Unknown vs Union Of India And Others [Wp
2022 Latest Caselaw 3756 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

                       SRI JUSTICE VIPIN SANGHI, C.J.
                                   AND
                        SRI JUSTICE R.C. KHULBE, J.

23RD NOVEMBER, 2022 WRIT PETITION (PIL) NO. 44 OF 2020 Between:

Birendra Singh                        ......Petitioner.
and
Union of India and others.           ....Respondents


Counsel for the petitioner         :   Mr. P.B. Suresh and Mr. Karthik.

Counsel for the respondents        :   Mr.Manoj Kumar, learned Standing
                                       Counsel for the Union of India /
                                       respondent No. 1.

Mr. Pradeep Joshi, learned Additional Chief Standing Counsel for the State of Uttarakhand / respondent No.2.

                                       Mr. Vikas Srivastava and Mr. Akshay
                                       Pradhan,     learned    counsel     for
                                       respondent Nos. 3 & 4.

Upon hearing the learned Counsel, the Court made the following

ORDER : (per Sri Vipin Sanghi, C.J.)

Vide our order dated 18.11.2022, we had directed

the State to file a report in terms of the order dated

20.03.2020. On 20.03.2020, this Court took notice of the

order passed by the Supreme Court on 11.02.2020 in Civil

Appeal No. 8560 of 2018, whereby the Supreme Court

disposed of the said Civil Appeal, preferred by the petitioner,

herein, against the order dated 24.07.2018 passed by the

National Green Tribunal dismissing his petition being O.A.

No. 791 of 2017, by placing reliance on a Court

Commissioner's report, appointed by it. In its order, the

National Green Tribunal extracted a part of the detailed report prepared by the Court Commissioner dated

09.07.2018.

2. The Supreme Court, while passing the order

dismissing the Civil Appeal No. 8560 of 2018 on 11.02.2020,

inter alia, directed that survey and demarcation be

conducted within a period of 8 weeks from the date of the

said order in respect of the area falling in three patches of

the Jilling estate, wherein the density of forest appears to be

40% or more. The Court Commissioner has found that about

8.5 hectares out of the entire Estate, i.e. 36 hectares-

constituting Jilling Estate, appears to have a high density of

forest cover in the range of 40% or more. The Supreme

Court directed the conduct of survey and demarcation in

terms of the direction contained in Clause (vi) of the

conclusions drawn in the report of the Court Commissioner

Shri Bikram Singh Sajwan. The said demarcation was

necessary to determine, whether the same would,

eventually, be classified as "Deemed Forest" in terms of the

judgment passed by the Supreme Court in T.N.

Godavarman vs. Union of India and others [WP

(Appeal) No. 202 of 1995, decided on 12.12.1996];

Lafarge Umiam Mining Pvt. Ltd. vs. Union of India

(2011) 7 SCC 338 and; Anand Arya and another vs.

Union of India and others (I.A.No.2609-2610 of 2009 in

WP (Civil) No. 202 of 1995).

3. The State has filed, what is claimed to be, a

Compliance Affidavit of the Divisional Forest Officer (DFO,

Nainital). The said Affidavit has not complied with either

Supreme Court's order, or our order, inasmuch as, no

demarcation has been carried out. The only exercise carried

out is to identify the different kinds of trees found in

different Khasra Numbers.

4. In our view, the said non-compliance of the order

of the Supreme Court as well as our order constitutes

contempt of Court. The direction to carry-out survey and

demarcation was issued by the Supreme Court as early as

on 11.02.2020. However, before we proceed to take action

under the Contempt of Courts Act against the erring officers,

we consider it appropriate to grant them one more

opportunity to strictly comply with the order passed by the

Supreme Court as well as by us on 20.03.2020. Compliance

be made positively within the next two weeks, and a report

in that regard be filed soon thereafter.

IA Nos. 4401 & 4402 of 2022

5. Issue Notice.

6. Mr. Manoj Kumar learned Standing Counsel for

the Union of India / respondent No. 1, appears and accepts

notice.

7. Mr. Pradeep Joshi, learned Additional Chief

Standing Counsel for the State of Uttarakhand / respondent

No.2, appears and accepts notice.

8. Mr. Vikas Srivastava and Mr. Akshay Pradhan,

learned counsel for respondent Nos. 3 & 4, appear and

accept notice.

9. Let replies to these Applications be filed by all the respondents within two weeks.

10. Rejoinder, if any, be filed before the next date.

11. The petitioner has placed on record, along with IA No. 4401 of 2022, the pictures of the Google Map of the area concerned. The position-which is shown to exist in 2015, 2018 and 2022 demonstrates that the green cover between 2015-2018 appears to have been substantially reduced. Even between 2018-2022, it appears that even in the area of having dense population of trees, roads have been constructed / broadened and extended.

12. Since we are looking at Google Map pictures, our conclusion, obviously, cannot be final. However, for prima facie evaluation, we certainly can take notice of these pictures. These pictures show that even in the dense tree cover area, developmental activity has been undertaken as the roads / paths appear broader, clearly defined, and extended in their length. The three pictures of 2015, 2018 and 2022 produced by the petitioner along with the Application at Page 290 of the record are as follows:-

13. The petitioner has also placed on record, along

with IA No. 4402 of 2022, an Inspection Report dated

prepared by the Surveyor, Geology and Mining Unit

Haldwani. This shows that respondent Nos. 3 & 4 employed

a JCB machine to carry-out development activities in the

area. Admittedly, no permission to use the JCB machine

was obtained by the said respondents, or the Contractor

employed by them.

14. Learned counsel for respondent Nos. 3 & 4 states

that JCB machine was used for seven days only for the

purpose of leveling the ground. Consequently, a fine of Rs.

4 Lacs was imposed for the unauthorized use of JCB

machine, which has also been paid by the respondents or

their Contractor.

15. The Inspection Report prepared by the Surveyor,

Geology and Mining Unit Haldwani, notes that sanctioned

map and documents were not produced at site sanctioned

by the competent Authority for the project in that area. To

this, the submission of the learned counsel for respondent

Nos. 3 and 4 is that since the site in question is at a

distance of more than 200 meters from the Highway, no

sanctioning of plan is required by the respondents.

16. Considering the aforesaid aspects, since the issue

of Deemed Forest in the area admeasuring 8.5 hectares or

thereabout, is still pending consideration and since prima

facie it appears that respondent Nos. 3 and 4 have carried

out development activities, including in the said 8.5

hectares' area, which has dense tree cover in excess of

40%, we are inclined to direct a fresh inspection of the

entire Jilling Estate to be conducted, so that a report is

available for the Court to proceed further in the matter.

17. We were inclined to appoint Shri Bikram Singh

Sajwan as the Court Commissioner, since he had conducted

the earlier inspection as a Court Commissioner, and he has

first-hand knowledge of the topography and the

characteristics of the area. Unfortunately, he is not in a

position to complete the task early, and would require 6 to 8

weeks, as indicated by him to the parties today.

Accordingly, we appoint Dr. Dvijendra Kumar Sharma, IFS

(Retd.), R/o C-103, Ispatika Apartments, Sector-4, Plot No.

29, Dwarka, Delhi-110078 (Having Mobile No. 9899761167)

as the Court Commissioner. The Court Commissioner shall

carry-out the local physical on-the-spot inspection and

furnish a report before us, particularly stating as to whether

respondent Nos. 3 & 4 have carried-out any activity in the

area admeasuring 8.5 hectares or thereabout, which may

eventually be declared as a Deemed Forest. We also

request him to inspect the development activities carried-

out by respondent Nos. 3 & 4 in the area falling outside the

8.5 hectares, but within 36 hectares constituting Jilling

Estate, and to report whether the said developmental

activities have been undertaken in violation of any of the

norms/ Rules / Regulations, or without any permission,

which they were obliged to obtain. The inspection shall be

carried out by the Court Commissioner as early as possible,

and the same be completed within the next two weeks. He

shall be provided with all the relevant record by the parties,

including the inspection report of Shri Bikram Singh Sajwan,

who had earlier carried-out the local inspection. A

responsible officer, nominated by the District Magistrate,

Nainital; a Nominee of the Conservator of Forest, and the

DFO, Nainital shall remain present when the inspection is

carried-out, and all assistance shall be provided to the Court

Commissioner for carrying-out the inspection. The

Commissioner shall also have photographs taken, wherever

he considers it necessary for explaining the report. The

Court Commissioner shall not adjourn the proceedings on

the request of either of the parties, or authorities, and they

shall not seek any accommodation in that regard. The fees

of the Court Commissioner is fixed at Rs. 2 Lacs to be

shared equally by the petitioner on one hand, and

respondent Nos. 3 & 4 on the other hand.

18. The representatives of the petitioner and

respondent Nos. 3 & 4 shall also remain present during the

inspection.

19. Till the next date, all further development /

construction activities in Jilling Estate shall remain stayed.

20. Let notice issue to respondent No.5, returnable by

15.12.2022.

21. List on 15.12.2022. No adjournment shall be

granted on the next date.

22. Liberty is given to mention on the next date, in

case the case is lower down in the list.

________________ VIPIN SANGHI, C.J.

____________ R.C. KHULBE, J.

Dt: 23rd November, 2022 Rathour