IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Contempt Petition No. 156 of 2009 (Old No. 97 of 1998) Supreme Court Monitoring Committee ……. Contempt Petitioner Versus Mussoorie Dehradun Development Authority and another ……. Respondents. Present: Mr. Rajeev Singh Bisht and Mr. Harish Chandra Pande, Advocates for the contempt petitioner. Mr. D.S. Patni, Advocate with Mr. Amit Chaudhary, Advocate for M.D.D.A./respondent No.1 Date of Judgment: 14.05.2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. The instant contempt petition was required to be determined by this Court as a consequence of an order passed by the Supreme Court in suo motu Contempt Petition (Civil) Nos. 14-134 of 1998 in Writ Petition (Civil) No. 749 of 1995. The order passed by the Supreme Court on 19.01.2009 in the aforesaid Contempt Petitions is extracted hereunder: “These writ petitions have been filed as early as 1983 mainly challenging various constructions activities, which according to the petitioners, have serious environmental problems in the Dun valley, Dehradun. It was alleged that various construction activities were being carried out in the forest area as well as non-forest areas and it is causing serious impediments to the environment. It was also alleged by the petitioners that many constructions works were done contrary to the orders passed by this Court especially the orders of 10.07.1996, 29.11.1996 and 12.12.1996. The petitioners have filed about 130 contempt petitions/applications and to verify the facts, this Court had appointed the District Judge, Dehradun and the District Judge has filed a report indicating the nature of the violations made by different persons. All these respondents, in our opinion, are to be given reasonable opportunity to produce documents and also of being heard. Considering the complexities of these matters and the nature of contentions raised, we feel that these individual applications / petitions have to be considered in detail by the High Court. 2 In view of the facts arising out these case, we feel it just and proper that these matters be dealt with by the High Court of Uttaranchal. Accordingly, we direct that all records to be sent to the High Court of Uttaranchal for being heard by it and the learned Chief Justice of the High Court shall constitute an appropriate Bench to consider these matters and the High Court would be at liberty to pass appropriate orders in these matters. If any further action is necessary, the High Court would be at liberty to take appropriate steps in accordance with law.” A perusal of the aforesaid order reveals, that reference has been made to three orders; firstly, the order passed by the Supreme Court on 10.07.1996; secondly, the order passed by the Apex Court on 29.11.1996; and thirdly, the final order passed by the Apex Court on 12.12.1996. The first of the aforesaid orders, dated 10.07.1996 was passed in Supreme Court Monitoring Committee versus Mussoorie Dehradun Development Authority and others, Writ Petition (Civil) No. 749 of 1995. The direction recorded therein is being extracted hereunder: “That leaves us with no alternative but to make an interim order to the effect that constructions which have not begun at site and has not proceeded beyond the plinth level shall not be permitted to be started till we know the stand of the State of U.P. and the Union of India as to the applicability or otherwise of the provisions of the Forest Conservation Act, 1980, and the Rules made thereunder.” The second order dated 29.11.1996, also passed in Supreme Court Monitoring Committee versus Mussoorie Dehradun Development Authority and others, Writ Petition (Civil) No. 749 of 1995, recorded the following directions: “In the circumstances we think it appropriate to give the following directions: (1) The State of U.P. as well as the MDDA will enlist cases in which they gave permission to make use of any forest land for non-forest purposes without seeking the prior approval of the Central Government. All those cases will be forwarded to the Central Government for seeking ex post facto approval in the matter which will be considered in accordance with the Rules framed under the 1980 Act. While examining the questions regarding grant of ex post facto approval the Central Government will also enquire into the matter whether these permissions were granted on extraneous considerations or were only by way of a bona fide mistake. If the Central 3 Government comes to the conclusion that they were granted on extraneous considerations they will try to identify officer/person responsible for the same and also ascertain if the action of that person amounts to an offence under any provision of law and if yes, to take consequential actions. (2) All applications pending with the State Government or MDDA seeking permission to use forest land for non-forest purposes shall be processed under Section 2 (II) of the 1980 Act read with the Rules framed thereunder. This would be necessary where the State Government or MDDA is of the view that permission should be granted subject to prior approval by the Central Government. The said order of this Court will operate so long as prior approval of the Central Government is not obtained.” In the third order dated 12.12.1996, passed in T.N. Godavarman Thirumulkpad versus Union of India and others, Writ Petition (Civil) No. 202 of 1995, the directions issued by the Apex Court were to the following effect: “I. General: 1. In view of the meaning of the word “forest” in the Act. It is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any “forest”. In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply-wood mills and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such activities forthwith. 2. In addition to the above, in the tropical wet ever- green forests of Tirap and Changlang in the State of Arunachal Pradesh, there would be a complete ban on felling of any kind of trees therein because of the particular significance to maintain ecological balance needed to preserve bio-diversity. All saw mills, veneer mills and ply-wood mills in Tirap and Changlang in Arunachal Pradesh and within a distance of 100 kms. from its border, in Assam, should also be closed immediately. The State Governments of Arunachal Pradesh and Assam must ensure compliance of this direction. 3. The felling of trees in all forests is to remain suspended except in accordance with the Working Plans of the State Governments, as approved by the Central Government. In the absence of any Working Plan in any particular State, such as Arunachal Pradesh, where the permit system exists, the felling 4 under the permits can be done only by the Forest Department of the State Government or the State Forest Corporation. 4. There shall be a complete ban on the movement of cut trees and timber from any of the seven North-Eastern States to any other State of the country either by rail, road or water-ways. The Indian Railways and the State Governments are directed to take all measures necessary to ensure strict compliance of this direction. This ban will not apply to the movement of certified timber required for defence or other Government purposes. This ban will also not affect felling in any private plantation comprising of trees planted in any area which is not a forest. 5. Each State Government should constitute within one month an Expert Committee to: (i) Identify areas which are “forests”, irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the ownership of the land of such forest; (ii) Identify areas which were earlier forests but stand degraded, denuded or cleared; and (iii) Identify areas covered by plantation trees belonging to the Government and those belonging to private persons. 6. Each State Government should within two months file a report regarding: (i) The number of saw mills, veneer and ply-wood mills actually operating within the State, with particulars of their real ownership; (ii) The licensed and actual capacity of these mills for stock and sawing; (iii) Their proximity to the nearest forest; (iv) Their source of timber. 7. Each State Government should constitute within one month, an Expert Committee to assess: (i) The sustainable capacity of the forests of the State qua saw mills and timber based industry: (ii) The number of existing saw mills which can safely be sustained in the State; (iii) The optimum distance from the forest, qua that State at which the saw mill should be located. 8. The Expert Committees so constituted should be requested to give its report within one month of being constituted. 9. Each State Government would constitute a Committee comprising of the Principal Chief Conservator of Forests and another Senior Officer to oversee the compliance of this order and file status report.” 2. In the determination that we have been required to render (by the Supreme Court, vide its order dated 19.01.2009, rendered in suo motu Contempt Petitions (Civil) Nos. 14-134 of 1998- already extracted above), the directions contained in the aforesaid orders dated 10.07.1996, 29.11.1996 and 12.12.1996, will have to be kept in mind. In 5 order to deal with the factual aspect of the matter, reference will have to be made to the order dated 15.12.1997 passed in Writ Petition (Civil) No. 749 of 1995, wherein it has been directed as under: “According to the reply filed by the MDDA there are several constructions made in contravention of this Court’s orders and there are many others in which the constructions have been made in contravention of the Master Plan/Sanctioned Plan. In view of the significance of the matter and the deleterious effect of the violations it is appropriate, that irrespective of any other proceeding which may be pending before any other authority relating to allege unauthorized constructions, this aspect needs to be considered by this Court as early as possible. We, therefore, direct issue of notice to each of the person by whom contravention of this Court’s orders is alleged to have been done to show cause why proceedings to punish for contempt be not initiated. The notice be issued to the persons shown in the list be supplied by the MDDA to the Registry by tomorrow. Similarly another list of persons who are alleged to have made authorized construction in the form of contravention from the Master Plan/Sanctioned Plan would also be furnished by the MDDA by tomorrow. Notice be issued also to those persons to show cause why the appropriate action for unauthorized construction be not taken. We direct all the notices to file their reply before the District Judge, Dehradun within two weeks of service of notice to be effected in the manner stated hereafter: The learned District Judge, Dehradun would complete the enquiry as expeditiously as possible and submit the report to the Registry, preferably within two months, for further action.” Not only the order dated 15.12.1997 (reproduced above), but the order by which the matter was remanded to this Court on 19.01.2009 (extracted hereinabove) also reveals, that the District Judge, Dehradun was required to verify the factual aspect in the matter, and further, that the District Judge, Dehradun has submitted reports indicating the violations made by different persons. 3. In the exercise of responsibility vested in our hands, on the factual aspect of the matter, this Court will, in the first instance, consider the report of the District Judge in respect of the contemner concerned, and thereafter, ascertain whether there are any further objections. The further objections referred to above, shall necessarily include any objections which the Supreme Court Monitoring Committee may have, in addition to the factual findings recorded by the District Judge. 6 4. In so far as the present Contempt Petition No. 156 of 2009 is concerned, the report of the District Judge incorporates the following conclusion:- “In view of the above facts and circumstances, it is evident that the constructions in question does not lie within the notified forest or recorded forest or forest land. Admittedly the constructions were being made in a non-forest area for which a plan was also sanctioned in the year 1995 and a No Objection Certificate from the forest department was also obtained. The No Objection Certificate of the forest department has also indicated that the premises in question do not lie within the private forest area and the same does not come within the jurisdiction of Forest Conservation Act, 1980 and the provisions of the Forest Conservation Act, 1980 are not applicable to the premises in question. Hence the contemner Subhra Jain does not seem to have violated the order of the Hon’ble Supreme Court.” 5. As per the aforesaid report no contempt has been found to have been committed by the respondent in the present case. Mr. R.S. Bisht and Mr. H.C. Pande, learned counsel representing the Supreme Court Monitoring Committee also state, that there is no further material with them to dispute the conclusion drawn by the District Judge, and as such, no contempt can be stated to have been made out against the respondent. 6. In view of the report of the District Judge and in view of the statement made by the learned counsel for the Supreme Court Monitoring Committee, notice for contempt issued to the respondents is discharged. 7. Learned counsel for the Mussoorie Dehradun Development Authority pointed out that proceedings initiated against respondent No. 2 under the Uttar Pradesh Urban Planning and Development Act, 1973 are still pending. He accordingly seeks liberty to recommence the same. In the facts and circumstances of the instant case, since the issue raised by the learned counsel representing the Mussoorie Dehradun Development Authority has also been delegated to us, we hereby grant liberty to the competent authority under the Uttar Pradesh Urban Planning and Development Act, 1973, to continue proceedings, which had been initiated against respondent No. 2 prior to the same being stayed by the Supreme Court. This liberty is necessary even though respondent No. 2 7 is being discharged from contempt proceedings, as the contempt proceedings were on a subject matter separate and distinct from issues arising under the Uttar Pradesh Urban Planning and Development Act, 1973. It shall be the responsibility of the learned counsel representing respondent No. 1, i.e. the Mussoorie Dehradun Development Authority, to bring the instant direction to the notice of the competent authority. 8. The instant petition is accordingly disposed of. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) P. Singh