Bombay High Court
Rohit Manohar Joshi vs Tree Authority, Thane And Ors on 11 December, 2018
Author: M. S. Karnik
Bench: Naresh H. Patil, M. S. Karnik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 119 OF 2017
WITH
CIVIL APPLICATION NO. 62 OF 2018
WITH
CIVIL APPLICATION NO. 52 OF 2018
Rohit Manohar Joshi .. Petitioner
Vs.
1. Tree Authority, Thane and ors. .. Respondents
Mr. Ankit Kulkarni I/by Kranti L. C. for petitioner and applicant in
CAI/62/18.
Mr. R. S. Apte I/by Jagdish G. Aradwad (Reddy) for respondent nos.1
to 3.
Ms. Nisha Mehra, AGP for respondent no.4.
Mr. T. N. Subramanian, Sr. Advocate a/w Mr. Saket Mane a/w Mr.
Suneet Tyagi a/w Ms. Jayashree Ramchandran a/w Mr. Vishvesh Kalra
I/by Vidhi Parnters for respondent no.5.
Mr. Uday Warunjikar for applicant in CAI No. 52 of 2018.
CORAM: NARESH H. PATIL, CJ. &
M. S. KARNIK, J.
DECEMBER 11, 2018.
P.C.
1. Heard the learned counsel for the parties. This PIL has been already admitted by this court.
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2. The petitioner challenges the constitution of Tree Authority under the provisions of Section 3(1) and 3(3) of the Maharashtra (Urban Areas) Protection & Preservation of Trees Act, 1975 (for short the Act). The petitioner has invited our attention to the Resolution No. 168 dated 18/5/2018 passed by the Urban Local Authority i.e. Municipal Corporation, Thane, nominating six members under Section 3(1) of the Act. The petitioner has also pointed out Resolution No. 25 dated 30/10/2018 whereunder the Municipal Corporation has nominated five persons under Section 3(3) of the Act.
3. The learned counsel for the petitioner raises objection to the two names, who are appointed under Section 3(3) i.e. Vikrant Chandrahas Tawade and Namrata Sushant Jadhav as per the Resolution No. 25 dated 30/10/2018. The objections to these names are raised on the following issues :
(a) They do not possess required
qualifications/experience.
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(b) It could not have been possible for them to
complete the course for which they obtained certificate.
(c) Charity Commissioner's office intimated that Vikrant Tawade is not a member of the Trust - NGO. Further objection is that inspite of directions of this court, a permanent Tree Officer has not been appointed under Section 5(2) of the Act. The Assistant Commissioner of Corporation is handed over charge of Tree Officer. The learned counsel submits that in view of the orders passed by this court earlier, the mandate of law is required to be followed in its letter and spirit. The Tree Authority, being a Committee of immense importance under the Act, needs to be constituted so that development of the city takes place under the expert's guidance and instructions.
4. The learned Senior Counsel Mr. Apte appearing for respondent nos. 1 to 3 submits that after going through the orders passed by this court, the Corporation took necessary steps and reconstituted the Tree Authority. For appointing members under Section 3(3), three Members panel has been constituted consisting of, ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 04:57:09 ::: 4/8 902-pil-119-17.doc
(i) Deputy Conservator of Forest, (ii) Regional Forest Officer and (iii) District Agricultural Officer. These three experts in the field have selected five persons under Section 3(3). The authority concerned, after perusing their record, certificates etc. was satisfied that these persons, including Vikrant Tawade and Namrata Jadhav are eligible to be nominated as members of the Tree Authority. Both the learned counsel appearing for the petitioner and Corporation relied upon the respective affidavits filed by them and the relevant record.
5. Mr. Warunjikar, learned counsel appearing for applicant - Vikrant Tawade, submits that not only the candidates Vikrant Tawade and Namrata Jadhav satisfy the eligibility conditions, but they also have necessary certificates, documents indicating they have sufficient experience in this field.
6. Learned Senior Counsel Mr. Subramanian appearing for respondent no.5 submits that under Section 3(3) of the Act, Committee need not be of five members but it could be less than five members too. It is submitted that development projects are held up since last 2 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 04:57:09 ::: 5/8 902-pil-119-17.doc to 3 years in Thane City. No development is going on which affects trade, commerce and business.
7. We have perused the record, earlier orders passed by this court and the relevant provisions of the Act. We have considered the submissions advanced. To appreciate the controversy, it would be material to consider the provisions of Sections 3 (1) and 3(3) of the Act, which read thus:
3(1) As soon as may be after this Act is brought into force in any urban area the urban local authority concerned shall constitute a Tree Authority, consisting of the Chairman and other not less than five and not more than fifteen persons from amongst its members, appointed in such manner and for such period as that authority may determine:
Provided that, where an administrator by whatever name called is appointed for any municipal corporation or municipal council, he shall during the period of his appointment, act as the Tree Authority and exercise all the powers and perform all the duties of the Tree Authority. (2) .......::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 04:57:09 ::: 6/8
902-pil-119-17.doc (3) Every Tree Authority may nominate representatives of non-official organisations, who have special knowledge or practical experience in the field of planting and preservation of trees, as members of the Tree Authority, but the number of such nominated members shall not exceed the number of members appointed under sub-
section (1). These members shall be nominated in such manner and for such period as may be prescribed. It would also be material to refer to the Resolution No. 25 dated 30/10/2018. The said Resolution records that pursuant to the orders passed by this court an advertisement was issued in different newspapers and also on the website of the Corporation inviting applications for nominating members on the Tree Authority. The eligibility conditions are prescribed in the advertisement. Accordingly, 11 applications were received. The applications were duly scrutinized by the three members' panel constituted comprising of (a) Deputy Conservator of Forest, (b) Regional Forest Officer and
(c) District Agricultural Officer. The meetings of the three members committee were held on 21/9/2018 and 28/9/2018 and the report was duly submitted. Based on the Report of the panel, five members, (i) ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 04:57:09 ::: 7/8 902-pil-119-17.doc Vikrant Chandrahas Tawade, (ii) Sau. Namrata Sushant Jadhav, (iii) Shri Prakash G. Berde, (iv) Kum. Ankita Amol Jamdar and (v) Shri Sanket Damodar Damame are nominated as members of the Tree Authority.
9. There is no disagreement with the submission that the development of the City should not be stalled. The projects which are on hand have to be completed. New projects are to be undertaken after getting necessary sanction / permission. The Act was framed for making better provision for trees in urban areas in the State by regulating felling of trees and providing for planting of adequate number of new trees in those areas. The legislation must be of paramount consideration for all the stake holders. The composition of the Tree Authority was stayed by this court. On the statement made by the Corporation, the Corporation was permitted to reconstitute the Committee and accordingly Committee has been reconstituted.
10. The intricate issues regarding actual knowledge, experience of the persons have been looked into by the experts and the ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 04:57:09 ::: 8/8 902-pil-119-17.doc concerned Authority who is in law entitled to constitute the Committee. We have gone through the relevant records. Prima faice, we are satisfied with the constitution of the Tree Authority.
11. It is informed that the petitioner has also raised challenge to some of the provisions of the Amended Act.
12. In these premises, we vacate the interim order dated 18th, 19th, 20th and 23rd April, 2018. We permit the Tree Authority to function. The Municipal Commissioner, Thane, being Chairman of the Tree Authority under the Act shall strictly monitor the functioning of the Tree Authority so as to fulfill the object of the legislature and expectations of the people in the larger interest of Thane City.
13. Civil Application No. 52 of 2018 to be heard along with present PIL.
M. S. KARNIK, J. CHIEF JUSTICE
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