THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO Writ Petition No.20800 of 2014 03-09-2014 Chimme John Barnabas, S/o.Devadanam,Aged about :
45. years, Occ : Advocate and Social Worker. R/o.H.No.19-2, Sangaiahpeta,Nandikotkur, Kurnool.Petitioner Government of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration Department, Secretariat, Hyderabad.Respondents Counsel for the Petitioner:Sri A. Dattanand Counsel for the Respondent Nos.1 and 2 :GP for Municipal Administration (AP) Counsel for 3rd respondent: GP for Revenue (AP) Counsel for 4th respondent: GP for Home (AP) Counsel for 5th respondent: Sri B. Hanumantha Rao, Standing Counsel for Municipality HEAD NOTE: ?.Cases referred:
1. (2014) 4 SCC5382. (1974) 4 SCC33. (1985) 3 SCC1The Court ordered the following : [order follows]. THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO Writ Petition No.20800 of 2014 ORDER
: In this writ petition, the petitioner, an Advocate and a permanent resident of Nandikotkur Village and Mandal, Kurnool District questions the action of respondent nos.2 to 4 in not taking any action against respondent nos.5 and 6 who indulged in cutting of 120 Babul trees in a tank called Malayala Water Tank near the Nandikotkur Municipality allegedly without valid permission and misappropriating the amounts realized by way of sale of wood to timber depots in spite of a representation dt.30.06.2014 made by the petitioner to the 3rd respondent.
2. According to the petitioner, this Tank was being used by villagers as drinking water source and on account of improper maintenance, thorn bushes had grown around it which made it imperative to clear them to prevent the tank from getting polluted by accumulation of dust and tree leaves; but 5th respondent in collusion with 6th respondent and his supporters Fakir Chand Basha, Shaik Khasim Wali, while removing the thorn bushes, also removed 120 Babul trees more than 30 years old located near the tank, shifted the wooden logs to timber depots and misappropriated the sale proceeds. Petitioner alleged that the cutting of the trees destroyed the healthy atmosphere in the village and there was no necessity to cut them since they were not causing any hindrance to anybody. He contended that he made written complaint to respondent nos.2 to 4 but they did not take any action against respondent nos.5 and 6 and therefore, he filed the present writ petition.
3. On 01.08.2014, this Court passed the following order : Learned Government Pleader for Municipal Administration and Urban Development, on instructions from the second respondent, would submit that the District Collector had permitted the Municipality to clear bushes and unwanted vegetation in Malyala water tank (water works) belonging to Nandikotkur Municipality on 05.06.2014; he had never given any further oral or written directions to the Engineering officials for taking further action on the orders of the District Collector dated 05.06.2014; he had inspected the water works on 22.06.2014, and had found that babul trees in the tank were removed, and transported elsewhere; he had, thereafter, lodged a complaint with the police for investigation and recovery of the wood; the Municipal Assistant Engineer and the Deputy Executive Engineer had transported the cut trees to the municipal office; they submitted a note dated 23.06.2014 that the babul trees in Malyala tank were removed, and solicited orders for conducting public auction; he had sought their explanation for cutting the trees without orders from him; and, in order to prevent loss of wood from the babul trees, he had directed that a public auction be conducted on 27.06.2014, and he had kept two watchmen to watch over the wood. The note submitted to the District Collector dated 05.06.2014 merely refers to the tank being occupied with vegetation because of non-clearance of bushes and silt since a long time. Permission was sought to remove bushes and vegetation in the tank so as to protect ground water from pollution, and to increase water storage capacity. The petitioner alleges that around 120 babul trees, all of them thirty years old, and situated near the tank, were removed without permission of the third respondent. The third respondent shall have an enquiry caused in this regard and submit a report to this Court by the next date of hearing. Learned Government Pleader for Municipal Administration and Urban Development is present in Court and undertakes to inform the third respondent of his obligations under this order. Post on 08.08.2014 in the motion list.
4. Pursuant to the above order, the 3rd respondent directed the Addl. Joint Collector, Kurnool to conduct an enquiry and submit a report to him. On 05.08.2014, the said Official proceeded to Nandikotkur, conducted a detailed enquiry, recorded statements of representatives of various public organizations, Municipal Officials including the 5th respondent, persons involved in this activity and also verified connected files in the Municipal Office apart from making a field inspection of the tank along with the Tahsildar. He submitted a detailed report in Rc.No.CC/113/2014 dt.07.08.2014 to the 3rd respondent.
5. In this report he stated that the above referred tank exists in Sy.No.528 of Malayala Village of Nandikotkur Mandal, and the Kurnool to Cuddapah Canal is the source of this percolation tank. He stated that 5th respondent had submitted a note to the 3rd respondent on 05.06.2014 stating that due to non-clearance of bushes and silt for a long time, the water storage capacity of the tank is reduced and algae, fungi and bacteria are causing damage to the drinking water as well as contamination of the surface water in the tank, that removal of bushes and vegetation in the periphery of the tank is necessary to protect the ground water from pollution and increase the capacity of the water storage, and requested permission from the 3rd respondent to remove them; that taking advantage of the permission granted by the 3rd respondent, respondent nos.5 and 6 removed illegally 374 big Babul trees (and not just 120 trees as alleged by petitioner) aged about 5 to 20 years in an around the said tank without following any procedure and sold away the timber unauthorisedly. He further stated that when the matter was published in the local press on 22.06.2014, the respondent nos.5 and 6 hurriedly collected some portion of the wood from the sawmills/timber depots and tried to conduct an auction on 27.07.2014 which was objected to by the local people. He concluded that in the note circulated on 05.06.2014 to the 3rd respondent by respondent nos.5 and 6, the latter intelligently used the word vegetation, did not mention anything about the 374 Babul trees; that the Collectors approval was not granted for removal of the Babul trees; that after securing the Collectors approval, respondent nos.5 and 6 might have moved the file to the Special Officer, Nandikotkur Municipality (The Revenue Divisional Officer, Kurnool) mentioning the number of trees proposed to be removed with their age, etc., and taken his approval; the decision to remove the Babul trees by engaging a private contractor was taken by the respondent nos.5 and 6 on their own without following any procedure; no tenders for removal of bushes and vegetation was called for as per the provisions of the Andhra Pradesh Municipalities Act, 1965; the process started on 11.06.2014 and went on up to 21.06.2014 and it took place with the knowledge of the respondent nos.5 and 6; a news item appeared in the local press on 22.06.2014; and it is difficult to believe that the 5th respondent was not aware of the same. He also pointed out that after that publication, the 5th respondent tried to build up a record to create as if all this had happened without his knowledge and the engineering department of the Municipality was responsible for it. The Addl. Joint Collector also noted that Sri Harikrishna, Asst. Engineer noticed the cutting of trees but failed to stop it since respondent nos.5 and 6, who are his superiors, are involved in it; that they tried to collect wood from timber depots sold by the contractor and moved some quantity of wood to the Municipal Office and tried to auction it on 27.06.2014, but on account of protest by local people, the auction could not be concluded. He stated that no permission was obtained from the designated officer under Section 28(5) of the Andhra Pradesh Water, Land and Trees Act, 2002 before cutting of the trees by the respondent nos.5 and 6 and recommended that suitable action be taken against them for these lapses.
6. This report was forwarded to this Court by the 3rd respondent in his proceedings Rc.No.A5/2605/2014 dt.08.08.2014.
7. Counter-affidavit has been filed by 5th respondent casting aspersions on the Addl. Joint Collector, Kurnool and his report dt.07.08.2014. The 5th respondent defended the cutting of the 374 Babul trees and denied allegations of misappropriation of amounts by sale of Babul trees. He however admitted that there was theft of some logs and steps were taken to recover the same. The 5th respondent seeks to blame the 6th respondent and the Asst. Executive Engineer for dereliction of duty. It is further stated that Section 28(5) of the Act has no application since the tank in question is located at a distance of 10 kms. from the Municipality and not in an urban area and that although the tank is spread over 30 acres, trees have grown in the tank and reduced its capacity and if they are not cut, the Municipality would not be in a position to supply drinking water to its residents. Reliance is also placed on the powers vested in the 5th respondent under Section 133 and 134 read with Section 56 of the Andhra Pradesh Municipalities Act, 1965 in support of the decision to cut the trees in the tank. In para.8 of the counter, the 5th respondent alleges that the petitioner is liable to be prosecuted under Section 382 of the A.P. Municipalities Act, 1965 for obstructing him from discharging his official functions and states action would be initiated without fail against the petitioner. In conclusion, he states that because of clearing of tank by cutting of bushes and Babul trees, water capacity of the tank has increased and this fact is self-evident if one inspects the tank which is now full of water.
8. Heard Sri A.Dattanand, learned counsel for the petitioner, the learned Government Pleader for Municipal Administration and Urban Development, appearing for respondent Nos.1 and 2 and Sri S. Sandeep Reddy, learned Standing Counsel for the respondent Nos.5 and 6.
9. The counsel reiterated the stand of their respective clients.
10. It is pertinent to note that in the written statement given by the 5th respondent to the Addl. Joint Collector on 05.08.2014, the 5th respondent took a stand that although he signed the note dt.05.06.2014 circulated to the 3rd respondent for permission to clear bushes and unwanted vegetation, he did not give any further oral and written directions to the 6th respondent and others for taking further action on the orders of the 3rd respondent dt.05.06.2014 since he was busy conducting Municipal election and only when he inspected the tank on 22.06.2014, he came to know that the trees were removed and transported elsewhere. In that statement, he blamed the Asst. Engineer, Harikrishna and the 6th respondent. He further stated that without submitting any note to the Commissioner, after the approval of the Collector, they have taken their own decision to remove trees in Malayala tank. This statement is enclosed to the report of the Addl. Joint Collector, dt.07.08.2014 which has been forwarded to the 3rd respondent and which is filed by the 3rd respondent with his report dt.08.08.2014. Thus, the stand of 5th respondent before the Addl.Joint Collector was that he was unaware of the cutting of the trees.
11. But in the counter-affidavit, the 3rd respondent gives a go-by to the above stand and justifies the cutting of the 374 Babul trees by his subordinates on the ground that Section 28 (5) of the A.P. Water, Land and Trees Act, 2002 is not applicable and he has ample powers to do this under Section 133, 134 read with Section 56 of the A.P. Municipalities Act, 1965. Thus, it is clear that the cutting of the 374 Babul trees was with the knowledge and approval of respondent no.5 although he tried to plead ignorance of it in the statement given by him to the Addl. Joint Collector.
12. It is not disputed by 5th respondent that in the note submitted by himself and 6th respondent to the 3rd respondent/District Collector in ROC.No.014/2014/E1(WW) dt.05.06.2014, no mention was made of the existence of 374 babul trees (fully grown) and aged between 15 to 30 years in or around the tank and his intention to have them cut. In the said note, they only sought permission to remove bushes and vegetation from the 3rd respondent. In my opinion, it is clear that the 5th respondent deliberately misled the 3rd respondent by using the word vegetation (without mentioning that he intends to cut 374 Babul trees) and obtained permission from 3rd respondent with this subterfuge.
13. Although the 5th respondent insists that the 374 babul trees are in the tank, the Addl. Joint Collector is of the view that these trees were in and around the water tank and on the tank bund. If the Babul trees were not in the tank and were outside it, the respondent nos.5 and 6 could not have cut the said trees under the guise of cleaning the tank. The findings of the Addl. Joint Collector in his report dt.07.08.2014 suggest that action by respondent nos.5 and 6 to cut and sell the Babul trees is not bona fide or in public interest and violates Art.14 of the Constitution of India.
14. Trees, it is common knowledge, play a very important role in maintaining a clean environment since they convert carbon di oxide into oxygen. To cut 374 Babul trees and seek to justify it under the guise of maintaining a water tank shocks the conscience of this Court. Cleaning the tank might be a laudable object but cutting 374 babul trees clandestinely by misleading the 3rd respondent is not acceptable particularly when these trees are not in the tank but on the tank bund.
15. The importance of trees in maintaining a clean environment has been emphasized by the Supreme Court in Municipal Corpn. of Greater Mumbai v. Kohinoor CTNL Infrastructure Co (P) Ltd , where it has declared : the requirement of having trees and open land around them is necessary from an environmental point of view, since there is already excessive concretisation, and a very serious reduction in open spaces at the ground level. It must be noted that the right to a clean and healthy environment is within the ambit of Article 21, as has been noted in Amarnath Shrine, In re in the following words: (SCC p. 258, para 12) 12. The scheme under the Indian Constitution unambiguously enshrines in itself the right of a citizen to life under Article 21 of the Constitution. The right to life is a right to live with dignity, safety and in a clean environment. The right to a clean and pollution free environment, is also a right under our common law jurisprudence, as has been held by this Court in Vellore Citizens Welfare Forum v. Union of India5 where this Court held: (SCC p. 660, para 16) 16. The constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment.
16. I hold that by the said act, respondent nos.5 and 6 have acted arbitrarily in wanton disregard to the environment and have violated the right to clean air and environment guaranteed to the residents of Nandikotkur under Article 21 of the Constitution of India.
17. The responsibility to maintain water works under Section 134(2) of the A.P. Municipalities Act, 1965 is on the Municipal Council and unless there is a resolution of the Municipal Council, not only authorizing the cleaning of the Malayala tank, but also authorizing the cutting of the 374 Babul trees in and around the tank, the 5th respondent cannot arrogate to himself the said powers of the Council and behave as if he can do what he pleases. He cannot therefore take shelter under this provision. Thus it clear that the respondent no.s 5 and 6 have acted in bad faith for an improper purpose and for extraneous reasons.
18. In E.P. Royappa v. State of T.N. , the Supreme Court held : Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.
19. In Collector (D.M.) v. Raja Ram Jaiswal , the Supreme Court declared :
26. Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context in good faith means for legitimate reasons. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation there is no question of any personal ill-will or motive. In Municipal Council of Sydney v. Campbell it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. In State of Punjab v. Gurdial Singh acquisition of land for constructing a grain market was challenged on the ground of legal mala fides. Upholding the challenge this Court speaking through Krishna Iyer, J.
explained the concept of legal mala fides in his hitherto inimitable language, diction and style and observed as under: (SCC p. 475, para 9) Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: I repeat ... that all power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist.
20. Section 28(5) of the A.P. Water, Land and Trees Act, 2002 mandates obtaining of permission from a designated officer before cutting trees. If really the provisions of the said Act have no application as contended by respondent nos.5 and 6, there is no reason why they would seek permission from the 3rd respondent to clear the bushes and the allegedly unwanted vegetation in the tank. The contention of the 5th respondent that the said provision is not attracted and there was no necessity to obtain anybodys permissions and he can take action in exercise of his alleged powers under Section 133 and 134 read with Section 56 of the A.P. Municipalities Act, 1965, cannot be accepted.
21. I have no doubt in my mind that respondent nos.5 and 6 have acted in an illegal and arbitrary manner by cutting fully grown 374 babul trees by misleading the Collector (3rd respondent) that they are only clearing bushes and vegetation. I see no reason to disagree with the report of the Addl. Joint Collector, Kurnool dt.07.08.2014 which has been forwarded to this Court by the 3rd respondent.
22. The possibility of misappropriation of the sale proceeds of the timber realized by the cutting of trees and the attempt to cover up the entire process as suggested by the Addl Joint Collector also needs a detailed and thorough probe by 1st respondent and appropriate disciplinary action may have to be initiated by the 1st respondent against respondent nos.5 and 6 and their subordinates involved in the above acts.
23. In view of the above, the question of the 5th or 6th respondents or their subordinates initiating prosecution against the writ petitioner under Section 382 of the A.P. Municipalities Act, 1965 does not arise. This Court places on record its appreciation for the brave action of the writ petitioner in bringing to light the wanton destruction of environment by cutting of 374 babul trees by respondent nos.5 and 6 and restrains the latter from harassing the writ petitioner by initiating any prosecution against the writ petitioner.
24. In this view of the matter, the Writ Petition is allowed; the action of respondent nos.5 and 6 in cutting 374 fully grown Babul trees in and around Malayala tank near Nandikotkur Town under the guise of maintaining the said tank by misleading the 3rd respondent, is declared as illegal, arbitrary and violative of Article 14, 21 of the Constitution of India; the respondent nos.5 is directed to pay costs of Rs.15,000/- and the 6th respondent is directed to pay costs of Rs.10,000/- to the Chief Justice Relief Fund within two (02) weeks from today; and the 1st respondent is directed to consider initiating disciplinary proceedings against respondent nos.5 and 6 and any other officials who had a role in the cutting of the 374 Babul trees and in possible misappropriation of the sale proceeds of the timber in accordance with law within one month from the date of receipt of this order and impose appropriate punishment on them, in case they are found guilty therein. Copy of this order be marked to the Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad.
25. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed. _________________________________ JUSTICE M.S. RAMACHANDRA RAO Date :
03. 09.2014