Telangana High Court
Yarala Indrasena Reddy, vs The State Of Telangana, on 17 December, 2021
Author: Satish Chandra Sharma
Bench: Satish Chandra Sharma, N.Tukaramji
THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT PETITION (PIL) No.351 of 2017
ORDER:(Per the Hon'ble the Chief Justice Satish Chandra Sharma) The petitioner before this Court has filed the present writ petition as a public interest litigation restraining the respondents from felling down about 2800 trees, which was being done on account of widening of road from Surpayet to Siddipet via Jangaon.
Various grounds have been raised in the writ petition, including the grounds that the trees are very old trees and no permission has been obtained for felling of the trees.
A detailed and exhaustive reply has been filed in the matter by respondent No.3/Special Chief Secretary, Transport, Roads and Buildings Department, Government of Telangana, and the reply reveals that only 120 trees under the exempted categories were removed in order to widen the road. The reply has also reveals that as many as 5928 number of trees have been planted on both the sides of the National Highway and 3697 trees are alive as on date (i.e., the date of filing of the reply) and the agency has also taken steps to replant the trees, which have not survived on account of various factors. Paras 5 to 17 of the affidavit are reproduced as under:
2"5. I submit that the removal of trees on both sides of Tirumalagiri-Suryapet road was taken up with prior permission from the Forest Department as per the existing Government Rules. There was no illegal cutting down of trees on both sides of road. There is no reserve forest in this stretch hence this department has submitted proposal for permission to cutting the trees vide this office letter dt.
02.05.2017 to District Forest Officer, Suryapet. A Joint survey was conducted with Forest authorities for enumeration of trees girth wise and requested the DFO, Suryapet to inform the amount to be remitted by this department under WALTA Act to deposit the same to Forest Department.
6. I submit that, as per the survey report available with the District Forest Officer, Suryapet, only 120 Nos. exempted trees were felled in road widening. Under WALTA Act, 2002 and Rules, 2004 and as per G.O.Ms.No.23 amendment to WALTA Act, 2002, Telangana Forest Produce (Transit) Rules, 1970, GO.Ms.No.31 amendment to Telangana Forest Produce (Transit) Rules 1970, neither felling permission nor Transit Permits are required for transportation of such felled exempted trees. If the tree growth proposed to be felled is exempted under WALTA 2002 & WALTA Rules 2004 and amendments issued therein and species exempted under Telangana Forest Produce (Transit) Rules, 1970, Self-Certificate to that effect in Form- 13A prescribed under WALTA ACT, 2002 & WALTA Rules 2004 therein will be sufficient and no further permission for felling of such trees will be required.
7. I submit that, there is condition in agreement between Superintendent Engineer, R&B, NH Circle, Hyderabad, TS and M/S. KCP Projects Limited, that the Contractor in Schedule-C Project facilities item-7D mentioned about land scaping and tree plantation at Toll Plaza, major Intersections etc., with in ROW of the project highway shall be done as per section 11 of manual IRC SP. 73-2015 and IRC SP:21.
8. I submit that in joint survey it was noticed that 2964 trees on both sides of the NH road will be effected, therefore accorded permission was granted by the Forest Department as per the provisions of WALTA ACT 2002 & WALTA Rules 2004 and it was worked out (2964 Nos.x2 times x Rs.450/-) and an amount of Rs.26,33,400/- was asked to deposit into Forest Department vide DFO, Suryapet RC.No.577/2017/S7, Dated 03.01.2017 in the shape of Security Deposit or Bank guarantee. And further stated by the Forest Department that if the R&B Department will not take up planting work as per their project proposal, the same will be taken up by Forest Department in ensuing rainy season. Accordingly the contractor/agency has deposited the amount specified by the Forest Department and executing the road widening work.
9. I submit that, the terms and conditions with the contractor agency with respect of the subject matter for kind reference of this Hon'ble Court.
3• Terms and Conditions of the EPC Contract: As per the Schedule-B Article-9, Page No.40 of EPC contract agreement and as per WALTA Act, contractor has to plant minimum 5928 i.e., 1:2 ratio number of trees in Km 40/410 to Km 84/037 stretch shall be planted and maintenance in ROW. Further, at the end of maintenance period average age of tree shall be 4 year.
• Authority Responsibility: Avenue plantation is a part of contract so that if the road contractor fails and if the plantation is not taken up as per the EPC conditions stipulated i.e., IRC SP-21, as per Article 9 Page No 40 of EPC agreement final completion certificate will not be issued and the forest department will take the plantation with security Deposit.
• Payment Provision: As per payment schedule-H, page No.207 of EPC agreement 1.25% other works payment provision is included in EPC agreement for payment towards Road side plantation for planting minimum 5928 no trees in Km 40/410 to Km 84/037 stretch.
• Methodoly for plantation: Execution of the tree plantation work i.e., Type of species, Distance between the consecutive trees, Typical Cross section for new 2/4 lane alignment and no of trees per Km will be as per the Guidelines on Landscaping and Tree Plantation were -IRC:SP:21-2009.
10. 1 submit that in view of Rehabilitation and upgradation of the plantation is in progress. The entire stretch falls under territorial jurisdiction of District Forest Officer, Suryapet. During the execution of above work, trees are coming in the road widening portion on the both sides of the road. It is not possible to widen road, until removal of these trees and requested to accord permission to cut the trees which are coming in road widening area to communicate the upset value of above trees and also as per WALTA Act and Rules.
11. 1 submit that, as per the EPC agreement we will take up the Plantation as per Schedule-B, Article 9. The cost of rising of plantation was already included in the EPC contract agreement. If the road contractor falls and if the plantation is not taken up as per the conditions stipulated by the Forest Department, the same will be deducted from the contractor bill and the same amount will be deposited to the Forest Department to take up the plantation departmentally.
12. I submit that, the process of removal of trees was taken up within the NH boundary duly following the rules under WALTA Act, 2002 only and as per schedule -B Article 9 of EPC agreement Compensatory Afforestation shall be done as per IRC SP-21 including Tree Guard and minimum 5928 numbers of trees (Km 40/410 to Km 84/037 stretch) shall be planted and maintenance in ROW for period average age of tree shall be 4 years which is more than the ratio of 1:2 against the felled trees shall be taken up by Authorities as per agreement. The entire procedure as per Rules are being followed and no violation of WALTA Act, 2002 as alleged by the petitioner. All the steps are being 4 taken by the Authorities to generate tree growth and maintain ecological balance under Compensatory Afforestation Scheme.
13. In reply to the averments made by the petitioner I respectfully submit that the trees are of very old aged and some are even above 100 years. As most of the trees are very old and of 100 year old transplanting is not possible and the success rate of translocation is very less and it is highly expensive method of reforestation and practically not possible and economically feasible. As a general rule, trees with poor form/architecture, health or structure should not be considered for transplanting under normal circumstance. Out of 2964 trees, 849 trees are Subabul, which are exotic and not fit for avenue or afforestation / reforestation. The trees like Ravi/marri which have huge root system and huge crown are in damaged condition and it is highly impossible to translocate such trees. I submit that, all the trees now planted are easily regenerated. I submit that as per the report available with the District Forest Officer, Suryapet, only 120 No. of exempted trees were felled.
14. I submit that the widening of Tirumalagiri-Suryapet road is very essential and important and it is a time bound project and funds will be lapsed. Apart from this the Government of Telangana has taken up the 'Haritha Haram' programme and planted hundreds of sapling all along the boundaries of the (R&B) and NH Roads.
15. 1 submit that the removal of trees on both sides of Tirumalagiri-Suryapet road was taken up with prior permission from the Forest Department and as per the existing Government Rules. There was no illegal cutting down of trees on both sides of road. The user agency has submitted an under taken to raise the compensatory afforestation of the trees felled. I submit that the NH Department will take up the CA of the trees in the ratio of 1:2 against the trees felled on the both sides of Tirumalagiri-Suryapet road, as per the undertaken issued to the Forest Department after completion of the road in full profile with prior approval from Government. The upgradation of this road will increase road traffic safety and reduce the harm from traffic collisions.
16. I submit that this Department has followed procedure governed under law and the consequences leading to removal of the trees and the cutting of the trees was done in terms of the Walta Act 2002. I submit that, the R&B, NH Department has made its best efforts to avoid cutting down of trees. Hence the allegations made by the petitioner that a large number of trees were cut down in the process of widening the Tirumalagiri-Suryapet road is not correct. There is no violation of principles of natural justice.
17. 1 submit that, the agency has planted 5928 nos trees on both side of the NH road and maintaining. Out of 5928 trees at present 3697 trees are alive and this department addressed letters dated 25-May-2021 to the contractor instructed to plant the missing or dead trees of 2231 as per the condition in Schedule-E of contract 5 agreement. The agency is taking steps to replantation in the place of dead and missing trees and will maintain further by arranging fencing and watering regularly."
The aforesaid affidavit makes it very clear that necessary felling permission was obtained by the State and the State Government has also undertaken the project of planting new trees. Widening of the road is also necessary keeping in view the enormous rise in vehicular traffic and the balance has to be carved out in the matter. As in the instant case necessary permissions were obtained for felling of the trees and aforestation has been done, this Court does not find any reason to interfere with the process of widening of the road. However, it is made clear that the respondents shall ensure that the trees planted shall survive and in case of trees which do not survive, the respondents shall continue to replant the trees in order to ensure that loss to ecology and environment is made good.
With the aforesaid, the writ petition is disposed of.
Miscellaneous petitions, if any, shall stand closed.
There shall be no order as to costs.
__________________________________ SATISH CHANDRA SHARMA, CJ ______________________________ N. TUKARAMJI, J 17.12.2021 ES