A.P. Water, Land Trees Act, 2002 - a company incorporated under the Companies Act, to issue a writ of mandamus declaring the action of the respondents in seizing the fire wood under transport to the petitioner company in the guise of contravention of A.P. Water, Land Trees Act, 2002 and the Rules made thereunder as illegal, void and without jurisdiction and to declare Respondent No.4 as not notified or specified to be the Designated Officer under the Act and for a direction to Respondent No.5 to refrain from in any way proceeding against the petitioner- company in the transportation of specified exempted species of fire wood to the premises of the petitioner's factory.- Under the guise that certain species of wood are exempted under the A.P. Forest Produced Transit Rules, the petitioner or any other individual cannot be permitted to encourage cutting of such trees without obtaining permission from the designated authority under the provisions of the Act. It is obligatory under the provisions of the Act to obtain prior permission from the concerned authority to cut or fell any kind of tree in the area and the Trees Act has not exempted any category of tree from the provisions of the Act. As Ex-officio Chairman of the Mandal Authority, it is the duty of the Mandal Revenue Officer to protect the living trees and also get tree plantation wherever trees fell due to various reasons.- under the A.P.Water, Land and Trees Act, 2002, it has been specifically stated in Rule 10 that the District Authority may utilize the services of Designated Officers and technical Officers in discharging of its functions. I have also found from Rule 8 wherein it has been specifically mentioned as to who can be treated as a Designated Officer under the said Rule since the District Authority has been prescribed in the said Rule. Accordingly, in my opinion, the Designated Authority is the Mandal Revenue Officer and in fact he has a right to take steps in the matter and I find that the Designated Authority has acted in accordance with the provisions of the Trees Act, 2002 to safeguard the public interest and petitioner is not entitled for the relief prayed for.

HON'BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE            

WRIT PETITION No.8827 OF 2003  

06-09-2012

H.C.L.AGRO POWER LIMITED VEDADRI VILLAGE, JAGGAIAHPET MANDAL, KRISHNA DISTRICT                  
REP. BY ITS MANAGING DIRECTOR                  

A.P.STATE WATER, LAND AND TREES AUTHORITY REP. BY EX.OFFICIO MEMBER SECRETARY                    
SECRETARY TO GOVERNMENT, INCHARGE OF RURAL DEVELOPMENT, SECRETARIAT BUILDINGS,                        
HYDERABAD    

Counsel for the petitioner: SRI.M.SUDHEER KUMAR  
Counsel for the respondents: Govt.Pleader for Panchayat Raj and Rural
Development

<Gist:

>Head Note:

?CITATIONS:

JUDGMENT:  

        This Writ Petition has been filed by HCL Agro Power Limited, Vadadari,
Krishna District,  a company incorporated under the Companies Act, to issue a
writ of mandamus declaring the action of the respondents in seizing the fire
wood under transport to the petitioner company in the guise of contravention of
A.P. Water, Land Trees Act, 2002 and the Rules made thereunder as illegal, void
and without jurisdiction and  to declare Respondent No.4 as not notified or
specified to be the Designated Officer under the Act and for a direction to
Respondent No.5 to refrain from in any way proceeding against the  petitioner-
company in the transportation of specified exempted species of fire wood to the
premises of the petitioner's factory.
2.      The petitioner company was established for generating electrical energy of
the capacity of 6 MW by employing a process consisting of bio mass material such
as waste wood, Julie flora, agricultural waste such as paddy husk, corn stems
etc.    Waste wood includes Neem, Tumma etc Under the A.P. Forest Produce  
Transit Rules, 1970 Neem, Tumma including kancha (fencing) tumma are notified to
be the exempted species  and the felled produce of such exempted species can be
transported without any transit permit under the said Rules and for
transportation of all other categories of wood  other than the exempted
categories permission is required to be obtained from the forest authorities.
The petitioner-company is procuring fire wood for the purpose of the company by
purchasing the exempted species of trees which were cut or felled from various
districts where such species are notified as exempted under the Rules. Since
there is no prohibition for transportation of such exempted categories of wood,
the petitioner is procuring such wood from the concerned for generating the
electrical energy after obtaining permits from the forest authorities though
under the A.P. Forest Produce Transit Rules, 1970 it is not obligatory to obtain
permission.  The grievance of the petitioner is that under the guise of a
prohibition under A.P. Water, Land Trees Act, 2002 (hereinafter referred to as
'the Trees Act') Respondent No.4 - Mandal Revenue Officer (Designated Officer),
Jaggaiahpet Mandal is seizing vehicles transporting such exempted fire wood to
the petitioner factory on the ground that such material was procured by felling
the trees without obtaining any prior permission from the Designated Officer.
Respondent No.4 has seized number of vehicles transporting the fire wood to the
petitioner factory and compounded the offence under coercion and collected
thousands of rupees with reference to the quantity of the fire wood under
transport under the provisions of Trees Act.  According to the petitioner,
Respondent No.5 - Divisional Forest Officer, Vijayawada is insisting that the
power projects were required to obtain felling permission even for using the
exempted category fire wood in view of Section 28(5) of the Trees Act.
According to the petitioner, there is no prohibition under the provisions of the
Trees Act for cutting or felling any tree which is an exempted species,
therefore, imposition of penalty under the provisions of the Trees Act is
without jurisdiction and cannot be sustained.
3.    In the counter filed by the respondents it is stated that  Jaggaiahpeta
Mandal where the petitioner company is located is facing air pollution due to
the left over material of cement factories and the establishment of the
petitioner factory has further increased the pollution level since the
petitioner company is encouraging cutting of live trees such as Neem, Thumma
etc.  for utilizing them as raw material instead of utilizing the bio-mass
material such as waste wood, julieflora, agricultural waste.   The petitioner
company is encouraging the poor labour, small and marginal farmers to cut the
living trees in the fields as well as in the private houses to produce the same
to their factory for generating power.  Under the provisions of the Trees Act,
the Government has designated the Mandal Revenue Officer as Ex-Officio Chairman
and other Mandal Level Officers as members of the Mandal Authorities.  It is the
duty of the Mandal Revenue Officer to protect the living trees and also to get
tree plantation wherever trees fell due to various reasons. The Mandal Revenue
Officer is empowered to compound the offences under Section 37 of the Trees Act
and also has the power to seize the property under Section 38. It is further
stated that tractors/lorries which are carrying cut trees of neem, tumma etc of
the age of 5 to 10 years are only seized and offences are compounded so as to
prevent the ryots/farmers/labourers from cutting the living trees.  It is
specifically averred that apart from the bio-mass material the petitioner
company is in the habit of taking delivery of cut trees of neem and other trees
of 5 to 10 years which attracts the provisions of the Trees Act.  The Mandal
Revenue Officer as Designated Authority under the Act has performed his
legitimate duties in the interest of public.  According to the respondents, even
for the usage of felling of trees or branches, permission of the designated
officer is required under Section 28(5) of the Act. The designated officer has
acted in accordance with the provisions of the Trees Act to safeguard public
interest and to maintain pollution free area.
4.      We have heard the learned counsel for the petitioner and the learned
counsel for the respondents.
5.      Learned counsel for the petitioner submitted that under section (2) of
Section 28 of the Trees Act, the Authority under the Act is empowered to direct
the Municipal Corporation or Municipality or the other Local Authorities, as the
case may be, to designate an officer to be incharge of tree plantations in their
respective areas, whereas sub-section (2) of Section 2 defines "Designated
Officer" to mean an officer or any person so designated by the Authority to
perform the functions under the Act.  Though there is inconsistency in the two
provisions since the charging section has overriding effect over the definition
clause, the Designated Officer is to be designated by the local authority under
the directions of the 1st respondent Authority.  Since the 4th respondent has
not been appointed under the directions of the Andhra Pradesh State Water, Land
and Trees Authority constituted under Section 3 of the Act, 4th respondent has
no jurisdiction to impose the penalties under the provisions of the Trees Act
nor has the authority to seize the wood or the vehicles. It is further contended
that since Neem, Tumma and other trees are exempted species under the A.P.
Forest Produce Transit Rules, 1970 and since there is no prohibition under the
Trees Act to cut such trees, the Trees Act has no application insofar as those
exempted species of trees are concerned and no permission for felling of trees
or branches is required to be obtained.
6.      The learned counsel for the respondents submitted that Mandal Revenue
Officer was designated as the Designated Authroity under the provisions of the
Trees Act by the Government itself and as such the Mandal Revenue Officer has
jurisdiction and authority to discharge the functions under the provisions of
the Trees Act.   He further submitted that though Neem, Tumma etc. are exempted
species, the provisions of the Trees Act  have application notwithstanding the
A.P. Forest Produce Transit Rules, 1970 and, therefore, permission is required
to be obtained for cutting and transportation of the wood related to such
species also and prayed for dismissal of the writ petition.
7.      Before we consider contentions urged on behalf of the petitioner, we may
briefly  refer to the provisions of the Andhra Pradesh Water, Land and Trees
Act, 2002 (Act No.10 of 2002).  The main object behind the enactment is to
promote Water Conservation and Tree Cover and Regulate the Exploitation and use
of Ground and Surface Water for Protection and Conservation of Water Sources,
Land and Environment and matters connected with or incidental thereto. Sub-
section (1) of Section 2 defines "Authority" to mean the Andhra Pradesh State
Water, Land and Trees Authority constituted under Section 3 and sub-section (2)
of Section 2 defines "Designated Officer" to mean an officer or any person so
designated by the Authority to perform the functions under the Act.  Chapter 2
deals with constitution of the Authority. For the purpose of this writ petition,
we are not concerned with the constitution of the 'Authority'.  Chapter V
consisting of Sections 28 to 32 deals with Trees.  Sub-section (1) of Section 28
provides that the Authority may direct that every Municipal Corporation or
Municipality or any other Local Authority, as the case may be, to insist for
compulsory plantation with such number of trees and their maintenance as may be
prescribed while according approval of building plans. Sub-section (2) and (5)
which are relevant for our purpose reads as under:
        "(2) The Authority may also direct the Municipal Corporation or
Municipality or the other Local Authorities, as the case may be, to designate an
officer to be in charge of tree plantations in their respective areas.
                          XX                                    XX

        (5) No felling of the trees or branches is permitted without the prior
permission of the designated officer.  In case when a tree is to be felled, not
less than two seedlings should be planted and when such planting is not
possible, cost of raising seedlings and their maintenance shall be recovered
from the concerned individual, organization or other persons for raising
plantations in public places."

Sub-section (1) of Section 29 of the Trees Act provides that any person,
institution, organization or department, public or private, providing a public
or private utility service  including Roads and Buildings Department, Energy
Department of the Government and Telecommunications Department shall ensure  
protection of trees and their branches while developing their infrastructure or
carrying on their activities.  Section 30 deals with Tree plantations by
Government departments etc.  Sub-section (3) of Section 30 which is relevant may
be extracted below:
"(3) All agricultural land owners except small and marginal  farmers  and
wetland owners as determined by the Government  shall plant trees in their land
holding as prescribed by the Authority upto 5% of their total land holding and
felling permission for trees shall be given only when the land owner plants
trees in equal extent of land.

Provided that the area covered by the existing tree growth including fruit
bearing horticultural crops shall be included while calculating the area under
tree growth.

Provided further that suitable incentives, as may be prescribed, shall be given
to the land owner who plants tree species in his total land holding."

Section 35 provides for penalties.  Sub-section (1) of Section 35 provides that
whoever contravenes any of the provisions of the Act or obstructs any person in
the discharge of his duties under the Act or contravenes any order or violates
any rule made under the Act shall be punished with fine which shall not be less
than one thousand rupees but which may extend five thousand rupees. Sub-section
(3) of Section 35 provides that whoever without any lawful authority fells a
tree shall be punished with a fine which shall not be less than two times of the
value of  such trees but which may extend to five times of value of such tree.
Section 37 which deals with compounding of offences to the extent relevant reads
as under:
"37. (1) Notwithstanding anything  contained in the in the Code of Criminal
Procedure, 1973 (Central Act 2 of 1974), the Authority or the Designated Officer
any Officer authorized by the Government in this regard, as the case may be, may
accept from any person who committed or who is reasonably suspected of having
committed an offence punishable under the Act other than the offences punishable
under sub-section (2) of Section 35 of this Act, --
(i) a sum of money as may be prescribed, by way of     compounding of the
offence.

(ii) The Authority or Designated Officer or any other officer  authorized by the
Government in this regard, as the case may be, may reject to compound the
offence for the reasons recorded in writing;


(ii) The Authority or Designated Officer or any officer authorized by the
Government in this regard, as the case may be, shall pass order to compound the
offence or otherwise within a period as may be prescribed. "

Section 39 of the Act provides that the provisions of the Act shall have effect
notwithstanding anything to the contrary contained in any other law for the time
being in force.
8.      No doubt under sub-section (2) of Section 28 of the Trees Act, the
Authority constituted under section 3 of the Act is empowered to direct the
Local Authorities to designate an officer to be in charge of tree plantations in
their respective areas whereas under sub-section (2) of Section 2 defines
"Designated Officer" to mean any officer or any person so designated by the
Authority to perform the functions under the Act.  Notwithstanding the
definition clause, under the charging section 28(2), the State Authority has
power to direct a local authority to designate an officer to be in charge of the
plantations. But, under Rule 9(1) of the Andhra Pradesh Water, Land and Trees
Rules, 2002 the Government may by notification constitute a Mandal Authority
which consists of (a) Mandal Revenue Officer of the concerned Mandal as Ex
Officio Chairman, Mandal Development Officer Ex-Officio Vice Chairman, Sarpanch
of the Mandal Headquarter as Ex-officio member etc. and the Government by
notification issued in G.O.Ms.No.244, Panchayat Raj and Rural Development
(RD.IV) dated 24.6.2002 constituted  Authority for each Mandal in the State.
Under sub-rule (3) of Rule 9 the Mandal Authority shall conduct meetings and
perform such functions as delegated under Section 6 of and Section 3(6) of the
Act by the Authority and other functions as directed by the Government. The
Mandal Authority is empowered to perform such functions as delegated under
section 6 of the Act. Therefore, notwithstanding that a designated Officer is
appointed by a  local authority, the Mandal Authority which is constituted by a
notification of the Government in accordance with the Rules framed under the
Act, is empowered to discharge the functions under the Act insofar as the Mandal
is concerned.  The Mandal Revenue Officer who is the designated authority,
therefore, has jurisdiction to impose the penalties under the provisions of the
Act and has power to seize the property or the vehicles which are transporting
the wood without obtaining permission. It is not the case of the petitioner that
any other Officer has been designated as the "Designated Officer" and such
officer has failed to discharge the functions. Further, sub-section (1) of
Section 37 of the Trees Act clearly provide that the Authority or the Designated
Officer or any Officer authorized by the Government  is permitted to accept the
money as may be prescribed by way of compounding of the offence or reject to
compound the offence for the reasons recorded in writing. Therefore, the Mandal
Revenue Officer who is an Officer appointed by the Government by notification
has certainly jurisdiction to deal with the penalties.  The designated authority
is not only concerned with tree plantation but also empowered to perform the
functions under the provisions of the Act. The contention of the petitioner that
the Mandal Revneue Officer has no jurisdiction to perform the functions under
the Act, therefore,   has no merit.
9.      Admittedly, the power plant of the petitioner company has to generate
electrical energy primarily employing a process consisting of bio-mass material
such as waste wood, Julie flora, agricultural waste such as paddy husk, ground
net husk etc. But the petitioner company under the guise that certain trees like
neem, tumma etc. are exempted species under the A.P. Forest Produce Transit
Rules, 1970 and there is no prohibition to cut such trees, is procuring such
wood from the ryots and labourers from various districts and utilizing the same
for the purpose of generation of power. The contention of the petitioner that no
permission is required to procure such exempted categories of wood from the
ryots or labourers has no merit. The Trees Act is enacted mainly to promote
Water Conservation and Tree Cover and regulate the exploitation and use of
ground and surface water and for protection of water sources, land and
environment to maintain a pollution free area in the interest of public.
Section 39 of the Act clearly provides that the provisions of the Act shall have
effect notwithstanding anything to the contrary contained in any other law for
the time being in force. Therefore, the Trees Act has overriding effect over the
A.P. Forest Produce Transit Rules, 1970.  As such, even though Neem, Tumma and  
other species are exempted under the A.P. Forest Produce Transit Rules, 1970,
petitioner-company or any other individual connected with the cutting of such
trees is under an obligation to obtain permission from the authority empowered
under the Trees Act to grant such permissions before cutting the trees.   The
main object of the Trees Act being to protect the environment in the area, if
illegal cutting of trees without obtaining prior permission is allowed, the
level of pollution in the area may increase affecting the public interest at
large.   In the counter-affidavit, the respondents have taken the stand that the
petitioner company is encouraging cutting of live trees by the poor labour,
small and marginal farmers for utilizing the same as raw material instead of
utilizing the bio-mass material such as waste wood, agriculture waste and that
the seized lorries contain trees of neem, tumma of the age of 5 to 10 years.
Sub-section (5) of Section 28 clearly provides that no felling of the trees or
branches is permitted without prior permission of the designated officer. Sub-
section (3) of Section 30 provides that permission for felling of trees shall be
given only when the land owner plants trees in equal extent of land.  The
Legislature, therefore, has designedly framed the law so as to prevent any
illicit or illegal felling of+ trees affecting the environment.  Indiscriminate
felling of trees would badly affect the bio-sphere and the environment in the
area.  Under the guise that certain species of wood are exempted under the A.P.
Forest Produced Transit Rules, the petitioner or any other individual cannot be
permitted to encourage cutting of such trees without obtaining permission from
the designated authority under the provisions of the Act.  It is obligatory
under the provisions of the Act to obtain prior permission from the concerned
authority to cut or fell any kind of tree in the area and the Trees Act has not
exempted any category of tree from the provisions of the Act. As Ex-officio
Chairman of the Mandal Authority, it is the duty of the Mandal Revenue Officer
to protect the living trees and also get tree plantation wherever trees fell due
to various reasons.
10.     It is also pointed out before me that under the A.P.Water, Land and Trees
Act, 2002, it has been specifically stated in Rule 10 that the District
Authority may utilize the services of Designated Officers and technical Officers
in discharging of its functions. I have also found from Rule 8 wherein it has
been specifically mentioned as to who can be treated as a Designated Officer
under the said Rule since the District Authority has been prescribed in the said
Rule. Accordingly, in my opinion, the Designated Authority is the Mandal Revenue
Officer and in fact he has a right to take steps in the matter and I find that
the Designated Authority has acted in accordance with the provisions of the
Trees Act, 2002 to safeguard the public interest and petitioner is not entitled
for the relief prayed for.

11.       For the reasons aforesaid, we find no merit in the Writ Petition and it
is accordingly dismissed.  There shall be no order as to costs.

PINAKI CHANDRA GHOSE, ACJ      
6th September, 2012