Allowed

Bhavak Parasher v. Smt Indu Walia Wo Ram Parkesh

NGT27 Aug 2024Original Application No. 807/2022

Case brief

AI extract

What is this about?

In an original application alleging hill-top removal and illegal tree felling, the NGT found no environmental violation regarding slope cutting but held respondent liable for illegal tree felling. It directed the State Pollution Control Board to impose environmental compensation and take remedial action.

What did the court decide?

HPSPCB directed to determine and recover environmental compensation from respondent within 3 months and take remedial action for environmental restoration.

Bhavak Parasher vs Smt Indu Walia Wo Ram Parkesh — Environment and Pollution | NGT (2024)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI

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ORIGINAL APPLICATION NO.807/2022 (I.A. NO.814/2023 AND I.A. NO.23/2023)

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IN THE MATTER OF:

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1. BHAVAK PARASHER

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Narain Niwas VPO Ambota Tehsil and District- Una State of Himachal Pradesh-177205 Present address for correspondence H.No 506, Giani Zall Singh Nagar, Rupnagar, Punjab-140001

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...Applicant

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Verses

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1. SMT. INDU WALIA W/o Ram Parkesh Singh, Director, Group Colonizers Private Limited, Resident of H. No. 108, Vasant Vihar, Rakkar Colony, Tehsil and District-Una Himachal Pradesh-174303

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2. DEPUTY COMMISSIONER, UNA Office of the Deputy Commissioner Una, District-Una Himachal Pradesh-174303

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3. MEMBER SECRETARY Special Area Development Authority-Assistant Town Planner, District-Una Himachal Pradesh-174303

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4. DISTRICT FOREST OFFICER Ramnagar District-Una Himachal Pradesh-174303

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5. ENVIRONMENT ENGINEER

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Himachal Pradesh State Pollution Control Board Regional Office, Phase-IV, Rakkar Colony, Tehsil and District-Una Himachal Pradesh-174303

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6. DISTRICT MINING OFFICER Una Mining Officer O/o Mining Officer, Distt. Industries Office Una, District-Una Himachal Pradesh-174303

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...Respondent(s)

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COUNSELS FOR APPLICANT(S):

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Applicant in Person

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COUNSELS FOR RESPONDENT(S):

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Mr. Ravi Bakshi and Mr. Manvendra Pratap Singh, Advocate for Respondent No. 1 (through VC)

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Mr. Anil Nag, Advocate for Respondents No. 2 to 4 and 6 (through VC) None for Respondent No. 5

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CORAM:

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HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE DR. AFROZ AHMAD, EXPERT MEMBER

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RESERVED ON: JULY 04, 2024 PRONOUNCED ON: AUGUST 27, 2024

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JUDGMENT

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BY HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER

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Bhavak Parasher, son of Late Gaja Nand Parasher, resident of H.No. 506, Zail Singh Nagar, Roop Nagar has come up before Tribunal in this Original Application (hereinafter referred to as ‘OA’ ) filed under Sections

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14, 15, 16 and 17 of National Green Tribunal Act, 2010 (hereinafter

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referred to as ‘NGT Act, 2010’ ) alleging that Smt. Indu Walia (respondent 1) is the owner of land, measuring 7.7 hectares, at Village-Mahalat, Tehsil and District-Una, State of Himachal Pradesh. The land is on hilly top. Respondent 1 has removed mountain top in the area measuring 7.7 hectares (206 Kanals) using bulldozers and loaders and has made it flat plateau. Muck has been buried across the streams and onward through bottoms of hills, she has uprooted centuries old core zones of biospheres, changed the topography and damaged the hilly topography of the area. Applicant made complaint to Divisional Forest Officer, Una vide letter dated 13.03.2019; to Deputy Commissioner, Una vide various letters dated 02.07.2019 and 15.07.2019 and to Environmental Engineer, Himachal Pradesh State Pollution Control Board (hereinafter referred to as ‘HPSPCB’ ) vide letter dated 22.07.2019. Some enquiries were made by the authorities concerned but no effective action was taken. Member Secretary, Special Area Development Authority (hereinafter referred to as ‘SADA’ ), District Una, State of Himachal Pradesh, however, issued an order dated 13.08.2019 under Section 39(2) of Himachal Pradesh Town and Country Planning Act, 1977 (hereinafter referred to as ‘HPTCP Act, 1977’ ) directing respondent 1 to stop unauthorised development of land over khasra nos. 2894, 2423/2475, 2874, 2861, 2863 and 2895 at village Malahat, Tehsil and District-Una. Applicant also filed a complaint no. HPRERA2022003 under Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ‘RERD Act, 2016’ ) before Himachal Pradesh Real Estate Regulatory Authority (hereinafter referred to as ‘HPRERA’ ) wherein an order was passed on 11.07.2022 (at page 31) by HPRERA, directing respondent 1 not to proceed with any sale etc. of the

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land in dispute without first getting the Project registered with HPRERA.

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The relevant extract of the order reads as under:

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“The Authority considering all the facts and circumstances of the case holds that respondent shall not advertise, market, book, sell or offer for sale or invite persons to purchase in any manner any plot, apartment or building without first getting the project registered with this Authority as per the mandate of Real Estate (Regulation and Development) Act 2016. To conclude the respondent is barred/restrained from advertising, marketing, booking, selling or offering for sale or inviting persons to purchase in any manner any plot, apartment or building owned by respondent in Mauja Malahat, District Una, H.P. without getting the project registered with the Authority as per Section 3 of the Act ibid. Any violation of this order shall further entail per day penalty under Section 63 of the Act ibid.”

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Another order was passed on 27.09.2022 by HPRERA, observing that the Authority is satisfied that respondent 1 has sold 18 plots having more than 500 m² without having registration with the Authority under the provisions of RERD Act, 2016 and has violated the provisions of the said Act and, therefore, passed following order, restraining respondents from further sale of any plot etc.:

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“The Authority considering all the facts and circumstances of the case hereby holds that till further orders respondent shall not advertise, market, book, sell or offer for sale or invite persons to purchase in any manner any plot, apartment or building in aforesaid land without first getting the project registered with this Authority as per the mandate of Real Estate (Regulation and Development) Act. 2016. To conclude the respondent is barred/restrained from advertising, marketing, booking, selling or offering for sale or inviting persons to purchase in any manner any plot, apartment or building owned by respondent in Village Bhadolian Khurd, Patwar Circle Mauza Malahat, District Una, H.P. without getting the project registered with the Authority as per Section 3 of the Act ibid.

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The office of this Authority is directed to write a letter to Ld. District Collector Una intimating him of this order. The Ld. District Collector, Una to ensure compliance of these orders by further intimating the concerned Tehsildar about the absolute restraint on sale and

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purchase of plot, apartment or building by respondent in Village Bhadolian Khurd, Patwar Circle Mauza Malahat, Tehsil & District Una, H.P. till he gets the project registered with H.P.RERA. The Ld. Counsel for the respondent promoter is directed to submit his Vakalatnama to this Authority at the earliest.

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Further respondent is granted one last opportunity to file reply and also apply for registration in terms of the provisions of this Act, rules and regulation made there under failing which he shall be liable for penalty under Section 59 of the Act and also for per day penalty under Section 63 of the Act.”

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It is prayed that immediate mining activities should be stopped; the land should be restored to its original contour and the area of 7.7 hectares owned by respondent 1 be reserved as ‘Protected Area’ and she should be punished in accordance with law.

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Tribunal considered the complaint on 14.11.2022 and being primafacie satisfied that a substantial question relating to environment has arisen due to implementation of the enactments specified in Schedule I of NGT Act, 2010, issued notice to the respondents requiring them to file their responses.

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Reply dated 26.12.2022 filed by HPSPCB (respondent 5):

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HPSPCB, (respondent 5), pursuant to the notice issued on 14.11.2022, submitted reply dated 26.12.2022. It is said that for felling of trees, power to grant permission has been conferred upon Forest Department and not upon HPSPCB. The site was inspected by the officials of HPSPCB on 25.07.2019 and it was found that levelling of hills behind dhaba, next to Kalgidhar Furniture Rakkar, on the way to Una Rakkar National Highway was carried out with the help of JCBs and Pocklane machines. Since the complaint was basically relating to felling of trees

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and levelling of hill for unauthorised construction of colonies without permission of Competent Authorities, it was forwarded by HPSPCB to Divisional Forest Officer, Una; Member Secretary, SADA; and Mining Officer, Una. The Reply further said that respondent 1, the owner of the land had neither applied for consent under Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as ‘Water Act, 1974’ ) nor Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as ‘Air Act, 1981’ ) nor any such consent has actually been granted. Site was re-inspected on 15.12.2022 by the officials of HPSPCB but no activity of construction of colony/building/projects was found to have commenced and only land development/levelling work was carried out.

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Reply dated 17.01.2023 by Member Secretary, SADA, filed on 20.01.2023:

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Member Secretary, SADA i.e., respondent 3 has also filed reply dated 17.01.2023 stating that it detected on site inspection that unauthorized development of land bearing khasra nos. 2894, 2423/2875, 2874, 2861, 2862, 2863 and 2895 was carried out at village Malahat, Tehsil and District-Una by Smt. Indu Walia, daughter of Mohan Lal. Action under the provisions of HPTCP Act, 1977 was taken and notice under Section 39 was issued on 31.07.2019, followed by orders dated 13.08.2019, 02.09.2019 and 18.02.2020. In reply to the show cause notice, Smt. Indu Walia stated, vide her letter dated 03.07.2020, that the land in question situated at village Malahat was developed for personal use and plan for sub-division of land under HPTCP Act, 1977 shall be submitted later. Smt. Indu Walia, now, vide online application dated 31.12.2022, has applied for grant of permission/approval for sub-division of land situated at villageMalahat. The complaint dated 07.03.2022 of the applicant was examined

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and an Administrative Committee was constituted to conduct a joint site inspection. The inspection was conducted on 30.05.2022. Divisional Forest Officer vide letter dated 30.05.2022 informed that he found felling of several trees at the site and for illegal cutting of trees, a penalty of Rs. 1,01,000/- was imposed on the owner of land. A Criminal Case for illegal cutting of trees was also registered. Mining Officer vide letter dated 06.12.2022 (annexure R3/12 at page 99 of paper book) has informed that for plot development work, no permission is required under Himachal Pradesh Minor Minerals (Concession) and Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015 (hereinafter referred to as ‘HPMMC Rules, 2015’ ).

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Reply dated 16.01.2023 by Deputy Commissioner, Una, (respondent 2), filed on 21.01.2023:

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Respondent 2 i.e., Deputy Commissioner, Una has filed its reply dated 16.01.2023 stating that according to Jamabandi for the year 20152016 of Mohal Malahat, 06-61-65 hectares (172 Kanals 6 marlas) land is recorded in the name of Smt. Indu Walia, daughter of Mohan Lal. Further, as per Jamabandi for the year 2017-18 for Up Mohal Bharolian Khurd, 01-12-88 hectares (29 Kanal 8 marlas) land is recorded in the name of Smt. Indu Walia. As per Jamabandi for the year 2018-19, Up Mohal Mahalat Nagar, 1323-69 square decimetres (3 Kanals 9 marlas) land is recorded in the name of Smt. Indu Walia. Thus, a total 07-87-76 hectares (205 Kanals 3 marlas) land is recorded in the name of Smt. Indu Walia in Patwar Circle Mahalat, Tehsil and District-Una. As per report of Patwari, plotting has been made in Up Mohal Malahat Nagar but no plotting has been made in Mohal Mahalat and Mohal Bharolian Khurd. With regard to cutting of trees, referring to the Report of Forest Officer, it is said that 130

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trees of Japani Tut of different classes were found cut in the private land of Smt. Roshni Devi and Shri Kewal Krishan. These trees were found cut after obtaining proper permission from the Competent Authority. No illicit felling was detected on the spot. With regard to the complaint against Smt. Indu Walia, some trees of Japani Tut, Simbal and Tuni were found felled for which damage/penalty of Rs.1,01,000/- was imposed and recovered. It is not disputed that HPRERA has restrained respondent 1 from advertising/marketing, booking, selling or offering for sale or inviting persons to purchase, in any manner, any plot, apartment or building, in Mauja Malahat, District Una, without getting the project registered with HPRERA as per Section 3 of RERD Act, 2016. By order dated 22.07.2022, HPRERA has also directed Deputy Commissioner, Una to issue instructions to Sub-Registrar, not to register any sale deed in respect of the above disputed land of respondent 1.

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Reply dated 17.02.2023 filed on 24.02.2023 by respondent 1:

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Respondent 1 has stated that she is developing the land for personal use. She has raised a preliminary objection about locus standi of the applicant stating that the application is actuated with malice, ill will and personal enmity against the husband of respondent 1. Applicant implicated respondent 1’s husband in a criminal case on the charge of murder wherein he was acquitted, but thereafter, applicant is causing a continuous threat of physical harm to the respondent 1 and her family and to harass her, the present application has been filed. On the merits of the complaint, it is said that it is her personal property. It is just about 500 meters from the main Highway and behind certain showrooms. Lot of development on the side of the highway is going on and land in question

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is on the back side of those buildings. It is not a forest land. There are no mountains or hilly top as claimed. The allegation of destruction of hill top is baseless. The land is recorded in Revenue Records as ‘Kharetar’. Respondent 1 is within her right to level her own land for development as per law. She started developing the land much prior to 2011 and sold a part thereof to a number of people. However, such activities could not be carried out after the arrest of husband of respondent 1 in 2014 till he was released in November 2018. Thereafter, the applicant started making false complaints so as to cause prejudice and harassment to respondent 1. She has applied for registration before HPRERA in accordance with law and would proceed accordingly after the approval granted by Competent Authority. 05 Japani Tut, 02 Toon plants and 02 Simble trees were found cut by respondent 1 illegally for which a fine of Rs. 500/- was imposed on her. Levelling of land is not prohibited under any law and it does not cause any damage to environment.

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Rejoinder dated 22.03.2023 filed relating to response of respondent 2 (Deputy Commissioner, Una) and filed in Tribunal vide e-mail dated 11.04.2023:

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It is said that a writ petition is pending in High Court of Himachal Pradesh wherein Smt. Indu Walia is a party. The applicant made first complaint on 13.03.2019 but no survey of the land in question was conducted. Bulldozers/JCBs kept on levelling of hill top by uprooting the trees but Forest Department took action on 29.04.2022, after receiving complaint of the applicant, i.e., almost after 03 years and that too, by deploying a very junior officer of Forest Department. Penalty of only Rs. 25,000/- on each of the 04 parties was imposed which is nothing but a show business. Respondent 2 has not been able to show any survey

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conducted regarding levelling of hill top. Even Patwari report is solely based on Smt. Indu Walia’s statement dated 15.07.2019. No action was taken by Deputy Commissioner, Una though it is custodian of 55 hectares of permanent pasture which is at the risk of environmental degradation. The proceedings were initiated before HPRERA due to the efforts made by the applicant only. Letter dated 17.12.2022 from Deputy Commissioner, Una to SADA shows that the site in question was not approved for construction of project then why cut and fill work of hill at such a mass scale was allowed to continue. Inspection dated 15.12.2022 conducted by Deputy Commissioner, Una shows land development/levelling work was carried out at the site still quantum of cut and fill work was not investigated. In fact, 20 plots were sold from the land in question and permission for another 110 plots for construction was sought from HPRERA. Administration deliberately closed its eyes and favoured Smt. Indu Walia to damage environment of further area comprising of 55 hectares of permanent pasture under the ownership of Government.

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Rejoinder dated 22.03.2023 filed in reply to the response of respondent 3 i.e., Member Secretary, SADA/Assistant Town Planner, Una:

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It is said that no inspection was ever made to confirm whether hill was levelled beyond 3.5 meters i.e., against laid norms or not. Applicant has thus prayed that an Expert Committee of Environmentalist be constituted to make spot inspection regarding levelling of hill top, blocking of natural rain water flow and its consequences on surrounding/permanent pasture after colonising middle point in jungle by way of cutting and cooping of hills.

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Rejoinder Affidavit dated 24.03.2023 by Applicant in Reply of Respondent 1:

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Applicant has filed rejoinder dated 24.03.2023 in reply to the response of respondent 1 but nothing new has been stated therein except that Tribunal may constitute a fact finding Committee to bring on record the facts related to development of land by levelling hill top/removing jungles etc.

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Rejoinder dated 24.03.2024 in reply of respondent 5 i.e., HPSPCB filed by applicant vide e-mail dated 11.04.2023:

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Nothing substantial has been stated in the rejoinder except that HPSPCB cannot escape from its responsibilities by stating that HPSPCB is not directly involved in the matter since environmental degradation is directly linked to the Department of HPSPCB and it is a case of environmental loss.

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13. Tribunal’s Order dated 14.07.2023: These pleadings were

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considered by Tribunal on 14.07.2023 but it did not find itself satisfied with the reply given by respondents and hence observed that since the allegations are with regard to cutting and feeling of trees and levelling of hill top in violation of environmental rules, without any authority, accordingly, Tribunal constituted a Joint Committee comprising District Magistrate, Una; Divisional Forest Officer, Una; and representative of HPSPCB and directed it to visit the site and submit a factual and action taken Report within three months.

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Joint Committee Report dated 08.09.2023:

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Pursuant thereto, Joint Committee has submitted Report vide e-mail dated 08.09.2023. Joint Committee’s Report shows that after site inspection conducted by members of Joint Committee on 16.08.2023 and the observations made thereunder, Deputy Commissioner, Una issued following directions to the concerned officers/stakeholders:

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The Divisional Forest Officer Una will submit his detailed report within a week regarding felling of trees on the site alongwith their species and also mention in his report as to whether the said private respondent No.1 has taken prior approval/permission from the Forest Department for felling of trees and if taken under which provisions/rules the permission has been granted by the Forest Department. If not taken then what action has been taken by the Forest Department against the said private respondent No.1.

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The Assistant Town & Country Planner Una will submit his detailed formal report including photographs of the site within a week as per their norms about extent of cutting of hills and state as to what extent the cutting has been taken place on site.

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The Regional Officer, H.P. State Pollution Control Board Una will submit his detailed report within a week alongwith norms as to whether the cutting of hills has been made violating the relevant Environment Rules.

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The Mining Officer Una will submit his report within a week as per mining norms in respect of site.

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The Tehsildar Una will submit his detailed report within a week after getting the land demarcated mentioning therein ownership of land, developed & undeveloped area and greenery alongwith map showing access to the site. He will also report regarding existence of natural chois on the site and status of compliance of orders issued by RERA.

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The above named applicant Shri Bhavak Parasher and Smt. Indu Walia will submit additional documents/information in support of their versions, if any.”

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Pursuant to the above directions, concerned Departments submitted their Reports which are noticed in Joint Committee’s Report. The content of the said Report, as well as conclusions drawn by Joint Committee are reproduced as under:

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“C. Departments Reports

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In compliance to aforesaid directions issued by the Deputy Commissioner Una during the course of joint inspection dated 16.08.2023, the concerned departments have submitted their reports which are as under: -

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(i) The Deputy Conservator of Forests Una Forest Division Una vide his office letter No.5808 dated 26.08.2023 (copy annexed as Annexure C-I) has reported that 130 trees of Japani Toot of different classes were found felled in the private land of Smt. Roshni Devi Wd/o Sh. Babu Ram and Sh. Kewal Krishan S/o Sh. Gian Singh R/o Malahat during the year 2019. All these trees were found felled after obtaining proper permission from the competent authority and the produce of these trees were exported with proper permission . No illicit felling was detected on the spot. He has also reported that during month of May, 2022 Indu Walia, Harsimar Singh, Ravi Kumar, Sucha Singh and Jasbir Singh were leveling their private land on which some trees of Japani Toot, Simbal and Tuni were found felled. The Forest field staff had chalked out damage reports and recovered an amount of Rs.1,01,000/- as penalty from the offenders .

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(ii) The Assistant Town Planner Una-cum-Member Secretary, Special Area Development Authority Una vide his office letter No. SADA (Una)-NGT New Delhi-O.A. -807/2022-2020 dated 24.08.2023 (copy annexed as Annexure C-II) has reported that the land is being developed in the shape of Colony. The proposal for Sub-division of land comprising Ithasra No. 2871, 2873/1, 2874, 3423/2875, 2878, 2879, 2893, 2894, 2895 Mohal Malahat Tehsil & District Una into 145 Nos of residential plot & 115 Nos of commercial plots has also been received from Smt. Indu Walia. The land owner has carried out the

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cutting of Land/hill at Site. It is observed from the "Cut Slope" that the height of cutting of land towards Eastern and Northern side of land developed at Site is averagely 8.00 mtrs and 6.00 mtrs respectively, from the ridge of “Cut Slope” (photographs and Site Plan attached). He has further reported that the development of land attracts the provisions of the Appendix-7 of the Himachal Pradesh Town and Country Planning Rules, 2014 and as per said Appendix the hill cut shall be of max.3.50 mtrs. The “Cut Slopes” available at site reflect less width of mounds at their peaks. The height of mounds reduces & width increases gradually .

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(iii) The Mining Officer Una vide his office letter No. Udyog (Bhu)LaghuUNA-0A 807/2022 dated 24.08.2023 (copy annexed as Annexure C-III) has reported that as per the Himachal Pradesh Minor Minerals (Concession) Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules 2015 mineral concession over private land is granted in form of mining lease & over Government land the concession is granted by Auction only. In present case the land is private land and project proponent has neither applied for mineral concession nor any mineral concession is granted by him. Only cut and fill work over private land was observed by the Committee. There is no provision in the Himachal Pradesh Minor Minerals (Concession) Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2015 for granting permission of plot development work .

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(iv) The Regional Officer, H.P. State Pollution Control Board Una vide his office letter No. HPSPCB/RO/Una/OA 807 of 2022/2023:1455-56 dated 23.08.2023 (copy annexed as Annexure C-IV) has reported that during inspection on 16.08.2023, no activity of construction of colony/building/projects was found started yet and only land development/leveling work was found being carried out at the site. He has also reported that the contents in the subject cited matter is related to issues of felling of trees and leveling of hill top/ land development for sale of plots by respondent No. 1. The felling/cutting of tress is regulated by Forest Department under Indian Forest Act, 1927/ Forest Conservation Act, 1980 and the State Board has no mandate under these Acts. Further, the State Board has no mandate to grant permission with respect to the issues of land development and sale of plots . So far as issue of cutting of hills for leveling/development of land, the said issue is regulated by planning laws. The site in question falls under the ambit of Special Area Development Authority (SADA) Una, H.P. and the Assistant Town Planner has apprised during the joint

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inspection that the site in question has not been approved by SADA for construction project. At present, neither the owner of the land has applied for consent of the Board for construction of building project nor the State Board has granted consent to any project under Water Act, 1974 and Air Act, 1981 at the site in question . The State Board shall keep vigil on the site and ensure compliance of Water Act, 1974 and Air Act, 1981 in case of any commercial building project is constructed at the site.

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(v) The Tehsildar Tehsil Una vide his office letter No.416/RC Una dated 30.08.2023 (copy annexed as Annexure C-V) has submitted his detailed report according to which as per jamabandi for the year 2020-2021 of Mohal Malahat, Tehsil & District Una the land in question comprised in Khasra Nos 3667/2858, 2859, 2860, 2861, 2862, 2863, 2870, 2871, 2873/1, 3151/2874, 3152/2874, 3153/2874, 3154/2874, 3421/2875, 3422/2875, 3423/2875, 2878, 2879, 2893, 3547/2894, 3548/2894, 3842/3549/2894, 3843/3549/2894, 2895 kitta-24 measuring 11-96-98 hectare. Out of total land measuring 11-96-98 hectare, 05-16-49 hectare is recorded in the name of Smt. Indu Walia and rest of the land is recorded in the names of the other owners and it is recorded in jamabandi for the year 2020-2021 of Mohal Malahat Tehsil & District Una as Khadetar . Further, out of the total land i.e. 1196-98 hectare, only 08-34-50 hectare land is developed. The Tehsildar Una has reported that the stagnant water was found over the land bearing Khasra No. 2896 measuring 0-46-30 nctare, kisam khadetar which is recorded in the name of Daulat Ram son of Kansi Ram son of Dasaundhi and others and in column of possession Hariya & ors are recorded as Gair Marusi. There is no choi & nala existing in the land developed by the respondent Smt. Indu Walia . However on the western side of the said land, a choi existing over the Khasra No. 2850 measuring 0- 07-16 hectare and a Gair Mumkin Chala existing over the land bearing Khasra No. 3156/2876 measuring 0-03-45 hectare and a Gair Mumkin Nala existing over the land bearing Khasra No. 3155/2876 measuring 0-00-60 hectare. The flow of these aforesaid water sources is not blocked . He has further reported that the stay order issued by the RERA has been implemented in the relevant revenue record by entering Rapat No. 544 stay RERA dated 24.07.2022 which has also been reflected online.

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(vi) The above named applicant Shri Bhavak Parasher vide his letter dated nil received in this office on 29.08.2023 (copy annexed as Annexure C-VI) has submitted that his letter dated 03.08.2023 may be considered as additional documents/information in support of his version. He has also submitted that the topographical

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images from Govt. Remote sensing agency of area from year 2018 onwards may be procured to access real time images of Topographical changes done by respondent No.1 Smt. Indu walia. Further Existence of Choe area may be got investigated from revenue record of 1985. Since then lot of manipulation seem to have been done in recent years as present records do not match actual status on ground. As per his earlier letter dated 03.08.2023, a complete topography of area shall reveal that the entire area is an area for rain harvesting/water conservation/rain catchment area very important to control floods.

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(vii) The private respondent No.1 i.e. Indu Walia has submitted in her reply dated 28.08.2023 (copy annexed as Annexure C-VH) that she has already applied for the codal permission from the TCP and RERA and at the relevant time she is not involved in sale/purchase of any land from her private land to any individual. There is already a stay in operation from RERA to sale the property without prior permission of concerned department. At the cost of repletion, it is again submitted that no sale has been taken place without approval from her land. While leveling her private land she has not destroyed/blocked any natural path way of water nor does any water pathway ever existing on her land . No inlet or outlet of water was ever existing over her land which is seen by naked eyes at the spot, even by the joint committee which inspected the spot. In fact natural any path way of water (Choi) exists far away towards western side of her land and the same exists in Khasra No.2876 & 2850 etc. She has never changed the topography of her land. Her land was in shape of uneven land and she has only leveled the said land to develop the same which was shown as Khadetar . The land developed is below the level of N.H. which falls within the distance of 500 meters from N.H. and the work done/ made by her had not affected any individual, public at large and not even against the public policy prevailing at the relevant time and even the same has not changed the topography of the land. She had taken care of all the norms made by the all concerned and leveled her land in a scientific manner. She has not made any cutting of any hills as alleged by the complainant in his original application. Since her land was in a zig-zag shape and uneven on the spot and she has only leveled the same as per norms . This way she has not flouted any norms issued by the different departments. She has also submitted that the original application filed by the complainant is outcome of the personal enmity and the same was filed by the complainant just to settle his personal scores. Even her husband had to face allegations of Section 302 IPC at the instance of complainant in which her husband was acquitted by the competent court of law. Complainant was also accused in criminal case as the complainant alongwith his associations had mercilessly

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beaten her husband although, the complainant was also acquitted by the learned Court. At the cost of repetition, even the complainant has also filed an application under Section 319 Cr. PC to implead her as an accused which was rightly rejected by the learned Sessions Judge Una and the complainant had assailed the said order before the Hon’ble High Court of H.P. and the Hon’ble High Court of H.P. confirmed the order passed by the learned Sessions Judge Una. The original applicant has assailed the judgment of acquittal of her husband passed by the learned Sessions Judge Una before the Hon’ble High Court of H.P. Shimla and the same is pending before the Hon’ble High Court of H.P. Shimla. She has further submitted that besides aforesaid litigation, the wife of the complainant has also filed as Civil Suit against her husband which is presently pending before the learned Civil Judge, Court No. IV, Una. D.

¶100

D. Conclusion

¶101

1. During the spot visit, the Committee observed that an area of 08-34-50 hectare has been developed by Respondent No.1 & others private owners for commercial purposes out of which 05-16-49 hectares belongs to respondent No.1 and vegetation has been removed from thereon . The surrounding area has natural vegetation intact. The Deputy Conservator of Forests Una Forest Division Una has reported that penalty of Rs. 1,01,000/- has been levied and recovered by the Forest Department from Indu Walia, Harsimar Singh, Ravi Kumar, Sucha Singh and Jasbir Singh for felling trees of Japani Toot, Simbal and Tuni without permission.

¶102

2. No ‘choi’ or ‘nala’ has been found recorded in the revenue record pertaining to the land developed by the Respondent No.1 as per the report submitted by the Tehsildar Una. A choi exists over the Khasra No. 2850 measuring 0-07-16 hectare recorded in the ownership of State Government of Himachal Pradesh. A Gair Mumkin Chala exists over the land bearing Khasra No. 3156/2876 measuring 0-03-45 hectare and a Gair Mumkin Nala exists over the land bearing Khasra No. 3155/2876 measuring 0-00-60 hectare but these land parcels are in the ownership of other private persons namely Avtar Singh S/o Raghuveer Singh & ors. As per the report of the Tehsildar Una, the flow of water in these choi/ nala has not been found obstructed . During the visit of the Committee the petitioner has shown stagnant water accumulated on one side of land of the Respondent No. 1

¶103

¶104

regarding which the Tehsildar Una has reported that the stagnant water was found over the land bearing Khasra No. 2896 measuring 0-46-30 hectare, kisam khadetar which is recorded in the name of Daulat Ram son of Kansi Ram son of Dasaundhi and others and in column of possession Hariya & ors are recorded as Gair Marusi. This is not a ‘choi’ or ‘nala’ as per the revenue record but the water is accumulating in this land as the level of this land is below the land developed by Respondent No.1 . The issue of drainage of this stagnant water can be solved if Respondent No. 1 provides drainage outlet through the portion of developed land along its outer edges, as and when permitted to develop the land further.

¶105

3. The Committee found that the land has been developed by cutting hill slopes since the cutting is visible on spot at four sites around the edge of the land . The ATCP has reported that it is observed from the “Cut Slope” that the height of cutting of land towards Eastern and Northern side of land developed at site is averagely 8.00 mtrs and 6.00 mtrs respectively, from the ridge of “Cut Slope” (photographs and Site Plan attached). He has further reported that the development of land attracts the provisions of the Appendix-7 of the Himachal Pradesh Town and Country Planning Rules, 2014 and as per said Appendix the hill cut shall be of max. 3.50 mtrs. Therefore, the cutting of hill slopes is more than the statutory limits. It is on record that the Respondent No. 1 has developed the land measuring 05-16-49 hectares without obtaining the applicable statutory permissions . On observing the unauthorized development of land by the private respondent No.1, the Town & Country Planner had initiated proceedings under Section 39 of the Himachal Pradesh Town & Country Planning Act, 1977 and issued notice under sub Section (1) of Section 39 of the Himachal Pradesh Town & Country Planning Act, 1977 to the private respondent No.1 i.e. Smt. Indu Walia wherein she was directed to restore the land to the condition existing before the development took place and to stop and discontinue the development operations i.e. further construction work. A stay order has been issued by RERA in respect of land in question (enclosed as Annexure D-I) which has been implemented in the revenue record for compliance.”

¶106

Applicant has filed certain documents vide e-mail dated 06.11.2023 which shows that HPRERA imposed penalty of Rs.21,00,000/- upon respondent 1 vide order dated 10.10.2023.

¶107

¶108

Report dated 11.09.2023 filed by Regional Officer, HPSPCB:

¶109

Regional Officer, HPSPCB has also submitted Report vide letter dated 11.09.2023 filed on the same date wherein the contents are verbatim reproduction of Joint Committee’s Report dated 08.09.2023, therefore, we are not repeating the same.

¶110

I.A. No.814/2023 filed vide e-mail dated 06.11.2023 by applicant:

¶111

This is an application seeking stay on the creation of housing colony and restoration of natural habitats. Since we have heard finally and deciding it vide this judgment. At this stage, no separate order is required to be passed in this I.A.

¶112

Response dated 07.05.2024 by Respondent 1 to Joint Committee Report dated 08.09.2023:

¶113

Respondent 1 has filed response dated 07.05.2024 to the Joint Committee Report dated 08.09.2023 stating that there is no levelling of hill top as alleged by applicant but only cutting of slope i.e., ‘Cut Slope’ which is governed by the provisions of Himachal Pradesh Town and Country Planning Rules, 2014 (hereinafter referred to as ‘HPTCP Rules, 2014’ ).

¶114

With the consent of the parties, we have heard the matter finally.

¶115

Learned Counsel appearing for applicant contended that the land in question is on hill top and the mountain top has been removed by respondent 1 covering an area of 7.7 hectares using bulldozers and loaders and it has made flat, plateau. Muck comprising boulders, stones etc. recovered from the hill top cutting and levelling activities has been buried

¶116

¶117

across the streams or by throwing on the hill slope disturbing the entire mountainous ecology, damaging hills’ topography and causing environmental degradation. The above activities have been carried out by respondent 1 and noticed by various authorities on spot inspection still no effective, punitive and remedial action has been taken and thereby environment have been allowed to be damaged. No activity for restoration/rejuvenation has been undertaken by any of the respondents including HPSPCB which is a Statutory Regulator and has the responsibility of taking action for restoration of environment wherever it is being damaged by anyone.

¶118

Per contra, Learned Counsel for respondent 1 vehemently contended that Una is on the foot of the hills and is a plain area like any other contiguous city of Punjab. The norms of hills cannot be applied thereat. Reliance is placed on HPTCP Rules, 2014 and its Appendix to show that “hill cut” upto maximum 3.50 meters is permitted. Regulation 27 of HPTCP Rules, 2014 has been quoted in the response submitted by respondent 1 as under:

¶119

“27- Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines.

¶120

In case of any clarification with reference to any proviso or if there is no any specific provision, the provisions as envisaged in the Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines, 2014 of the Government of India or the National Building Code, 2005 of India shall have to be adhered to.

¶121

It is said that National Building Code defines hilly area as any area above 600 meters in height from main sea level.

¶122

¶123

The area in question, it is claimed is at the elevation of 400 meters from main sea level and consist of mounds only but no hills. It is said that in view of the above definition, it is clear that the concept of hill top cutting and levelling in the manner the term ‘hill’ is understood, in the light of National Building Code, cannot be said to be an actual “Cut slope of hilly area” and the entire complaint is without any substance.

¶124

Learned Counsel appearing for official respondents relied on the joint inspection Committee’s Report and stated that the area in question is private land of respondent 1 and some others. Only cut and filling work of private land was found, in respect whereof, provisions of HPMMC Rules, 2015 are not applicable. No permission is required for plot development work. So far as cutting of trees is concerned, it is said that trees were found felled after obtaining proper permission from Competent Authority and produce of these trees was also exported with proper permission and there was no illicit felling of trees detected on the site.

¶125

Learned Counsel appearing for respondents 2 to 4 and 6 further stated that no material was found to show that any boulder/stone/muck has been discharged or buried across the stream or on hill slopes and applicant has not placed any material on record to substantiate this allegation.

¶126

ISSUES:

¶127

In view of the rival submissions, following issues, in our view, have arisen which require adjudication by this Tribunal:

¶128

¶129

(I) Whether the activity of cutting of slope and levelling of the area in question has resulted in environmental degradation and that too, in violation of environmental laws?

¶130

(II) Whether respondent 1 has cut trees illegally causing damage to environment? And,

¶131

(III) Whether applicant is entitled for any relief?

¶132

We propose to first consider issue I.

¶133

ISSUE I:

¶134

The case of applicant is that the land in question is part of the hill topography being a hill top. It has been cut and levelled by respondent 1 to make it a plateau and thereby topography of the land has been changed which has resulted in degradation of the environment. With regard to muck, it is said that this has been buried in stream or hill slope.

¶135

From the allegations made by applicant, it is clear that it is not a case of illegal mining. The mining operations are defined in Section 3(d) of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as ‘MMDR Act, 1957’ ) which reads as under:

¶136

“ Definitions.

¶137

3. In this Act, unless the context otherwise requires:-

¶138

(d) “mining operations” means any operations undertaken for the purpose of winning any mineral ;”

¶139

¶140

Though, the resultant muck from the activities of cutting of hill top and levelling may include stones etc. and may be covered by the definition of Minor Minerals as defined in Section 3(e) of MMDR Act, 1957 but the activities of disposal of muck, if any, does not satisfy the definition of mining operations unless the purpose of operation is winning of any mineral which is not even the allegation of the applicant.

¶141

Now coming to the question, whether cutting and levelling of the area amounts to slope cutting of hill top, Learned Counsel for respondent 1 has placed reliance on National Building Code which defines ‘Hilly Area’ in view of Regulation 27 of HPTCP Rules, 2014. Applicant has not stated anywhere and could not dispute, during the course of argument, that from the definition of ‘hill area’ in National Building Code 2005, which is attracted due to Regulation 27 of HPTCP Rules, 2014, the height of Una is not above 600 meters from main sea level and therefore, it does not come within the definition of “Hilly Area”. Even thereafter, if we treat that there is a small hillock and the area thereof is levelled or some slope is cut, whether it is, per se, illegal or requires any statutory permission from some authority. At least we do not come across any such provision and applicant is also not able to show any such provision during the course of the argument which would attract in the case in hand.

¶142

Assistant, Town Planner-cum-Member Secretary, SADA in its Report has said that Cut Slope of hill top is permissible upto a maximum 3.5 meters but for that purpose, relied on the provisions of Appendix 7 of HPTCP Rules, 2014. If those provisions are applicable, then since Una does not satisfy the requirement of “hilly area” as per Regulation 27, the said restriction also would not be attracted.

¶143

¶144

It is the specific case of official respondents including Mining Officer and Regional Officer, HPSPCB that no construction activity has been carried out by respondent 1 hence they did not find any activity causing detriment/damage/deterioration to the environment. In absence of such findings, we find it difficult to take a view that respondent 1 is indulged in such activity which is causing damage to environment.

¶145

Moreover, respondent 1, Smt. Indu Walia, in her reply dated 17.02.2023, filed vide e-mail dated 24.02.2023, in para 4, has clearly said that she started developing the land much before 2011 and sold a part of land to number of people. No activity was undertaken by her from 2014 to November 2018. Thereafter, applicant started making complaints against respondent 1 to various authorities. Therefore, she pleaded in para 5 that the application is not only mala-fide but barred by limitation also.

¶146

In the rejoinder affidavit, applicant in para 4 has simply denied the claim of respondent 1 and para 5 has been replied by stating that respondent applied for registration only after HPRERA sent a notice for violation of HPRERA laws. Therefore, with regard to the activity which were undertaken by respondent 1 prior to 2011 or 2012, we find that those activities are apparently barred by limitation and no remedy is available under Section 14 and 15 of NGT Act, 2010 before Tribunal.

¶147

Since there is nothing on record to show as to what activities were undertaken prior to 2011 and what further activities have continued within the period of limitation from the date when OA was filed in 2022, we find it difficult even otherwise to take any notice of the complaint particularly when with regard to development i.e., cutting and levelling, it

¶148

¶149

is the specific case of respondent 1 that it was completed prior to 2011 and applicant has not placed anything to show that the said averment is not correct.

¶150

However, for the purpose of answering issue I, we have considered the same on merits also and we do not find that in the facts and circumstances and material placed before us, it can be said that respondent 1 has violated any environmental laws and norms which require interference by this Tribunal.

¶151

39. Issue I is accordingly answered against the applicant .

¶152

ISSUE II:

¶153

This issue pertains to allegation of illegal cutting of trees by respondent 1.

¶154

Learned Counsel for respondent 1 initially suggested that there is no restriction under any law with regard to cutting of trees like Japani Tut, Simbal and Tuni particularly in respect of the ‘prohibited areas/land’ in State of Himachal Pradesh and in any case in Tehsil and District-Una. However, we find that Government of Himachal Pradesh, Department of Forest issued order no. FFE-B-A(3)-4/99 dated 10.09.2002 in exercise of powers under Section 4 of Himachal Pradesh Land Preservation Act, 1978 to regulate, restrict, prohibit, throughout the area in Himachal Pradesh (except the areas falling within the limits of Municipal Corporation, Municipal Councils, Nagar Panchayats, Cantonment Boards), as specified in Schedule appended to the said order, certain acts for a period of thirty years from the date of publication of the said order and clause I thereof imposes restriction on cutting of trees and reads as under:

¶155

¶156

“1. The cutting of trees or timber and removal thereof in such areas shall be prohibited.

¶157

Provided that there will no restrictions on the number of trees to be felled for purposes of banafide domestic uses of fodder and fuel.

¶158

Provided further that the owners may for their bonafide domestic and agricultural use fell three trees of ________ chil tress, and in case of chil and other trees five trees each year without permission and upto ten trees with the written permission of the Range Officer concerned and more than ten trees with written permission of the Divisional Forest Officer concerned. In case of bamboos there shall be no restrictions on number to be felled for bonafide domestic purposes or for use in their own cottage industries.

¶159

Provided further that the trees for sale shall be felled in accordance with the ten Years felling programme which shall be framed by the officers of the Forest Department and approved by the State Government and the trees shall be felled after obtaining the permission of the following authorities, namely:-

¶160

(a) for khair, bamboos & other miscellaneous broad leaves species:-

¶161

No. of trees Competent authority of grant Permission to fell the trees.

¶162

(1) (2) -upto 200 trees in a year Divisional Forest Officer concerned. -above 200 trees in a year concerned Conservator of Forest

¶163

(b) for all other species.

¶164

-upto 50 trees in a year. concerned Divisional Forest Officer -upto 100 trees in a year. concerned Conservator of Forest -upto 200 trees in a year. Principal Chief Conservator of Forests, Himachal Pradesh

¶165

-above 200 trees in a year. Himachal Pradesh Government

¶166

Provided further that any person felling the trees either for, domestic or agricultural use or for sale shall be required to plant at least three trees for one tree felled. In case, however, a fruit orchard is planted in such area, it shall be planted according to the norms laid down by the horticulture Department, Himachal Pradesh for complete stocking of the area.

¶167

¶168

The said order deals with the manner in which permission of cutting

¶169

of trees is to be granted and reads as under:

¶170

“2. After the permission to fell the trees is given by competent authority under para 1 of the order, the Divisional Forest Officer concerned shall issue felling order:

¶171

Provided that the felling of bamboos shall be regulated according to three years felling programme, which shall be framed by the officers of the Forest Department and approved by the State Government and that the permission for felling of bamboos for sale shall be granted by the Divisional Forest Officer concerned in accordance with 3 years felling programme.

¶172

3. The forest produce passing out of the areas permitted for felling of trees may be checked by any Forest Officer and no forest produce shall be extracted by any person without obtained an expert pass obtained from the Divisional Forest Officer concerned.

¶173

4. The authority competent to grant permission for felling of trees may, while granting permission, impose such conditions as it may deem necessary in the interest of forest conservancy and to avoid misuse of the forest produce so extracted.

¶174

5. Notwithstanding anything to the contrary contained in the foregoing paragraphs, the State Government may, by general or special order, allow the cutting or removal of any tree or class of trees subject to such condition as it may deem fit to impose, wherever it is expedient to do so in the public interest i.e. for the purpose of;

¶175

(a) grant of Nautor land; or

¶176

(b) consolidation of holdings; or

¶177

(c) dry/fallen trees.

¶178

6. In case the trees are not feeling within the prescribed year, the Principal Chief Conservator of Forests may extend the period upto one year in the following circumstances:-

¶179

(i) where the process of demarcation of land and marking of trees have been completed during the prescribed year of felling and felling orders stand issued by the Divisional Forest Officer

¶180

¶181

concerned, but felling of trees has not been done or has been done partly; and

¶182

(ii) where process of demarcation of land and marking of trees has been completed during the prescribed year of felling but felling orders have not been issued.

¶183

Explanation: “Prescribed year” means the financial year in which trees are to be felling in respect of the particular area in accordance with ten years felling programme approved by the State Government.

¶184

7. In all other cases other than those mentioned in sub-paras (i) and (ii) of para 6 of this order, the competent authority to grant permission to fell the trees may allow felling of trees, irrespective of approved ten years felling programme of the concerned area, in the following circumstances, namely:-

¶185

(i) where trees have fallen or have dried due to natural calamities, disease or insect attack etc. and their retention may result in loss of value;

¶186

(ii) where the land holdings in a particular revenue estates are under consolidation operations, the year following the one in which these operations have been concluded shall be treated as prescribed year of felling;

¶187

(iii) where Government/private land has been acquired or leased or purchased or transferred for a public purpose such as creation of infrastructure facilities or laying of irrigation and water supply lines or transmission lines or any other conveying systems or setting up of industries, hydro-power projects, tourism resorts or educational institutions or any other facilities which are in the public interest, and

¶188

(iv) where the Government of India’s approval for diversion of the forest land for non-forest purposes has been received.

¶189

8. In all cases (other than those mentioned in paras 6 & 7 of this order), where demarcation of land and marking of trees have not been done during the prescribed year in accordance with the approved ten years felling programme, permission to demarcate the land, marking and felling of trees may be granted beyond prescribed year of felling by the;

¶190

¶191

(i) the Principal Chief Conservator of Forests upto one year; and

¶192

(ii) State Government upto two years subject to their being satisfied that sufficient reasons exist for granting such permission.

¶193

9. Where the permission has bene granted under para 8 of this order, the Divisional Forest Officer concerned, after demarcation of land and marking of trees shall issue felling order accordingly;

¶194

10. Application for demarcation of the land from which felling is proposed to be done may be filed before the Divisional Forest Officer concerned one year in advance from the prescribed year of felling and the Divisional Forest Officer concerned may process the care for demarcation of land.

¶195

11. In no case advance felling of trees shall be permitted before the prescribed year as fixed in the approved ten years felling programme;

¶196

12. In order to complete the felling and extraction of trees from private areas within the prescribed year of felling and not to seek frequent extensions, extension fee shall be levied on the balance number of trees/volume of trees/volume to be felled in the following rates:-

¶197

1. 2.	Scheduled species Rs. (sta Khair Rs.	100/- per cubic meters nding volume) 30/-per meter Girth (MG
3.	Broad leaves species Rs.	10/- per cubic meter.”

¶198

Schedule of the said Notification in respect of Una at Serial no. 9 reads as under:

¶199

Schedule

¶200

Sl.No.	District	Notification No. and date under Section 3	Tehsil	Villages
(1) xxx……	(2) ………………	(3) …………xxx…………	(4) ………….…	(5) ……………xxx

¶201

¶202

9. Una No.15-4/71-SF (1) Amb. Whole of 30^th May, 1979 (2) Bangana. private areas (3) Una. in these Tehsils

¶203

An amendment has been made in the said order by Himachal Pradesh Government Forest Department’s order dated 08.02.2021 and first and second proviso in para 1 have been substituted by the following:

¶204

“ पैरा-1 का संशोधन ।

¶205

उक्त आदेश के पैरा 1 में –

¶206

(क)प्रथम परन्तुक के स्थान पर ननम् न िखित रिा जाएगा, अथाात ्ः-

¶207

'परन्तु यह नक वृक्ों की ननम् न िखित प्रजानतयों को काटने (नगराने) पर कोई प्रनतषेध या प्रनतबन्ध नहीं होगा्ः-

¶208

क्रम संख्या	प्रजानतयों का स्थानीय नाम	प्रजानतयों का वानस्पनतक नाम
1.	कािा नसररस/ओई/ नसररस	अिनबजीया प्रजानत
2.	सफेदा	यूकैनिप्टस प्रजानत
3.	पॉपिर	पॉपिस डेिनटयॉनडस
4.	भारतीय नविो/बीयूस	सानिक्स प्रजानत
5.	बैम्बू क्लमस / िाठी बास / मग्गर / धरेंच / बांस	डेन्ड्रोकेिेमस स्ट्रीक्टस / डेन्ड्रोकेिेमस हेनमिटोनी / बैम्बुसा न्युटेन्स / बैम्बुसा बैग्यु
6.	पेइक / कोई / कोश / कुननस / कुननश / नयून	एिनस नननटडा
7.	खिड़क/िड़की	1:-सेिनटस औरस्ट्रेनिस 2:-सैिनटस टेटरेन्ड्रा
8.	दरेक/बनकन	मेनिया एजादारच

¶209

¶210

9.	फगूडा / फेगुडा / त्यामि / नतमिा / नतरमि / अंजीरी / किस्ट्र नफग / गुिर	फाइकस प्रजानत
10.	तून	तूना नसनियेटा
11.	टीक/ संगुन / सागवान	टेक्टोना ग्राखन्ड्स
12.	अजुान	टरनमनेनिया अजुाना
13.	सेमि / शिमाटास	बोम्बैक्स नसबा
14.	नबहूि / बेयूि / नभमि / नभयूनि / धमन	ग्रेनबया प्रजानत
15.	पाजा / पदम	प्रुनस नसरासस
16.	कामिा / रैनी / रोहण / रोनहन / नसन्दूरी	मेिोटस नफिीपैखन्स
17.	आम (वानणखिक / नवजातीय / उन्नत प्रजानत)	मैंगीफेरा इंनड़का
18.	ररष्टक/रीठा/डोडे	रोनपंडस मुकोरोसाई
19.	बान (अनधकतम पांच वृक्ों तक)*	क्यूरकस नियोक्टरीकोफोरा

¶211

नटप्पण्ः- उपरोक्त वनणात वृक्ों की प्रजानतयों का उपयोग अनन्यत्ः घरेिू प्रयोजन के निए नकया जाएगा और प्रत्येक वषा में इन प्रजानतयों के अनधकतम पांच वृक् ही काटे / नगराये जा सकेंगे,

¶212

(ि) नितीय परन्तुक के स्थान पर, ननम् न िखित रिा जाएगा, अथाात्ः-

¶213

“परन्तु यह और नक ननजी भूनम पर उगे हुए पीपि (नफक्स रेिोनजयोस), बरगद (नफक्स बन्गािेखन् स ), और आम (वाइल्ड जेनोटाइप) (मैंगीफेरा इंनडका) के हरे वृक्ों के सड़क चौड़ा करने, जान-माि को ितरा पैदा करने वािे ितरनाक वृक्ों और वास्तनवक घरेिू उपयोग, नजसके निए सम्बद्ध वन मण्डि अनधकारी अनुज्ञा प्रदान करने के निए सक्म प्रानधकारी होंगे, के नसवाय काटने (नगराने) पर पूणा पाबंदी होगी। ” ।

¶214

English Translation by Tribunal:

¶215

“Amendment of Para-1.

¶216

In para 1 of the said order –(a) for the first proviso, the following shall be substituted, namely:-

¶217

Provided that there shall be no prohibition or restriction on the

¶218

¶219

cutting (felling) of the following species of trees:-

¶220

Sr. No.	Local name of the species	Botanical name of the species
1.	Black Siris/Oei/ Siris	Albizia species
2.	Safeda	Eucalyptus species
3.	Poplar	Populus Deltiodis
4.	Indian Willow/Beus	Salix species
5.	Bamboo Clams/ Lathi Bass/Muggar/Dharench/ Bamboo	Dendrocalamus strictus/Dendrocalamus hamiltoni/Bambusa nutans/Bambusa bagyu
6.	Peik/Koi/Kosh/Kunis/ Kunish/Nayun	Alnus nitida
7.	Khidak / Khidki	1:-Celtis australis 2:-Sailtis tetrarandra
8.	Darek/Buckin	Melia azhdarach
9.	Faguda/Feguda/Tyamal /Timla/Tiramal/Anjiri/Cluster Fig/ Gular	Ficus species
10.	Toon	Toona ciliata
11.	Teak/ Sangun / Teak	Tectona grandis
12.	Arjun	Terminalia arjuna
13.	Semal / Shalamatas	Bombax siba
14.	Bihul/Beyul/Bhimal / Bhiunal / Dhaman	Grebea species
15.	Paja /Padam	Prunus cirrhasus
16.	Kamala/Raini/Rohan/Rohin / Sinduri	Melotus philippensis
17.	Mango (Commercial / Variety / Improved Varieties)	Mangifera indica
18.	Rishtak / Reetha / Dodas	Ropindus mucorosae

¶221

¶222

19. Baan (up to a maximum of five Curcus leoctricophora trees)*

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*Note:- The tree species mentioned above shall be used exclusively for domestic purposes and a maximum of five trees of these species may be cut/felled each year.

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(b) for the second proviso, the following shall be substituted, namely:-

¶225

“Provided further that there shall be complete prohibition on felling of green trees of Peepal (Ficus religiosa), Banyan (Ficus bengalensis) and Mango (wild genotype) (Mangifera indica) growing on private land, except for road widening, dangerous trees posing a threat to life and property, and bona fide domestic use for which the concerned Divisional Forest Officer shall be the competent authority to grant permission.”.

¶226

In the present case, land falls in village Mahalat which comes within Tehsil Una and therefore restriction imposed in the aforesaid orders are applicable for cutting of trees in the said area.

¶227

The names of the trees which have been found cut illegally by respondent 1 are not mentioned in the proviso of para 1 of the aforesaid order and therefore contention otherwise advanced by Learned Counsel for respondent 1 cannot be accepted.

¶228

Proceeding further with issue II, it is clear from the record that certain number of trees were cut after obtaining proper permission from concerned Authority and produce of trees were also exported with proper permission. In May 2022, it was reported that respondent 1 and some others while levelling their private land caused felling of some trees of Japani Tut, Simbal and Tuni which apparently was without any permission.

¶229

¶230

Forest Authorities imposed penalty of Rs. 1,01,000/- upon respondent 1. Thus, it clear that some trees have been cut by respondent 1 illegally and that being so, cutting of those trees has resulted in damage to environment in as much as the natural benefits including release of air improvement gases by the trees is bound to damage environment. Hence, to this extent, it cannot be doubted that respondent 1 has committed violation of environmental laws.

¶231

HPSPCB unfortunately has relied only on the penalty imposed by Forest Department which constitutes the cost of the tree and not the environmental compensation which is leviable for the damage caused to the environment and not cost of the trees. Here we have no manner of doubt that HPSPCB authorities have failed in discharging their duties when they knew that some trees have been illegally cut yet environmental compensation has not been imposed upon respondent 1 and no other punitive action has been taken.

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50. Issue II is answered accordingly and in favour of applicant.

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ISSUE III:

¶234

In view of the findings recorded by Tribunal in respect of issue II, it cannot be doubted that respondent 1 is liable to pay environmental compensation. The concerned authorities of HPSPCB are also under an obligation to take punitive and remedial action against respondent 1 for causing damage to environment due to illegal cutting of trees.

¶235

HPSPCB, therefore, is directed to take necessary action in the light of the observations made above, determine environmental compensation for the damage caused to environment due to illegal cutting of trees and

¶236

¶237

recover the same from respondent 1 in accordance with law within a period

¶238

of 03 months.

¶239

It will also take appropriate, punitive and remedial action for restoration of environment which has been damaged due to illegal felling of trees by respondent 1 by taking such remedial steps as are necessary in the facts and circumstances of this case.

¶240

A compliance Report shall be submitted by HPSPCB on or before 15.12.2024 to Registrar General of this Tribunal, who, if finds necessary, shall place the matter before Bench for further order, if any is required.

¶241

Issue III is answered accordingly.

¶242

OA is party allowed in terms of the observations and directions given as above.

¶243

Pending IAs stand disposed of.

¶244

SUDHIR AGARWAL, JUDICIAL MEMBER

¶245

DR. AFROZ AHMAD, EXPERT MEMBER

¶246

August 27, 2024 Original Application No.807/2022 R

¶247

Bhavak Parasher v. Smt Indu Walia Wo Ram Parkesh

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Bhavak Parasher v. Smt Indu Walia Wo Ram Parkesh

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