National Green Tribunal
Parul Bawa Advocate vs State Of Haryana on 8 August, 2022
Item No.01 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
(By Video Conferencing)
Original Application No. 69/2022
Parul Bawa ...Applicant
Versus
State of Haryana ...Respondent
Date of hearing: 08.08.2022
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Applicant in person.
Respondent: Mr. Rahul Khurana, Advocate for District Magistrate and
Divisional Forest Officer, Faridabad.
Application is registered based on complaint received by Post.
ORDER
1. Grievance in the application by Advocate Parul Bawa is regarding unauthorized cutting of 50-60 years old trees in the forest land falling under Arawali Hills near Green Field Colony, Village Sarai Khawaja, Khasra No. 70, Faridabad, Haryana by M/S SVC Ventures and Lahari Builders. It is submitted that earlier the builders had cut the trees in the forest, however, with the intervention of the local residents, an FIR bearing no. 24/2020 was registered against them. However taking advantage of the pandemic, they have cut the trees in the forest adversely affecting the environment, residents of nearby area as well as the animals in the forest. It is further submitted that as per order dated 05.03.2019, in O.A. No. 407/2017 in the matter of M/s Monika Industries Vs. Rajasthan State Pollution Control Board this Tribunal has declared the area in question as 'Deemed Forest Area' and therefore no construction can be carried out by the M/s SVC Ventures and Lahari Builders. O. A. No. 69/2022 Parul Bawa Vs. State of Haryana -2-
2. Vide order dated 02.02.2022, this Tribunal constituted the Joint Committee comprising of the Principal Chief Conservator of Forest (HoFF), State of Haryana and the District Magistrate-Faridabad and directed the same to submit factual and action taken report within three months. The relevant part of the order reads as under:-
"Having regard to the seriousness of the allegations, it appears necessary to ascertain the factual position in the matter through a joint Committee of the Principal Chief Conservator of Forest (HoFF), State of Haryana and the District Magistrate-Faridabad. The District Magistrate, Faridabad will be the Nodal agency for coordination and compliance. The joint Committee may meet within four weeks and undertake site visit and look into the grievance of the applicant. Factual and action taken report may be furnished within three months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF...."
3. In compliance thereof, the District Magistrate, Faridabad submitted report dated 28.04.2022 vide E-mail dated 28.04.2022 and supplementary report dated 05.08.2022 vide email dated 05.08.2022. The relevant part of the report is extracted herebelow:
"Action taken report by way of affidavit of Jitender Yadav, IAS, District Mgistrate, Faridabad in compliance of order dated 02.02.2022.
X X X X X X
3. That in compliance of the above order of the Hon'ble Tribunal a Committee comprising SDM (Badkhal), Range Forest Officer, Faridabad and ATP (P), Faridabad was constituted to visit the site in question to verify the allegations made in the complaint to visit the site in question to verify the allegations made in the complaint vide Memo No. LFA/2022/131-33 dated 21.02.22. A copy of the said letter dated 21.02.2022 is annexed herewith as Annexure - R/1.
4. That it is submitted that SDM (Badkhal) in its report dated 29.03.2020 stated as follow:
a. SDM (Badkhal), Range Forest Officer and ATP(P) along with the revenue officials jointly visited the spot on 11.03.2022. Reports of Tehsildar, Badkhal and Range Forest Officer were O. A. No. 69/2022 Parul Bawa Vs. State of Haryana -3- submitted to SDM Badkhal who forwarded the reports to the deponent. However, as the report of the Range Forest Officer was not found lucid so a coherent report was sought from him.
b. It was reported by Tehsildar, Badkhal that as per revenue record ownership of M/S SVC & Lahari partner Mustil No.70//6(8-0), 7/2(7-9), 8/2(7-9), 9/1(1-13), 12/2(1-13), 13(8-0), 14(8-0), 15(8-0), 17/2,(7-10), 18(8-0),19/1 (1-
13) total raqba 67K-7M, vill. Sarai Khwaja, Tehsil Badkhal, District Faridabad vests with S. Lakshman Rao s/o Shreedhar & Shri Niwas Rai s/o Venkateshwar Rao.
c. Range Forest Officer (Regional), Faridabad has reported that on spot inspection of M/S SVC Ventures and Lahari Builders situated at Green Field it was found that no new trees have been cut at the spot. At the site in question an old road and some structures are there. That earlier an ayurvedic factory used to run there. Section 4 and Section 5 of the PLPA, 1900 is not applicable at the site in question. That the said spot neither falls under reserved forest nor under protected forest. General Section 4 and Section 5 of the PLPA, 1900 is applicable there according to which cutting of any kind of trees is prohibited unless permission from Divisional Forest Officer, Faridabad is obtained. That the site in question has been notified as Gair-Mumkin Pahar. That this company had cut trees on dated 13.01.2020 without seeking permission from the competent authority consequently Forest Department got Forest Offence Report No.100/0452 dated 13.01.2020 registered against it whose prosecution case was also filed in the Hon'ble Environment Court as well. That for the said illegal cutting activity F.I.R. No.24/2020 has also been lodged by the department in police station, Surajkund. A list of standing trees on the spot has also been prepared and these trees are marked as well. Marking list of such trees on the site in question is enclosed. A copy of the said report 298.03.2022 & 25.04.2022 is annexed herewith as Annexure-R/3
5. That it is humbly submitted that on joint inspection of the site in question it is found that no new trees have been cut from the site. The site in question is notified as Gair Mumkin Pahar and all the standing trees have been marked and listed."
4. The District Magistrate, Faridabad submitted supplementary report dated 05.08.2022 vide email dated 05.08.2022. The relevant part of the report is extracted herebelow:
"Supplementary Action taken report of Jitender Yadav, IAS, District Magistrate, Faridabad in compliance of Order dated 02.02.2022.
X X X X X X O. A. No. 69/2022 Parul Bawa Vs. State of Haryana -4-
3. That it is submitted that a committee constituting SDM (Badkhal), Range Forest Officer, Faridabad and ATP(P), Faridabad was constituted to visit the site in question to verify the allegations made in the complaint dated 21.02.2022.
4. SDM (Badhal) in its report dated 29,03,2022 & Range Forest Officer(Regional) vide its report dated 25.04,2022 had stated as flow:
a. SDM (Badkhal), Range Forest Officer and ATP(P) alongwith the revenue officials jointly visited the spot on I 1,03,2022, Reports of Tehsildar, Badkhal and Range Forest Officer were submitted to SDM Badkhal who forwarded the reports to the deponent. II was reported by Tehsildar, Badkhal that as per revenue record ownership of M/s SVC & Lahari partner Mustil No.70//6(8-0), 7/2(7-9), 8/2(7-9), 9/1(1-13), 12/2(1-13), 13(8-
0),14(8-0),15(8.0),17/2(7-10),18(8-0),19/1(1-13) total raqba 67K-7M, vill. Sarai Khwaja, Tehsil Badkhal, District Faridabad vests with S. Lakshman Rao s/o Shreedhar & Shri Niwas Rai ii/o Venkateshwar rao, b. Range Forest Officer (Regional), Faridabad has reported that on spot inspection of M/s SVC Ventures and Lahari Builders situated at Green Field it was found that no new trees have been cut at the spot. At the site in question an old road and some structures are there. That earlier an Ayurvedic Factory used to run there. Section 4 and Section 5 of the PLPA, 1900 is not applicable at the site in question. The said spot neither falls under reserved forest nor under protected forest. General Section 4 of the PLPA, 1900 is applicable there according to which cutting of any kind of trees is prohibited unless permission from Divisional Forest Officer, Faridabad is obtained. That the site in question has been notified as Gair Mumkin Pahar. That this company had cut trees on dated 13.01.2020 without seeking permission from the competent authority consequently Forest Department got Forest Offence Report No.100/0452 dated 13.01.2020 registered against it whose prosecution case was also filed in the Hon'ble Environment Court as well. That for the said illegal cutting activity F.I.R. No.24/2020 has also been lodged by the Department in Police Station, Surajkund. A list of standing trees on the spot has also been prepared and these trees are marked as well. Marking list of such trees on the site in question is enclosed. Copies of the said reports dated 29.03.2022 and 25.04.2022 are annexed herewith as ANNEXURE-R/1 & ANNEXURE-R/2 respectively.
5. However, the report submitted was not coherent and comprehensive, therefore, additional factual reports were sought from the District Town Planner, Faridabad (Planning) and Deputy Conservator of Forest, Faridabad.
O. A. No. 69/2022 Parul Bawa Vs. State of Haryana -5-
6. That District Town Planner, Faridabad (Planning) vide Memo No. 4269 dated 23.06.2020 submitted a report regarding the issuance of LOI for developing residential plotted colony on the said land inspite of being under Natural Conservation Zone summarized as follow:
i. A brief comprehension of the overall concept of NCZ introduced in theRegional plan -- 2021AD (hereinafter referred to as RP-2021), notified in the year 2005 and the facts relating to evolution of concept of NCZ, its components and the subsequent efforts/deliberations held for its identifications on ground were spelled out in the said report.
ii. It was further stated that as per the RP-2021, the impugned site falls under NCZ. However, as per the report of District Level Sub Committee, the same has not been included in the area under NCZ in District Faridabad as the same does not fall under any of the aforementioned categories prescribed as NCZ in the RP-2021.
iii. With respect to license issued it was intimated that the License no. 50 of 2022 issued vide DTCP memo no. 11246 dated 25.04.2022 has been granted for area measuring 5.00625 (impugned Land) with the following condition imposed on the developer:
"That the final decision of State Level Committee on recommendation of District Level Committee regarding inclusion / exclusion of applied land from NCZ category shall be binding upon you and you shall abide by the same."
A copy of the said report dated 23.06.2022 is annexed herewith as ANNEXURE-R/3.
7. That vide Memo No. 550 dated 04.08.2022, Dy. Conservator of Forests, Faridabad reported as follow :-
i. The area under consideration in OA No.69/2022 is recorded as Gair Mumkin Pahar in revenue estate of Sarai Khawaja and is closed under General Section 4 of PLPA where felling of trees require prior permission of DFO. As per enumeration undertaken there are 153 trees of various species standing on the said land.
ii. In O.A No. 407 of 2017, the Hon'ble NGT vide order dated 05-03-2019 has declared the land under consideration in said matter as a deemed forest. However, this order of the Hon'ble NGT has been challenged in the Hon'ble Supreme Court in C.A. No.4977 of 2019 in the matter of M/s Ajay Enterprises Pvt Ltd V/s Lt. Col. (Retd.) Sarvadaman Oberoi and others.
iii. It is further submitted that Hon'ble Supreme court in the said matter vide its order dated 08.04.2022 directed as under:-
O. A. No. 69/2022 Parul Bawa Vs. State of Haryana -6- "List these matters after the pronouncement of judgment in SLP (C) No. 10294 of 2013 and connected cases in the following week."
The copy of the said Report dated 04.08.2022 is annexed herewith as ANNEXURE R/4.
8. That it is worthwhile to mention here that SLP (C) No. 10294 of 2013 mentioned in order dated 08.04.2022 (referred in above Para No.7(iii)) is actually Civil Appeal (CA) No.10294 of 2013. Judgment in the said matter has been pronounced on 21.07.2022.
The C.A. No.4977 of 2019 in the matter of M/s Ajay Enterprises Pvt. Ltd V/s Lt. Col. (Retd.) Sarvadaman Oberoi is pending alongwith CA No.5067 of 2019 (State of Haryana V/s Lt. Col. (Retd.) Sarvadaman Oberoi) before the Hon'ble Supreme Court of India. Both the appeals have been filed against order dated 5.3.2019 passed by this Hon'ble Tribunal in O.A No. 407 of 2017. Hon'ble Supreme Court of India vide interim order dated 12.7.2019, has directed that there shall be no cancellation of any permission granted in the meanwhile. Copy of order dated 12.7.2019 passed by Hon'ble Supreme Court of India is annexed herewith as ANNEXURE R/5.
It is prayed that the present status Report may kindly be taken on record. Further, direction passed by this Hon'ble Tribunal shall be complied with sincerely."
5. Mr. Rahul Kurana, Advocate has appeared for the District Magistrate and Divisional Forest Officer, Faridabad and filed a copy of order dated 06.07.2022 whereby license no. 50/2022 dated 02.04.2022 granted to M/s SVC Ventures and Lahari Builders for developing affordable residential plotted colony under Deen Dayal Awas Yojna (DDJAY) Policy-2016 on the land in question has been suspended
6. Notice, alongwith the application and report of the Joint Committee be issued to the Project Proponent- M/s SVC Ventures and Lahari Builders, Regional Office of MoEF & CC, State PCB, Director, Town and Country Planning, Haryana and District Magistrate, Faridabad requiring them to file their response/reply to the allegations made in the application/observations made in the report of the Joint Committee within one month at [email protected] O. A. No. 69/2022 Parul Bawa Vs. State of Haryana -7- preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.
7. Even though license of the Project Proponent is stated to have been suspended vide order dated 06.07.2022 by the Director, Town and Country Planning, Haryana, but the aspect as to whether any third party rights have been created by the Project Proponent has not been looked into. The District Town Planner, Faridabad is directed to submit a report as to whether any third party rights have been created by the Project Proponents in favour of any person on the basis of license in question.
8. List for further consideration on 14.09.2022.
9. In view of the facts and circumstance of the case, we also consider personal appearance of the District Magistrate, Faridabad, Divisional Forest Officer, Faridabad and concerned Senior Officer from the office of Director, Town and Country Planning, Haryana dealing with the matter and District Town Planner, Faridabad on the next date of hearing to be essential for producing the relevant documents/evidence concerning the matter and assisting this Tribunal in just and proper adjudication of the questions involved in the case.
10. At this stage, the applicant has alleged that despite suspension of the license, developmental activities are being carried out on the land in question by placing screens around the same.
11. Section 20 of the National Green Tribunal Act, 2010 mandates that this Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the pre-cautionary principle and the polluter pays principle.
O. A. No. 69/2022 Parul Bawa Vs. State of Haryana -8-
12. In view of the precautionary principle, it is directed that no further developmental activity shall take place in the land in question and no tree standing over the same shall be cut and no further third party rights shall be created in favour of any person on the basis of the license in question till further order to the contrary. The District Magistrate, Faridabad and Commissioner of Police, Faridabad are directed to take requisite steps for ensuring compliance in this regard.
13. A copy of this order be sent to The District Magistrate, Faridabad and the Commissioner of Police, Faridabad for compliance.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM August 08, 2022 AG