OBSERVATIONS OF NATIONAL GREEN TRIBUNAL ON ILLEGAL TREE CUTTING AND SOIL EXCAVATION BY PWD CONTRACTOR

INTRODUCTION

A two Judge Bench of the National Green Tribunal Principal Bench, New Delhi comprising of Justice Arun Kumar Tyagi and Dr. Afroz Ahmad, Expert Member passed an Order dated 01.05.2024 in Original Application No. 451/2022 in Anand Kumar Dhyani Vs. Public Works Department & Ors. and held that the Applicant was not entitled for compensation of the illegal digging of soil from the land in question, as the Applicant was not the owner of the land and the Contractor was directed to carry out compensatory plantation in lieu of the illegal tree-cutting.

FACTS

1) The Applicant, Mr. Anand Kumar Dhyani’s grievance was that the road was constructed by Public Works Department (PWD) Najibabad from Shankarpur Farm to Dhakiya main road adjacent to his fields, the PWD Contractor uprooted 11 Sagwan Trees which were more than 10 years old and dugout soil from his fields for filling gaps in the road, leaving a big pit there.

2) There were no trees planted in lieu of the uprooted trees and no compensation had been paid to him for lifting soil from his fields.

3) In view of the allegations made in the Application, the National Green Tribunal (NGT) vide Order dated 05.07.2022, constituted a Joint Committee and directed the same to furnish factual and action taken report within two months.

4) Subsequently, an Application was filed by the Principal Chief Conservator of Forests (HOFF), Uttarakhand for modification of Order dated 05.07.2022 on the grounds that the grievance of the Applicant was that some trees were uprooted. According to the Applicant’s grievance, the construction of the mentioned road lay within the State of Uttar Pradesh. Consequently, the State of Uttarakhand had no jurisdiction over the issue in question.

5) In the Application, the Applicant, had not specifically mentioned that his field, from which the trees were cut by PWD, Najibabad, lay in the State of Uttar Pradesh. Since the road from Shankarpur Farm to Najibabad, during the construction of which some trees were allegedly uprooted from the Applicant’s field by PWD, Najibabad, is situated in the State of Uttar Pradesh, the Order dated 05.07.2022 was modified. The composition of the Joint Committee was changed to include the Principal Chief Conservator of Forests, Government of Uttar Pradesh, the Uttar Pradesh Pollution Control Board (UPPCB), and the District Magistrate, Bijnor. The Joint Committee was directed to meet within four weeks, undertake site visits, address the grievances of the Applicant, and take requisite action by following due process of law. They were to submit a factual and action taken report within two months.

6) In compliance with the aforementioned Orders, the Joint Inspection Report dated 27.01.2023 had been submitted via Email on 27.01.2023. The relevant part of the Report is reproduced as follows:

“Joint inspection report in compliance of direction issued by Hon’ble NGT vide order dated 01.08.2022 & 21.10.2022 in the matter of Anand Kumar Dhyani Vs. Public works Department in O.A. No. 451/2022.

3 Observation-

In compliance to the direction, joint inspection was carried out by the joint committee on 24.01.2023. Detailed report is follows-

(1) During Inspection it was found that earlier kacchi road located at village Murtzabad, Teshil Nagina, District Bijnor has been constructed into paved road by Public Works Department and during digging of soil by mechanical equipment 11 nos, trees of teak (Sagwan) lying inside the road at gata no. 1/11mi village Murtzabad were uprooted by the contractor, which were found on the spot. Copy of the report of Revenue Inspector, Nagina (Bijnor) is annexed as Annexure- 4.

(2) During Inspection, it was informed that Shri Anand Kumar Dhyani, Shivlok -II, Chandrabani Road, Shimla Bypass, Dehradun had made a complaint to telephonically to the Range officer, Kaudia range, Bijnor Forest Division, Najibabad that PWD, Najibabad is constructing a road from Shankarpur Farm to Kotdwar-Nagina road and Anup kumar, contractor’s, Supervisor has uprooted 11 teak/ Sagwan trees from his private agriculture land.

(3) In reference to complaint made by Shri A.K. Dhyani, earlier investigation was done by Shri Pradeep Kumar, Forester, Kaudia Range and it was found that the road from Shankarpur farm to main road of village Dhakiya is being constructed by PWD, Najibabad and 11 teak (Sagwan) trees has been uprooted by Shri Anup Kumar, contractor’s, Supervisor and two other unknown person. Further, no permission was taken from Forest Department for felling of the trees.

(4) On above the matter, Range Forest Crime Case no. 13/Kaudia/2021-22 dated 25.10.2021 was registered by concerned department against the Anup kumar and two another unknown person under section 4/10 of Utter Pradesh Tree Protection Act, 1976. Copy is annexed as Annexure-5.

(5) Further, During investigation made by Forester Kaudia, the statement of accused Shri Anup Kumar s/o Shri Bhup Singh R/o of Khabariaghat, Post & Thana Bhagatpur, District- Moradabad was recorded. Further, he confessed his guilt and seek departmental decision and in continuation of that a fine of rupees 55,000/_ (Fifty Five Thousands) was imposed on the accused and the case was compounded. Copy is annexed as O.A. No. 451/2022 Anand Kumar Dhyani Vs. PWD & Ors.

-5- Annexure- 6.

(6) Conclusion-

During inspection it was observed that the contractor had uprooted 11 teak trees without obtaining necessary permission from the Forest Department and appropriate action has been taken by the concerned department.”

7) In view of the averments made in the Application and the observations in the Report of the Joint Committee, NGT considered it appropriate to seek the response of the Engineer-in-Chief, PWD, Uttar Pradesh, Mr. Anup Kumar, son of Mr. Bhup Singh, residing at Khabariaghat, Post and Police Station Bhagatpur, District Moradabad, and the concerned Contractor, Mr. Rakesh Kumar (whose particulars were furnished by the concerned Executive Engineer, PWD, Bijnor). They were impleaded as Respondents no. 2, 3 and 4 and Notices were issued to them.

8) During the hearing, the Applicant submitted that he had filed a Claim for compensation of Rs. 11,80,000 before the Divisional Forest Officer, Bijnor Forest Division, Najibabad. By Order dated 03.04.2023, the Divisional Forest Officer, Bijnor Forest Division, Najibabad, was directed to assess the market value of the 11 trees that were illegally cut, based on the rates adopted by the Forest Department, and submit his Report within one month.

9) The Report dated 01.07.2023 had been filed by the Divisional Forest Officer, Bijnor Forest Division, Najibabad, vide Email dated 01.07.2023.

10) It was also observed by the NGT that the Applicant also claimed that the soil was illegally dug out from his field for filling the land for construction of the road and vide Order dated 03.04.2023, the NGT directed the District Mining Officer, Bijnor to make an assessment of the value of the soil mined from the land of the Applicant as per the prevalent market values and submit his Report in a month. The Report dated 26.05.2023 had been filed by Inspector of Mines, Bijnor.

Issues:

I) Whether 11 Sagwan/Sagon trees were illegally cut by the Contractor engaged by PWD from the land in question as alleged by the Applicant?

II) Whether soil was illegally dug out by the Contractor engaged by PWD from the land in question as alleged by the Applicant?

III) Whether the Applicant is entitled to payment of any compensation for the same?

IV) If answer to question no. (iii) be in the affirmative what amount of compensation is payable and by whom?

OBSERVATIONS

1) In the present case, in view of the averments made in the original Application, the Tribunal, vide Order dated 05.07.2022, as modified vide Order dated 01.08.2022, constituted a Joint Committee comprising of the Principal Chief Conservator of Forests, Government of Uttar Pradesh, UPPCB, and the District Magistrate, Bijnor. The Committee was directed to meet within four weeks, undertake site visits, address the grievances of the Applicant, take requisite action by following due process of law, and file a factual and action taken report.

2) The Joint Committee visited the site on 24.01.2023 and submitted a Joint Inspection Report. In its Report, the Joint Committee found that a kacchi road located in village Murtzabad, Tehsil Nagina, District Bijnor, had been converted into a paved road by the Public Works Department. During the excavation of soil using mechanical equipment, 11 teak (Sagwan) trees situated along the road at gata no. 1/11mi in village Murtzabad were uprooted by the Contractor and found on the spot. A Range Forest Crime Case no. 13/Kaudia/2021-22 dated 25.10.2021 was registered by the concerned department against Mr. Anup Kumar and two other unknown persons under Sections 4/10 of the Uttar Pradesh Tree Protection Act, 1976. During the investigation conducted by the Forester of Kaudia, a statement from Mr. Anup Kumar, son of Mr. Bhup Singh, residing at Khabariaghat, Post and Police Station Bhagatpur, District Moradabad, was recorded in which he confessed his guilt. The case was compounded for Rs. 55,000/- (Rupees Fifty-Five Thousand only). The Joint Committee concluded that appropriate action had been taken by the concerned Department.

3) The Respondents did not file any objections against the Report of the Joint Committee for the observations of the digging of the soil and cutting of the trees. Even though in his Report dated 26.05.2023, the Inspector of Mines, Bijnor, mentioned that no signs of soil digging were found, and in the Report filed vide Email dated 30.09.2023, the District Magistrate, Bijnor, claimed that no soil was dug from the land in question, these assertions are contradicted by the Joint Committee’s Report. The Joint Committee found that 11 trees were illegally cut during the soil excavation. The claims made by the Inspector of Mines, Bijnor, and the District Magistrate, Bijnor, that no soil was dug from the land in question are not substantiated by any documents. On the other hand, the observations made in the Joint Committee’s Report regarding soil digging were supported by the copies of the Report from the Revenue Inspector, Nagina (Bijnor), the Range Forest Crime Case, the compounding amount payment receipt, and the statement of Mr. Anup Kumar. These documents, being of undoubted origin and authenticity, deserve due credence by the NGT.

4) It was also observed by the NGT that during the proceedings of the Range Forest Crime Case no. 13/Kaudia/2021-22 dated 25.10.2021, Mr. Anup Kumar admitted that on the same date, when soil was being excavated with a JCB for the construction of the road from Shankarpur to Dhakiya main road, soil was removed from the roots of some trees, causing them to fall down on the spot. This confession by Mr. Anup Kumar established the digging out of soil from the roots of the trees in question, which resulted in their falling due to the excavation process.

5) Based on the available evidence, it was determined that 11 Sagwan (Teak) trees were illegally cut down and soil was unlawfully excavated by the contractor employed by the PWD from the specified land. Therefore, Issue Number 1 and 2 were affirmed by NGT.

6) For the Issue Number 3, the Hon’ble NGT held that the Applicant was not co-owner of the land in question and was not duly constituted Attorney of his wife-Mrs. Saroj Dhyani, the Applicant was not entitled to payment of any compensation for illegal digging of soil and cutting of trees from the land in question.

7) As the decision to Issue Number 3 was negative, Issue Number 4 did not require determination of the compensation amount.

ORDER

The NGT disposed off the Original Application with the direction to the Divisional Forest Officer, Bijnor Forest Division, Najibabad as follows:

i) “to issue notices to respondents no. 1 to 4 requiring them to carry out compensatory plantation by planting and tending two tree in lieu of one tree cut in the forthcoming monsoon season on land in the vicinity or within such extended time and at such place as the Divisional Forest Officer, Bijnor Forest Division, Najibabad may allow and;

ii) in case of default by respondents no. 1 to 4 to carry out compensatory plantation, to cause such compensatory plantation to be carried out and to recover the costs of compensatory plantation from them as arrears of land revenue in accordance with law and;

iii) file his Action Taken Report within six months before the learned Registrar General, National Green Tribunal, Principal Bench, New Delhi who may, if necessary, put up the matter before the Bench for further directions.”

 

Kartik Khandekar

Senior Legal Associate

The Indian Lawyer & Allied Services