18. Learned amicus curiae submitted a brief note vide email dated 28.11.2023, wherein he suggested that Forest Department must constitute a Task Force to ensure that trees are not cut illegally or unauthorizedly; Tree Felling (Permission) Committee must have more environmentalist 28 experts as Members and Tree Felling (Permission) Committee must be constituted in all Districts in the State of Uttarakhand. It is also suggested that State of Uttarakhand must setup a body namely Uttarakhand Natural Heritage Board for the purpose of identifying and protecting both existing and new natural heritage spots/sites.
19. Further action taken report has been submitted vide email dated 17.02.2024 by DFO, Nainital, stating that for illegally felling of 08 trees near Aroma Hotel, Nainital First Information Report no. 03 of 2024 dated 18.01.2024 was registered against unknown person at Police Station Mallital, District Nainital. It is also said that Principal Chief Conservator of Forests (HoFF) Uttarakhand issued order dated 08.02.2024 laying down guidelines in respect of compounding of the offences relating to unauthorized/ illegal felling of trees in violation of Indian Forest Act, 1927 read with Indian Forest (as amended in Uttaranchal) Act, 2001 and UP Protection of Trees Act, 1976.
20. In respect of the maintenance of drains etc, UKPCB submitted an action taken report dated 18.02.2024, stating that letters were issued to Executive Engineer, Irrigation Department and also Executive Officer, Nagar Palika, Nainital for compliance in the light of the observations made in the report of amicus curiae. Further inspection of Naini Lake and nearby Lakes/drains was carried out by Regional Officer on 30.12.2023 and thereafter Regional Officer vide letter dated 16.02.2024 has informed that most drains are non-perennial in nature. In fact, only 23 drains at China Peak are perennial which recharge Naini lake; residential units are located near these drains but no sewage/waste water was found discharging into Naini Lake during inspection. With regard to water quality in Naini lake and drains, UKPCB in para 7 and 8 has said as under: - 29
"...7. That water quality of the upstream of 23 number drain (adjacent to china peak, near Forest CAMPA Scheme) and downstream of this drain (near Naini Devi temple) as wells as the water quality of Bhimtal and Saattal Lake was carried out by the Regional Officer through NABL accredited laboratory on dated 30.12.2023. The testing results are annexed at Annexure No. 7. As per the results Water Quality of the 23 no. drain at upstream is found in Category-A (Drinking Water Source without conventional treatment but after disinfection) of the Designated Best Use criteria of CPCB. However, the water quality of remaining points i.e. downstream of 23 no. drain, Saattal, Bhimtal is found under Category B (Outdoor bathing :Organised) of the Designated Bes Use criteria.
8. That Uttarakhand Pollution Control Board is regularly monitoring the water quality of Naini lake and other lakes of the area. The water quality results of the year 2023 is placed and Marked as Annexure No. 8 of this report. Report reveals that the water quality is under Category-B of Designated Best Use Criteria. Further there is no any toxic metals detected in the water of these water bodies..."
21. PCCF (HoFF), Uttarakhand has also filed compliance affidavit vide email dated 19.02.2024 stating that it had issued letter dated 08.02.2024 containing instructions/guidelines regarding establishment of "State Level Grievance Redressal Cell" which was formed by office of PCCF (HoFF), Uttarakhand on 28.01.2021 under the Chairmanship of Additional PCCF (Administration) with other senior Forest Officers as Members. Further, it has issued detailed directions regarding provisions of compounding of cases related to forest offences.
22. Member Secretary, UKPCB has also submitted his response affidavit vide email dated 23.04.2024 stating that water quality monitoring of Nainital Lake, Naukuchiatal, Bheemtal and Sattal is being carried out by UKPCB on monthly basis and analysis data is uploaded on the website of UKPCB. Analysis report shows that value of BOD is within permissible parameters and no fecal coliform was found present in all samples. With regard to drains it is submitted in the report that most drains are non- perennial and water flows only during rain; no waste water/sewage was found discharged in Nainital Lake; Drain No. 23, carrying natural spring 30 water from China Peak to Nainital Lake has water quality that satisfies the prescribed parameters.
23. Since matter relating to sewerage and rainwater was not found in violation of environmental laws, Tribunal restricted its consideration on issue of illegal cutting of trees and matter was considered on 19.07.2024. Tribunal observed that although compounding charges were recovered by Forest Department but for damage caused to environment due to illegal cutting of trees, no environmental compensation was imposed by UKPCB and it has not discharged its statutory duty. Tribunal also observed that the cost of illegally cut trees was computed on the cost value and not in the light of the observation made by Tribunal in its order dated 22.08.2023 and for that there was defiance of Tribunals order by DFO, Nainital. Both the said authorities were directed to submit their reply/response accordingly.
24. UKPCB has informed that since methodology for determination of environmental compensation due to illegal cutting of trees was not available, steps have been taken to lay down guideline on these aspects and soon as the same is completed, appropriate action shall be taken.
25. Stand of Forest Department is that compounding charges have been calculated as per the guidelines laid down by State Government in this regard.
26. In above backdrop, Tribunal found that for protection of environment in Nainital town, and nearby area from any damage due to illegal felling of trees, it is necessary that appropriate steps should be taken by laying down standard procedures to be observed by concerned authorities in future so that such situations may not arise. Vide order dated 16.08.2024, stand of Commissioner, Kumaon Division and Member 31 Secretary, UKPCB was recorded that they will prepare a short note proposing steps to be taken in this regard, and time was granted accordingly.
27. Commissioner, Kumaon Division has submitted a short note via email dated 06.09.2024, stating that it proposes to take following steps for protection and conservation of forests and, in particular, the trees:
"1. That the Divisional Forest Officer, Nainital Forest Division Nainital vide order dated 05-09-2024 issued an office order regarding utilization of technology and surveillance system in Nainital Forest Division, Nainital for the protection and conservation of forest situated in Nainital. A True/typed/photocopy of office order dated 05-09-2024 is being annexed herein and marked as Annexure No. 01.
2. That the Divisional Forest Officer, Nainital Forest Division Nainital has also submitted a proposal for amendment in Uttar Pradesh Tree Protection Act-1976 to Principal Chief Conservator of Forest, Uttarakhand, Dehradun. In the draft of amendment act it is proposed that the cases under Section-4 of Uttar Pradesh Tree Protection Act-1976 may be declared as non-bailable offence. It is further submitted that the Divisional Forest Officer, Nainital Forest Division Nainital suggested that Section-10 and Section-15(1) should be amended as per need of time. A True/typed/photocopy of letter dated 05-09-2024 along with the draft of Amendment Act is being annexed herein and marked as Annexure No. 02.
3. That the Divisional Forest Officer, Nainital Forest Division, Nainital vide office order dated 05-09-2024 issued SOP for the quick response team constituted in Nagar Palika Range, Nainital Forest Division, Nainital. A True/typed/photocopy of Office order dated 05¬09-2024 regarding SOP for quick response team is being annexed herein and marked as Annexure No. 03.
4. That the Divisional Forest Officer, Nainital Forest Division, Nainital vide letter dated 05-09-2024 directed to Range Officer Nagar Palika Range, Nainital for the plantation near Hotel Aroma wherein 08 trees were cut down by unknown person in the Nazool Land of Nainital Municipal Committee, District Nainital. A True/typed/photocopy of Office order dated 05-09-2024 is being annexed herein and marked as Annexure No. 04.
5. That as per report of Mr. Akash Vashisth, Amicus Curie, Hon'ble National Green Tribunal, New Delhi, and the direction has been issued to concerned Police Officer regarding the investigation of FIR No. 03 of 2024 registered under Section-26 of Indian Forest Act-1927 against unknown in Police Station, Mallital, Nainital. The role of Hotel Aroma and Hotel Naini Retreat, Nainital will be examined by the police officer/investigation officer.32
6. That the undersigned has also directed to District Magistrate, Nainital to include the employees of Revenue Department, Village Development Department, Municipal Committee Nainital in quick response team constituted by Divisional Forest Officer, Nainital Forest Division, Nainital.
7. That the Divisional Forest Officer, Nainital Forest Division, Nainital vide office order No. 1795/29-3(3) dated 27-08-2024 appointed/posted a Special Employee as Pairokar in District and Session Court Nainital for the better prosecution of Criminal Cases regarding forest offences. A True/typed/photocopy of office order 1795/29-3(3) dated 27-08-2024 is being annexed herein and marked as Annexure No. 05.
8. That the undersigned has also directed to District Magistrate Nainital and other officers regarding the sale of private land in Nainital City and nearby area. The Forest Officers will verify the presence of trees in said land. The Stamp duty on the sale deed of land will increase if the trees will be found on the land and the stamp duty will be paid for the trees situated on the land mentioned in sale deed.
9. That the undersigned has directed the District Magistrate, Nainital and the Superintendent of Police, Nainital to registered the FIR against those persons who will be involved in repeated offences under Uttar Pradesh Tree Protection Act-1976. The undersigned has also directed to forest authorities to report the repeated offences in nearest police station.
10. That the Principal Chief Conservator of Forest, Uttarakhand, Dehradun vide order no. Kha-846/29-3(3) dated 08-02-2024 has already issued guidelines for the compounding of forest offences under various Acts. The department will follow the guidelines issued by Principal Chief Conservator of Forest, Uttarakhand, Dehradun. A True/typed/photocopy of order no. Kha-846/29-3(3) dated 08-02-2024 is being annexed herein and marked as Annexure No. 06.
11. That the Principal Chief Conservator of Forest, Uttarakhand, Dehradun vide order no. Kha-847/26-1 dated 08- 02-2024 issued order regarding State Level Grievance Cell for the complaints regarding illegal felling of trees and others forest offences. There i8 a CM Helpline No. 1905 for the complaint of legal felling of trees or any other problem to citizens of Uttarakhand. Hence there is a proper system of taking complaints of public in Uttarakhand. A True/typed/photocopy of order no. Kha-8117/26-1 dated 08-02-2024 is being annexed herein and marked as Annexure No. 07.
12. That the forest department will undertake the Geo Tagging of plantation areas in Nainital. The Forest Department is already maintaining plantation records (Journals) of plantation areas wherein the location, vegetation, no. of planted trees and GPS location of plantation is already on records. It is further submitted that the KML file of plantation areas will be maintained in the forest division for better management of plantation in future.
13. That the forest department is also conducting various workshops, training programs, seminars, and public awareness 33 programs for protections and conservation of forest, wildlife and bio diversity of the state. In future more programs will be organized in Schools, Universities and village level for public awareness.
14. That the undersigned has issued order regarding the identification of blank areas in Section-8 of Uttar Pradesh Tree Protection Act-1976. The Revenue department and Forest Department will take necessary steps to identify those private lands which have blank areas and suitable for plantation as per preamble of Uttar Pradesh Tree Protection Act-1976. The plantation will be done after taking the concerns of the land owners.
15. The forest department and revenue department will ensure the protection of tree which is situated in a private land mentioned in the agricultural land. Before the change of land use under section 143 of Zamindari Abolition and Land Management Act-1950, the Joint Inspection report of the Revenue and forest department in the Nainital municipal area will be considered."
28. Further, a response affidavit has been filed on behalf of Principal Secretary, Forest and Environment, Government of Uttarakhand by an affidavit sworn by Shri Kahkashan Naseem posted as Additional Secretary, Department of Forest, State of Uttarakhand. In the response affidavit it is stated that in respect of felling of 08 trees FIR was registered on 18.01.2024 and investigation is pending with the Police Department. With regard to other observations made by amicus curiae, stand taken by Forest Department, State of Uttarakhand, in para 10 to 18, reads as under: -
"10. That the Amicus Curie in Paragraph No. 6 (13) submitted his report regarding construction and installation of heavy iron sheets and girders on steep slopes in Mallital. The Amicus Curie recommended that in light of the claims and statements made by the Applicant and other locals, a thorough inquiry is essential to reveal the details of the project proponent, the permissions in place, if any, and the sanctioning authorities and officials. The said constructions permission has been granted by the Secretary, Lake Development Authority, Nainital and the deponent has requested the Secretary, Lake Development Authority. Nainital to furnish his comments on the recommendations of the Amicus Curie.
11. That the Amicus Curie in Paragraph No. 6 (C) submitted his report regarding untreated discharge of sewage/waste water into storm water drains: untreated discharge into Naini Lake. The Amicus Curie recommended that assessment of water quality and other channels/drains flowing into it is needed to be conducted by an independent reputed testing laboratory, in 34 addition to any testing and analysis by the Uttarakhand Jal Sansthan or the Uttarakhand Pollution Control Board, to avoid any manipulations and suppressions of the actual results. The Amicus Curie also recommended that the protocol needs to be developed on an urgent basis so as to ensure prevention, control and abatement of pollution in the waters of Nainital and surrounding lakes i.e. Khurpatal, Sattal, Mutual and Naukuchiyatal etc. In this connection, it is submitted here that Ibllowing actions have been taken by the Pollution Control Board:
i.Water quality monitoring of Nainital Lake, Nakuchiyatal, Bheemtal and sattal is being carried out by the UKPCB on monthly basis. Analysis data is being uploaded on the website of the Board at: //ueppcb.uk.gov.in/pages/display/96- waterquality-data.
ii.That the UKPCB has also engaged the third party laboratory for sampling and analysis of Nainital lake, Nakuchiyatal, Bheemtal and sattal in the month of December 2023 and April 2024. Analysis reports shown BOD values 2.0 or < 2.0 mg/I, dissolved oxygen ranged between 3.8 mg/L to 8.8 mg/I while Fecal coliform were absent in all samples analysed. Copies of analysis reports have already been filed with the Affidavit filed by the UKPCB.
iii. That it is to mention that inspection of drains was carried out with Amicus Curie on 30.12.2023. During the inspection it was observed that most of the drains are non-perennial and water flows in these drain during rains only. No waste water /sewage discharge was found in drains leading to Nainital Lake. It is to state that drain No.23 carries natural spring water from China Peak to Nainital Lake. Water sample analysis of drain indicates BOD values ranged <2.0 mg/L to 3.2 mg/L, dissolved oxygen ranged between 5.6 mg/L to 7.4 mg/L, while fecal coliform were absent in all samples analyzed. Analysis reports indicated that no sewage is being discharged into Nainital Lake through drain. Copy of the analysis report has already been filed with the Affidavit filed by the UKPCB.
iv.That the UKPCB has issued necessary directions to Executive Officer. Nagar Palika Parishad, Nainital for ensuring the compliance of Rule-20 of the Solid Waste Management Rules, 2016 as amended vide letters dated 08.01.2024 and 04.04.2024. Necessary instructions were also issued to Executive Engineer, Irrigation Deptt., Nanital. Copies of the letters have already been annexed with affidavit filed by the UKPCB.
12. That the Amicus Curie in Paragraph No. 6 (D) submitted his report regarding illegal Covering of Storm Water Drain. The Amicus Curie recommended that the entire project details of the covering of the said storm water drain is urged to be called upon by this Hon'ble Tribunal, as to how the said construction was carried out in disregard of this observation, Orders and directions of this Hon'ble Tribunal in various cases. The Covering of Storm Water Drains has been done by various construction agencies like Uttarakhand Public Works Department, Municipal Committee Nainital and Irrigation Department. The deponent has 35 apprised and requested the concerned Secretaries to furnish their comments on this recommendation.
13. That the Amicus Curie in Paragraph No. 6 (E) submitted in his report regarding Reckless Dumping of Solid Wastes. The Amicus Curie recommended that strict compliance of Rule-20 read with Rule 15 of the Solid Waste Management Rules-2016 under the Environment (Protection) Act, 1986 should be made by Government. The Amicus Curie further recommended to make compliance of order dated 31-08-2018 passed by National Green Tribunal, New Delhi in the matter of Original Application No. 606/2018, In compliance of Municipal Solid Waste Management Rules, 2016, and directions of the Hon'ble High Court of Uttarakhand, Nainital in the matter of Writ Petition (P11.) No. 93/2022. Jitendra Yadav Vs. Union of India and others. The IJKPCB has issued the directions to Executive Officer, Nagar Palika Parishad, Nainital to strictly comply with the provisions of Solid Waste Management Rules. 2016.
14. That the Amicus Curie in Paragraph No. 6 (F) submitted in his report regarding Defunct, Ineffective. Improperly constituted Tree Felling Committee. The Amicus Curie recommended that the Tree Felling (Permission) Committee ought to be revised/reconstituted, with more environmentalists, expert members or at least persons qualified in Forestry, Horticulture/Botany/Environmental Science/ Agriculture etc. The Amicus Curie further recommended that the said committee he made to operate outside the boundaries of Municipal Committee. Nainital. It is necessary to mention here that the Tree Felling. Committee, Nainital was constituted as per the provisions of Municipal Act-1916 and Municipal Committee Bye-laws-1917. The Respondent Forest Department has already reconstituted the Tree Felling Committee, Nainital. The Divisional forest Officer, Nainital has also included Dr. Lalit Tiwari, Professor (Botany), Kumoan University, Nainital as the member of Tree Felling Committee, Nainital. It is pertinent to mention that the matter of tree felling in any area is dealt as per the provisions of Tree Protection Act, 1976 which is the applicable throughout the State of Uttarakhand except the notified Forest Areas.
The Act has statutory provisions for application, identification and felling process for various species of trees. The Act also encompasses provisions for violation and penalty. This Act empowers the DFO and Conservator of Forests for enforcing the various provisions of the Act and take due process in case of violations.
15. That the Amicus Curie in Paragraph No. 6 (G) submitted his report regarding Trees Made to Dry UP, Suffocated After Being Compacted with Concrete: Meagre Fines Encouraging Offenders. The Amicus Curie recommended that before levying penalty for cutting or felling damaging a tree in any manner, without permission, regard must be held to the present value, intrinsic and instrumental value of trees, ecosystem services rendered by the tree, carbon sequestration benefits, heritage value. It is necessary to mention here that the trees mentioned in instant paragraph arc outside the Reserve or Protected Forest. The said trees are located under different landholders of the private land. The provisions of Uttar Pradesh Tree Protection Act 1976 are applicable in the present case. The provisions related to 36 compounding of offences are mentioned under section 15 of said Act. The Divisional Forest Officer is empowered and bound to take due legal action under the provisions of the said Act.
16. That the Amicus Curie in Paragraph No. 6 (H) submitted his report regarding Improper Incoherent Records of Hotels /Resorts etc. In this connection, it is submitted here that an exercise to furnish all the record of the Hotels etc. in the area is being carried out by the UKPCB with the assistance from other department like Tourism Department etc. The same shall be furnished by way of supplementary Response Affidavit.
17. That the Amicus Curie in Paragraph No. 7 (A) submitted his report regarding Reckless, Unscientific Vertical Hill Cutting causing massive slope Exposure and exposure of Roots of Trees. It is necessary to mention here that due permission from MoEF & CC under the provisions of Forest Conservation Act 1980 is taken for any non forestry activity to be under taken on any forest land. The road construction for Pangot was carried out about 50-60 years ago. Since, the area in question is highly prone to landslide, heavy rain and natural sliding of soil also causes this type of root exposure. Now the said area is under Naina Devi Birds Conservation Reserve, notified under section 36A of Wildlife Protection Act 1972. As per recommendations of Amicus Curie, in undertaking any activity in this said area User Agencies are directed to work in accordance with the terms and conditions stipulated in the statutory approvals given by the Govt. of India and other concerned authorities before the commencement of the work.
18. That the Amicus Curie in Paragraph No. 7 (13) submitted his report regarding Unregulated Construction of Multi storey Hotels and Resorts in Pangot. It is necessary to mention here that the Hotel and Resorts were constructed by landowners in their private land. Naina Devi Himalayan Birds Conservation Reserve was notified in year 2015 under section 36A of Wildlife Protection Act 1972 as amended. It is a protected area under section 2(24A) of Wildlife Protection Act 1972. As per section 36A(2) of Wildlife Protection Act 1972 as amended, the provisions of sub section (2) of section 18, sub sections (2)(3) and (4) of section 27, section 30, section 32 and clause (b) and (c) of section 33 are applicable in the matter of Conservation Reserve. Granting any permit under section 28 of Wildlife Protection Act 1972 is under jurisdiction of Chief Wildlife Warden, Uttarakhand for a Wildlife Sanctuary notified under 26 of this Act but section 28 is not applicable in the matter of Conservation Reserve notified under section 36A of said Act. As per provisions of clause (a) of section 33 Wildlife Wildlife Protection Act 1972 Hotel. Resorts etc. cannot be constructed inside a Wildlife Sanctuary without the prior approval of National Board for Wildlife but clause (a) of section 33 Wildlife Wildlife Protection Act 1972 is not applicable in the matter of Conservation Reserve notified under section 6A of said Act. Hence, the Divisional Forest Officer, Nainital cannot regulate construction of Hotels and Resorts on private land as clause (a) of section 33 Wildlife Wildlife Protection Act 1972 is not applicable in the matter of Naina Devi Himalayan Birds Conservation Reserve. It is also important to mention that these areas do not come under definition of Forest Areas and hence the 37 provisions of Forest Conservation Act, 1980 are not applicable in such areas."
29. We find that, so far as maintenance of drains for discharge of sewerage is concerned, detailed reports are available on record, and nothing further is required in present matter since water quality is meeting prescribed parameters.
30. With regard to implementation of provisions of Wildlife Protection Act, 1972, we find that said Act is not one of enactments mentioned in Schedule I of NGT Act, 2010, and therefore, for its implementation, it is not within our jurisdiction to issue any directions.
31. With regard to protection of city from situations arising due to unauthorized and illegal cutting of trees, we find that suggestions made by Commissioner, Kumaon Division, are quite helpful. However, their implementation requires an active role on part of State Government. Therefore, we direct Principal Secretary, Additional Chief Secretary, Department of Forest and Environment, State of Uttarakhand, to look into these suggestions/steps taken/suggested by Commissioner, Kumaon Division in consultation with all concerned departments and appropriate steps be taken to implement these suggestions at the earliest, in letter and spirit. A compliance report shall be submitted by Principal Secretary, Additional Chief Secretary, Department of Forest and Environment, State of Uttarakhand, by 15.12.2024 with the Registrar General of this Tribunal.
32. Besides, in light of facts that have revealed regarding Nainital Town, we are of view that based on carrying capacity and environmental sensitivity, Nainital Town may be classified in different zones. These zones maybe in the following categories:-
i. Development or Prohibited Zone.
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ii. Regulated zone with rider based on existing state of the
environmental conditions.
iii. Mechanism for monitoring of the above zones may be evolved by constituting multi-district Committees of official's expert in the field and also representing different parts of society/local residents which will be determined by the State Government.
33. Further, District Nainital is peculiar in Kumaon Division having several natural lakes, which constitutes a major attraction for tourist and create a beautiful landscape. We are of the view, that foremost importance should be attached to rehabilitation of these lakes by implementing various engineering and ecological measures vis-à-vis catchment area treatment by concerned Departments in consultation of experts in the field and this aspect may also be looked into by the State of Uttarakhand.
34. We, therefore, direct Chief Secretary, Government of Uttarakhand to look into these aspects and ensure compliance through concerned Departments and submit a compliance report to Registrar General of this Tribunal by 15.12.2024.
35. So far as criminal matters are concerned, we find that in January 2024 an FIR was registered but nothing has proceeded thereafter and it appears that the offences related to environment are not being given any priority by concerned investigating agencies. We therefore, direct Director General of Police, Uttarakhand to look into the matter and ensure that criminal cases instituted relating to offences pertaining to environment are investigated and proceeded with on a priority basis and appropriate direction should be issued in this regard to all concerned and, strict compliance should be observed.
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36. Compliance report as directed above shall be submitted by 15.12.2024 before Registrar General of this Tribunal. If any further orders is required, Registrar General shall place matter before the Bench concerned for further directions.
37. With the aforesaid directions/observations, this original application is disposed of.
Sudhir Agarwal, JM Dr. Afroz Ahmad, EM September 9th, 2024 O.A. No. 518/2022 AG 40