Environment Awareness Forum Vs. State of J & K & Ors.
EmailAppeal: IA Nos. 12, 14, 15, 13 & 16 and C.P. (C) No. 539/96 in W.P (C) No. 171/96
Petitioner: Environment Awareness Forum
Respondent: State of J & K & Ors.
Apeal: IA Nos. 12, 14, 15, 13 & 16 and C.P. (C) No. 539/96 in W.P (C) No. 171/96
Judges: A.S. ANAND, B.N. KIRPAL & V.N. KHARE, JJ.
Date of Judgment: May 05, 1998
Head Note:
ENVIRONMENT
Forest Conservation
Forest Conservation – Earlier order of Supreme Court exempting minor forest produce from ban on felling – “Katha” produced from “Khair” tree – Offic-ers of forest department mis-interpreting the order – Conscious of distinction between “Katha” a minor forest product and “Khair” being timber – No lifting of ban on felling of Khair frees – Yet officials allowing felling of frees – Held prima facie wilful breach of Courts’ orders. Hence, notices of contempt proceedings ordered to be issued. (Para 8)
Forest – Relocation of band-saw mills – Status report not filed – Time granted – Ordered that the earlier directions with regard to relocation of saw-mills was in respect of “licenced” saw-mills only – Govt. allowed to remove/demolish or stop unlicenced and/or illegal saw-mills. (Para 14)
Forest – Movement of trees and timber (sawn or otherwise) – State Govt. was to file affidavit within one month, but not filed – Six weeks time allowed. (Para 18)
JUDGEMENT:
O R D E R
I.A. No. 16
1. We have heard Mr. Dipankar Gupta, learned Senior counsel appearing for the officials of the State Government who have filed their counters in response to the notice issued by this Court. We have also heard Mr. T.R. Andhyarujina, learned Senior counsel representing Mr. B.A. Karimi, the Managing Director of M/s. Bekay Katha Pvt. Ltd., who has filed an affidavit in this Court on March 1998.
2. Mr. Dipankar Gupta, in response to the directions issued to him by us on 4th of May, has brought to our notice various steps which are taken by the Administrative Department and the Forest Department of the State of Jammu & Kashmir after the orders of this Court dated 10th May 1996, 12th December 1996 and 4th March 1997.
3. From a perusal of the office notings, it appears that M/s. Bekay Katha Pvt. Ltd. represented to the State Government vide letter dated 18th of March 1997 that this Court had exempted “minor forest produce from the ban on fellings” vide order dated 4th March 1997. On the basis of that representation, an office note was prepared in which para 65 reads thus :
“‘Katha’ is a Minor Forest Produce. The Katha is manufactured from the Khair wood. In pursuance of the order dated 4.3.1997 there is now no ban on the felling of khair trees from the forest areas as per the working plan”.
4. This note was put up before Mr. S.R. Bhagat, the then Addi-tional Secretary, Forest, who on March 20, 1997 directed the forwarding of the representation of M/s. Bekay Katha Ltd. to the Principal Chief Conservator of Forest for necessary action. “keeping in view the Supreme Court orders and the contractual obligations”. The file was then put up before Mr. Vijay Bakaya, Additional Chief Secretary, Forest who recorded in para 68 of the noting as follows :
“This is a matter of interpretation of whether ‘Khair’ can be treated as minor forest produce. Let us discuss on 25.3.97 at 3 p.m. with Pr.CCF, MDSFC, Conservator working plan.”
Opinion was thereafter sought from I.C.F.R.& E, Dehradun as to whether ‘khair’ tree was a M.F.P.
5. After the matter was referred to the Indian Council for Forestry Research & Education, another note appears to have been prepared by the office and submitted to Shri Bhagat, Additional Secretary, Forest. In para 70 of the noting it is recorded :
“In view of the above opinion of the Indian Council for Forest-ry Research & Education, khair is a minor forest produce and in terms of the order dated 4.3.1997 passed by the Supreme Court of India there is now no ban on extraction of MFPs from the forest areas.”
6. Mr. Vijay Bakaya, the Additional Chief Secretary, Forest in para 75 of the note observed :
“This issue was discussed at length with all the officers of the department. They were of the view that as per the books on the subject, only katha is MFP and khair tree is timber and therefore, Supreme Court’s directive on MFP is not applicable.”
7. However, in spite of the above observation, we find that directions were issued to allow khair trees to be felled for extraction of katha to M/s. Bekay Katha Pvt. Ltd.
8. The noting in paragraph 65 (supra) to the effect that katha is a minor forest produce and that it is manufactured from khair wood read with the noting in paragraph 75, in which it is cate-gorically recorded that even as per the books on the subject, it is only katha which is MFP while khair is timber go to show that the distinction was very much present to the minds of the offi-cials and they were also conscious of the fact that the order of this Court dated 4.3.1997 was not applicable to khair trees. Vide orders of this Court dated 10th May 1996 and 12th of December 1996 ban was placed on felling of various trees including khair tree. The order dated 4th March 1997 did not lift the ban on the felling of khair trees and yet the State Government officials allowed the felling of khair trees. Prima facie, we are satisfied that there has been a deliberate attempt to circumvent the order of this Court and there has been a wilful breach of the orders of this Court. We, therefore, consider it appropriate to issue notice to M/s. S.R. Bhagat, Vijay Bakaya and B.A. Karimi, Manag-ing Director of M/s. Bekay Katha Pvt. Ltd. to show cause why contempt proceedings be not initiated against them. (At this stage, we refrain from issuing any notice to M/s. O.P. Sharma, M.A. Bukhari and Bharathi who are present in Court). The notices shall be returnable within six weeks. All the three alleged contemnors shall be personally present in the Court on 28th July at 2 p.m. The State Government shall produce the file (which has been shown to us) relating to the subject which contains the notings referred to by us in our order as also the letter of M/s. Bekay Katha Pvt. Ltd. dated 18th July 1997, available on the next date.
9. Mr. Harish N. Salve, learned Senior counsel, Mr. UR Lalit, learned counsel and Ms. Shabnam Lone, learned counsel are re-quested to assist the Court in the contempt proceedings. Learned counsel are present and accept this assignment. Advance copy of the reply affidavits of M/s. Bhagat, Bakaya and Karimi shall be served on Mr. Lalit. The contempt proceedings shall be separately numbered under the title :
“In re S.R. Bhagat & Ors.”
10. List on 28.7.1998 at 2 p.m.
IA No. 13
11. The prayer in this application is to direct the State Government to implement the directions of this Court and to relocate the band-saw mills in specified saw-mills zone and to pass such other and further orders.
12. We have heard learned amicus curiae Mr. Harish Salve and the learned Advocate General of Jammu and Kashmir Mr. S.A. Salaria.
13. Mr. Salaria submits that he would furnish a status report supported by the affidavit of a competent officer of the State Government, to indicate how the directions of this Court, with regard to relocation of the band-saw mills have been carried out and to what extent. He is granted six weeks’ time to furnish the status report alongwith the affidavit with an advance copy to Ms. Sabhnam Lone, who assists the learned amicus curiae in this case.
14. We clarify that the directions regarding the relocation of band-saw mills is only in respect of such band-saw mills which are licenced. These directions would not apply to the unlicenced or illegally set up band-saw mills. The State Government shall be at liberty to remove/demolish or stop the unlicenced and/or illegally set up band-saw mills in accordance with law.
15. Mr. Salaria submits that the list of band saw mills attached to the application is vague and essential details are wanting. Ms. Sabhnam Lone is directed to furnish a list of the applicants together with their licence numbers and the electric connection numbers of the band mills to the learned Advocate General of the State to enable them to identify the saw mills zone and furnish the status report. The needful shall be done by her within two weeks.
16. List on 28th July, 1998 at 2 p.m.
IA No. 12
17. On 12th December, 1996 we gave the following directions :
“6. The movement of trees or timber (sawn or otherwise) from the State shall, for the present, stand suspended, except for the use of DGS & D, Railways and Defence. Any such movement for such use will –
a) be effected after due certification, consignment-wise made by the Managing Director of the State Corporation which will include certification that the timber has come from State Forest Corporation sources ; and
b) be undertaken by either the Corporation itself, the Jammu and Kashmir Forest Department or the receiving agency.”
18. The State of Jammu and Kashmir was directed to file within one month a detailed affidavit specifying the quantity of timber held by private persons purchased from State Forest Corporation Depots for transportation outside the State (other than for consumption by the DGS & D, Railways and Defence). That affidavit has not so far been filed. We cannot, therefore, make any pro-gress in so far as this application is concerned. The learned Advocate General of the State of Jammu and Kashmir who is pres-ent, submits that a detailed affidavit clarifying the entire position shall be filed within six weeks. We allow him to do the needful. An advance copy shall be served on Mr. Lalit.
19. We find from the record of IA No. 12 that an additional affidavit has been included in the paper-book which was filed by the applicants on 19th March, 1998. Its copy has not been served on Mr. Lalit, assisting the learned amicus curiae. (The registry is directed not to receive any affidavit or application from any private party unless its copy has been served in advance on Mr. Lalit assisting the learned amicus curiae). Mr. Altaf Naik, submits that he shall serve a copy of the additional affidavit on the learned Advocate General for the State of Jammu & Kashmir and Mr. Lalit, within one week.
20. List on 28th July, 1998 at 2 p.m.
IA Nos. 14 & 15
21. These IAs which have been filed for impleadment and directions by some private parties do not require any considera-tion by us. These petitions are rejected and consigned to record.
I.A. No. 16
1. We have heard Mr. Dipankar Gupta, learned Senior counsel appearing for the officials of the State Government who have filed their counters in response to the notice issued by this Court. We have also heard Mr. T.R. Andhyarujina, learned Senior counsel representing Mr. B.A. Karimi, the Managing Director of M/s. Bekay Katha Pvt. Ltd., who has filed an affidavit in this Court on March 1998.
2. Mr. Dipankar Gupta, in response to the directions issued to him by us on 4th of May, has brought to our notice various steps which are taken by the Administrative Department and the Forest Department of the State of Jammu & Kashmir after the orders of this Court dated 10th May 1996, 12th December 1996 and 4th March 1997.
3. From a perusal of the office notings, it appears that M/s. Bekay Katha Pvt. Ltd. represented to the State Government vide letter dated 18th of March 1997 that this Court had exempted “minor forest produce from the ban on fellings” vide order dated 4th March 1997. On the basis of that representation, an office note was prepared in which para 65 reads thus :
“‘Katha’ is a Minor Forest Produce. The Katha is manufactured from the Khair wood. In pursuance of the order dated 4.3.1997 there is now no ban on the felling of khair trees from the forest areas as per the working plan”.
4. This note was put up before Mr. S.R. Bhagat, the then Addi-tional Secretary, Forest, who on March 20, 1997 directed the forwarding of the representation of M/s. Bekay Katha Ltd. to the Principal Chief Conservator of Forest for necessary action. “keeping in view the Supreme Court orders and the contractual obligations”. The file was then put up before Mr. Vijay Bakaya, Additional Chief Secretary, Forest who recorded in para 68 of the noting as follows :
“This is a matter of interpretation of whether ‘Khair’ can be treated as minor forest produce. Let us discuss on 25.3.97 at 3 p.m. with Pr.CCF, MDSFC, Conservator working plan.”
Opinion was thereafter sought from I.C.F.R.& E, Dehradun as to whether ‘khair’ tree was a M.F.P.
5. After the matter was referred to the Indian Council for Forestry Research & Education, another note appears to have been prepared by the office and submitted to Shri Bhagat, Additional Secretary, Forest. In para 70 of the noting it is recorded :
“In view of the above opinion of the Indian Council for Forest-ry Research & Education, khair is a minor forest produce and in terms of the order dated 4.3.1997 passed by the Supreme Court of India there is now no ban on extraction of MFPs from the forest areas.”
6. Mr. Vijay Bakaya, the Additional Chief Secretary, Forest in para 75 of the note observed :
“This issue was discussed at length with all the officers of the department. They were of the view that as per the books on the subject, only katha is MFP and khair tree is timber and therefore, Supreme Court’s directive on MFP is not applicable.”
7. However, in spite of the above observation, we find that directions were issued to allow khair trees to be felled for extraction of katha to M/s. Bekay Katha Pvt. Ltd.
8. The noting in paragraph 65 (supra) to the effect that katha is a minor forest produce and that it is manufactured from khair wood read with the noting in paragraph 75, in which it is cate-gorically recorded that even as per the books on the subject, it is only katha which is MFP while khair is timber go to show that the distinction was very much present to the minds of the offi-cials and they were also conscious of the fact that the order of this Court dated 4.3.1997 was not applicable to khair trees. Vide orders of this Court dated 10th May 1996 and 12th of December 1996 ban was placed on felling of various trees including khair tree. The order dated 4th March 1997 did not lift the ban on the felling of khair trees and yet the State Government officials allowed the felling of khair trees. Prima facie, we are satisfied that there has been a deliberate attempt to circumvent the order of this Court and there has been a wilful breach of the orders of this Court. We, therefore, consider it appropriate to issue notice to M/s. S.R. Bhagat, Vijay Bakaya and B.A. Karimi, Manag-ing Director of M/s. Bekay Katha Pvt. Ltd. to show cause why contempt proceedings be not initiated against them. (At this stage, we refrain from issuing any notice to M/s. O.P. Sharma, M.A. Bukhari and Bharathi who are present in Court). The notices shall be returnable within six weeks. All the three alleged contemnors shall be personally present in the Court on 28th July at 2 p.m. The State Government shall produce the file (which has been shown to us) relating to the subject which contains the notings referred to by us in our order as also the letter of M/s. Bekay Katha Pvt. Ltd. dated 18th July 1997, available on the next date.
9. Mr. Harish N. Salve, learned Senior counsel, Mr. UR Lalit, learned counsel and Ms. Shabnam Lone, learned counsel are re-quested to assist the Court in the contempt proceedings. Learned counsel are present and accept this assignment. Advance copy of the reply affidavits of M/s. Bhagat, Bakaya and Karimi shall be served on Mr. Lalit. The contempt proceedings shall be separately numbered under the title :
“In re S.R. Bhagat & Ors.”
10. List on 28.7.1998 at 2 p.m.
IA No. 13
11. The prayer in this application is to direct the State Government to implement the directions of this Court and to relocate the band-saw mills in specified saw-mills zone and to pass such other and further orders.
12. We have heard learned amicus curiae Mr. Harish Salve and the learned Advocate General of Jammu and Kashmir Mr. S.A. Salaria.
13. Mr. Salaria submits that he would furnish a status report supported by the affidavit of a competent officer of the State Government, to indicate how the directions of this Court, with regard to relocation of the band-saw mills have been carried out and to what extent. He is granted six weeks’ time to furnish the status report alongwith the affidavit with an advance copy to Ms. Sabhnam Lone, who assists the learned amicus curiae in this case.
14. We clarify that the directions regarding the relocation of band-saw mills is only in respect of such band-saw mills which are licenced. These directions would not apply to the unlicenced or illegally set up band-saw mills. The State Government shall be at liberty to remove/demolish or stop the unlicenced and/or illegally set up band-saw mills in accordance with law.
15. Mr. Salaria submits that the list of band saw mills attached to the application is vague and essential details are wanting. Ms. Sabhnam Lone is directed to furnish a list of the applicants together with their licence numbers and the electric connection numbers of the band mills to the learned Advocate General of the State to enable them to identify the saw mills zone and furnish the status report. The needful shall be done by her within two weeks.
16. List on 28th July, 1998 at 2 p.m.
IA No. 12
17. On 12th December, 1996 we gave the following directions :
“6. The movement of trees or timber (sawn or otherwise) from the State shall, for the present, stand suspended, except for the use of DGS & D, Railways and Defence. Any such movement for such use will –
a) be effected after due certification, consignment-wise made by the Managing Director of the State Corporation which will include certification that the timber has come from State Forest Corporation sources ; and
b) be undertaken by either the Corporation itself, the Jammu and Kashmir Forest Department or the receiving agency.”
18. The State of Jammu and Kashmir was directed to file within one month a detailed affidavit specifying the quantity of timber held by private persons purchased from State Forest Corporation Depots for transportation outside the State (other than for consumption by the DGS & D, Railways and Defence). That affidavit has not so far been filed. We cannot, therefore, make any pro-gress in so far as this application is concerned. The learned Advocate General of the State of Jammu and Kashmir who is pres-ent, submits that a detailed affidavit clarifying the entire position shall be filed within six weeks. We allow him to do the needful. An advance copy shall be served on Mr. Lalit.
19. We find from the record of IA No. 12 that an additional affidavit has been included in the paper-book which was filed by the applicants on 19th March, 1998. Its copy has not been served on Mr. Lalit, assisting the learned amicus curiae. (The registry is directed not to receive any affidavit or application from any private party unless its copy has been served in advance on Mr. Lalit assisting the learned amicus curiae). Mr. Altaf Naik, submits that he shall serve a copy of the additional affidavit on the learned Advocate General for the State of Jammu & Kashmir and Mr. Lalit, within one week.
20. List on 28th July, 1998 at 2 p.m.
IA Nos. 14 & 15
21. These IAs which have been filed for impleadment and directions by some private parties do not require any considera-tion by us. These petitions are rejected and consigned to record.
