Basakha Singh Ghunas Vs. State of Punjab and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/634882
SubjectEnvironment
CourtPunjab and Haryana High Court
Decided OnSep-11-2009
Judge T.S. Thakur and; Kanwaljit Singh Ahluwalia, JJ.
Reported in(2010)157PLR143
AppellantBasakha Singh Ghunas
RespondentState of Punjab and ors.
Excerpt:
- kanwaljit singh ahluwalia, j.1. vehicular traffic in the last few years has increased manifold. to cater to this increase, necessity arose to install and operate petrol pumps and fuel stations on national/state highways and other link roads.2. trees which were planted many years ago and are in existence to provide shade and absorb pollution on these roads have been chopped off with impunity so that ingress and outgress is available to newly established petrol pumps/fuel stations.3. to ward off depletion of forest cover and cutting of trees, ministry of environment and forests issued instructions on 15.7.2004, annexure p1, stating therein that no two fuel stations shall be allowed within a distance of 5 kilometers and in case this norm cannot be adhered to, there shall be a common entry and exist subject to the condition that it should not cause loss of any forest or felling of trees.4. the present writ petition has been filed for enforcement of aforementioned instructions/guide-lines issued by the ministry of environment and forests with a prayer that proposal to establish new petrol pump by bharat petroleum corporation limited (hereinafter to be referred as, 'bpcl') on national highway 64 at km 156.320 (rhs) at village handiaya, district barnala on handiaya-tapa road be shelved, as on that stretch of road, already three retail petrol outlets exist at a distance of 2/21/2 kms. from each other and the authorities be directed not to issue a 'no objection certificate', as it will disturb ecological harmony.5. the facts projected by the petitioner in the writ petition are that for establishing retail petrol outlets, 'no objection certificate' is to be issued by the authorities and it also require issuance of 'no objection certificate' from the department of forests. grievance of the petitioner is that establishment of bharat petroleum outlet at village handiaya, district barnala at barnala-bathinda national highway from handiaya chowk to tapa chowk, large scale felling of trees has taken place in violation of the guide-lines and instructions issued by the ministry of environment and forests. reliance has been placed on instructions, annexure p-1 issued by the government of india, ministry of environment and forests to all the principal secretary (forests) and the principal chief conservator of forests (all states/uts) on 15.7.2004. these instructions have been annexed as annexure p-l. it will be apposite here to reproduce relevant portion of these instructions:.it has been decided that the following procedure should be adopted for consideration of proposals for diversion of forest land for approach/exit road to petrol pumps under forest (conservation) act, 1980.(i) the entry to the petrol pump/fuel station should be through an approach road of maximum 70 metre length and 5.5 metre width and exist should be through approach road having maximum length of 100 metre and width 5.5 metre, as per the norms issued by the ministry of road transport and highways.(ii) the minimum distance between 2 fuel stations, on each side of the road, should not be less than 5 kms. outside the city limits on highways. if 2 or more fuel stations are to be constructed in close proximity or adjacent to each other for some reasons, a common access and exit shall be provided. however, this condition shall not apply if no tree felling is involved.(iii) to (vi) xx xx xx xxxx xx xx xx(vii) suitable plantations should be raised by the user agency along the approach roads, separator islands and other vacant areas in addition to the compensatory afforestation, if the area is more than 1 ha or plantation of 10 times or more number of the trees that are likely to be felled in such diversion proposals.a further clarification was issued to these instructions stating that no 2 petrol pumps/fuel stations can come up within a distance of 5 kms. on either side of the roads outside the city limits on highways. it further stated that if two or more fuel stations are to be constructed in close proximity or adjacent to each other for some reasons, a common access and exit shall be provided. however, this condition shall not apply if no tree felling is involved. clarification letter has been annexed as annexure p2.6. petitioner has relied upon photographs annexure p4 and newspaper report annexure p5 to state that the retail outlet being established by bpcl is at a distance of less than five kilometers and felling of trees is involved, therefore, a writ of mandamus be issued and respondents-state of punjab and conservator of forests (central), northern regional office be directed not to issue 'no objection certificate'.7. in response to the writ petition, rajbir singh, deputy conservator of forests (central), government of india, northern regional office, filed a reply by way of affidavit. he has taken a categoric stand that for establishment of retail outlet by bpcl at village handiaya on baraala-bathinda 'national highway 64' from handiaya chowk to tapa chowk, no felling of trees is involved. only 46 plants standing over the proposed area are to be uprooted and while issuing 'no objection certificate', annexure r-2 for diversion of 0.11.83 hectare of forest land, following conditions have been imposed:1&2. xx xx xx xx3. no tree but 46 plants will be felled in this case.4. xx xx xx xx5. state government shall deposit npv and all other funds with the ad-hoc of compensatory afforestation fund management and planning authority (campa) in account no. ca 1589 of corporation bank (a government of enterprises), block-11, ground floor, cgo, complex phase-i, lodhi road, new delhi-110 003 as per the instructions communicated vide letter no. 5-2/2006-fc dated 20.05.2006.6. compensatory afforestation will be carried at handiaya distry rd 13-14, l/s over 0.0460 hectare of degraded forest land as per proposed scheme.7. rs. 58,231/- (rs. fifty eight thousand two hundred and thirty one only) against the ca plantation and rs. 1,08,919/- (rs. one lakh eight thousand nine hundred and nineteen only) against the net present value of the forest land has already been deposited by the user agency in the ad-hoc body of campa as reported by the state government plantation will be done within one year from the date of issue of this letter.8. forest area falling between entry/exit paths will be planted and protected at the cost of user agency. dfo will personally ensure implementation of this condition and ensure that this area is not misused by user agency in any way.9 to 12. xx xx xx xx xxxx xx xx xx.8. principal chief conservator of forests, punjab also filed a written statement. it has been stated therein that m/s dashmesh deol hp centre, village dhaula, district barnala is owned by the family of the counsel for the petitioner and due to apprehension of loss of business, present writ petition has been filed. it has been further stated that the petrol pump from which the distance is measured is within municipal corporation limits, therefore, guide-lines have not been violated.9. hindustan petroleum corporation limited (hereinafter to be referred as, 'hpcl') in the written statement filed stated that m/s dashmesh deol hp centre is run by smt. ramanjit kaur at village dhaula. the location of that is not disputed as 'no objection certificate' was duly granted by the district magistrate on 21.6.2001 and the answering respondent-hpcl has no concern with the establishment of the new retail outlet by bpcl.10. principal chief conservator of forests, punjab has filed an additional affidavit to state that the petitioner is a close relation/family member of owner of dashmesh deol filling station and the present writ petition has been filed at the behest of harmanjit singh deol, husband of ramanjit kaur. in the additional affidavit it was further stated that petitioner is in custody in sub jail, barnala and is named as accused in case fir no. 163 dated 25.11.2008 registered at police station tapa under section 15/61/85 of the narcotic drugs and psychotropic substances act 1985.11. ramanjit kaur also submitted a counter affidavit in which she stated that she is sole proprietor of m/s dashmesh deol hp centre, village dhaula, district barnala and she has obtained divorce from mr. harmanjit singh deol. she also got registered fir no. 166 dated 29.3.2004 at police station, sector 6, panchkula against her husband and, therefore, allegation that petitioner has preferred a writ petition at the instance of her husband is not tenable.12. bpcl filed its counter affidavit and took a stand that as per rules, norms and procedure where ever forest land is used for setting up of petrol pumps, compensatory tree plantation is got done by the department on equal land, even if no loss of tree is involved. in the present case, before granting 'no objection certificate', the department of forests prepared a compensatory afforestation scheme in lieu of land to be utilized by bpcl for entry and exit to the petrol pump, even though no tree was to be cut. according to respondent-bpcl, as per the scheme, company has deposited rs. 1,08,919/- and rs. 58,231/- towards compensatory afforestation funds.13. we have heard counsel for the parties. we do not find any reason to interfere and restrain bpcl from establishing the retail petroleum outlet, as the official respondents have taken a definite stand that in the present case, no felling of trees is involved and for diversion of forest land, compensatory afforestation scheme has been accepted by respondent-bpcl and it has deposited the necessary funds. according to chief conservator of forests (central), northern regional office and chief conservator of forests, punjab, respondents are bound to plant trees on equal land, even though in the present case, no trees are to be uprooted. according to the official respondents, loss of 46 plants is permissible and can be condoned under the compensatory afforestation scheme. we are inclined to believe and trust the official respondents who have been assigned the duty to preserve ecological balance, save and take care of forest land. the allegations that the writ petition is prompted at the instance of rival petrol pump owner who will suffer loss of business, need not be gone into by us, as there is no material on record to substantiate that allegation. suffice it to say that since no felling of trees is involved and for uprooting of 46 plants, the requisite amount has been deposited by bpcl under the compensatory afforestation scheme envisaged by the central government, the only direction which we may given is mat the chief conservator of forests, punjab shall ensure that the amount deposited is utilized for the purpose for which it has been deposited and on equal land trees are planted so that necessary forest cover is not eroded. the chief conservator of forests, punjab and central northern regional office shall periodically monitor and keep his officers and employees vigilant and issue necessary directions to them to take immediate action against any illegal felling of trees any were in the state. the writ petition is disposed off with these observations. no costs.
Judgment:

Kanwaljit Singh Ahluwalia, J.

1. Vehicular traffic in the last few years has increased manifold. To cater to this increase, necessity arose to install and operate petrol pumps and fuel stations on National/State Highways and other link roads.

2. Trees which were planted many years ago and are in existence to provide shade and absorb pollution on these roads have been chopped off with impunity so that ingress and outgress is available to newly established petrol pumps/fuel stations.

3. To ward off depletion of forest cover and cutting of trees, Ministry of Environment and Forests issued instructions on 15.7.2004, Annexure P1, stating therein that no two fuel stations shall be allowed within a distance of 5 Kilometers and in case this norm cannot be adhered to, there shall be a common entry and exist subject to the condition that it should not cause loss of any forest or felling of trees.

4. The present writ petition has been filed for enforcement of aforementioned instructions/guide-lines issued by the Ministry of Environment and Forests with a prayer that proposal to establish new petrol pump by Bharat Petroleum Corporation Limited (hereinafter to be referred as, 'BPCL') on National Highway 64 at KM 156.320 (RHS) at Village Handiaya, District Barnala on Handiaya-Tapa road be shelved, as on that stretch of road, already three retail petrol outlets exist at a distance of 2/21/2 Kms. from each other and the authorities be directed not to issue a 'No Objection Certificate', as it will disturb ecological harmony.

5. The facts projected by the petitioner in the writ petition are that for establishing retail petrol outlets, 'No objection Certificate' is to be issued by the authorities and it also require issuance of 'No Objection Certificate' from the Department of Forests. Grievance of the petitioner is that establishment of Bharat Petroleum Outlet at Village Handiaya, District Barnala at Barnala-Bathinda National Highway from Handiaya Chowk to Tapa Chowk, large scale felling of trees has taken place in violation of the guide-lines and instructions issued by the Ministry of Environment and Forests. Reliance has been placed on instructions, Annexure P-1 issued by the Government of India, Ministry of Environment and Forests to all the Principal Secretary (Forests) and the Principal Chief Conservator of Forests (All States/UTs) on 15.7.2004. These instructions have been annexed as Annexure P-l. It will be apposite here to reproduce relevant portion of these instructions:.it has been decided that the following procedure should be adopted for consideration of proposals for diversion of forest land for approach/exit road to petrol pumps under Forest (Conservation) Act, 1980.

(i) The entry to the petrol pump/fuel station should be through an approach road of maximum 70 metre length and 5.5 metre width and exist should be through approach road having maximum length of 100 metre and width 5.5 metre, as per the norms issued by the Ministry of Road Transport and Highways.

(ii) The minimum distance between 2 fuel stations, on each side of the road, should not be less than 5 kms. Outside the city limits on highways. If 2 or more fuel stations are to be constructed in close proximity or adjacent to each other for some reasons, a common access and exit shall be provided. However, this condition shall not apply if no tree felling is involved.

(iii) to (vi) xx xx xx xx

xx xx xx xx

(vii) Suitable plantations should be raised by the User Agency along the approach roads, separator islands and other vacant areas in addition to the Compensatory Afforestation, if the area is more than 1 ha or plantation of 10 times or more number of the trees that are likely to be felled in such diversion proposals.

A further clarification was issued to these instructions stating that no 2 Petrol Pumps/Fuel Stations can come up within a distance of 5 Kms. On either side of the roads outside the city limits on highways. It further stated that if two or more fuel stations are to be constructed in close proximity or adjacent to each other for some reasons, a common access and exit shall be provided. However, this condition shall not apply if no tree felling is involved. Clarification letter has been annexed as Annexure P2.

6. Petitioner has relied upon photographs Annexure P4 and newspaper report Annexure P5 to state that the retail outlet being established by BPCL is at a distance of less than five kilometers and felling of trees is involved, therefore, a writ of mandamus be issued and respondents-State of Punjab and Conservator of Forests (Central), Northern Regional Office be directed not to issue 'No Objection Certificate'.

7. In response to the writ petition, Rajbir Singh, Deputy Conservator of Forests (Central), Government of India, Northern Regional Office, filed a reply by way of affidavit. He has taken a categoric stand that for establishment of Retail Outlet by BPCL at Village Handiaya on Baraala-Bathinda 'National Highway 64' from Handiaya Chowk to Tapa Chowk, no felling of trees is involved. Only 46 plants standing over the proposed area are to be uprooted and while issuing 'No Objection Certificate', Annexure R-2 for diversion of 0.11.83 hectare of forest land, following conditions have been imposed:

1&2. xx xx xx xx

3. No tree but 46 plants will be felled in this case.

4. xx xx xx xx

5. State Government shall deposit NPV and all other funds with the Ad-hoc of Compensatory Afforestation Fund Management and Planning Authority (CAMPA) in Account No. CA 1589 of Corporation Bank (A government of Enterprises), Block-11, Ground Floor, CGO, Complex Phase-I, Lodhi Road, New Delhi-110 003 as per the instructions communicated vide letter No. 5-2/2006-FC Dated 20.05.2006.

6. Compensatory afforestation will be carried at Handiaya Distry RD 13-14, L/s over 0.0460 hectare of degraded forest land as per proposed scheme.

7. Rs. 58,231/- (Rs. Fifty eight thousand two hundred and thirty one only) against the CA plantation and Rs. 1,08,919/- (Rs. One lakh eight thousand nine hundred and nineteen only) against the Net Present Value of the forest land has already been deposited by the user agency in the Ad-hoc Body of CAMPA as reported by the State Government Plantation will be done within one year from the date of issue of this letter.

8. Forest area falling between entry/exit paths will be planted and protected at the cost of user agency. DFO will personally ensure implementation of this condition and ensure that this area is not misused by user agency in any way.

9 to 12. xx xx xx xx xx

xx xx xx xx.

8. Principal Chief Conservator of Forests, Punjab also filed a written statement. It has been stated therein that M/s Dashmesh Deol HP Centre, Village Dhaula, District Barnala is owned by the family of the counsel for the petitioner and due to apprehension of loss of business, present writ petition has been filed. It has been further stated that the petrol pump from which the distance is measured is within Municipal Corporation limits, therefore, guide-lines have not been violated.

9. Hindustan Petroleum Corporation Limited (hereinafter to be referred as, 'HPCL') in the written statement filed stated that M/s Dashmesh Deol HP Centre is run by Smt. Ramanjit Kaur at Village Dhaula. The location of that is not disputed as 'No Objection Certificate' was duly granted by the District Magistrate on 21.6.2001 and the answering respondent-HPCL has no concern with the establishment of the new retail outlet by BPCL.

10. Principal Chief Conservator of Forests, Punjab has filed an additional affidavit to state that the petitioner is a close relation/family member of owner of Dashmesh Deol Filling Station and the present writ petition has been filed at the behest of Harmanjit Singh Deol, husband of Ramanjit Kaur. In the additional affidavit it was further stated that petitioner is in custody in Sub Jail, Barnala and is named as accused in case FIR No. 163 dated 25.11.2008 registered at Police Station Tapa under Section 15/61/85 of the Narcotic Drugs and Psychotropic Substances Act 1985.

11. Ramanjit Kaur also submitted a counter affidavit in which she stated that she is sole proprietor of M/s Dashmesh Deol HP Centre, Village Dhaula, District Barnala and she has obtained divorce from Mr. Harmanjit Singh Deol. She also got registered FIR No. 166 dated 29.3.2004 at Police Station, Sector 6, Panchkula against her husband and, therefore, allegation that petitioner has preferred a writ petition at the instance of her husband is not tenable.

12. BPCL filed its counter affidavit and took a stand that as per rules, norms and procedure where ever forest land is used for setting up of petrol pumps, compensatory tree plantation is got done by the Department on equal land, even if no loss of tree is involved. In the present case, before granting 'No Objection Certificate', the Department of Forests prepared a compensatory afforestation scheme in lieu of land to be utilized by BPCL for entry and exit to the petrol pump, even though no tree was to be cut. According to respondent-BPCL, as per the scheme, Company has deposited Rs. 1,08,919/- and Rs. 58,231/- towards compensatory afforestation funds.

13. We have heard counsel for the parties. We do not find any reason to interfere and restrain BPCL from establishing the retail petroleum outlet, as the official respondents have taken a definite stand that in the present case, no felling of trees is involved and for diversion of forest land, compensatory afforestation scheme has been accepted by respondent-BPCL and it has deposited the necessary funds. According to Chief Conservator of Forests (Central), Northern Regional Office and Chief Conservator of Forests, Punjab, respondents are bound to plant trees on equal land, even though in the present case, no trees are to be uprooted. According to the official respondents, loss of 46 plants is permissible and can be condoned under the compensatory afforestation scheme. We are inclined to believe and trust the official respondents who have been assigned the duty to preserve ecological balance, save and take care of forest land. The allegations that the writ petition is prompted at the instance of rival petrol pump owner who will suffer loss of business, need not be gone into by us, as there is no material on record to substantiate that allegation. Suffice it to say that since no felling of trees is involved and for uprooting of 46 plants, the requisite amount has been deposited by BPCL under the compensatory afforestation scheme envisaged by the Central Government, the only direction which we may given is mat the Chief Conservator of Forests, Punjab shall ensure that the amount deposited is utilized for the purpose for which it has been deposited and on equal land trees are planted so that necessary forest cover is not eroded. The Chief Conservator of Forests, Punjab and Central Northern Regional Office shall periodically monitor and keep his officers and employees vigilant and issue necessary directions to them to take immediate action against any illegal felling of trees any were in the State. The writ petition is disposed off with these observations. No costs.