Uttarakhand High Court
WPPIL/208/2021 on 6 January, 2022
Author: S.K. Mishra
Bench: S.K. Mishra
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SHRI JUSTICE S.K. MISHRA, A.C.J.
AND
SHRI JUSTICE ALOK KUMAR VERMA, J.
6TH JANUARY, 2022
WRIT PETITION (PIL) No.208 of 2021
Between:
Anu Pant. ...Petitioner
and
State of Uttarakhand and others. ...Respondents
Counsel for the : Mr. Abhijay Negi, learned counsel.
petitioner.
Counsel for : Mr. C.S. Rawat, learned Chief
respondents. Standing Counsel for the State of
Uttarakhand.
With
WRIT PETITION (PIL) No.178 of 2021
Between:
Suo Motu PIL in the Matter of
Illegal Construction in Corbett
Tiger Reserve.
and
Union of India and others. ...Respondents
Counsel for : Mr. Rakesh Thapliyal, learned
respondents. Assistant Solicitor General of
India/respondent no.1.
2
Mr. C.S. Rawat, learned Chief
Standing Counsel for the State of
Uttarakhand/ respondent nos. 2,
3, 5, 6, 7, 8, 9, 10 and 11.
Mr. Arvind Vashisth, learned
Senior Advocate appearing for the
Chief Wildlife Warden/ respondent
no.4.
Upon hearing the learned Counsel, the Court made
the following
ORDER:(per Shri S.K. Mishra, A.C.J.) Both the matters, the Suo Motu WPPIL No.178 of 2021 and WPPIL No.208 of 2021, have been taken up together for hearing. It is apparent from the records that a Suo Motu Writ Petition has been initiated bearing WPPIL No.178 of 2021 wherein, the then Chief Justice heading a Division Bench has held that it has come in the public domain that a Committee of the National Tiger Conservation Authority ("NTCA" for short) had recently visited the Corbett Tiger Reserve. It has discovered not only illegal construction of brides and buildings, but even the felling of trees. The Committee further noted that there has been violation of the provisions of the Wildlife (Protection) Act, 1972, the Forest (Conservation) Act, 1980, as well as the Indian Forest Act, 1927. The Division Bench expressed its surprise that a single lane road is being constructed in the core/critical habitat of the Corbett Tiger Reserve. Despite the fact that the Committee has recommended that all illegal constructions in Morghatti 3 and Pakhrau FRH campuses be demolished, and eco- restoration work be undertaken with immediate effect, no concrete steps have been taken by the respondents.
2. The Division Bench further observed that despite the fact that the Committee recommended that the Ministry of Environment should initiate action against the responsible officers, as per the provisions contained in the Forest (Conservation) Act, 1980, not even initial steps have been taken even by the Ministry. Therefore, the notices were issued to the respondents and Mr. Rakesh Thapliyal, the learned Assistant Solicitor General for the Union of India, accepted notice on behalf of the respondent no.1, Mr. C.S. Rawat, the learned Chief Standing Counsel for the State of Uttarakhand, accepted notices on behalf of the respondent nos. 2, 3, 5, 6, 7, 8, 9, 10 and 11. Notice was issued to the respondent no.4 i.e. Chief Wildlife Warden. Mr. Arvind Vashisth, the learned Senior Advocate accepted notice on behalf of the Chief Wildlife Warden/Corbett Foundation.
3. The Registry was also directed to implead the National Tiger Conservation Authority as a party respondent in this Writ Petition.
4. The Division Bench has further directed that meanwhile, the Principal Chief Conservator of Forest 4 (General), Uttarakhand, the respondent no.5, the Principal Chief Conservator of Forest (Wildlife), Uttarakhand, the respondent no.6, and the Director of the Corbett National Park, Uttarakhand, the respondent no.8, were directed to inspect the site, and to submit a report with regard to the nature and extent of the illegal constructions being carried out, with regard to the persons, who are responsible for carrying out the said illegal constructions, and with regard to the concrete steps taken by the respondent nos. 5, 6 and 8 against such persons, and against the illegal constructions.
5. In pursuance of the said order, a report has been submitted in the Court which forms part of the connected WPPIL. It is appropriate to take note of the exact words used by the Committee. It appears in the page no. 51 to 53 of the WPPIL No.208 of 2021, which read as hereunder:-
"2. Construction of buildings at Morgahatti FRH Campus and Pakhrau FRH Campus While inspection visit to Morgahatti FRH Campus it was observed that the construction of four units of independent buildings were ongoing within the campus of Morghatti FRH along with ex-tension of one existing old building (Plate-7 to 10). DFO Kalagarh appraised the committee that ongoing construction of buildings are staff quarters which appeared to be totally false statement made by him as the committee members on inquiry found that the layout design of all the four units are not in accordance with approved layout and norms of staff buildings designs of the state. In-stead in the 5 documents showing structural and layout design of ongoing construction buildings at Morghatti FRH produced by the one of the onsite supervisor, it was clearly mentioned that the design of building is of cottage which is generally constructed for tourists (Annexure-3). Similar type of constructions were also observed within the campus of Pakhrau FRH campus (Plate-11 to 12).
Surprisingly, DFO Kalagarh submitted different drawings of the these same constructions later to committee which appeared to be forged document in which the word "cottages" was replaced by hut/quarters etc (Annexure 4). It is important to consider that both Morghatti FRH campus and Pakhrau FRH campus are part of Corbett Tiger Reserve and any tourism related facilities can be developed only after having necessary statuary permission as per the provisions of the Wild Life (Protection) Act, 1972 and Forest (Conservation) Act, 1980. No such permission has been obtained by the management of the Corbett Tiger Reserve, hence criminal liability need to be fixed against the officers responsible for undertaking such construction. The height of the high-handedness of the DFO, Kalagarh was that the work was in progress even during the committee inspection despite any approval/sanctions from the competent authority. The committee inquired from DFO Kalagarh about financial and technical sanctions of the ongoing work in Morghatti FRH campus and Pakhrau FRH campus for which he stated that no such sanctions are issued so far, but he has asked for financial sanctions of from the Field Director, Corbett Tiger Reserve vide letters no.541, 542, 544, 545, 547, 548, 549, 550, 551/3-2 all dated 31.08.2021 (Annexure No.5). However, the Field Director's office denied about receiving any such letter form the DFO Kalagarh's office and confirmed that the ongoing construction on Kandi Road has been undertaken by the DFO Kalagarh without any approval from this office and in- spite of repeated verbal and written communications from the Field Director to stop the work, the DFO continued the execution of the work (Annexure-2).
3. Construction of water body near Pakhrau FRH Committee observed that soil excavation work on a very big scale has been undertaken in front of Pakharau FRH to develop a water body. DFO Kalagarh informed that no trees have been felled in developing this water body as this was an old water hole and 6 only de-siltation work has been under-taken. However, the existing surrounding vegetation and standing trees within the created water body suggested that felling of trees has been undertaken to create this water body (Plate-13). Moreover, the location of water body suggest that this has been developed to attract the wild animals to facilitate tourism and not as a part of habitat or wildlife management intervention.
The concerned DFO Kalagarh failed any document from competent authority regarding the construction of water body.
4. Illegal felling of trees at proposed tiger safari Committee visited proposed site for upcoming tiger safari in view of alleged felling of about 10,000 trees as reported in media. The Uttarakhand Forest Department obtained prior approval u/s 2 of the Forest (Conservation) Act, 1980 with a condition for not felling more than 163 trees for development of Tiger Safari. During the visit Committee observed that on the northern periphery of the proposed safari, a road has been constructed which is inter-connected with Pakhrau-Kotdwar main road at three places. DFO Kalagarh explained that road constructed on the northern part was originally a fire line and the inter- connecting three roads from said fire line to Pakhrau- Kotdwar main road are transect lines (Plate-14 &
15).
Committee based on ground situation realized that the density of forest patch diverted for said safari appears more than 0.4 as mentioned in the forest diversion proposal submitted by the project proponent. As a conservative estimate of the committee based on the ground situation suggests that trees felled during the work execution so far is way more than 163 trees which is a clear violation condition stipulated under the forest clearance. Conclusion:
• Committee reviewed all statutory documents available with the office of Field Director, Corbett Tiger Reserve and the DFO Kalagarh TRD and found that no statutory prior approval/sanctions have been obtained for the construction activities on Kandi Road, Morghatti FRH, Pakhrau FRH and water body near Pakhrau FRH. The work has been executed by violating provisions of the Wild Life (Protection) Act, 1972, Forest (Conservation) Act, 1980 as well as the Indian Forest Act, 1927 which attract penal provisions. Committee opined that the Regional office of MoEF&CC shall initiate action against the 7 responsible officers as per the provisions given in Forest (Conservation) Act, 1980 and other competent authority for the violations of Wild Life (Protection) Act, 1972 and Indian Forest Act, 1927.
• The State government must constitute a vigilance enquiry against the officers involved in the construction activities without any requisite approval. • The committee also recommends to verify authenticity of the documents produced by the DFO Kalagarh TRD as it seems to that he has forged the government documents which is a serious offense and non-receipt of such documents is confirmed with the Office of the Field Director, Corbett TR. • The Committee also recommends that all illegal constructions in Morghatti and Pakhrau FRH campus to be demolished and eco-restoration work to be undertaken with immediate effect. And cost involved for the same to be recovered from the concerned officers.
• The entire ongoing constructions activities in one of the highest density tiger habitat of the world without any competent sanctions and by violating the various statutory provisions/court orders is an excellent example of both administrative and managerial failure. Appropriate action are required against all the forest officers responsible for such grave violations. • Only Pakhrau Tiger Safari work had necessary approvals. But irregularities have been observed in felling of trees. 10,000 trees as reported felled in news articles in an exaggerated number. More accurate estimation can be done by using remote sensing data from Forest Survey of India and National Remote Sensing Centre. However, the State government shall ensure compliance of the Hon'ble Supreme Court dated 20th November, 2000 in SLP (Civil) No. 1474/1998 under WP (Civil) 47/1998 (Naveen Raheja vs. Union of India), if still applicable.
Moreover, looking at the present density of forest patch diverted for Safari which appears more than 0.4 need to be revisited in order to rationalise the tree felling and avoid this project to become a mere wasteful expenditure of public money amid controversy."
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6. Thus, it is apparent from the record that there has been a flagrant violation of the statute referred to above and in present scenario, another aspect that comes to the knowledge of this Court is that the person responsible i.e. D.F.O. Kalagarh appears to be responsible for all these illegal activities. In fact in an internal report, a request has been sent by Mr. Ajay Kumar Singh, Secretary Vigilance Department on 14.09.2000 written to the then Secretary, Forest Department regarding the illegal activities of Officer concerned. We consider it appropriate to the quote the exact paragraph mentioned as below :
"(c) One of the important facts to be brought to the notice of this Hon'ble Court is about the conduct of Shri Kishan Chand, DFO Kalagarh, who has been largely held responsible for the violations in CTR is that because of his bad conduct, a vigilance enquiry was set up against him in the year 1998 in undivided State of U.P. for illicit felling of trees, hunting of wild animals and sale/purchase of trophies (skin of wild animals) etc. This Vigilance inquiry was initiated when he was posted as Sub-Divisional Forest Officer under Haridwar Forest Division. After the receipt of the detailed inquiry Report, the Joint Director, Vigilance, U.P. vide D.O. letter dated 28.03.2000 communicated the following to the Principal Secretary, vigilance, Lucknow:
(i) To impose minor penalty and recovery of Rs.48950 from Shri Kishan Chand.
(ii) To have approval for the investigation related to the assets of Shri Kishan Chand and also not to post him at any sensitive place in the Forest Department.
(iii) To impose major punishment on Shri Kishan Chand for not getting post-mortem done of a wild animal (Panther) and also for 9 illegal possession of trophies of wild animals in his house.
That in view of the enquiry report and the proved charges against Shri Kishan Chand, the then Forest Minister of U.P. gave approval for not posting Shri Kishan Chand at any sensitive place and to post him at far off non-sensitive place/division of the Forest Department. This was communicated by the Under Secretary, Vigilance to different authorities for compliance vide letter dated 14.09.2000."
7. Prima facie, grave violations of Wildlife (Protection) Act, 1972, the Forest (Conservation) Act, 1980, as well as the Indian Forest Act, 1927, have been brought to our notice.
8. We hereby direct the Chief Secretary, Uttarakhand Shashan to look into the matter and take a decision on this matter immediately and report to us on the re-opening day after the ensuing winter vacation.
9. The matter may be listed on 14.02.2022 immediately after fresh cases.
10. We further direct that if at all the Officer concerned has been transferred and he has not handed over the charge to his successor as it is alleged by the learned counsel for the petitioner, Mr. Abhijay Negi, then appropriate punitive action shall be initiated against him forthwith.
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11. Free copy of the order be handed over to Mr. Arvind Vashisth, the learned Senior Advocate appearing for the Chief Wildlife Warden and Mr. C.S. Rawat, the learned Chief Standing Counsel for the State of Uttarakhand during the course of the day for early compliance.
________________ S.K. MISHRA, A.C.J. ___________________ ALOK KUMAR VERMA, J.
Dt: 6th January, 2022 JKJ/Pant