Gauhati High Court
Kalicharan Deka vs The State Of Assam And 7 Ors on 13 February, 2019
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/5
GAHC010129232017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2881/2017
1:KALICHARAN DEKA
S/O LATE GOBINDA DEKA, R/O PURNA NAGAR NEPALI CHOWK, HOUSE
NO.127, NOONMATI, WARD NO.46, PO and PS NOONMATI, DIST. KAMRUP,
GUWAHATI
VERSUS
1:THE STATE OF ASSAM and 7 ORS.
REP. BY THE ADDL. CHIEF SECRETARY TO THE GOVT. OF ASSAM,
REVENUE and DISASTER MANAGEMENT DEPTT., ASSAM SACHIVALAYA,
DISPUR, GUWAHATI-6
2:THE DEPUTY COMMISSIONER
KAMRUP METROPOLITAN DISTRICT
GUWAHATI
ASSAM
3:THE ADDITIONAL DEPUTY COMMISSIONER and CEO
DISTRICT DISASTER MANAGEMENT AUTHORITY
KAMRUP M DISTRICT
GUWAHATI
ASSAM
4:THE CIRCLE OFFICER
GUWAHATI REVENUE CIRCLE
GUWAHATI
5:THE FOREST RANGE OFFICER
GUWAHATI RANGE
GUWAHATI-1
6:THE OFFICER IN CHARGE
NOONMATI P.S- NOONMATI
CITY-GUWAHATI
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DIST. KAMRUP M
ASSAM
7:SMTI INDU ROY
W/O SRI UPENDRA CHANDRA ROY
R/O PURNA NAGAR NEPALI CHOWK
NOONMATI
HOUSE NO.127
WARD NO. 46
PO and PS NOONMATI
DIST. KAMRUP
GUWAHATI
8:DR. ANUPAM DAS
S/O LATE NRIPEN DAS
R/O VILL-BARITHAPUR
PO and PS HATIGAON
DIST. KAMRUP M ASSA
Advocate for the Petitioner : MR.N BARUAH
Advocate for the Respondent : MR.A ALI (R-7)
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 13-02-2019 Heard Mr. D.K. Kataki, learned counsel for the petitioner and Mr. R. Borpujari, learned Standing Counsel, Revenue and Disaster Management Department. Also heard Ms. J. Kakoti, learned Standing Counsel, Forest Department as well as Mr. A. Chakraborty, learned Government Advocate and Mr. K. Bhattacharjee, learned counsel assisted by Ms. P. Talukdar, learned counsel for the respondent No.7.
2) The grievance of the petitioner in the present writ petition is that 3(three) numbers of trees are standing dangerously over the residential house of the petitioner. It is projected that the land below the roots of those trees had been washed away by the rain water and the petitioner apprehends that those trees may fall upon his house and damage the property and endanger the life of the petitioner and other inmates of his house.
3) It is projected that at the request of the petitioner, the owner of the properties, i.e. the respondent No.7 namely, Smt. Indu Roy and respondent No.8 i.e. Dr. Anupam Das Page No.# 3/5 have refused to cut those trees.
4) Accordingly, the petitioner had lodged an ejahar. However, when the officials of the Department had visited at the spot, the respondent No.7 did not allow these officials to cut down the trees on the ground of pendency of the suit. The petitioner projects that the Disaster Management Act, 2005 provides power to the officials to remove the trees dangerously threatening the petitioner and therefore, it is projected that the authorities are not doing the legal duty which is provided under the Disaster Management Act, 2005. This writ petition was filed on 11.05.2017 and the learned counsel appearing for the Revenue and Disaster Management Department as well as the Forest Department are still waiting for their instructions to come. The private respondent has also not filed their response to bring on record their stand.
5) Seen the order dated 04.08.2015 passed by the Additional District Judge No.2, Kamrup (M) in T.A. No.49/2017. This Court is unable to find any prohibition by virtue of which the authorities are prohibited from making assessment of the threat perceived by the petitioner and to cut the trees if such trees are posing a danger to the lives and property of the petitioner.
6) Mr. R. Borpujari, learned Standing Counsel for the Revenue and Disaster Management Department has produced a copy of the letter dated 20.06.2017 from the Additional Deputy Commissioner and CEO, District Disaster Management Committee to the Divisional Forest Officer, Kamrup East Division, Guwahati requesting them to cause a physical verification of the site and to take necessary action in this regard and report compliance within 7(seven) days, and it is submitted that thereafter no report is forthcoming from the Forest Officials and, as such, he prays for time for obtaining further instructions. This Court while granting time to the respondents to file their counter is inclined to direct the Additional Deputy Commissioner and CEO, District Disaster Management Authority, Kamrup (M) to personally visit the disputed site and submit a report before the Court within a period of 3(three) weeks from today.
7) In view of the said communication dated 20.06.2017 by the Additional Deputy Commissioner and CEO, District Disaster Management Authority, this Court is inclined to Page No.# 4/5 direct the Principal Chief Conservator of Forest-cum-Head of Forest Protection Force to take note of the fact that the Divisional Forest Officer, Kamrup East Division, Guwahati has not complied with the request made by the Additional Deputy Commissioner and CEO, District Disaster Management Authority, Kamrup (M) and therefore, he is directed to use to his office to ensure the compliance by the Divisional Forest Officer, Kamrup East Division, Guwahati in a time bound manner, failing which he is expected to take a stern action against the said subordinate officials for non-compliance of request made by the Additional Deputy Commissioner and CEO, District Disaster Management Authority, Kamrup (M) vide letter dated 20.06.2017.
8) On assessing threat to the petitioner from the trees which is stated to be dangerously leaning towards the house of the petitioner, it would be open to the Additional Deputy Commissioner and CEO, District Disaster Management Authority, Kamrup (M) to seek assistance from the Forest Officials, Police and District Administration, in the event he is obstructed by the private respondent to carry out inspection work or in carrying out his further duties pursuant to such inspection.
9) A copy of this order may be provided to Mr. R. Borpujari, learned Standing Counsel for the Revenue and Management Department as well as to Ms. J. Kakoti, learned Standing Counsel for the Forest Department to ensure compliance prior to the next date fixed.
10) The respondents are at liberty to file their response within the next date fixed, failing which the matter would be heard on the basis of the materials available on record.
11) List the matter on 27.03.2019. 12) A copy of the aforesaid letter dated 20.06.2017 may be provided by the learned
Standing Counsel, Revenue and Disaster Management, to be retained as a part of the record.
JUDGE Page No.# 5/5 Comparing Assistant