Disposed

All Kerala River Protection Council, [Reg. NO.1052/98/EKM] v. the District Collector

Kerala HC5 Apr 2023WP(C)/11672/2021

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a writ petition concerning the massive felling of trees for road construction and footpath development. The court held that statutory provisions were complied with by the user agencies, citing high compensatory planting rates by the NHAI, and found no need for further adjudication.

What did the court decide?

The writ petition was disposed of as statutory provisions were found to have been complied with and no further adjudication was required.

All Kerala River Protection Council, [Reg… — Pension and Retirement Benefits | Kerala HC (2023)

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WP(C) NO. 11672 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 5^TH DAY OF APRIL 2023 / 15TH CHAITHRA, 1945

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WP(C) NO. 11672 OF 2021

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PETITIONER:

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ALL KERALA RIVER PROTECTION COUNCIL, [REG. NO.1052/98/EKM] RAMA PRIYA, HIGH ROAD, ALUVA - 683 031, REPRESENTED BY ITS GENERAL SECRETARY, T.V.RAJAN, S/O.APPUTTI, AGED 68 YEARS, SAMSKRITHI, KUTHIRAVATTOM P.O., KOZHIKODE DISTRICT, PIN - 673 016. BY ADVS.DAISY A.PHILIPOSE JAI GEORGE

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR, COLLECTORATE, WAYANAD ROAD, CIVIL STATION P.O., KOZHIKODE, PIN - 673 020.

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2 THE TREE COMMITTEE CORPORATION OF KOZHIKODE, OFFICE OF THE CORPORATION OF KOZHIKODE, CALICUT BEACH, NEAR AKASHVANI, KOZHIKODE DISTRICT, PIN - 673 032, REPRESENTED BY ITS CHAIRMAN.

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3 THE ASSISTANT CONSERVATOR OF FORESTS SOCIAL FORESTRY DIVISION, VANASREE, MATHOTTAM P.O., KOZHIKODE DISTRICT, PIN - 673 028.

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4 THE ASSISTANT EXECUTIVE ENGINEER OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, ROADS SUB DIVISION, NORTH SECTION, CIVIL STATION P.O., PIN - 673 001.

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BY ADV SHRI.V.KRISHNA MENON, SC, KOZHIKODE MUNICIPAL CORPORATION

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BY ADV.NAGARAJ NARAYANAN SPL GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated this the 5^th day of April, 2023

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S.MANIKUMAR, CJ

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Petitioner in this writ petition is stated to be a voluntary organization registered under the Travancore-Cochin Scientific, Literary and Charitable Societies Registration Act, 1955, for discharging the fundamental duties of citizens of India as envisaged under the Constitution of India, especially for the protection of rivers in the State. In this public interest writ petition, petitioner is highly concerned about the massive felling of healthy trees growing on the side of the Karaparambu – Kundooparambu road for the construction of a footpath.

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The reliefs sought for in the writ petition are as under:

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i. Issue a writ of mandamus directing the respondent's No. 3 and 4 not to cut the trees, growing on the side of the KaraparambuKundooparambu road In Kozhikode District for the Construction of footpath.

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ii. Issue a writ of mandamus directing the respondents No.2 to 4, to ensure and monitor the planting and nurturing of equal number of trees which have been destroyed for the various developmental activities as mentioned in ExhibitP4 immediately.

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According to the petitioner, earlier there was a proposal

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for felling 200 trees for the purpose of widening the road and for the construction of a footpath. Against this, the petitioner filed a

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complaint before the second respondent – the Tree Committee, Corporation of Kozhikode. Thereupon, the members of the Tree Committee conducted a local inspection and after evaluating the facts, it was decided to cut 5 trees and to lop the branches of 6 trees, with a condition that 10 times trees should be planted. Accordingly, the 4^th respondent had cut and removed 5 huge trees and lopped the branches of 6 trees. However, 10 times the number of felled trees is not planted so far.

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It is contended by the petitioner that the 3^rd respondent – the Assistant Conservator of Forests, Social Forestry Division, Kozhikode, had been issuing permission for felling trees on the side of the roads, for widening the roads and for the connected activities.

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According to the petitioner, there is no mechanism to monitor, whether the trees are planted and nurtured. As a result, in most of the areas, after the felling of trees there is no effective replantation.

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On 15.06.2021, the Hon’ble Division Bench of this Court has passed the following order:

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“Learned counsel appearing for the respondents, in unison, inform the Court that the cutting and felling of trees is still at preliminary stages and permissions as required, are yet to be either granted or received by their respective clients. Unless and until the

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permissions are received and placed before the Court for further consideration of the issue, no precipitative action resulting in cutting or felling of trees would be undertaken.

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The statement is accepted and placed on record. Post the case on 01.07.2021.”

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The Assistant Conservator of Forests, Social Forestry Division, Vanasree, Kozhikode District, respondent No.3, has filed a detailed counter affidavit dated 06.02.2023, along with supporting documents, wherein in paragraphs 4 to 10, it is stated as under:-

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“A. For the purpose of development and modernization of East Hill Ganapathikkave – Karaparambu Road felling of 79 trees standing on either side of the Karaparambu Kunduparambu road became necessary and permission for felling of the trees was submitted to the 3^rd respondent Assistant Conservator of Forest, Social Forestry Division, Kozhikode on 16.1.2018. The Tree committee constituted as per the GO (Rt) No.68/2010 F&LWD Dated 10.2.2010 (Ext P3 in the writ petition), considered the above application and permission was granted to cut and remove 5 tress completely and to lop the branches of 6 trees vide order dated 18.04.2018.

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B. Thereafter, for the purpose of developing the said road, in terms of the standard fixed by Kerala Infra Structure Development Fund Board, and for constructing footpath, and also to avoid danger from the standing trees to the travellers, the 4^th respondent submitted another

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application for cutting and removing 89 tress form either side of the said road. Even though initially the said application was rejected, on the basis of the request of the 4^th respondent dated 01.06.2020 the matter was again considered by the Tree committee held on 18.01.2021 and having found that the trees which were standing dangerous to the users of the foot path and other travellers, decided to review the earlier order and directed the 4^th respondent to find out places for compensatory planting of trees.

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C. Thereafter, the 3 members of the Tree committee visited the location and having found that 17 trees on the right side of the road and 15 trees standing on the left side were standing dangerous to the travelling public and users of pathway, recommended that cutting and removal of those trees were inevitable for the convenience of the traveling public and also recommended for chopping the branches of 28 trees on the right side and 19 trees on the left side of the road. Considering the above report it was decided to grant permission subject to the orders of this Hon'ble court to cut and remove the trees listed along with the order subject to the conditions mentioned in the order. A true copy of the proceedings of the Assistant Conservator of Forests, Social Forestry Division, Kozhikode who is the Convener of the Tree Committee vide ref No E-387/2020 dated 28.06.2021 is produced herewith and marked as Exhibit-R3(a).

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D. It is further submitted that since the above writ petition was spending, no further action was taken on the basis Ext R4(a) proceedings. Now one Mr. Dilish C.M, residing at "Shell", Pavangad, Calicut and Mr. Sivanandan, residing at "Vallil House", Koonayil Parambu, Kuruvissery have filed complaints stating that the trees standing in front

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of the gate and house of their residence and office are standing in a dangerous position causing danger to their lives and also causing hindrance for taking their vehicles etc. On enquiry it was found that their complaints are correct and certain other tress were also found to be standing dangerous and causing threat to the lives of the travellers. True copies of the complaints filed by the above said Mr. Dilish C.M and Mr. Sivanandan along with photograph of the trees are produced herewith and respectively marked as Exhibit-R3(b) and Exhibit-R3(c). True Copies of the Photographs of the other 8 tress standing dangerous and causing threat to the lives of the travellers along the side of the said road are produced herewith and marked as Exhibit-R3(d).

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E. It is further submitted that, the State Human Rights Commission has suo motu taken a case on the basis of an accident caused by hitting of a lorry on the branches of a tree protruding and slanting into Kakkuzhipalam Road resulting in injury to two persons. The State Human Rights Commission has directed respondents 3 and 4 herein to submit report regarding the said accident. True Copy of the interim order dated 24.01.2022 issued by the Hon'ble State Human Rights Commission is produced herewith and marked as Exhibit-R3(e).

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F. It is further submitted that the trees which are standing dangerous and causing threat to the lives of the travellers as evidenced by Ext R3(b), Ext R3(c) and Ext R3(d) are liable to be cut as the same is posing immediate threat to the travelling public as well as causing danger of annoyance to the public in general. If the said tress are not cut and removed with immediate effect, the same may cause

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danger to the public. So in the said circumstance, this court may be pleased to permit the cutting and removal of the trees which are standing as danger to the lives of the public and also causing obstruction to the public to use the pathway and road.

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G. It is further submitted that as per Ext.R3(a) proceedings compensatory planting of 10 times the number of trees which are permitted to be cut is provided as a condition for granting permission for cutting. In the circumstance it is prayed that this court may be pleased to consider the above submissions and documents and may be pleased to allow cutting the trees which are standing dangerously and causing threat to lives of travelling public or else irreparable injury and hardship will be caused.”

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Referring to Section 4 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, and the answer furnished by the State Public Information Officer, Office of the Assistant Forest Conservator, Social Forest Division, Kozhikode dated 30.03.2021 (Ext.P2 addressed to Mr.T.V.Rajan, General Secretary, Kerala River Protection Council, Kozhikode) Mrs. Daisy A. Philiphose, learned counsel for the petitioner submitted that, though trees were permitted to cut by the authority, respondents are bound to replace the same, by replanting ten times of the trees cut in the same place or any other suitable place, which, according to her, has not been done.

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In this context, Section 4 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 is reproduced:

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“4. Duties of Local Self Government Institutions -

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Not-withstanding anything contained in any other law for the time being in force, the Local Self Government Institutions shall promote tree growth in non-forest areas and be responsible for,--

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(a) the cultivation of saplings in the lands owned or transferred or vested in them;

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(b) carrying out census of the existing trees;

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(c) development and maintenance of nurseries, supply of seeds, saplings and trees at reasonable prices to persons, who are required to plant new trees or to replace trees which have been felled;

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(d) getting the trees planted or transplanted which are necessitated by the construction of buildings, new roads or widening of existing roads or for safeguarding danger to life and property;

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(e) organizing demonstrations and extension services for the purposes of this Act and assisting private and public institutions in connection with the planting and preservation of trees;

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(f) undertaking or executing such schemes or measures, as may be directed, from time to time, by the Government for achieving the objects of this Act.”

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Rule 7 of the Kerala Promotion of Tree Growth in NonForest Areas Rules, 2011 is extracted hereunder:

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“The Custodian of the non-forest areas owned, controlled or vested in the Local Self Government Institutions shall submit to the Authorized Officer, an

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application in form No.V for felling and transportation of specified tree proposed to be cut or fallen there from, giving full particulars of the land such as location sketch and survey sketch and details of the trees.

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[2] On receipt of such application, the Authorized Officer shall within seven days from the date of receipt of the application, refer the same to an Advisory Committee consisting of the following members, namely:

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[A] The Mayor of a Municipal corporation or a chairperson of the Municipality or the President of a Grama Panchayath in whose jurisdiction the tree proposed to be felled is standing;

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[b] The Authorized Officer having jurisdiction over the area;

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[c] One or more representatives of reputed Nongovernmental Organizations nominated by the Government for each District;

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(d]One representative of the Department of Agriculture not below the rank of Assistant Director of Agriculture nominated by the Principal Agriculture Officer in- charge of the district.

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[3] The Committee shall inspect the trees proposed to be cut or fallen and the land on which the trees are standing and shall take a decision on the application submitted by the custodian of the land and record reasons thereof.

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[4] the decision of the committee shall be taken as far as possible unanimously or by majority of the members inspecting the field and shall be communicated to all the members irrespective of the fact that whether they were present or not during the inspection.

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[5] Three members will constitute the quorum of the Advisory Committee

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[6] The Authorized Officer shall communicate the decision of the committee to the applicant within a week from the date of inspection granting or rejecting the permission to fell the tree or transport the timber.

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[7] The Advisory Committee shall insist the custodian of the land to plant and nurture at least equal number of saplings of local tree species in the same or nearby locality. On a perusal of Exhibit-P4 it can be seen that though large number of trees had been felled for various developmental activities, the equal number of saplings of local tree species in the same or nearby locality has not been planted, till date as there is no mechanism to monitor, whether the trees are planted and nurtured. As a result, in most of the areas in Kozhikode District, after the felling of trees, there is no effective replantation.”

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When the matter came up for consideration on

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20.03.2023, we passed the following order:

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“On instructions, Mr. V. Tek Chand, learned Senior Government Pleader, submitted that National Highways Authority of India has cut 2354 trees. As per Section 4 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, departments were directed to plant and conserve 10 times the trees cut down in the same place or any other suitable place.

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On instructions, learned Senior Government Pleader further submitted that National Highways Authority of India has planted 23561 saplings. Said submission is placed on record.

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For the purpose of record, learned Senior Government Pleader is directed to file statement, with supporting documents.

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Post on 31.03.2023.”

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Pursuant to the direction of this court, on 20.3.2023, a detailed statement has been filed by the first respondent – the District Collector, Kozhikode, dated 30.03.2023, wherein it is stated as under:

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“A. It is submitted that the above writ petition is filed by inter-alia praying for issuance of a writ of mandamus directing respondents No. 3 and 4 not to cut the trees growing on the side of the Karaparambu-Kundooparamba road in Kozhikode District for the construction of foot path.

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B. It is further submitted that a detailed counter affidavit dated 06.02.2023 has been filed wherein it was stated that for the development and modernization of East – Hill Ganapathikkave – Karaparambu Road, felling of 79 trees standing on either side of the Karaparambu – Kunduparambu road became necessary and permission for felling of the trees was submitted to the 1^st respondent on 16.01.2018. The Tree Committee constituted as per the G.O.(Rt.) No.68/2010 F&WLD dated 10.02.2010 (Ext.P3 in the writ petition), considered the above application and permission was granted to cut and remove 5 trees completely and to lop the branches of 6 trees vide order dated 18.04.2018.

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C. It is further submitted that an application by the 4^th respondent for cutting and removing 89 trees from either side of the aforestated road has been filled and the said application was rejected. It is also stated therein that on the basis of a subsequent request of the 4^th respondent dated 01.06.2020, the tree committee held on 18.01.2021 decided

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to review the earlier order after finding that the trees sought to be cut and removed were dangerous to the users of foot path and road. Further, the tree committee visited the location and found that 17 trees on the right side of the road and 15 trees on the left side of the road were causing danger to the users of foot path and traveling public. There upon Ext.R3(a) order was issued with conditions and specific direction that permission would be subject to the interim order passed in the above matter by this Hon'ble Court dated 15.06.2021 and the judgment to be passed by this Hon'ble Court in the matter.

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D. Thereupon this Court as per order dated 06.03.2023 has directed to get instructions as regards the steps taken for re-planting trees/saplings in terms of the statutory provisions and answer given to the petitioner under the Right to Information Act.

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E. It is further submitted that as per GO (Rt) No.172/2010/F&WLD dated 21.04.2010, the user agency should plant and protect compensatory plants at the ratio of 1:10. A reading of Annexure-R1(a) would show that it is the responsibility of the user agency to undertake compensatory afforestation in the ratio of 1:10. Further in the cutting permission orders issued by the Assistant Conservator of Forests as per the decision of tree committee, it was the user agency, PWD has to plant 10 times the tree cut down in the same place or any other suitable place. Further the user agency has to either prepare an undertaking in this regard and sent to the office of the Assistant Conservator of Forests or ensure that compensatory planting are done in the ratio of 1:10. Further, in the Tree Committee meeting conducted for taking a decision on cutting of trees for developmental

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works, the user agencies were also made to participate. It is further submitted that as the regards the averments made in the paragraph 3 of the Writ Petition, the National Highway Authority of India (NHAI) has undertaken compensatory planting in lieu of cutting of 2,354 trees along NH66 Kozhikode Bye Pass – Vengalam to Ramanattukara by planting 23,561 seedlings in 2021 in various Government Institutions and aided institutions. It is also submitted that the other user agencies like PWD wing of the Government and LSGD's are to action positively to compensatory planting. For the foregoing reasons, 1^st respondent prayed for dismissal of the writ petition.

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G.O.(Rt.) No. 172/2010/F&WLD. dated 21.04.2010 [Annexure-R1(a)], issued by the Secretary to the Government, Forest and Wildlife (E) Department, Government of Kerala, is reproduced hereunder:

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“GOVERNMENT OF KERALA

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Abstract

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FOREST AND WILDLIFE DEPARTMENT - TREES GROWN ON LANDS AT THE DISPOSAL OF GOVERNMENT REGULATIONS ON FELLING AND DESTRUCTION - CORPORATION/MUNICIPALITY/PANCHAYAT LEVEL COMMITTEE - NOMINATION OF REPRESENTATIVES DISTRICT WISE REPUTED NGO'S - ORDERS ISSUED

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---------------------------------------------------------------------------------FOREST AND WILDLIFE (E) DEPARTMENT

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G.O.(Rt.) No. 172/2010/F&WLD.

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Dated, Thiruvananthapuram, 21^st April, 2010

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---------------------------------------------------------------------------------Read:- 1. G.O.(Rt.) No. 68/2010/F&WLD dated 10-122010.

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Letter dated 4-3-2010 from the Principal Chief Conservator of Forest (SF), Thiruvananthapuram.

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In the GO. read above as a measure against indiscriminate cutting of trees grown on Government

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land and to conserve tree growth, Government have constituted Committees at Corporation/ Municipality/ Panchayat level and prescribed procedures for the purpose of taking a decision on felling of trees grown on lands at the disposal of Government. It is also specified that one or more representatives of reputed Non-Governmental Organizations (NGOs) will be nominated in the Committees as members from the concerned districts.

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In the letter second cited the Principal Chief Conservator of Forest (SF) has forwarded a list of NGO's to be nominated in each committee from the district concerned.

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Government have examined the matter in detail and are pleased to accord sanction to the Principal Chief Conservator of Forest to nominate one or more members of the Non Governmental Organization from each district wise list appended to this Government order in the committees constituted in the Corporation/Municipality/Panchayat for the purpose, subject to the condition that Government is at liberty to include/exclude one or more representatives of NGO's to the committee after the constitution and the user agency should plant and protect compensatory plants at the ratio of 1:10

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By order of the Governor,

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Dr. W. R. REDDY Secretary to Government.”

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On instructions, Mr. V. Tek Chand, learned Senior Government Pleader, submitted that National Highways Authority of India have cut 2354 trees. He also submitted that as per Section 4 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, departments were directed to plant and conserve 10 times the trees cut down in the same place or any other suitable place. Material on record shows that the same has been done.

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Learned Senior Government Pleader further submitted

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that National Highways Authority of India has planted 23561 saplings. Said submission is placed on record.

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Giving due consideration to the above, we are of the view that statutory provisions and orders issued by the State Government have been complied with. No further adjudication is required. Accordingly, writ petition is disposed of.

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SD/S.MANIKUMAR CHIEF JUSTICE

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SD/MURALI PURUSHOTHAMAN JUDGE

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jesxxxxxx

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APPENDIX

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PETITIONER’S EXHIBITS:

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EXT.P1: A TRUE COPY OF QUERY SUBMITTED BEFORE THE 4TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT AND ITS REPLY DATED 25.6.2020 ISSUED BY THE PUBLIC INFORMATION OFFICER, WITH ITS TRANSLATION.

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EXT.P2: A TRUE COPY OF QUERY DATED 15.3.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT AND ITS REPLY DATED 30.3.2021 ISSUED BY THE PUBLIC INFORMATION OFFICER, WITH ITS TRANSLATION.

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EXT.P3: A TRUE COPY OF G.O.(RT)NO.68/2010/F&WLD DATED 10.2.2010.

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EXT.P4: A TRUE COPY OF REPRESENTATION DATED 11.2.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, WITH ITS TRANSLATION.

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EXT.P5: A TRUE COPY OF REPRESENTATION DATED 11.2.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, WITH ITS TRANSLATION.

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RESPONDENTS’ EXHIBITS:

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EXT.R3(a): TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT CONSERVATOR OF FORESTS, SOCIAL FORESTRY DIVISION KOZHIKODE VIDE REF NO.E-387/2020 DATED 28.6.2021 ALONG WITH ENGLISH TRANSLATION OF THE DOCUMENTS.

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EXT.R3(b): TRUE COPY OF THE COMPLAINT FILED BY DILISH.C.M. WITH PHOTOGRAPH OF TREES ALONG WITH ENGLISH TRANSLATION OF THE DOCUMENT.

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EXT.R3(c): TRUE COPY OF THE COMPLAINT FILED BY MR.SIVANANDAN WITH PHOTOGRAPH OF TREES ALONG WITH ENGLISH TRANSLATION OF THE DOCUMENT.

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EXT.R3(d): TRUE COPY OF THE PHOTOGRAPHS OF THE 8 TREES STANDING DANGEROUS AND CAUSING THREAT TO THE LIVES OF THE TRAVELLERS ALONG THE SIDE OF THE ROAD.

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EXT.R3(e): TRUE COPY OF THE INTERIM ORDER DATED 24.1.2022 ISSUED BY THE HON’BLE STATE HUMAN RIGHTS COMMISSION ALONG WITH ENGLISH TRANSLATION OF THE NEWSCLIPPING.

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// TRUE COPY //

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P.S. TO JUDGE

All Kerala River Protection Council, [Reg. NO.1052/98/EKM] v. the District Collector

Case brief

What is this about?

What did the court decide?

All Kerala River Protection Council, [Reg. NO.1052/98/EKM] v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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