Delhi High Court
Shruti Co-Operative Group ... vs Govt. Of Nct Of Delhi & Anr on 6 November, 2017
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10430/2015 & CM No. 26160/2015
SHRUTI CO-OPERATIVE GROUP HOUSING
SOCIETY ..... Petitioner
Through: Mr G. S. Chaturvedi and Mr R.
Madhav Bera, Advocates.
versus
GOVT. OF NCT OF DELHI & ANR ..... Respondents
Through: Mr Siddhartha Shankar Ray,
Advocate for R-1 & 2.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 06.11.2017
VIBHU BAKHRU, J
1. The petitioner - a Group Housing Society - has filed the present
petition, inter alia, impugning an order dated 27.03.2012 (hereafter „the
impugned order‟) passed by the Deputy Conservator of the Forests,
Government of NCT of Delhi acting as a 'Tree Officer' under the Delhi
Preservation of Trees Act, 1994 (hereafter „the Act‟) whereby a
compounding fee of `4,50,000/- has been imposed on the petitioner society
for illegal felling of trees. The petitioner also impugns a notice dated
30.09.2015 issued for recovery of the aforesaid compounding fee with
interest as an arrears of land revenue.
2. Briefly stated, the relevant facts necessary to address the controversy
are as under:-
2.1 A complaint was made by one Mr A. P. Sharma, resident of the Shruti
Apartment, Dwarka, New Delhi-110075 alleging illegal cutting of trees at
the group housing complex constructed on Plot No.22, Sector-7, Dwarka,
New Delhi-110075. It was alleged that trees were illegally felled by the mali
(one Shri Ram Kishore) of the petitioner society under the direction of Shri
H. M. Singh, the then President of the society.
2.2 The impugned order dated 27.03.2012 indicates that an inspection of
the site was carried out by the forest guards and they had reported illegal
cutting/pruning of trees as indicated below:-
S. No. Particulars
1 32 Ashoka Trees around perepheri of the society pruned
illegally at 15' height.
2 One neem tree felled illegally at the height of 34 cm.
3 One siras tree fully felled illegally.
4 One bigonia tree head back illegally (now dead).
5 Two rubber tree pruned illegally at the height of 12 feet.
6 One neem tree pruned illegally.
7 One Anar tree pruned illegally.
2.3 The allegations made in the complaint were denied by the petitioner
through its office bearers. It was specifically denied that any of the trees had
been cut. Notwithstanding such denial, the Tree Officer was convinced that
the offence complained of had been committed and, accordingly, passed the
impugned order imposing an aggregate compounding fee of `4,50,000/-.
The breakup of of the compounding fee levied is as under:-
Sl.No. Particulars Penalty Remarks
Imposed
1 32 Ashoka Trees (32x10,000)- A compounding
around perepheri of Rs.3,20,000/- fee of
the society Pruned Rs.10,000/- per
illegally of 15‟height tree
2 One neem tree felled (01x30,000)- (Rs.10,000/-
of the height of 34 Rs.30,000/- compounding
cm. charges
Rs.10,000 value
of timber and
Rs.10,000/- as
loss to
Environment).
3 One siras free fully (02x30,000)- -do-
felled illegally Rs.30,000/-
4 One Bigonia tree (01x30,000)- -do-
head back (now dead) Rs.30,000/-
5 Two rubber tree (02x10,000)- A compounding
pruned illegally at the Rs.20,000/- fee of
height of 12 feet. Rs.10,000/- each
tree.
6 One neem tree (01x10,000)- -do-
pruned illegally. Rs.10,000/-
7 One Anar tree pruned (01x10,000)- -do-
illegally. Rs.10,000/-
TOTAL Rs.4,50,000/-
3. Learned counsel for the petitioner has assailed the impugned order
essentially on two fronts. First, he states that the petitioner had not made
any application to compound the alleged offence, since it is not admitted that
any offence was committed. He points out that the impugned order also
records that the allegations made in the complaint were disputed and denied.
4. Second, he submits that the definition of the expression "to fell a tree"
as defined under Section 2(h) of the Delhi Preservation of Trees Act, 1994
does not include pruning a tree. He submits that the principal allegation that
32 Ashoka trees around the society had been pruned at a height of 15‟ ft. is
disputed; however, even if it is accepted that the said trees were pruned, the
same would not constitute an offence under the Delhi Preservation of Trees
Act, 1994. He also referred to a circular dated 26.08.2016 issued by the
Department of Forest and Wildlife, Government of National Capital
Territory of Delhi clarifying that pruning of trees, which do not cause
damage or death of a tree, could not be termed as a Tree Offence.
5. He also submitted that the allegations that one Anar tree and two
Rubber trees had been pruned illegally is also incorrect but even if it is
accepted, it would not constitute an offence as there is no allegation that any
permanent damage had been caused to the trees in question. He submitted
that it is well accepted that pruning of trees is healthy for the plants. He
contended that the allegation that one siras tree and one neem tree had been
cut is also bereft of any particulars since neither girth nor the height of the
trees has been specified.
6. The learned counsel for the respondent argued that the petitioner‟s
contention that it had not applied for compounding was not established by
the petitioner, as no such application has been filed on record. Plainly, the
said contention is bereft of any merit. The petitioner had made an
unequivocal statement in his petition that no request for compounding of any
offence was made. Despite sufficient notice, the respondent has not
produced any material to indicate that any such request had been made by
the petitioner. It is difficult to understand as to how the petitioner can prove
the negative by producing an application, which it asserts was never made.
7. The respondent has also not produced any details of the trees or any
material to substantiate that any offence had taken place. It is noticed that
the present petition was moved on 05.11.2015 and the learned counsel for
the respondent had accepted notice on the said date. However, no response
to the petition was filed. On 27.09.2016, learned counsel for the respondent
prayed for further time to file counter affidavit and on such request, four
weeks were granted to the respondent to do so. On 21.04.2017, learned
counsel for the respondent requested for further time to file the counter
affidavit yet again. This too was acceded to and further time of four weeks
was granted to the respondent to do so. It is thus seen that the respondent
had sufficient opportunity to controvert the allegations made in the petition.
However, despite the same, the respondent has not filed any affidavit or any
material to controvert the averments made in the petition and thus the same
remain uncontroverted.
8. The contention that the impugned order does not reflect any material
to establish the offence in respect of the trees that had been pruned, is
persuasive. The expression "to fell a tree" is defined under Section 2(h) of
the Delhi Preservation of Trees Act, 1994, which reads as under:-
"2. (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,"
9. It is seen that the above definition is in wide terms. However, merely
pruning certain branches of a tree - which is a normal gardening practice -
that does not damage the tree in any manner cannot possibly be considered
as an offence of felling a tree.
10. It is also relevant to refer to the circular dated 26.08.2016, the relevant
extract of which is set out below:
"2. The Sec. 2 (h) of DPTA, 1994 states that "to fell a tree" with
its cognate expression, means severing 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 as factors causing the death of a tree.
Thus it would be apparent that its implied meaning does not
appear to carry any implicity connotation that pruning of trees
which do not cause damage or death of a tree could be termed
as a Tree Offence."
11. The impugned order does not indicate that the trees alleged to have
been pruned had been permanently damaged. The allegation that two other
trees, namely, neem tree allegedly felled at the height of 34 cm and the
bigonia tree felled illegally, is also bereft of relevant particulars. Clearly,
the petitioner cannot be penalized or prosecuted for any offence that is not
clearly established.
12. In view of the statement that no application for compounding had
been made by the petitioner, the question of recovering any compounding
fees does not arise. As far as the impugned order dated 27.03.2012 is
concerned, it is noticed that the Tree Officer has unequivocally stated that if
the compounding fee is not paid then prosecution would be initiated. Since,
it is petitioner‟s unequivocal stand that it had neither applied nor willing to
pay compounding fee, the only recourse available to the Tree Officer would
be to initiate appropriate proceedings and establish that an offence had been
committed (which is stoutly disputed by the petitioner).
13. Needless to mention that in the event the respondents seek to initiate
any proceedings in respect to the said alleged offence the respondents shall
have to produce relevant material to establish commission of the offence.
Needless to state that as and when such material is produced the petitioner
would have full opportunity to controvert the same as per law.
14. In view of the above, the petition is allowed. Since the petitioner had
not made any application for compounding of the offence, the levy of
compounding fee is unsustainable. The impugned order dated 27.03.2012 is
set aside. The notice dated 30.09.2015 is also unsustainable and is,
accordingly, quashed.
15. The parties are left to bear their own costs.
VIBHU BAKHRU, J
NOVEMBER 06, 2017
MK
