1. Mr. Narayan Das and Mr. Sant Ram residents of Village Banuti P.O. Rodi, Distt. Shimla, Himachal Pradesh have sent the present letter petition by post, which has been treated and registered as original application, for issuance of directions for taking of remedial measures for restoration of land measuring about 3700 sq. mts. comprised in Khasra No. 308/1 situated in ‘upmehal’ Banuti, Post Office Rodi, Mehal Baruhi, Tehsil and District Shimla, Himachal Pradesh.
2. The applicants have submitted that in the revenue record the land in question is recorded under the ownership of the Government of Himachal Pradesh. The land in question is having Devdar, Chir and other small medium and large trees. The land in question was being used by the residents of the area for grazing of their cattle and was accordingly described in the revenue record as ‘Rakba Sarkar Charandh’. Earlier, the land in question was the part of Khasra No. 308 but after transfer of part of land to Himachal Pradesh Electricity Department, Khasra No. 308/1 was carved out. ‘Van Mahotsav’ as organized in the land in question in the year 2012 with afforestation in the areas lying vacant and such afforestation continued in the subsequent years. During discussion for organization of ‘Rozgar Mela’ (placement drive) one group wanted that the same be done in old playground but other group, having political and government patronage, decided to organize the same in the land in question and for changing the land use 400 to 500 trees standing over the land in question were illegally cut in the name of the Deity worshiped by the residents of the locality. Water pipeline which was laid in the middle of the land in question was shifted on 12.06.2017. Electricity poles falling within the land in question were also shifted on 18.06.2017. ‘Rozgar Mela’ (placement drive) was organized on 24.06.2017 and 25.06.2017. Subsequently, for justifying change of land use, sports events of the School were also organized in the land in question. At the time of clearance for creating plain area boundary wall and doors of ‘Ayurvedic Swasthay Kendra’, Banuti were damaged. Waste generated was thrown on the land of Himachal Pradesh Electricity Department and number of trees were thereby damaged. One cricket pitch was also created in the land in question. Large number of trees are still standing on the both sides of the land in question but the mischievous persons are bent upon widening the plain area by cutting the trees. The applicants have attached photographs in support of the averments made in the application. The applicants have prayed that the land in question be restored or be given to the school for use as playground.
3. Vide order dated 26.04.2022, this Tribunal constituted a Joint Committee comprising of State PCB, Divisional Forest Officer and Deputy Commissioner, Shimla and directed the same to submit factual and action taken report within two months. The relevant part of the order is reproduced hereunder:-
“In view of the serious allegations made in the present letter Petition, it would be appropriate to have a factual and action taken report from a Joint Committee comprising of State PCB, Divisional Forest Officer and Deputy Commissioner, Shimla. The State PCB will be the Nodal agency for coordination and compliance. The Joint Committee may meet within four weeks, undertake site visits, look into the grievances of the applicants and take requisite action by following due process of law. Factual and action taken report may be furnished within two months by e-mail at judicial-ngt@gov.in preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF….”
4. In compliance thereof, the Member Secretary, HSPCB submitted compliance report alongwith the Joint Inspection report of the Joint Committee vide email dated 29.06.2022. The relevant part of the compliance report is reproduced as under:-
“X X X X
In compliance to afore-cited Hon'ble NGT's order dated 26.04.2022, the Joint Committee has submitted a Joint Inspection Report dated 17.06.2022. As per the report, the site in question i.e. Khasra No. 308/1 situated in Mauja Up Mohal Banuti, P.O Rodi, Tehsil Shimla (Rural), District Shimla H.P. was inspected on 19.05.2022. Reportedly, the complainant, Sh. Narayan Dass was also present at site. Copy of the Joint Inspection Report is annexed as Annexure.
As per the said report, the said site i.e. Khasra No. 308/1 is situated in Mauja Up-Mohal, Banuti, P.O. Rodi, Tehsil Shimla (Rural) District Shimla H.P. and status of land is Charagah. As per the revenue record, the land is in ownership of Government of Himachal Pradesh and the possession of the land is recorded as 1Cabja Swayavam Tabe Hakuk Bartan Bartarndaran Mutabik Naksha Bartan' measuring 33.56 biswa.
It is also reported that no such indicators e.g. stumps of the felled tree logs/timber were found on spot so it cannot be said that illegal felling took place for the development of ground. However, the levelling of the land has been done by using JCB Machine and it can be presumed that certain bushes have been removed from the site. Khasra No. 308/1 at Mauja. Up-Mohal Banuti, P.O. Rodi, Tehsil Shimla (Rural) District Shimla H.P. which is adjacent to the ground, is in the occupation of Himachal Pradesh State Electricity Board Limited (HPSEBL). The HPSEBL during the year-2017-18 had applied for the felling of trees for the installation of 33 KV Sub-Station and the then Chief Conservator of Forest (CCF), Shimla Forest Circle,vide letter dated 02.01.2018 conveyed the approval fq.r the felling of 26 trees of various species/classes besides 6 no. sapling for the ihstallation of the said substation of HPSEBL. No Government Forest land exists in and around the said Khasra number.
It is also submitted that reportedly, when complainant, Sh. Narayan Dass was asked about his grouse/grievances, he stated that he has made no such complaint to any authority regarding cutting of trees and it is totally baseless.”
5. The relevant part of the Joint Inspection Report is reproduced as under:-
“X X X X X
In compliance to the orders passed by Hon'ble National Green Tribunal on 26.04.2022, site inspection was carried out by the joint committee comprising of Deputy Commissioner, Shimla, Divisional Forest Officer, Shimla and Regional Officer, HPSPCB Shimla on 19.05.2022. Sh. Narayan Dass, the complainant was also present at site. The point wise factual report is as under: -
· The site in question i.e. Khasra No. 308/1 falls in Mauja Up-Mohal Banuti, PO Roth, Tehsil Shimla (Rural), Distt. Shimla (HP) and the status of land is Charagah. As per revenue record, the owner of the land is Government of Himachal Pradesh and the possession of land is recorded as ‘Kabja Swayavam Tabe Hakuk Bartan Bartandaran Mutabik Naksha Bartan' measuring 33.56 biswa.
· In the alleged playground, no such indicators e.g. stumps of the felled tree logs/timber were found on spot which proves that illicit felling of trees have taken place for the development of ground. However, the levelling of the land has been done using JCB and it is presumed that certain bushes have been removed from the site.
· The HPSEBL is in occupation of the Khasra No. 308 Mauja Up-Mohal Banuti, Tehsil and District Shimla adjacent to ground. The HPSEBL during the year 2017-18 had applied for felling of trees for the installation of 33 KV substation and the then CCF Shimla Forest Circle vide letter no. C-28-B-1265 Shimla -11027 dated 02.01.2018 conveyed the approval for the felling of 26 trees of various species/classes besides 6 no. saplings for the installation of the said substation of the HPSEBL.
· The said land forms past of the allotable pool .of revenue department as certain land has been found allotted vide which residential houses have been itund constructed,
· No Government Forest land exists in and around the said Khasra No.
It is pertinent to mention here that when Sh. Narayan Dass, the complainant was asked about his grievance, he apprised that he has not made any complaint to any authority regarding cutting of trees and it is totally baseless. The statement of Sh. Narayan Dass was recorded and is attached as Annexure-I.”
6. This Tribunal observed in its order dated 20.07.2022 that Joint Committee had mentioned about the location and present position of the Khasra no. 308/1 and has further mentioned that there is no evidence to indicate illegal felling of trees but the Joint Committee has not gone into the material questions of permissibility of change of land use and its entire topography/landscape with number of existing trees. The Joint Committee has also not gone into the question of legality of developing a pitch for playing cricket or other uses of the land. Accordingly, response from the Principal Secretaries, Departments of Revenue, Forests and Panchayti Raj, Government of Himachal Pradesh were considered to be necessary and notices were ordered to be issued to them. Interim injunction order was also issued and in the meanwhile, State PCB and District Magistrate, Shimla were directed to ensure that no further change in the topography/landscape of the Khasra number in question be made and there is no cutting of trees or removal of any other vegetation from the same.
7. Vide order dated 20.01.2023 notices were again ordered to be issued to (1) State of Himachal Pradesh through Chief Secretary, Government of Himachal Pradesh, and again to (2) Principal Secretary, Department of Revenue, Government of Himachal Pradesh, (3) Principal Secretary, Department of Forests, Government of Himachal Pradesh and (4) Principal Secretary, Department of Panchayti Raj, Government of Himachal Pradesh, (5) State PCB and (6) District Magistrate, Shimla requiring them to file their replies/response within two months.
8. Pursuant to notice replies have been filed by respondents no. 1, 2 and 6 vide email dated 17.03.2023, by respondent no. 3 vide email dated 21.03.2023, by respondent no. 5 vide email dated 04.04.2023 and by respondent no. 6 vide email dated 28.03.2023.
9. In their reply respondents no. 1, 2 and 6 have submitted that as per the report of Tehsildar Shimla (Rural), in Missal Haqiyat for the year 2016-17, land comprising in Khata / Khatauni No 123/185, Khasra No 308/1, area measuring 0-33-56 hectare, classification of land is recorded as charaagaah which is owned by the Government of H.P. and the right of "Tabe Haquq Bartan Bartan Daran" as per Wajib-ul-arz is recorded in favour of residents of the villagers. He has further reported that in the previous Jamabandi for the year 2001-02, the disputed land comprising in old Khasra No. 1006/683, area measuring 11-16-00 Bighas was recorded in the ownership in the State of Himachal Pradesh, possession entered in the name of villagers (residents) and classification of the land was shown as Charand. Respondents No. 1, 2 and 6 have further submitted that most part of land of Khasra No. 308/1, area measuring 0-33-56 hectare exists in the shape of a ground which has been found constructed and in other parts of the same khasra number there are trees of deodar, alpine, shrubs and on some portion of the land a Panchayat Ghar also exists. The density of trees is very shallow and sparse in the vicinity of the ground. It is further submitted that in respect of land use change, it is clear that the site has been worked on but no major land use change is discernible either with respect to old records or new entry in Jamabandi as ownership pertains to Government of HP with no express consent whatsoever on record from any competent authority indicating such change in land use. Respondents no. 1, 2 and 6 have further submitted that CWPIL No 24/ 2022 was also registered by the Hon'ble High Court of H.P. on the similar complaint of the petitioners and the Deputy Commissioner, Shimla filed parawise reply on behalf of respondent No. 4 in the said petition. Respondents no. 1, 2 and 6 have further submitted that the Divisional Forest Officer, Shimla reported that although seedling plants from the department for plantation were demanded by Yuvak Mandal, Mahila Mndal but department was not involved in the said activity. As per the report of the Executive Engineer Jal Shakti Division No-1, Kasumpti, Shimla -9, the pipe line of 50mm feeding 45 water connections, which was passing through the middle of the ground, has already been shifted to the side of the mentioned area, so as to avoid the damages to the water supply pipe line. As per the report of the Executive Engineer HPSEB, Jutog Shimla, no transmission line or poll has been replaced till date, however, at the time of construction of 33 KV Sub Station the electricity poll had fallen during the construction of retaining wall and presently their 11-KV Banuti feeder line is not in working order. Forest Department has vehemently denied any allegation with respect to felling of trees or trade in trees in any manner. As per the report of District Ayush Officer Shimla, the Ayurvedic Health Centre Banuti Devi is presently housed in Panchayat Ghar building, since 03-03-2022. It was earlier running in old Panchayat Ghar building (rent free), and old building was already in bad condition during the construction of ground. Moreover, the losses which occurred during construction of ground to the building, in which Ayurvedic Health Centre Banuti Devi was running earlier, cannot be evaluated as it was Gram Panchayat building and its office has been shifted to the new accommodation. As per the report of Block Development Officer Totu (Hirangar) and Secretary Gram Panchayat Dudhalhati, the status quo of the said topography/landscape in compliance to the orders/directions issued by this Tribunal on 20.07.2022 has been maintained. The Gram Panchayat has never removed/fallen any tree from the said area/playground and no funds were sanctioned for construction of any cricket pitch by the Panchayat. Till date, no funds have been utilized for the construction of the said ground by Gram Panchayat Dudhalhati and presently the said Panchayat has maintained the status of the said area as earlier reported to the higher authorities in compliance to the order/directions passed by this Tribunal.
10. In its reply respondent no. 3 has mentioned that the present original application appears to be a result of revenge or rivalry as no felling of trees has taken place in the area in question. The HPSEB during the year 2017-18 had applied for felling of trees for the installation of MVA.33/111 Sub- Station at Banuti. The then Chief Conservator of Forests, Shimla Forest Circle vide its letter No. C-28-b-1265/Shimla/11027 dated 02.01.2018 had conveyed the approval for the felling of 26 trees of various species/classes besides 6 No. of sapling for the installation of MVA,33/111 Sub- Station at Banuti. Khasra No. 308/1 abuts Khasra No.308. The allegation with regard to illicit felling of numerous trees of various species as well as apprehension of cutting and felling of trees adjoining the playground in 308/1 is not correct. Respondent no. 3 has further submitted that the applicant had also filed the same complaint before the Hon'ble High Court of Himachal Pradesh which was registered as CWPIL no. 24/2022 titled as Court on its own motion Vs State of Himachal Pradesh and others. The Hon'ble High Court of Himachal Pradesh had directed the State of Himachal Pradesh to file reply on which para wise reply was filed. Hon'ble High Court of Himachal Pradesh vide order dated 25.07.2022 held that "the reply also records that the signatories of the complaint, treated as letter petition, in their statements recorded on 22.06.2022 have also disowned the complaint (the letter petition). In view of the reply filed by the respondent No. 4, we do not deem it proper to continue further with this letter petition. The petition is accordingly closed and disposed of as such pending application, if any, also stand disposed of’’. Respondent no. 3 has further submitted that it had provided the plants of deodar and ornamental in Khasra No. 308 to the school Children for plantation, but the said portion is in possession of HPSFB Ltd. where MVA, 33/111 Sub-Station at Banuti exists presently.
11. In its reply respondent no. 5 has mentioned that as per the report of the Committee, no such indicators of felled tree logs/timber were found on the spot hence, alleged illicit felling of trees for the development of ground was not proved. However, it was reported that leveling of land has been done by using JCB and it is presumed that certain bushes have been removed from the site.
12. In its reply respondent no. 6 has mentioned that in most part of land of Khasra No. 308/1 area measuring 0-33-56 hectare exists a ground which has been found constructed, and in other parts of the same Khasra No. 308/1 there are trees of deodar, alpine, shrubs and on some portion of the land a Panchayat Ghar also exists. The density of trees is very shallow and sparse in the vicinity of the ground. The site has been worked on but no major land use change is discernible either with respect to old records or new entry in Jamabandi as ownership pertains to Government of Himachal Pradesh with no express consent whatsoever on record from any competent authority indicating such change in land use. In its reply respondent no. 6 has further submitted that there is a pitch about 2 mtrs of concrete made on the spot but the same is attributed to local children for sports purpose only. There is a ground consisting in Khasra No 308/1 as per revenue record and there is no change in the topography/ landscape of Khasra no 308/1. The Gram Panchayat has never removed/fallen any tree from the said area/playground and no funds were sanctioned for construction of any cricket pitch by the Panchayat. Besides this, they have intimated that till date, no funds have been utilized for the construction of the said ground by Gram Panchayat Dudhalhati and presently the said Panchayat has maintained the status quo in compliance to the order/ directions issued by this Tribunal on 20.07.2022.
13. Report has also been filed by Deputy Commissioner, Shimla vide email dated 08.08.2023 alongwith report of the Sub-Divisional Officer (C) Shimla (Rural), District Shimla. The relevant part of the report of the Sub-Divisional Officer (C) Shimla (Rural), District Shimla is reproduced below :-
“Hon'ble National Green Tribunal order dated 20-01-2023 passed in OA No. 266/2022 titled as Narayan Dass & Anr.V/s State of H.P. & Ors Regarding
X X X X
In this regard, it is submitted that the undersigned visited the spot alongwith revenue field agency on dated 26-07-2023 in compliance to the order dated 20-01-2023 passed by the Hon'ble NGT in OA No.266/2023 titled as Narayan Dass Vs State of H.P.& ors..The latest status report has been obtained from revenue field agency (Patwari Concerned) who has reported that in respect of land comprising Khasra No 308/1 area measuring 0-33-56 Hect.and the classifications is recorded as Chargah owned by the Government of H.P. and the right of "Tabe Haquq Bartan Bartan Dran "as per Wajib — ul-urg is recorded in favour of residents of villagers. It is further submitted that on most part of the land of Khasra No 308/1 area measuring 0-33-56 Hect consists of a ground and other part of the same Khasra Nos there are tree of deodar, alpine and on some portion of the land a Panchayat Char also exists.
On the visit of the undersigned on dated 26-07-2023 ,there is no change in the topography / landscape of the Khasra no in question as also reported earlier in reply submitted to your good office on dated 09th February 2023.”
14. Vide order dated 06.04.2023 this Tribunal ordered presence of District Magistrate, Shimla, DFO, Shimla and RO, HPSPCB, Shimla, before this Tribunal. In compliance thereof Mr. Aditya Negi, IAS, DC Shimla, Mr. Krishan Kumar, DFO Shimla and Mr. Deepak Dogra, RO, HPPCB appeared before this Tribunal through VC and we interacted with them.
15. We have heard learned counsel for the respondents and gone through the reports/replies.
16. In the present case the reports/replies filed by the respondents are self-contradictory. In the year 2016-2017 land comprised in Khasra No. 308/1(0-33-56) is recorded under ownership of Government of Himachal Pradesh and in the column of possession entry “Kabja Swayavam Tabe Hakuk Bartan Bartarndaran Mutabik Naksha Bartan” and in the column of nature of land entry “charagaha” has been made. In their replies at one place the respondents have submitted that there has been no change of land use and there is no express consent what so ever on record from any competent authority indicating change in land use but at other place the respondents have submitted that leveling of land has been done by using JCB and it is presumed that certain bushes have been removed from the site. The relevant facts as to who has leveled the land, who has used the JCB, what kind of bushes and other vegetation has been removed and who has created the pitch for playing cricket have not been mentioned adverted to and replied to by the respondents in the replies. Reference was made in the application to organization of ‘Van Mahotsav’ (plantation drive) and ‘Rojgar Mela’ (placement drive). The respondent no.-3-Forest Department has conceded that saplings were provided to school children for plantation but the Forest Department has claimed that plantation was done in Khasra No. 308 in possession of Himachal Pradesh Electricity Department. Respondent no.-3 has not produce any documents in this regard to show that no plantation was carried out in Khasra No. 308/1 which was lying vacant at that time. Respondents have not made any denial regarding organization of ‘Rojgar Mela’ (placement drive) in the land in question but respondents have not mentioned by whom ‘Rojgar Mela’ (placement drive) was organized. Respondents have claimed that there is no evidence regarding existence of trees in the land in question and illegal felling of the same but the respondents have not produced google images for the relevant period in support of the claim. We are conscious of the fact that there can be change of land use with the permission of the competent authorities in accordance with the prescribed procedure and trees standing over the land can be cut after obtaining permission of the competent authorities and compliance with condition of compensatory afforestation. The Government of Himachal Pradesh being owner of the land in question is entitled to make such use of it as may be considered to be appropriate for the maximum benefit of the maximum people but it cannot by its inaction provide cover to encroachments over or unauthorized use of the land in question and cutting of the trees standing over the same by unscrupulous persons illegally.
17. In view of the above the application is disposed of with directions to the respondents to consider whether the land in question requires any change of land use for leveling of the same and use as playground or place for organization of social events and in case the respondents consider any such change of land use to be necessary then requisite legal steps may be taken for change of use of land in question from charaagaah to such use after obtaining permission from the competent authorities in accordance with the prescribed procedure. In case, the respondents consider such change of land use to be not necessary keeping in view charaagaah as Common Property Resource for the villagers, then the land in question be restored as charaagaah and appropriate plantation be done on the same.
18. Action taken Report with requisite details regarding action taken in terms of order passed by this Tribunal be filed by Deputy Commissioner/District Magistrate, Shimla within three months by e-mail at judicial-ngt@gov.in preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF, before the Ld. Registrar General, National Green Tribunal, Principal Bench, New Delhi who may, if necessary, put up the matter before the Bench for further directions.
19. A copy of this order be sent to the Chief Secretary, Government of Himachal Pradesh, Principal Secretaries, Departments of Revenue, Forests and Panchayti Raj, Government of Himachal Pradesh, State PCB and Deputy Commissioner/District Magistrate, Shimla by email for requisite compliance.
