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2007 Supreme(Bom) 1248
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
A.H. Joshi & R.C. Chavan, JJ.
Vilas Shankar Donode - Petitioner
Versus
State of Maharashtra - Respondents
Writ Petition No.286 of 2003
Decided on : 4-9-2007
Shri P.C. Madkholkar, Advocate – Amicus Curiae – for Petitioner.
Smt. B.H. Dangre, AGP for Respondents No.1 and 4.
Shri M.P. Badar, Special Counsel for Respondents No.2 and 3.
Shri A.M. Gordey, Advocate for Respondent No.5.
Shri R.K. Deshpande, Advocate for Respondent No.6.
Headnote:Public Interest Litigation - PIL filed against MLA-Illegally encroaching forest area, cutting trees etc. by using his power and position-Held-PIL allowed with many direction to respondent No. 5 MLA.-Court pass the following order :
(a) Respondent Nos. 1 to 4 are directed to immediately close the disputed road and take steps for reforesttion of the site under the road and submit to this Court the report of compliance within sixty days from the date of this judgment.
(b) We direct respondent No. 2 to appoint an officer, who may be preferably of the rank of Deputy Conservator of Forest, within thirty days from the date of this judgment.
(c) The officer, so appointed, shall get prepared from his office estimate of compensation on the basis of loss suffered and estimate of compensation for re-forestation and expenditure to be incurred till re-forestation becomes sustained.
(d) The estimate, so got prepared, be served on respondent No. 5, for which he shall be called to appear in person or through his Advocate before him and file his reply within thirty days of the receipt thereof.
(e) The officer so designated shall complete the enquiry as to the amount which should be recovered from respondent No. 5 within six months from today. The amount so assessed shall be recoverable arrears of land revenue.
(f) We direct that respondent No. 6 shall assess the expenditure incurred for laying the line and effecting electricity supply to the farm house of respondent No. 5 in terms of para 9 and order clauses (d) and (d) foregoing of this judgment. The amount so assessed shall be recoverable as a decree, and further legal action by way of suit for its recovery shall not be required.
(g) We direct respondent Nos. 1 to 4 and 6 to report the compliance and directions and place on record of this Court the assessment of compensation done furtherance to foregoing directions.
(h) Respondent Nos. 1 to 4 shall examine the feasibility and necessity of prosecuting all officers involved along with respondent No. 5 as abettor and record and make public their reasoned decision in this behalf within three months of this judgment, and report to this Court the decision reached.
(i) We direct the State Government to pay to Amicus Curiae the amount of costs, which are quantified at Rs. 25,000/- (Rs. Twenty Five Thousand) within two months from today, which amount be recovered from respondent No. 5 by the State while recovering the amount of compensation, as may be assessed furtherance to the directions given by this Court.
(j) Office to issue writ to the concerned respondents forthwith.
Provincial Small Cause Courts Act, 1887 - PIL filed against MLA - Illegaly encroaching forest area, cutting trees etc. by using his power and position - Held - PIL allowed with many direction to respondent No. 5 MLA. - Court pass the following order :
(a) Respondent Nos. 1 to 4 are directed to immediately close the disputed road and take steps for reforesttion of the site under the road and submit to this Court the report of compliance within sixty days from the date of this judgment.
(b) We direct respondent No. 2 to appoint an officer, who may be preferably of the rank of Deputy Conservator of Forest, within thirty days from the date of this judgment.
(c) The officer, so appointed, shall get prepared from his office estimate of compensation on the basis of loss suffered and estimate of compensation for re-forestation and expenditure to be incurred till re-forestation becomes sustained.
(d) The estimate, so got prepared, be served on respondent No. 5, for which he shall be called to appear in person or through his Advocate before him and file his reply within thirty days of the receipt thereof.
(e) The officer so designated shall complete the enquiry as to the amount which should be recovered from respondent No. 5 within six months from today. The amount so assessed shall be recoverable arrears of land revenue.
(f) We direct that respondent No. 6 shall assess the expenditure incurred for laying the line and effecting electricity supply to the farm house of respondent No. 5 in terms of para 9 and order clauses (d) and (d) foregoing of this judgment. The amount so assessed shall be recoverable as a decree, and further legal action by way of suit for its recovery shall not be required.
(g) We direct respondent Nos. 1 to 4 and 6 to report the compliance and directions and place on record of this Court the assessment of compensation done furtherance to foregoing directions.
(h) Respondent Nos. 1 to 4 shall examine the feasibility and necessity of prosecuting all officers involved along with respondent No. 5 as abettor and record and make public their reasoned decision in this behalf within three months of this judgment, and report to this Court the decision reached.
(i) We direct the State Government to pay to Amicus Curiae the amount of costs, which are quantified at Rs. 25,000/- (Rs. Twenty Five Thousand) within two months from today, which amount be recovered from respondent No. 5 by the State while recovering the amount of compensation, as may be assessed furtherance to the directions given by this Court.
(j) Office to issue writ to the concerned respondents forthwith.
Constitution of India - Article 226 - Public Interest Litigation (PIL) - Challenging illegal cutting of tress and encroachment of forest land by respondent sitting MLA to lay approach road to his property through forest area - Also causing electric line to be laid nearest to his farmhouse - An enquiry directed to be conducted by concerned Government Authorities - Authorities also directed to assess compensation for such illegal actions as well as for restoration and reforestation - Government authorities further directed to recover same from arrest MLA. - Public memory is short and, therefore, may be, wrongdoers believe that in a short-while, people will forget the gross violations of laws made in order to protect our fragile eco system. High Court believe that the respondent-officers of the State Government would realize that overlooking infractions of this type or dealing with such infractions leniently would encourage similar infractions. Further, when specific allegations has been that a Range Forest Officer acted under a political pressure of respondent No. 5, who was at the relevant time sitting Member of Legislative Assembly, it would be improper to deny to respondent No. 5, a public forum to have his name cleared. Such forum can be provided only in the form of proceedings in a Court of law, since respondent No. 5 could have nothing to do with the departmental proceedings initiated by the employers against their employees. Therefore, the authorities would do well to take the infractions, which have been detected, to their logical end by prosecuting the officers along with abettors, who allowed a new road to be laid, which would presumably have required clearing of forest, since no such road existed, and laid a new electric line through the forest area.
It was held that had the scheme for laying electricity connection through 11 KV Line not been taken by the officers of the Electricity Board on account of influence of respondent No. 5, the line could not have been drawn to nearest place to that of respondent No. 5’s farm house. The expenditure incurred for raising electric poles and laying line for the farm house of respondent No. 5 also needs to be recovered by the Electricity Board or it should make an enquiry and serve a notice of demand on respondent No. 5 and thereafter decide the quantum so recoverable.
Insofar as the aspect of enquiry in the matter of loss suffered by the Forest Department is concerned, as desired by the petitioner, the matter needs to be enquired into. High Court hope and expect that respondent No. 2 State, through its Secretary, Revenue and Forest Department, shall appoint an officer, who may be preferably of the rank of Chief Conservator of Forest, who shall initially get prepared the estimate of compensation on the basis of loss suffered and estimate of compensation for reforestation and expenditure to be incurred till re-forestation becomes sustained. After such calculations are done, those be put to respondent No. 5, where he will get an opportunity to defend, and thereafter the officer, so specially appointed, shall conduct the enquiry, give to respondent No. 5 reasonable and fair opportunity to defend the estimate served upon him, and thereafter give his finding as to what amount of compensation shall be recoverable from respondent No. 5 from his person and property towards the act of illegal laying of road, damage caused to environment and cause of restoration. While considering the estimate of loss and cause of restoration, the officer, so designated, shall take into account the norms, which the State Government follows, or apply such other methods, as may be available and recognized by the Forest Department, while recovering the amount of compensation.
1. A complaint by petitioner, a Member of Zilla Parishad, Chandrapur, about illegal felling of trees by respondent No.5, the then Member of Legislative Assembly, was treated as Public Interest Litigation.
2. The petitioner himself stopped taking interest. On 9-3-2005, Advocate Shri P.C. Madkholkar was appointed as Amicus Curiae. From time to time, interim orders were passed and information was collected from all relevant sources in form of affidavits/submissions. On 27-4-2005, as the pleadings were complete, this Court directed by consent of parties that the petition may be disposed of finally at the stage of admission. This is how the petition is being disposed of. Therefore, Rule. By consent, rule is made returnable forthwith and is heard.
3. The pleadings disclose that there is no dispute about respondent No.5's ownership of land survey No.49 in Khairi Chak situated in a reserved forest. It was alleged that by exerting his influence as Member of Legislative Assembly belonging to the ruling party, respondent No.5 caused illegal cutting of trees, encroached on forest land by causing a road to be laid to approach his land, caused electric line to be laid to his house inside land survey No.49, and a transformer to be installed to feed the said line, thus misusing official machinery by misusing official position. It was also alleged that respondent No.5 purchased a tank and denied to the local cultivators irrigation rights from the said tank. In the guise of developing a tourist spot, he developed his own property. The petitioner had raised a number of issues about the illegal activities of respondent No.5, presumably to elicit a response from the State as to what action the State proposed to take.
4. In his written submissions, respondent No.5 denied the allegations levelled against him. He claimed that the road for approaching his property already existed. According to him, he had taken electric supply as per the rules. He had not cut any trees and did not exert any influence on any officer.
5. The other respondents have filed number of affidavits, gravamen whereof is that the authorities did not act under the influence of respondent No.5. The allegations against respondent No.5 raised in the petition are being considered one by one in the light of the arguments advanced by the Advocates for the respective parties in the context of affidavits filed. (I) Road to respondent No.5's property :-
6. (a) It is not disputed by respondent No.3 Divisional Forest Officer, Chandrapur, that a 2 KM. Approach road sanctioned by the Government by letter dated 13-5-2002 was constructed by the Forest Department under the Employment Guarantee Scheme. It was, however, stated that the work of this road was commenced by Shri A.O. Ghonmode, who was the Range Forest Officer, Nagbhid, at the relevant time, without any work order being issued. A notice was, therefore, issued to Shri Ghonmode and action was being taken departmentally against Shri Ghonmode. (b) Affidavit filed by respondent No.4 ñ Commissioner, Nagpur Division, Nagpur, however, clearly shows that the road, which was sanctioned, was Village Road 190. However, the road was built at a different place. Instead of building an approach road to Kodepar, which had been sanctioned, what was built was road to respondent No.5's field, as may be seen from affidavit dated 19-4-2007 by one Vitthal Dadasaheb Suryawanshi, Assistant Conservator of Forests, Chandrapur, who placed with his affidavit some photographs showing the new road, which had been laid. The photograph of the road clearly shows that it leads to the farm house of respondent No.5. (c) Shri A.O. Ghonmode, who had been served with a notice by the Department in respect of the construction of the road, had filed a reply before his superiors on 27-7-2005. Copy of this reply has also been annexed with the above affidavit dated 19-4-2007. This reply repeatedly points out that the road was constructed because of p
