National Green Tribunal
Raju Ram Vishnoi vs State Of Rajasthan on 4 September, 2024
Item No. 05
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.163/2024(CZ)
(I.A.No.64/2024)
Raju Ram Vishnoi Applicant (s)
Vs.
State of Rajasthan & Ors. Respondent(s)
Date of Hearing: 04.09.2024
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant (s): Mr. Manas Khatri,Adv.
For Respondent(s) : Mr. Hemant Balani, Adv. With
Mr.Anil Kumar Makhija, Adv. And
Mr. Mohit Seth, Adv.
Mr. Rohit Sharma, Adv.
Ms. Arya Gupta, Adv. on behalf of
Mr. Rajat Dave, Adv.
ORDER
1. The contention of the Applicant is that the Govt. of Rajasthan has declared the Khejari as a State Tree in the year 1982 and 1983 and in order to regulate the forest growth, its supervision and control, the State Government has laid down a policy by way of rules of 1960.
2. 2. In spite of all these, the Land Acquisition Officer, Loni Jodhpur, vide order impugned as Annexure A-1, A-2 and A-3, indirectly exercised the power of the forest officials and permitted for removal of the trees which is against the environmental rules.
3. The matter was taken up by this Tribunal and a committee was constituted with direction to submit the factual and action taken report,
4. In compliance of the order members of the committee visited the site and submitted the report as follows :
"The above alleged site belongs to M/s Hasti Petro Chemical & Shipping Ltd for establishment of multi-logistic park sanctioned under the PM Gati Shakti scheme.
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The alleged site was inspected in the presence of Sh. Arvind Surana, CFO and Sh. Amit Jain, Terminal Manager of M/s Hasti Petro Chemical & Shipping Ltd.
During inspection, it was observed that the work of "Passenger Freight Terminal" was going on. Three parallel railway lines were found laid down.
During inspection, the representative of the industry, presented the permissions which were obtained before cutting down off the trees, which stood in the path of laying down off railway lines.
SDO, Luni vide letter dated 29.05.2024 gave the permission for cutting of 251 no of trees. Out of the 251 trees, 155 no trees were of Khejri, 55 of Rohida, 08 of Neem, 03 of Jhaal, and rest 02 of brambles and bushes As per the available records of the Forest department , the land involved in the said project does not involve forest land, hence the permission for tree cutting has to be obtained from the concerning Sub- Divisional Officer in compliance of Rajasthan Tenancy Act, 1955.
It was intimated by the industry's representative that a similar matter is pending in the Hon'ble High Court, Jodhpur with D.B Civil Writ Petition no- 8465/2024, Khem Singh v/s State of Rajasthan.
As per the order dated 30.05.2024 of the Hon'ble High Court in the above referred D.B Civil Writ Petition no- 8465/2024, it was directed to M/s Hasti Petro Chemical & Shipping Ltd to ensure afforestation to the extent of ten times more than the permitted deforestation As per the representative of the industry, in compliance of the orders of the Hon'ble High Court, they had planted about 1846 plants till date, with geo-tagging at the places instructed by SDO, Luni and revenue authorities The industry under reference has also submitted an affidavit wherein they have assured that 1000 trees of khejri trees shall also be planted in and around the premises.
COMPLIANCE OF OTHER STATUTORY REGULATIONS As per the available records of the State Pollution Control Board, Jodhpur, the industry under reference has obtained permission for establishment of "Railway Good Shed "under orange category RECOMMENDATIONS During the site visit carried out by the Joint team, work of laying down off the railway siding was going on. The committee recommends the following: -2
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a) It is proposed that the no of plants/ trees deforested should be afforested ten times. Also, native species should be promoted.
b) Instead of cutting of trees, process of translocation of trees may be promoted for green field projects and other activities.
5. An affidavit has been filed by the respondent with the facts that this project is for the development of the freight terminal under Pradhanmanti Gati Shakti Yojna near Hanmant Railway station as per permission granted by the Indian Railways. The necessary trees were cut after due permission from the competent authorities. It is further submitted that a Writ Petition was filed before Hon'ble the High Court and as per order dated 30.05.2024 the court has directed to do the plantation @ of ten times of the damaged trees and in compliance of the above order of the Hon'ble High Court approximately 1846 trees have been planted at the location identified by the SDM, Luni and rest of the plants will be done in accordance with the directions issued by the administrative authorities/forest department at place located by the forest department. It is further submitted that cutting of trees was necessitated for the construction of a railway track and the respondent are committed to environmental preservation. It is further submitted that the majors have been taken to ensure the effective growth and maintenance of the newly planted trees. An agreement has been signed with nursery to maintain the newly planted trees for one year.
6. Learned Counsel for the applicant has submitted that the trees which has been cut or permission have been taken from the district authority or a tree which have been notified by the State for protection.
7. In response to the above, Learned Counsel for Respondent no. 6, 7 have filed their reply and submitted that upon completion of 75 years 3 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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of India's Independence, the Hon'ble Prime Minister of India announced a scheme called as "Prime Minister Gati Shakti Yojna". Under the said scheme, the Government of India wanted to develop various infrastructural scheme to achieve Bharatmala, Sagarmala, Inland Waterways, Dry/Land ports, Udaan, Economic Zone like textile cluster, pharmaceutical cluster, defense corridor, electronic part, etc. That in the instant case, Respondent No. 6 is developing a freight terminal and multi modal logistics park, which is also part of the above referred "Prime Minister Gati Shakti Yojna" of the Government of India. That apart from railway siding, for the purpose of such freight terminal and multi modal logistic park, Respondent No. 6 will also undertake construction of covered warehouse, custom bonded premises, internal roads facility, parking area for vehicle, container repair station, business tower, repair station, vehicle and equipment repair facility, driver accommodation and other administration building. That Respondent No. 6 would also construct an administrative building, sufficient open space for movement and storage of loaded and empty containers for both export-import (EXIM) and domestic business.
8. As pre-requisites of undertaking construction was pre-approval by the Railway Authorities as was granted to Respondent No. 6 on 28.05.2022 and for the purpose of development of freight terminal, the Northern Western Railway also granted Engineering Survey Plan in principle approval on 09.02.2023.
9. Respondent No. 6 began the construction of the freight terminal and railway track only after the verification was conducted by the Joint Inspection Committee as constituted by the District Collector, Jodhpur. In order to carry out its construction activity, Respondent No. 6 was required to remove trees present on the project site and 4 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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accordingly an application dated 21.11.2023 was submitted to the Indian Railway, Jodhpur. The DRM, Indian Railway vide its letter dated 01.12.2023 forwarded the said application to the office of District Collector Jodhpur.
10. In pursuance to the letter dated 01.12.2023 issued by Indian Railway, the District Collector, Jodhpur vide its letter dated 14.12.2023 directed SDM Luni to submit the report in the matter. Thereafter, the SDM Luni vide its letter dated 20.12.2023 directed Tehsildar Luni to submit the report and thereafter, the revenue officials submitted report dated 04.01.2024 to Tehsildar Luni as per which the removal of trees was required to be undertaken and accordingly directions were passed for carrying out forestation in lieu of the trees that were to be removed.
11. In terms of the report, Respondent No. 6 was directed to submit an affidavit, undertaking to plant two times of the total number of trees sought to be removed in order to carry out the construction as narrated above. This imposition of planting trees was as per the provisions of the Rajasthan Tenancy Act, 1955 and Rule 24 (H) of the Rajasthan Tenancy (Government) Rules, 1955. Thereafter, upon submission of affidavit, the revenue authorities granted permission to Respondent No. 6 for removal of 67 trees on 08.01.2024.Another application was preferred by Respondent No. 6 for removal of balance trees which were approximately 350 in numbers. Thereafter, again the proposal was forwarded to the respective officials wherein, the SDM Luni directed Tehsildar to submit report vide its letter dated 05.04.2024 and thereafter, Tehshildar Luni vide order dated 12.04.2024 directed Patwari Sarecha, Shikarpura to submit their report. As per the directions, the patwari Sarecha and patwari 5 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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Shikarpura jointly submitted their report dated 24.05.2024 to the Tehsildar Luni.
12. That since part of the trees were standing partly upon the land owned by Respondent No. 6 and partly upon the land which is taken on lease from Respondent No. 7 and Respondent No. 8 for the purpose of receiving approvals for removal of balance trees, letter and unde1iaking were submitted by Respondent No. 7 and Respondent No. 8 on 27.05.2024, post which approval for removal of 189 trees was granted on 29.05.2024 by the component authority under the Rajasthan Tenancy Act, 1955.
13. A Writ Petition being a Public Interest Litigation was filed by one Khem Singh on 17.05.2024 before the Hon'ble High Court of Rajasthan at Jodhpur bearing D.B. Civil Writ petition No. 8465/2024 praying to restrain the authorities from removal of 67 trees and seeking setting aside of the permission dated 08.01.2024 so granted by the SDO Luni, District Jodhpur. The answering respondent filed a counter affidavit before the Hon'ble High Court of Rajasthan and filed additional affidavit on 30.05.2024 wherein, it was specifically stated that for purpose of the project, the permissions dated 08.01.2024 was granted and in pursuance thereof, the trees already have been removed.
14. That three more permissions dated 29.05.2024 were granted to Respondent No. 6 by SDO Luni for the removal of 189 tree. In order to ensure complete adjudication of the issue before the Hon'ble High Court, Respondent No. 6 preferred an additional affidavit providing details of the orders dated 29.05.2024 (as are impugned in the present application).After considering all the relevant aspects including the fact that in total, 256 trees are being removed and after hearing the State authorities so also Respondent No. 6, the High 6 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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Com1 of Rajasthan at Jodhpur passed the following order, relevant portion whereof reads as under: -
" this court was exploring the ways and means the help of the officer of the court present as to whether the trees in question could be saved by certain alternative measure to be taken to carry forward the project. the project is part of acquisition under PM Gati shakti for constructing the freight terminal that the project being undertaken by the answering respondent has large ramifications over employment, development and connectivity however there was no dispute to the fact that the trees being cut is a sorry state of affairs and would require to be adequately compensated through exhaustive afforestation"
With this observation, the Hon'ble High Court has passed the following directions, which reads as under:-
"the respondent are directed to ensure afforestation to the extent of ten tilnes more then the permitted de-afforestation"
15. The Hon'ble Com1 vide its order dated 30.05.2024 has directed the state for identification of place, where the trees are to be planted by the Respondent No. 6 and the matter was fixed for ensuring the compliance of the said order. The Writ Petition is still pending consideration before the Hon'ble High Cowi of Rajasthan.
16. Immediately, the answering respondent submitted an application dated 05.06.2024 to the forest officer to supply 3200 trees and also submitted a demand draft for purchase of trees.
17. In this pursuance, the answering respondent has already planted around 1846 trees and a letter is also submitted to revenue officials to the said effect along with photograph and Geo Location of each tree. Further, Respondent No. 6 also took measures to ensure effective growth and maintenance of the newly planted trees. For the said purpose, the answering respondent has executed an agreement with a Nursery for maintenance of tree till their growth in stable mode.
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18. Rajasthan Land Revenue (Control and Management of Forest Growth) Rules, 1960 read with Section 84 of Rajasthan Tenancy Act, 1955 grants exemption where Rule 14 reads as under reads as under :
"Rule 14. Removal under Section 84, Rajasthan Act 3 of 1955 not affected- Nothing in these rules shall apply to or affect the renewal of trees in pursuance of a right conferred or, under a licence or permission granted under Section 84 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955)"
19. Rule 2 of The Rajasthan Land Revenue (Control and Management of Forest Growth) Rules, 1960 1s being reproduced here in below for convenience:
"(2) Forest growth refers to Khejra Khejri or Bhambool or [Fog Jhadia] Sandalwood trees as well as to such other classes of trees as may be declared in this behalf by the State Government whether such Khejra Khejri or Bhambool, [Fog Jhadia] sandal, or other trees are fully grown or otherwise and whether they are standing on or have been severed or cut from, the lands of an estate or village, and includes the timber of such trees, whether standing on or severed or cut from the earth"
Rule 3- Forest growth not renwvable otherwise than under License- No Person shall remove any forest growth fi~o,n any forest Land or permit or suffer any person to do so, except under and in accordance with a license granted by the collector of the district in which the forest land is situated.
The above rule is applicable for the forest land whereas the permission was granted for the Private Khatedari Land of answering land and said is not covered under the forest land. However even before giving the permission to the answering respondent to remove the tree necessary enquiry was duly conducted by by the revenue authority 8 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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20. Rule 24H of The Rajasthan Tenancy (Government) Rules, 1955, is quoted as follows :
24H. Conditions for grant of permission. -
(1) Removal of any tree or class of trees may begranted in following cases:-
(i) If it will help any work of construction by and on behalf of the village community; or
(ii) If such removal is necessary for the extension of cultivation or other agricultural activities of the tenant,· or
(iii) If it will mitigate any real existing grievance of the tenant,· or
(iv) If the existing trees Eire dried up and their removal is in the interest of plantation of new trees,· or (v) In the case of fruit trees, if such trees have become over -mature and rot and deterioration having set in,· or
(v) If such trees are so dense that they affect the fertility of the soil or otherwise cause damageto the soil or standing crops, if there be any.
(2) Before grant of permission under these rules, the applicant shall give an undertaking in writing that he shall plant and stabilise two trees in lieu of the one permitted to be cut. The trees shall be planted at the place indicated in the undertaking and if no such place is indicated therein, at the place directed by the Tehsildar. If it is not possible to plant the new trees on the land from where the trees are removed, without causing damage to the land, standing crops, grass or trees or a building of neighbours, the same shall be planted and established at a place directed by the Tehsildar:
Provided that the condition of planting two trees shall not apply if the permission sought under clause (vi) of subsection (1) and there is no other part of the holding where such trees could be conveniently planted.
(3) If the permission is refused, reasons of refusal shall be recorded in writing and communicated to the applicant.
21. Section 84(2) of the Rajasthan Tenancy Act, 1955, further provides as follows :
Section 84. When and by whom trees may be removed-
(1) Omitted.
(2) A Khatedar tenant holding land below the ceiling area may remove trees standing on his holding for any purpose,· Provided that no such tenant-shall remove trees for purpose other than his bonafide or agricultural use except with the permission of such 9 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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authority and subject to such terms and conditions as may be prescribed by the State Government.
(3) A Gair Khatedar tenant may, with the previous permission of the Tehsildar, remove any trees standing on his holding/or his own domestic or agricultural use.
(4) A sub-tenant may, with the previous permission of the person from whom he holds, remove any trees standing on his holding for his own domestic or agricultural use.
(5) A Khatedar tenant holding land in excess of the ceiling area desiring to remove any trees which vest in him or are in his possession may do so under a licence to be granted by the Sub- Divisional Officer.
(6) Upon receipt of an application under sub-section. (5), the Sub Divisional Officer may after making such inquiry as may be necessary in the prescribed manner and taking in to consideration the prescribed matter, grant the requisite licence in the prescribed form on payment of the prescribed fee subject to such terms, restrictions, as may be prescribed.
(7) Nothing in this section shall apply to the State Government or affect the right or power of the State Government to remove or cause to be removal or, order the removal of any tree standing on any land entered in the name of the State in Revenue Records for any purpose.
22. Learned Counsel for the respondent has further submitted that the matter was considered by a detail report of the project of proposed railway siding from Hanwant Railway Station of Jodhpur Division North-Western Railway to serve the new Railway Cargo Terminal and submitted the detailed report after considering the matter.
23. Issue of cutting of the trees and inspection was raised before Hon'ble High Court in DB Civil Writ Petition No. 8465/2024 and vide order dated 30.05.2024 the Hon'ble High Court directed as follows :
"1. The matter was taken up urgently on the count that there are certain trees, which have to be cut for completion of the project in question.
2. This Court was exploring the ways and means with the help of the Officers of the Court present as to whether the trees in question could be saved by certain alternate measures to be taken to carry forward the projects. The project is part of acquisition under PM Gati Shakti Scheme for constructing Freight Terminal. The project has large ramifications over employment, development and connectivity, however, there was no dispute 10 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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to the fact that the trees being cut is a sorry state of affairs and would require to be adequately compensated through exhaustive afforestation.
3. Learned Additional Advocate General and the counsel representing the respondents submitted that they are already under an obligation to plant twice the number of trees that are being cut.
4. At this juncture, learned counsel for the respondent-State submitted that the exhaustive afforestation shall be conducted in accordance with the conditions already mentioned.
5. The proposal was vehemently opposed by learned counsel for the petitioner and submitted that apart from his right to contest the Public Interest Litigation at a subsequent date, at least an obligation be created for an afforestation ten times the number of trees which are being cut.
6. The proposal given by the learned counsel for the petitioner seems to be reasonable, as the sustainable development should always include the concept of development and protection of flora and fauna at the same time.
7. The proposal is accepted.
8. The respondents are directed to ensure afforestation to the extent of ten times more than the permitted de-afforestation. 9. The report regarding such afforestation shall be furnished by the respondents-State on the next- date of hearing, which include the identification of the place by the State and the trees to be planted by the private respondent.
10. List the matter on 10.07.2024."
24. Through perusal of the order of Hon'ble High court it reveals that the proposal submitted by the department as the sustainable development includes the concept of development of and protection of flora and fauna and the proposal has been accepted with the direction to the respondent to ensure afforestation to the extent of ten times more than permitted afforestation.
25. In view of the above report and agreement between the Railway department and the construction agency this is a development project which has been initiated in accordance with the permission granted by the railway department and necessary plantation are being done in accordance with the rules. The matter was raised before Hon'ble the High Court and necessary directions have been issued.
26. Accordingly, in view of the above facts, we dispose of this application with direction to the respondent that the necessary planation @ of ten 11 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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times must be done in addition to protection and ensuring the survival of the plants. Rest of the matter which are pending before the Hon'ble High Court must be done in accordance with the directions issued by the Hon'ble High Court in the pending Writ Petition. With these observations the Original Application No. 163/2024 (CZ) along with I.A. No. 64/2024 stands disposed of.
Sheo Kumar Singh, JM [ Dr. Afroz Ahmad, EM 4th September 2024 O.A. No. 163/2024(CZ) K 12 O.A. No. 163/2024(CZ) Raju Ram Vishnoi vs State of Rajasthan & Ors . .
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