CWP No.9571 of 2009 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.9571 of 2009 (O&M) Date of Decision: 25.08.2011 Sanjeev Aga, Managing Director, M/s Idea Communications Limited, Windsor 5th Floor, Kalina CST Road, Santa Cruz (East), Mumbai. ... Petitioner Versus State of Haryana through Secretary, Local Bodies, Civil Secretariat, Chandigarh and others ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr. R.S. Cheema, Senior Advocate with Mr. K.S. Nalwa, Advocate, for the petitioner. Ms. Kirti Singh, DAG, Haryana. Mr. Naresh K. Joshi, CGC, for respondent No.4. ***** 1. Whether reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the reporters or not? NO 3. Whether the judgment should be reported in the digest? NO K. KANNAN, J. (Oral) 1. The writ petition challenges the action taken against the petitioner, who has erected a Telecom tower in the property granted on lease by the Haryana Tourism Corporation. The notices were issued by the respondents complaining of raising a boundary wall around 25 meters and installing a tower, which was a non-forest purpose allegedly illegally. There had been subsequently, two complaints that the petitioner has caused some damage by laying a pathway after encroaching upon the forest land from road to the CWP No.9571 of 2009 (O&M) [2] tower. The property is reported to be in village Sohana, Sectors 4 and 5. As per these complaints, the petitioner was purported to have committed an offence punishable under Section 19 of the Punjab Land Preservation Act, 1900 (for short, 'PLPA'). On similar terms yet another notice was issued on 28.03.2008. 2. The basis of the petition is that the property, which has been granted on lease is entered in the revenue records as vesting in Gram Panchayat as shamilat deh and it is not a property which falls under any subsisting notification of PLPA to complain of commission of offence under Section 19 of the said Act. The scheme of PLPA is to provide for regulation, restriction or prohibition by general or special orders, which are mentioned under Sections 4 and 5 of PLPA. The power to regulate obtains in respect of areas, which are notified under Section 3. It shall, therefore, become necessary to reproduce Sections 3 to 5 of PLPA to appreciate the range of operation of these provisions: “3. Notification of areas.- Whenever it appears to the [State] Government that it is desirable to provide for the conservation of sub-soil water or the prevention of erosion in any area subject to erosion or likely to become liable to erosion, such government may by notification make a direction accordingly. 4. Power to regulate, restrict or prohibit, by general or special order, within notified areas, certain matters. - In respect of areas notified under section 3 generally or the whole or any part of any such area, the State Government may by general or special order temporarily [-] regulate, restrict or prohibit - (a) the clearing or breaking up or cultivating of land CWP No.9571 of 2009 (O&M) [3] not ordinarily under cultivation prior to the publication of the notification under section 3; (b) the quarrying of stone or the burning of lime at places where such stone or lime had not ordinarily been so quarried or burnt prior to the publication of the notification under section 3; (c) the cutting of trees or timber, or the collection or removal or subjection to any manufacturing-process, otherwise than as described in clause (b) of this sub- section of any forest-produce other than grass, save for bona fide domestic or agricultural purposes [of right-holder in such area]; (d) the setting on fire of trees, timber or forest produce; 5. Power in certain cases, to regulate, restrict or prohibit, by special order, within notified areas, certain further matters. - In respect of any specified village or villages, or part or parts thereof comprised within the limits of any area notified under section 3, the [State] Government may, by special order, temporarily regulate, restrict or prohibit - (a) the cultivating of any land ordinarily under cultivation prior to the publication of the notification under section 3; (b) the quarrying of any stone or the burning of any lime at places where such stone or lime had ordinarily been so quarried or burnt prior to the publication of the notification under section 3.” This notification had been issued under the Act in relation to this village on 29.04.1970 by the Haryana Government Forest and Animal Husbandry Department for a period of 25 years. Admittedly, the period of 25 years have CWP No.9571 of 2009 (O&M) [4] elapsed and again it is a matter, which is not contradicted that no fresh notification was issued subsequently. 3. The justifying basis for the action of the State is that notwithstanding the fact that the notification period has expired, Hon'ble the Supreme Court has passed orders on 16.12.2002 regulating mining activities in the Aravalli hills in Haryana and Rajasthan. The order inter alia directs that “no mining will be permitted in the areas for which notification under Sections 4 and 5 of the Punjab Land Preservations Act, 1980 have been issued for regulating the breaking up of the land etc. and such lands are or were recorded as “Forest” in Government records, even if the notification period has expired, unless there is approval under the FC Act.” 4. Since the State purports to act in deference to the directions given by Hon'ble the Supreme Court in the aforesaid order, it has to be assessed whether there is any mining activity and whether it is in an area, which is declared as a “forest” under the Forest (Conservation) Act, 1980. First of all, neither the construction of a compound wall nor erection of a tower nor even laying a pathway connecting the main road to the tower could be stated to be in any way to be connected to mining activity. The notice cannot, therefore, be justified at all and Hon'ble the Supreme Court's direction cannot apply to the erection of tower or a compound wall constructed to preserve the facilities. Even apart from the nature of the activity, Hon'ble the Supreme Court order is only in respect of land, which is recorded as 'Forest in Government Records'. This is a property, which is shamilat deh and the definition of a notified “forest” comes through a reading of the provisions under provisions of the Forest (Conservation) Act, 1980 and the Indian CWP No.9571 of 2009 (O&M) [5] Forest Act, 1927. A reserved “forest” is required to be notified under Section 4 of the Indian Forest Act, 1927 and the Forest (Conservation) Act, 1980 and they impose restriction on the dereservation of forest or use of forest land for non-forest purpose. No material has not been placed before me that the property is forest land. It is not necessary to traverse the question whether the activity admittedly engaged in by the petitioner could come within the definition of user of a forest land for non-forest purposes. There is no complaint that any activity is carried out by the petitioner that the forest land is used for non-forest purposes. I limit my order only to the applicability of PLPA and hold that the order of Hon'ble the Supreme Court is not applicable for this type of activity that the petitioner has engaged in. The impugned complaints, summoning orders and notices are quashed and the writ petition is allowed. ( K. KANNAN ) AUGUST 25, 2011 JUDGE Rajan