Neeraj Sharma vs Vinay Sheel Saxena & Ors on 3 December, 2021

[Cites 7, Cited by 3]

Delhi High Court - Orders

Neeraj Sharma vs Vinay Sheel Saxena & Ors on 3 December, 2021

Bench: Najmi Waziri

                          $~16(1)
                          *   IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    CONT.CAS(C) 851/2021
                               NEERAJ SHARMA                                      ..... Petitioner
                                                    Through:     Mr. Aditya N. Prasad and Ms. Dhriti
                                                                 Chhabra, Advocates.

                                                    versus

                               VINAY SHEEL SAXENA & ORS.                  ..... Respondents
                                             Through: Mr. Anjum Javed, ASC GNCTD with
                                                      Mr. Devendra Kumar and Mr. Faran
                                                      Ahmed, Advocates for R-1 to R-4.
                                                      Mr. Shadan Farasat, ASC GNCTD for
                                                      R-5.

                               CORAM:
                               HON'BLE MR. JUSTICE NAJMI WAZIRI
                                             ORDER

% 03.12.2021 The hearing has been conducted through hybrid mode (physical and virtual hearing).

CM APPL. 43232/2021 (By petitioner for early hearing and direction)

1. This application seeks early hearing of the case as well as to bring on record victimisation of certain trees in the area concerned.

2. The learned ASC for GNCTD submits that a joint inspection was carried out at the site by the Deputy Conservator of Forest („DCF‟) and PWD on 19.11.2021 and remedial instructions have been issued in terms of the directions of this court and orders of the National Green Tribunal („NGT‟), apropos preservation of trees and for keeping the area around the tree trunk concrete-free. Let a Status Report be filed, by Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 the Executive Engineer (PWD) within in a week, along with photographs showing that the trees are duly protected. Any grievance, as may be noticed, shall be attended to.

3. The application is allowed and disposed-off in terms of the above. CONT.CAS(C) 851/2021

4. At joint request, the case is taken up for hearing.

5. Issue Notice. Mr. Anjum Javed, ASC for GNCTD, accepts notice on behalf of R-1 to 4.

6. Looking at the facts of the case, the court is of the opinion that the Deputy Conservator of Forests (Central) would be a necessary party. Accordingly, DCF(Central) is impleaded as Respondent no.5.

7. Issue notice to respondent no. 5. Mr. Shadan Farasat, ASC GNCTD, accepts notice on behalf of respondent no.5.

8. Let the Amended Memo of Parties be filed before the next date.

9. Reply be filed in two weeks.

10. The photographs annexed to the petition and reproduced hereunder, show glaring victimisation of trees on account of construction work being carried out along Vikas Marg, by PWD, GNCTD. The petitioner contends that the said construction activity is in breach of this court‟s direction dated 19.01.2021 in CONT.CAS(C) 660/2020 and other judicial orders.

11. In Kalpavriksh vs. Union of India & Ors, W.P.(C) 1772/2007, a Division Bench of this court had on 19.09.2007 directed as under:

"...

2. We had issued orders for stopping concretization around Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 trees and asked the authorities to take remedial action to save the trees as concretization is causing damage to the trees. Such concretization is also in violation of the Delhi Preservation of Trees Act, 1994, as indiscriminate concretization and constructions have been made around trees on the pavements of Delhi.

....

6. The Central Government has issued guidelines for greening of urban areas and landscaping in Delhi. The first paragraph of the said guidelines provides that unnecessary and excessive tiling of the roadside pavements should be avoided. There are some other constructive ideas and points and directions incorporated in the same, which are required to be implemented by the public utility departments of Delhi.

7. Since the aforesaid guidelines have been issued by the Central Government, the public utility services of Delhi are bound to comply with the aforesaid guidelines, which are issued.

8. We, therefore, issue a direction to the public utility departments including the Municipal Corporation of Delhi. New Delhi Municipal Council, PWD and also the DDA to comply with the directions contained in the guidelines and also to see that the intention behind issuance of the aforesaid guidelines is understood and the said guidelines should be implemented in their letter and spirit.

(Emphasis supplied) ..."

12. In CONT.CAS(C) 660/2020, titled New Delhi Nature Society vs. Shri Vinay Sheet Saxena & Ors., this court had passed the following orders on 19.01.2021:

"...

1. Let R-1 and R-2 file a another affidavit, with better particulars, indicating that: i) apart from the fine imposed and recovered, ii) what other actions have been Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 contemplated and/or initiated against the officials concerned and iii) what remedial measures have been advised and supervised to ensure the provision of conducive environs, so that the trees which have been extensively damaged and victimized on account of the callous civil works undertaken by the PWD, can heal themselves overtime.

2. For reasons best known to him, the SHO/R-3 has not filed any reply/counter affidavit. Let R-3s affidavit reply as to whether the Beat Staff had noticed any ongoing civil works and related damage to trees and/or whether any complaints had been made apropos the construction undertaken by R-1 and R-2. In particular, the SHO shall state as to what actions he took apropos the complaint made by the petitioner on 12.08.2020.

3. According to the petitioner, the Tree Officer (DCF), South, GNCTD was intimated in February 2020, of the civil works undertaken by the PWD in blatant breach of the orders of the National Green Tribunal („NGT‟), yet no action was taken. Receipt of the petitioner‟s letter is admitted in an RTI reply. Yet, the Tree Officer states that he was intimated of the orders passed by the NGT only in August, 2020. Let the Tree Officer file an affidavit in this regard, along with supporting documents.

4. Referring to the orders passed by this Court as well as by the NGT, the petitioner submits that the respondents were i) duty bound to comply with the same regarding their ongoing civil works and ii) in all future contracts incorporate a clause that the directions of the learned NGT would have to be strictly followed. Indeed, R-2, the HoD of PWD had duly undertaken to do so before the NGT. There is evident default in compliance.

5. The photographs show that damage caused to the trees is extensive and shows callous disregard of the woefully inadequate green areas we have in the city. They are reproduced hereunder:

Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02

6. Let the fresh affidavits, be filed by the respondents within two weeks. Rejoinder thereto, if any, be filed before the next date.

7. In view of the above, let due caution be exercised by the PWD apropos the all its ongoing civil works and due cautionary measures be initiated for all future projects.

8. Renotify on 18.02.2021.

9. The order be uploaded on the website forthwith."

13. Another direction issued on 10.02.2010 by a Division Bench of this court in S.C. Jain vs. UOI & Anr., W.P.(C) 11162/2009 reads as under:

"...Status report filed by the Govt. of NCT of Delhi is taken on record. The counsel appearing for the MCD and NDMC to file their status report during the course of the day. DDA is given further time of two weeks to file status report. Needless to say that the Authorities shall continue to carry out the work of removal of concretes around the trees and file further status report. The Authorities shall not use an area of 6‟x6‟ around the trees while laying down pavements or any other road Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 etc...."

(Emphasis Supplied)

14. On 23.04.2013, the National Green Tribunal in Aditya N. Prasad & Ors. Vs. Union Of India & Ors., O.A. No. 82/2013 directed, inter-alia, as under:

"...

In the meanwhile, we direct all the public authorities, more particularly Municipal Corporation of Delhi, DDA, DTC, DMRC, NHAI and all Government respondents in this petition including the Director General of CPWD, the Chief Engineer, PWD, to ensure that

(i) All the sign boards, names, advertisements, any kind of boards or signages, electric wires and high tension cables or otherwise are removed from the trees forthwith.

(ii) They shall also ensure that the concrete surrounding the trees within one metre of the trees are removed forthwith and all the trees are looked after well and due precaution is taken in future so that no concrete or construction or repairing work is done atleast within one metre radius of the trunk of trees.. The Vice Chairperson, the Commissioner, the Chief Engineer, the Director General and all other senior most officers of the Departments/authorities concerned shall be personally responsible for carrying out this order.

(iii) The Departments/authorities concerned shall take all and every prohibitive measures to prevent the defacing of the trees in any manner whatsoever, save only its trimming in accordance with law.

(iv) All the respondents whose boards are fixed on the trees shall be prosecuted by the respective authorities under in accordance with the relevant law.

..."

(Emphasis Supplied) Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02

15. On 01.03.2021, a "Modified Circular" was issued by the Pr. Chief Engineer (South), PWD, which cautions the Department apropos preservation of trees and exhorts compliance of the aforesaid directions. The Circular reads as under:

Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02

16. For reasons best known to the PWD, a healthy full-grown tree was cut- down, as shown in the sequence of photographs reproduced herebelow. First, the roots of the tree were cut, weakening its foundation and depriving it of essential life sustaining water, minerals and nutrients. Then its branches were hacked-off, crippling it fatally. Lastly, the tree trunk was cut from the base to reduce it to a stump. The last photograph possibly being its epitaph in the name of development.

Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02

17. The learned counsel for the petitioner apprehends that another tree along the on-going construction stretch, as shown in the photographs below, is also likely to meet the same fate:

Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02

18. The learned ASC for GNCTD submits that no construction is being carried out at the moment. However, that is hardly of any relief as the damage, as noted hereinabove, has already been done.

19. The photographs in paragraphs 10, 16 and 17, clearly show that all the aforesaid directions and guidelines have been violated. Prima-facie, the court is of the view that R-1 to R-4 have committed contempt of court. There is nothing on the record to show that any permission was taken from the Tree Officer with respect to protection of the trees, especially in view of the aforesaid judicial orders. Issue notice to Respondent Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 Nos: 1-4 to show cause, why contempt proceedings be not initiated against them under Section 2(b) read with section 12 of the Contempt of Courts Act, 1971.

20. The petitioner refers to an affidavit filed by the Conservator Of Forest, GNCTD in the Supreme Court in W.P.(C) 202/1995 in T. N. Godavarman Thirumulkpad vs. Union of India & Others, which reads inter-alia as under:

"...

1. That a committee in terms of the Supreme court‟s judgement dated 12th Dec, 1996, has been constituted to identify forest area. Another committee has also been constituted to file status report about the Identification of Forest areas.

3. That the committee has taken decision to identify areas above 2.5 acre having density of 100 trees per acre as well as stretches of land along roads, drains etc, having length of 1.0 km, besides areas already shown as forest/etc. In revenue land records.

14. That the details of the forest areas and plantation areas along roads under P.W.D. are at Annexure-IX. ..."

21. Annexure IX of the said affidavit provides a list of forest areas and plantation areas along the roads maintained by PWD. The learned counsel for the petitioner submits that as per the aforesaid affidavit, the Green Belt along Vikas Marg, are deemed forest. Requisite permission ought to have been obtained by the Authority concerned. He says that the trees along Vikas Marg have been victimised by the ongoing construction by the PWD.

22. The learned counsel for the respondents submits that the permission was taken from the Forest Department. Let the same be filed along with an affidavit, with the approval of the Additional Chief Secretary Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02 (Environment), GNCTD.

23. The learned counsel for the petitioner refers to a report by the Mr. T.M. Das, Professor, University of Calcutta, titled "Revaluation of Services of a Tree in 2012"; according to which the total environmental and social benefits derived from a tree during 50 years of growth is Rs.3,55,13,000/- or $7,10,260, in terms of table-1 of the Report: Indian Biologist, Vol 44(1), pp 13-17 (2012), the same is reproduced as under:

S.No. During 50 years of growth Original(1979) Revised(2011-

12)

1. Production of oxygen Rs.2,50,000 Rs.5,25,000 ($10500)

2. Conversion to animal flesh Rs.20,000 Rs.1,50,000 & bones ($3000)

3. Controlling of soil erosion Rs.2,50,000 Rs.5,00,000 and soil fertility ($10000)

4. Recycling of water and Rs.3,00,000 Rs.77,28,000 controlling humidity and ($154560) Air temperature

5. Sheltering of birds, Rs.2,50,000 Rs.64,85,000 squirrels & insects ($129700)

6. Removal of SPM. CO₂, Rs.5,00,000 Rs.2,01,25,000 SO₂ from air ($402500) Grand total Rs.15,70,000 Rs.3,55,13,000 ($710260)

24. List on 17.12.2021.

Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02

25. The date of 23.02.2022, stands cancelled. CM APPL. 40976/2020 (Stay)

26. The applicant seeks stay of further construction work. The learned ASC GNCTD submits that no construction work is going on because of orders passed by the Supreme Court.

27. In view of the above, the application is not pressed. However, the learned counsel for the applicant submits that further work should be carried out only in terms of the directions and caution already noted hereinabove.

28. The application stands disposed-off accordingly.

NAJMI WAZIRI, J DECEMBER 3, 2021 SS Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:04.12.2021 19:54:02

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Delhi High Court - Orders