Delhi High Court - Orders
New Delhi Nature Society vs Sh. Rajesh Bansal & Ors on 25 February, 2022
Author: Najmi Waziri
Bench: Najmi Waziri
$~29 (1)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 220/2022
NEW DELHI NATURE SOCIETY ..... Petitioner
Through: Mr Aditya Narayan Prasad and Ms
Dhriti Chhabra, Advocates.
versus
SH. RAJESH BANSAL & ORS. ..... Respondents
Through: Mr Sudhir Nandrajog, Senior
Advocate with Mr Anupam Varma (e-
mail: [email protected]), Mr
Nikhil Sharma, Mr Aditya Gupta and
Ms Manu Tiwari, Advocates for R-1.
Mr Anjum Javed, ASC, GNCTD/R-
2,3,4,5,6(email:Studiolegale.nzm@g
mail.com [email protected],
Mobile: 9999596970)with Mr Faran
Ahmed and Mr Devender Verma,
Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 25.02.2022 The hearing was conducted through video conferencing. CM APPL. 10047/2022 (exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed-off.
CONT.CAS(C) 220/2022 & CM APPL. 10046/2022 (interim directions)
3. The petitioner is aggrieved by yet another extended and egregious instance of victimization of trees, chopping up of roots of healthy trees, as depicted in the photographs reproduced hereunder: -
Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 1 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 2 of 37Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 3 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 4 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 5 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 6 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 7 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 8 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 9 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 10 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 11 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 12 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 13 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 14 of 37 Signing Date:02.03.2022 18:45:56
4. The digging distance from the tree trunk is less than one meter; the tree roots have been cut/ damaged; the orders of this court and of the National Green Tribunal ('NGT') have been deliberately breached. This court in various orders has directed the government departments and various agencies in Delhi to strictly adhere to the directions of the NGT. Somehow the disposition of some authorities and agencies appear to be callous towards compliance of the said directions. While such non-compliance may entail proceedings under the Contempt of Courts Act, 1971 and proceedings under other statutes, the harm to and victimization of the trees, causing a setback to the green ambience of the area leading to an eventual damage to the environment as a whole cannot be overlooked. The citizens have a right to retain and care for their ambient neighbourhood, except as alterable according to law.
5. Section 2(h) of the Delhi Preservation of Trees Act, 1994 reads as under:-
"2. Definitions:-
...
(h) "to fell a tree" with its cognate expression, means serving the trunk from the roots, uprooting the tree and includes bulldozing, cutting, girdling, lopping, pollarding, applying arboricides, burning or damaging a tree in any other manner."
6. On 03.12.2021 this court in CONT.CAS(C) 851/2021 titled Neeraj Sharma vs. Vinay Sheel Saxena & ors. directed inter alia as under:
"...
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:Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 15 of 37 Signing Date:02.03.2022 18:45:56
"...
2. We had issued orders for stopping concretization around 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 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 16 of 37 Signing Date:02.03.2022 18:45:56 imposed and recovered, ii) what other actions have been 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.Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 17 of 37 Signing Date:02.03.2022 18:45:56
They are reproduced hereunder:Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 18 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 19 of 37
Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 20 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 21 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 22 of 37 Signing Date:02.03.2022 18:45:56
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.Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 23 of 37 Signing Date:02.03.2022 18:45:56
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 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.Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 24 of 37 Signing Date:02.03.2022 18:45:56
(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)
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 CONT.CAS(C) 220/2022 Page 25 of 37 Signing Date:02.03.2022 18:45:56
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.
...
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) Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 26 of 37 Signing Date:02.03.2022 18:45:56
2. Conversion to animal flesh Rs.20,000 Rs.1,50,000 & bones ($3000)
3. Recycling of water and Rs.2,50,000 Rs.5,00,000 controlling humidity and ($10000) Air temperature
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. ......."
7. From the aforesaid photographs, it is clear that the above directions of the NGT have been consciously breached and prima facie contempt of court has been committed by the respondents. The aforesaid directions and guidelines referred by this court were not only meant to be followed in the said case but were in rem for all public authorities in the NCT of Delhi. Despite numerous orders passed by this court apropos the protection of trees and sensitising officers apropos the same, there is less than caring attitude by the officials entrusted for protecting the environment. The constant breach of this court's orders not only constitutes contempt of court but the same is also in violation of the provisions of the Delhi Preservation of Trees Act, 1994 and constitutes as an offence under the said act.
8. At this stage, the learned Senior Counsel for R-1 submits that a stretch of mere 70 meters was dug up for laying of an underground electricity cable and that the R-1/BSES RPL has ensured that the trees are not Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 27 of 37 Signing Date:02.03.2022 18:45:56 victimized. He submits that one meter distance from tree trunk has been maintained.
9. The learned counsel for the petitioner submits that by a letter dated 17.01.2022, Public Works Department ('PWD') had cautioned BSES apropos the necessity to ensure that excavation was carried out by BSES-RPL/R-1 while maintaining a distance of one meter radius from the trees. BSES RPL/R-1 was also informed that if the damage is done to the trees due to the excavation and/or digging work then the BSES RPL/R-1 would be responsible for the same. Upon inspection of the site that days later, PWD found that the damage to many trees have been done. It intimated R-1/BSES RPL by a letter dated 20.01.2022 as under:
Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 28 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 29 of 37Signing Date:02.03.2022 18:45:56
10.The learned counsel for the petitioner further submits that the petitioner has not only written to SHO PS C.R. Park but to number of other agencies, including the PWD, BSES RPL, Forest Department, Tree Helpline etc. The list of complaints made/ intimation given to various authorities is as under:Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 30 of 37 Signing Date:02.03.2022 18:45:56
11.The petitioner states that till now no remedial measures have been initiated at the site, by any agency. Abandonment of and damage to trees is evident, from the aforesaid photographs.
12.The court is of the view that the Tree Officer himself would need to answer apropos the allegations made in the petition. Let the Head of the Department ('HoD') i.e., Principal Chief Conservator of Forests look into the matter, address the issues urgently, and ensure immediate remedial measures. The Principal Chief Conservator of Forests is impleaded as R-7. The Amended Memo of Parties be filed by the petitioner within two days.
13.Issue notice to R-7 through ordinary process, Speed Post, approved courier, dasti, e-mail, WhatsApp, SMS, Signal, and such other forms of electronic service as may be viable, through counsel as well, returnable on 14.03.2022.
14.The court notices that the width of the pavement has been realigned and shortened; evidently this would reduce the space for maneuvering for a wheelchair bound on the said footpath. The ongoing construction work is clearly not in tandem with the requirements of the persons under the Rights of Persons with Disabilities Act, 2016, for which an exercise is already underway in MAC.APP. 870/2011. Quite clearly there is a lack of coordination, if not insensitivity to the needs of the people by the PWD. The Engineer-in-Chief, PWD needs to explain as to how and in what circumstances, the width of the existing footpath was reduced and the new so-called channel for water harvesting has Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 31 of 37 Signing Date:02.03.2022 18:45:56 been created on the road, without keeping in mind the needs of persons with disabilities. The footpath should be user friendly for both
- able bodied and those persons who have the protection, guarantee and benefit of Rights of Persons with Disabilities Act, 2016.
15. In view of the above, status quo at the site shall be maintained till such time a satisfactory reply is filed by the authorities concerned.
The photographs reproduced below show the road width has been extended and the width of the footpath has been reduced for the reasons best known to the PWD. The manholes are 3-4 inches above the footpath level, which makes the footpath absolutely non-usable, the same should be at an even level. Let the same be rectified by the PWD and an answer shall be furnished by the Engineer in Chief as to how this work was allowed. No person on a wheelchair or even a person moving with a walker and/or crutches will be able to use the footpath. Instead of facilitating movement of citizens, the PWD has only created hurdles in the free movement of people. Photograph at page 115 shows that concrete ramps have been built on the footpath, by private individuals for access of their motor-vehicles etc. into their properties. This is impermissible. Surely PWD/ road-owning agency would not have permitted this. It being ex facie illegal, should be removed and the footpath should be leveled keeping in mind a wheel- chair bound or visually disabled. Surely, no private individual can construct a ramp on a public footpath. The Engineer-in-Chief, PWD shall set right all such anomalies, which he may notice, and the said exercise shall be carried out in the next three days. A copy of this order shall be placed before the Chief Secretary, GNCTD for him to Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 32 of 37 Signing Date:02.03.2022 18:45:56 set in motion remedial measures within a week.
Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 33 of 37 Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 34 of 37Signing Date:02.03.2022 18:45:56 Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 35 of 37 Signing Date:02.03.2022 18:45:56
16.The Principal Chief Conservator of Forests shall file a reply within two weeks.
17.The Engineer-in-Chief, PWD shall initiate an inquiry against the persons who may be found wanting in carrying out the project as per rules, especially in failing to ensure that the footpath, which is maintained by the PWD, has been rendered unusable.
18.The damage done to the trees by the respondents cannot be condoned. A system has to be put in place; the citizens of Delhi should not suffer because of such callous disregard of rules, regulations, courts orders and the urgent need to protect the environment.
19.The photographs show that there is no barricade to protect motorists and road users from the building material and debris stacked on the road and the footpath. This a clear public hazard virtually inviting an accident. There is no intimation at the site or elsewhere, for the public, as to when the work started and when it is to finish. Surely, the people cannot be at the mercy of the various departments involved as to the period for which the work will go on and when the footpath would be restored for the public use.
20.The PWD should have stopped the work immediately; the Tree Officer should have initiated action immediately against them. The local police has also not taken any action. In view of the above, prima facie the court is of the view that the respondents have committed contempt of court. There is also evident dereliction of their official duty.
Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 36 of 37 Signing Date:02.03.2022 18:45:5621.Accordingly, issue notice to the respondents to show cause why contempt proceedings be not initiated against them under sections 2(b), 10 and 12 of the Contempt of Court Act, 1971. Notice is accepted by the learned counsel named above for the respondents. Compliance affidavit/reply be filed in two weeks. Rejoinder thereto, if any, be filed before the next date.
22.All the respondents shall remain present in the court on the next date.
23.The order be uploaded on the website forthwith.
NAJMI WAZIRI, J FEBRUARY 25, 2022/rd Signature Not Verified Digitally signed By:KAMLESH KUMAR CONT.CAS(C) 220/2022 Page 37 of 37 Signing Date:02.03.2022 18:45:56