Review application filed challenging an order on environmental degradation and tree felling due to alleged wrong interpretation of 'Hilly Area'. Tribunal rejected review as grounds amounted to rehearing and error barred by limitation.
Application for review of the order is rejected; no further relief granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Item No. 01
Court No. 2
BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Review Application No. 22/2024 In Original Application No. 807/2022 Bhavak Parasher Applicant Versus Smt. Indu Walia & Ors. Respondent(s)
Date of hearing: 07.01.2025
CORAM: HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER ` HON’BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant : None Respondent: None
ORDER
Parasher stating that a wrong interpretation has been given to the term ‘Hilly Area’ and he has taken grounds of review as under:-
May it please your lordship:
That three issues were decided and subsequent decisions were arrived at
as detailed below
(Para 27 page 22 of judgement ANX D) Page 43 of Doc
Issue I is accordingly answered against the applicant
(Para 39 page 25 of judgement ANX D) Page 46 of Doc
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(Para 27 page 22 of judgement ANX D) Page 43 of Doc
Issue IT is answered accordingly and in favour of applicant
(Para 50page 34 of judgement ANX D)Page 55 of Doc
(iii) Whether applicant is entitled for any relief?
(Para 27 page 22 of judgement ANX D) Page 43 of Doc Issue III is answered accordingly.
(Para 55 page 35 of judgement ANX D) Page 56 of Doc
Grounds of review on ISSUE No 1
The Main issue is of denial existence of hills in Malahat Distt Una specially the area in dispute in OA 807.Which is not a fact, even one percent. As the entire area in dispute falls under definition of any area with average slope of 30°.Even today the immediate touching/adjacent area to disputed area has slops more than 60°or more. This fact cannot be overlooked/ignored with open eyes by the way of argumentative jugglery of defendant advocate.
Images and 9 photographs attached ANX F to prove my point in review. Page 804 - 812 of Doc
My submission before your lordship is that issue No 1 was decided on the grounds of incomplete citation of law laid in (by representing learned Advocate of R-1 Induwalia)
Page 158 of Chapter 5.5.1. ANX F Page 246 of Doc
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Page 621 of Doc
Definition laid down in above two documents (ANXF&G) i.e.
Any area above 600 m in height form mean sea level may be classified as hilly. or any area with avenge slope of 30* may also be classified as hilly, considering the sensitive and fragile ecosystem of hills and mountains. However, the State Governments may identify and notify areas to be covered under `Hilly Area', which need to be dealt with special consideration, when developmental activities are taken up.
Representing learned Advocate of R-1 InduWalia has misled the court by making incomplete citation of rules laid down by URDPF and national building code i.e. Any area above 600 m in height form mean sea level may be classified as hilly, but mentioned no reference of rest of law laid down i.e. or any area with average slope of 30* may also be classified as hilly. considering the sensitive and fragile eco-system of hills and mountains. However, the State Governments may identify and notify areas to be covered under `Hilly Area'. which need to be dealt with special consideration, when developmental activities are taken up.
Following is an observation in judgement onPara32 of page 24 of Judgement ANA D: Page 44 of Doc
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 trill 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
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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.
(Para 32 page 23 of judgement ANX D) Page 44 of Doc
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.
Page 15 para ii of Judgement Page 34 of Doc
(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 MohalMalahat Tehsil & District Una into 145 Nos of residential plot & 115 Nos of commercial plots has also been received from Smt InduWalia. The land
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owner has carried out the 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 netts 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 Para 3.Page 18 of part of judgement: Page 39 of Doc Clearly mentions of violation of 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 :And further disobedience of proceedings u/s 39 of HPTCP Act 1977 by Respondant No 1.
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 tut 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 &
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Country Planning Act, 1977 to the private respondent No.1 i.e. Smt. InduWalia 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.
Page 20 Para 22 of Judgement. Page 41 of Doc 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:
"27Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines. In case of any clarification with reference to any proviso or U. 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.”
Page 20 Para 23 of Judgement. Page 41 of Doc
It is said that National Building Code defines hilly area as any area above 600 meters in height from main sea level.
Page 21 Para 24. Page 42 of Doc
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 defmition, it is clear that the concept of hill top cutting and levelling in the manner the term 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.
Page 22 Para 29 of Judgement. Page 43 of Doc
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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.
Page 23 Para 33 of Judgement. Page 44 of Doc
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.
Additional clarification on the issue of Para No 36 Page 24 of Judgement underlined below Page 45 of Doc
(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.)
Page 35 Para 24of Judgement. Page 45 of Doc
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.
Page 24 Para 36of Judgement. Page 45 of Doc
In the rejoinder affidavit, applicant in para 4 has simply denied the claim of respondent 1 and para 5 has been replied by staling that respondent applied
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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.
Page 24 Para 37 of Judgement. Page 45 of Doc
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 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.
Complainant has strong objections to the para No 35,36,37 At 24 Page of judgement Page 45 of Doc on following grounds which are the absolute wrong and false submissions made by Respondent No 1 Indu Walia. Complainant supported by the revenue records (Jamabandi) of 2010-2011 ANX K Page 813 of Doc
1. The first ever piece of land purchased by Indu WaliaR- 1 in Malahat was on 29-09-11 that too 00-04-50 Hectares only and the part of same was sold on 15-10-2014 to one Mr.Ashwani Kumar and rest was hypothecated to KCCB Bank for Rs.30,00,000/-as shown in attached Jamabandi Page 1ANX K. Page 813of Doc. Therefore respondent 1, Smt. InduWalia, 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, is completely false and baseless rather misleading the court.
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2. The google image of April 2018attached in OA 807 (page39) is again being attached at Page no 803 of Doc to show no development of wand was done before April 2018. It is only after her husband secured acquittal she stated developing the land for future colony.
3. Page 15 Para (vi) of judgement where request of applicant is not accepted to reach truth of dispute. Page 36 of Doc. The above-named applicant Shri BhavakParasher 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 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. Induwalia. 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.
39. Issue I is accordingly answered against the applicant. Whether respondent 1 has cut trees illegally causing damage to environment? And, (Para 27 page 22 of judgement ANX D) Page 43 of Doc
Issue II is answered accordingly and in favour of applicant
(Para 50 page 34 of judgement ANX D) Page 55 of Doc
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Complainant submitted documents (ANX E page 1-8 Page 57 to 64 of Doc relating to submission °yelling of trees and subsequently levying of penalty.
This is a strange case of Charging panel ties for felling of trees of Rs. 25,000/-each from the 3 persons (suchha Singh, Ravi Kumar, Harsimer) out of 5 persons having no land holdings in Land in issue ie Malahat Nager.
Surprisingly all three persons have paid the penalties for felling the trees in spite of having no land holdings in village Malahat (the disputed area),as shown in RTI of revenue department attached Anx E And fourth one Jasbir Singh with land share of 00-30-72 hectares as compared to InduWalia R-1 land share of 05-97-20 hectares was charged the same penalty of Rs. 25,000/ -from both.
This is a case of charging panel ties from the persons who has no has no land holdings. Documentary proof of RTI from revenue department is attached. The same was uploaded before the effective date of hearing 0407-24. I reported the matter But for unknown reasons could not become part
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of case file. Mail was sent to admit.ngt@flic on 3td July. Attached page 8 of ANNEXURE E . Page 64 of Doc
This allwas done to shift quantum of crime of felling the trees to others persons. Prayer is made to court to take decision against forest department for shielding the proven guilty officers”
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apparent on the face of record justifying the court to exercise 5 its power of review.
Sudhir Agarwal, JM
Dr. Afroz Ahmad, EM
January 07, 2025 Review Application No. 22/2024 JG.
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3 issues framed by the court
Whether the review application is maintainable in view of the Supreme Court precedent on errors apparent on the face of record?
Whether the definition of 'Hilly Area' under the National Building Code precludes the finding of violation regarding hill slope cutting?
Whether the grounds of review constitute a re-hearing rather than an error apparent on the face of record?
Colour shows how this judgement treated each authority
Sanjay Kumar Agarwal vs. State Tax OfficerRelied on¶92
Review Petition (Civil) No. 1620/2023, Civil Appeal No. 1661/2020, Sanjay Kumar Agarwal vs. State Tax Officer (1) & Another
7 provisions across 5 enactments
Bhavak Parasher
Smt. Indu Walia & Ors.
Sudhir Agarwal
Afroz Ahmad
As recorded by the court registry
An application asking a tribunal to review its own order.
Judgements on the same questions, provisions and authorities, from every court
