JUDGMENT
R.C. Chavan, J.
Page 2022
1. A complaint by petitioner, a Member of Zilla Parishad, Chandrapur, about illegal felling of trees by respondent No. 5, the then Member of Legislative Assembly, was treated as Public Interest Litigation.
2. The petitioner himself stopped taking interest. On 9-3-2005, Advocate Shri P.C. Madkholkar was appointed as Amicus Curiae. From time to time, interim orders were passed and information was collected from all relevant sources in form of affidavits/submissions. On 27-4-2005, as the pleadings were complete, this Court directed by consent of parties that the petition may be disposed of finally at the stage of admission. This is how the petition is being disposed of. Therefore, Rule. By consent, rule is made returnable forthwith and is heard.
3. The pleadings disclose that there is no dispute about respondent No. 5’s ownership of land survey No. 49 in Khairi Chak situated in a reserved forest. It was alleged that by exerting his influence as Member of Legislative Assembly belonging to the ruling party, respondent No. 5 caused illegal cutting of trees, encroached on forest land by causing a road to be laid to approach his land, caused electric line to be laid to his house inside land survey No. 49, and a transformer to be installed to feed the said line, thus misusing official machinery by misusing official position. It was also alleged that respondent No. 5 purchased a tank and denied to the local cultivators irrigation rights from the said tank. In the guise of developing a tourist spot, he developed his own property. The petitioner had raised a number of issues about the illegal activities of respondent No. 5, presumably to elicit a response from the State as to what action the State proposed to take.
4. In his written submissions, respondent No. 5 denied the allegations levelled against him. He claimed that the road for approaching his property already existed. According to him, he had taken electric supply as per the rules. He had not cut any trees and did not exert any influence on any officer.
5. The other respondents have filed number of affidavits, gravamen whereof is that the authorities did not act under the influence of respondent No. 5. The allegations against respondent No. 5 raised in the petition are being considered one by one in the light of the arguments advanced by the Advocates for the respective parties in the context of affidavits filed. (I) Road to respondent No. 5’s property:
6. (a) It is not disputed by respondent No. 3 Divisional Forest Officer, Chandrapur, that a 2 KM. Approach road sanctioned by the Government by letter dated 13-5-2002 was constructed by the Forest Department under the Employment Guarantee Scheme. It was, however, stated that the work of this road was commenced by Shri A.O. Ghonmode, who was the Range Forest Officer, Nagbhid, at the relevant time, without any work order being issued. A notice was, therefore, issued to Shri Ghonmode and action was being taken departmentally against Shri Ghonmode.
(b) Affidavit filed by respondent No. 4. Commissioner, Nagpur Division, Nagpur, however, clearly shows that the road, which was sanctioned, Page 2023 was Village Road 190. However, the road was built at a different place. Instead of building an approach road to Kodepar, which had been sanctioned, what was built was road to respondent No. 5’s field, as may be seen from affidavit dated 19-4-2007 by one Vitthal Dadasaheb Suryawanshi, Assistant Conservator of Forests, Chandrapur, who placed with his affidavit some photographs showing the new road, which had been laid. The photograph of the road clearly shows that it leads to the farm house of respondent No. 5.
(c) Shri A.O. Ghonmode, who had been served with a notice by the Department in respect of the construction of the road, had filed a reply before his superiors on 27-7-2005. Copy of this reply has also been annexed with the above affidavit dated 19-4-2007. This reply repeatedly points out that the road was constructed because of persistent persuasions of respondent No. 5 and respondent No. 5’s Personal Assistant. It also mentions that the soft rock, which was used for laying the road, was directed to be taken from respondent No. 5’s field, since respondent No. 5 had sunk a well. Shri Ghonmode was told to utilize this soft rock and earth and then pay respondent No. 5 for the same. (d) The enquiry against Shri A.O. Ghonmode was conducted by Shri P.N. Banor. The said report of the Enquiry Officer has also been filed along with the affidavit dated 19-4-2007 as document No. 8. The Enquiry Officer had categorically held that Shri Ghonmode was guilty of negligence in discharge of his duties, acting under the pressure of politicians, failing to inform the superiors, and failing to reply to correspondence received from the superiors. He had recommended stoppage of two increments of Shri Ghonmode.
(e) It is thus clear that the Forest Department, through Shri Ghonmode, had undertaken construction of road and spent a sum of Rs. 18,424/-on it and also that the road was not constructed as per the sanctioned plan, but was laid in order to approach the property of respondent No. 5. Considering Shri Ghonmode’s statement that he had done so because of persistent persuasions of respondent No. 5 and also the finding recorded by the Enquiry Officer that Shri Ghonmode had acted under the political pressure, it would have to be inferred prima facie that notwithstanding his protestations to the contrary, respondent No. 5 did exert his influence in having the site of the road shifted and getting a road laid to approach his property through the forest area.
(f) On 22-11-2005, this Court recorded in para 8 as under:
As regards the respondent No. 5, Mr. Kshirsagar, the learned Counsel, makes a statement that the said respondent No. 5 would be willing to reimburse the costs incurred by the authorities for the construction of the road to his farm house and to reimburse the same to the authorities. The learned Counsel is also directed to make a statement about the compensation which he is willing to pay for the environmental losses which have been estimated by the Forest Department and the M.S.E.B. in the pursis which is served on him.
Page 2024
(g) On 22-2-2006, along with Advocate Shri Kshirsagar, Advocate Shri Gordey appeared for respondent No. 5 and stated that he proposed to file an application to clarify respondent No. 5’s liability as regards the admission made by Advocate Shri Kshirsagar. This application, bearing Civil Application No. 1142 of 2006, has been accordingly filed. Respondent No. 5 stated that the admission was made by his Advocate Shri Kshirsagar under misconception of facts and without any instructions in this behalf from respondent No. 5, who was not present in Court at the relevant time. Respondent No. 5, therefore, sought leave to withdraw the statement as recorded in para 8 of the order dated 22-11-2005. Respondent No. 5 reiterated that he was not liable for any environmental losses allegedly caused and, therefore, wanted the directions in order dated 22-11-2005 to be withdrawn. An affidavit sworn by Advocate Shri Kshirsagar was also filed, wherein Advocate Shri Kshirsagar stated that he was not having any instructions from respondent No. 5 and that if any such statement was made by him as is recorded in order dated 22-112005, it was not on the instructions of respondent No. 5 and, therefore, sought to withdraw the said statement.
(h) On behalf of respondent No. 5, reliance was placed on the judgment of the Supreme Court in A.R. Antulay v. R.S. Nayak and Anr. reported at , about recalling directions given by the Court. There can be no doubt that no man should suffer because of the mistakes of the Court or suffer a wrong by technical procedure or irregularities, as has been held in A.R. Antulay v. R.S. Nayak and Anr. The learned Advocate for respondent No. 5 also placed reliance on the judgment of the Supreme Court in Shivdeo Singh and Ors. v. State of Punjab and Ors. reported at AIR 1963 SC 1909, which too relates to correction of error by the High Court.
(i) Our attention was also drawn by the learned Amicus Curiae for the petitioner to a judgment of the Supreme Court in BSNL and Ors. v. Subash Chandra Kanchan and Anr. reported at . In that case, the High Court was considering an application under Section 11 of the Arbitration and Conciliation Act. The appellants had consented before the High Court for appointment of the Arbitrator. It was contended before the Apex Court that the counsel, who had consented to appointment of Arbitrator, was a junior counsel and he had no instructions in this behalf. In para 18 of the judgment, the Supreme Court held that such a submission could not be accepted, as such statement was not made before the High Court and that it had never been contended before the High Court that the counsel had no authority to make such submission.
Page 2025
(j) We have carefully considered the aspect of Advocate for respondent No. 5 withdrawing his statement that respondent No. 5 would be willing to reimburse the expenditure incurred in laying road. The impression that is created by the statement of Advocate Shri Kshirsagar, order dated 2211-2005 and application to withdraw the statement, is that respondent No. 5 was not averse to reimbursing the cost incurred in laying road (namely Rs. 18,424/-). But when respondent No. 5 realized that his liability would be enlarged to cover even environmental losses, which may be colossal, withdrawal of the statement, is being attempted. On giving peaceful consideration, this prayer based on the ground relied upon does not stand to reason that an experienced Advocate appearing in a high profile case for a client holding a responsible political office may have carried misconception of facts and would have failed to take instructions. We, therefore, do not accept the plea now raised that Advocate of his standing, who had appeared in previous hearings, would make a statement without authority or that the Court would casually record it. In our view, the statement was a calculated move of damage control, which had backfired because of further observations ordered by this Court while directing filing of affidavit/statement about environmental losses in the order dated 22-11-2005.
(k) After 22-11-2005, the petition had come on board as directed in the order dated 22-11-2005 after three weeks. Had learned Advocate for respondent No. 5 or respondent No. 5 himself any grievance about manner or reasons of going on record about agreeing to pay the compensation earliest occasion and time to move was even waiting for case to come on board on due date. At the most, the request for this could have come on due date. Respondent No. 5 has tossed the hearing on two dates and on 8-2-2006, i.e. After two-and-half months prayed for time so that Senior Advocate can be engaged. Ultimately, Senior Advocate came with present application on 22-22006. Respondent No. 5 may be acting within his devices of defence, but will have to find out its genuineness, worth and maintainability.
(l) We hold that the applicant’s claim for withdrawal of statement is not supported by both judgments relied upon by him, which are referred to in Sub-para (h) above. The case is rather governed by judgments relied upon by learned Advocate Shri Madkholkar, referred to in foregoing Sub-para (i).
(m) It is also pertinent to note that the record of Shri Ghonmode’s enquiry filed with affidavit dated 19-4-2007 by Shri Vitthal Suryawanshi, shows that Shri Ghonmode had deposited amount of Rs. 18,424/-on 12-72005 itself. Further, in our view, withdrawal of statement made by the Advocate does not alter the extent of respondent No. 5’s complicity in getting a road laid to approach his farm house in place of Nagbhid-Kodepar approach road or independent thereof however with Government machinery and State Treasury without any sanction, etc., thereto. Therefore, we reject Civil Application No. 1142 of 2006.
Page 2026
(n) From the action taken report filed on behalf of Principal Secretary (Forests) on 1-7-2006, it appears that the prosecution of Shri A.O. Ghonmode, Range Forest Officer, Bramhpuri, had been proposed and approval for such prosecution was sought from the competent authority for violation of the Forest (Conservation) Act, 1980. The further affidavit of the Chief Secretary, dated 2-9-2006, shows that the State Government has come to the conclusion that Shri Ghonmode cannot be prosecuted under the Forest (Conservation) Act, and that the departmental action against Shri Ghonmode should be adequate. It is strange that the Government feels that Shri Ghonmode need not be prosecuted for laying a road, while officers of Electricity Distribution Company, who merely laid an electric line along the road, could face action under Forest (Conservation) Act in addition to departmental action, which they have suffered. Applying different standards to two sets of officers, to say the least, is baffling. We believe that the State Government would be alive to the gravity of the situation and would seriously consider if there have been any violation of the Forest (Conservation) Act or any other law rather than align itself with operation cover up, and also examine the feasibility of prosecuting respondent No. 5 for abetting of such offences. This would enable respondent No. 5 to meet the charges and give him an opportunity to clear his name for which he seems to have a serious concern. In that eventuality, he would also be liable to recover the amount that he would be depositing.
(o) Since the Divisional Commissioner has categorically concluded that there is no record of existence of pathway at the place where road has been laid, the State Government and the authorities in Forest Department may have to take steps to immediately close the road and have the site re-forested by planting trees, and charging the cost of such aforestation to respondent No. 5 after following principles of natural justice. It shall be needless to mention that the State Government shall advert to the procedure to be adopted by the State adopted for calculating cost of damage to the forest and cost of re-forestation and incidental costs while granting permission under the provisions of the Forest (Conservation) Act.
(II) Laying of electric line to supply electricity to respondent No. 5’s farm house:
7. (a) On behalf of respondent No. 6 MSEB, it was stated in affidavit dated 12-4-2005 that applications for electricity supply to fields survey Nos.49-1A and 49-1B were received from respondent No. 5 Avinash Warjukar and his relation Sau. Anita Satish Warjukar on 26-12-2001. An estimate for supply of electricity was prepared and on 5-3-2002, estimate of Rs. 3,32,467/ was sanctioned under the Rural Electrification Scheme. This amount was not charged to customers, since it was received from Rural Electrification Corporation. Demand notes for Rs. 5,640/-each were issued to the two applicants and after completing the work of laying lines, the two applicants were given Consumers Nos.AG44 and AG45 and the line was changed between September and November 2002. It was denied that any special favour was shown to respondent No. 5 Page 2027 in the matter of giving connection and it was claimed that all applications for connection from Nagbhid area till 2002 were cleared.
(b) Respondent No. 6 admits that without forest clearance, some trees were trimmed resulting in respondent No. 6 receiving show cause notice from Forest Department on 21-11-2002.
(c) From the action taken report dated 1-7-2006 filed by the Principal Secretary (Forest), it can be seen that the show cause notices have been issued by the Ministry of Environment and Forests, Government of India, to Shri S.Y. Patil, Executive Engineer, Shri Ajay Khobragade, Deputy Executive Engineer, and Shri Prashant Takare, Junior Engineer, for their involvement in contravention of the provisions of the Forest (Conservation) Act, 1980 by erecting 7 poles and drawing 11 KV Electric Transmission line from Nagbhid- Talodhi Main Transmission Line to Survey No. 49 of Village Khairi Chak, Tahsil Nagbhid, District Chandrapur. The affidavit of Shri Ashok Shivshankarsingh Tehere, Chief Engineer, Nagpur Rural Zone, Maharashtra State Electricity Distribution Company Ltd., Chandrapur, shows that the officers concerned have been chargesheeted in departmental proceedings and have been departmentally punished. The affidavit of Chief Secretary Dr. D.K. Sankaran dated 2-9-2006 shows that the show cause notices have been issued to the officer of the Electricity Board and appropriate action under the Forest (Conservation) Act, would be taken. The subsequent reports only indicate as to what departmental action has been taken against various officers, but does not indicate whether any prosecution has in fact been launched. Since, as the matter stands, the State seems to be inclined to prosecute the officers of Electricity Distribution Company for contravening Forest (Conservation) Act, we believe that the prosecuting agency would also give a chance to respondent No. 5 to clear his name by arraying him as an abettor, on the basis of available material, which, prima facie, reveals his involvement as abettor.
8. Public memory is short and, therefore, may be, wrongdoers believe that in a short-while, people will forget the gross violations of laws made in order to protect our fragile eco system. We believe that the respondent-officers of the State Government would realize that overlooking infractions of this type or dealing with such infractions leniently would encourage similar infractions. Further, when specific allegations has been that a Range Forest Officer acted under a political pressure of respondent No. 5, who was at the relevant time sitting Member of Legislative Assembly, it would be improper to deny to respondent No. 5, a public forum to have his name cleared. Such forum can be provided only in the form of proceedings in a court of law, since respondent No. 5 could have nothing to do with the departmental proceedings initiated by the employers against their employees. Therefore, the authorities would do well to take the infractions, which have been defected, to their logical end by prosecuting the officers along with abettors, who allowed a new road to be laid, which would presumably have required clearing of forest, since no such road existed, and laid a new electric line through the forest area.
Page 2028
9. We are also of the opinion that had the scheme for laying electricity connection through 11 KV Line not been taken by the officers of the Electricity Board on account of influence of respondent No. 5, the line could not have been drawn to nearest place to that of respondent No. 5’s farm house. The expenditure incurred for raising electric poles and laying line for the farm house of respondent No. 5 also needs to be recovered by the Electricity Board or it should make an enquiry and serve a notice of demand on respondent No. 5 and thereafter decide the quantum so recoverable.
10. Insofar as the aspect of enquiry in the matter of loss suffered by the Forest Department is concerned, as desired by the petitioner, the matter needs to be enquired into. We hope and expect that respondent No. 2 State, through its Secretary, Revenue and Forest Department, shall appoint an officer, who may be preferably of the rank of Chief Conservator of Forest, who shall initially get prepared the estimate of compensation on the basis of loss suffered and estimate of compensation for re-forestation and expenditure to be incurred till re-forestation becomes sustained. After such calculations are done, those be put to respondent No. 5, where he will get an opportunity to defend, and thereafter the officer, so specially appointed, shall conduct the enquiry, give to respondent No. 5 reasonable and fair opportunity to defend the estimate served upon him, and thereafter give his finding as to what amount of compensation shall be recoverable from respondent No. 5 from his person and property towards the act of illegal laying of road, damage caused to environment and cause of restoration. While considering the estimate of loss and cause of restoration, the officer, so designated, shall take into account the norms, which the State Government follows, or apply such other methods, as may be available and recognized by the Forest Department, while recovering the amount of compensation.
11. In the result, we pass the following order:
(a) Respondents No. 1 to 4 are directed to immediately close the disputed road and take steps for re-forestation of the site under the road and submit to this Court the report of compliance within sixty days from the date of this judgment.
(b) We direct respondent No. 2 to appoint an officer, who may be preferably of the rank of Deputy Conservator of Forest, within thirty days from the date of this judgment.
(c) The officer, so appointed, shall get prepared from his office estimate of compensation on the basis of loss suffered and estimate of compensation for re-forestation and expenditure to be incurred till re-forestation becomes sustained.
(d) The estimate, so got prepared, be served on respondent No. 5, for which he shall be called to appear in person or through his Advocate before him and file his reply within thirty days of the receipt thereof.
(e) The officer so designated shall complete the enquiry as to the amount which should be recovered from respondent No. 5 within six months from today. The amount so assessed shall be recoverable arrears of land revenue.
Page 2029
(f) We direct that respondent No. 6 shall assess the expenditure incurred for laying the line and effecting electricity supply to the farm house of respondent No. 5 in terms of para 9 and order Clauses (d) and (d) foregoing of this judgment. The amount so assessed shall be recoverable as a decree, and further legal action by way of suit for its recovery shall not be required.
(g) We direct respondents No. 1 to 4 and 6 to report the compliance and directions and place on record of this Court the assessment of compensation done furtherance to foregoing directions.
(h) Respondents No. 1 to 4 shall examine the feasibility and necessity of prosecuting all officers involved along with respondent No. 5 as abettor and record and make public their reasoned decision in this behalf within three months of this judgment, and report to this Court the decision reached.
(i) We direct the State Government to pay to Amicus Curiae the amount of costs, which are quantified at Rs. 25,000/ (Rs. Twenty Five Thousand) within two months from today, which amount be recovered from respondent No. 5 by the State while recovering the amount of compensation, as may be assessed furtherance to the directions given by this Court.
(j) Office to issue writ to the concerned respondents forthwith.
12. Rule is made absolute in above terms.