Khalia Top : Remembering Justice Ravi Dhawan

R.S. ToliaUncategorizedLeave a Comment

Munsyari.  The piece that appeared on Khalia Top, the Water Tower that feeds all the villages on either side of this pivotal Reserve Forest Block, of Munsyari Block  in Garhwal Post ( Khalia Top: How Not to  Develop Tourism , 29th Apl, 2016 ) besides eliciting several messages of deep concern about indiscriminate promotion of “ mass-tourism’ in ecologically sensitive regions, particularly Uttarakhand’s pristine meadows ( Bugyals, in local parlance ) it has also raised issues which have now become far more relevant, post- recent Forest-Fires that engulfed and destroyed hundreds of hectares of forests, destroyed and created threatening situation for the rare fauna ( April-May, 2016 ), issues that had been forgotten and buried in short human-memory.

Landmark Judgement on Chopta Bugyal Case (  Oct, 1996 )

This also revived this writer’s first meeting with Justice Ravi S Dhawan, as the Presiding Judge, of a two-member Bench of Allahabad High Court, which passed a land-mark judgement, ordering pulling down of a pre-fabricated hut which had been constructed on the famous Chopta Bugyal, in Chamoli (Om Prakash Bhatt & Others vrs State of UP and Others, passed on 28 October, 1996 ). Arguably, this is the first ever case that expressed serious concerns of several issues, besides preservation of our precious meadows ( Bugyals ), like the growing problem of non-degradable solid waste being deposited by our trekkers, the problem compounding the long term sustainability of our mountain destinations, resultant problems that are faced by the host-regions, where such trekking get organized. Before Justice Ravi Dhawans services to this State are recalled let me share the most stunning revelation, that two SLPs that were filed by the then UP Government, were summarily rejected by the Supreme Court of India ( scanned copy attached ) ! Does it means that the Final Orders on how to regulate Tourism in Bugyals like Chopta, Khalia Top are not only still operative, but the earlier Trek of The Year organized by the Youth Hostel Association of India in collaboration with GMVN, was a possibly a clear case of violation of High Court’s Orders of 28 October, 1996, and the Khalia Top a continuing contempt of those Orders ! This remains to be examined primarily by the GMVN and KMVN and the Govt of Uttarakhand.

The Chopta Bugyal Case : Issues at stake

As the People of Uttarakhand,  most unfortunately so, have not had an occasion to pay their grateful tributes to a distinguished Judge, who has had has his early schooling in these parts only and thus became like a naturalized son of the soil, and who has to his credit innumerable instances of returning his genuine love and affection for the people of Uttarakhand through his several landmark Judicial pronouncements, this writer would like to avail this opportunity of remembering him, recalling thorough his two contributions. First, of course, is his Judicial Orders, heading a two-member Bench, in the land mark case Om Prakash Bhatt & Others vrs State of UP & Others, pronounced on 28th October, 1996 (  Citation AIR 1997 AA 259 ). The second, his Nain Singh Memorial Lecture, entitled Ecology of the Himalayas : A Lost Heritage and Disappearing Culture, delivered on 26th June, 1997, at the UP Academy of Administration, Naini Tal. Both these documents establish beyond any iota of doubt, that indeed he was the first and original Green Judge, as he was popularly known in the legal circles – which this writer personally witnessed when he got an opportunity to appear in his Court Room, as the then Kumaon Commissioner, and later soon after, in his Chambers, at his personal request.

In brief, the Allahabad High Court Bench, headed by Justice Ravi S Dhawan, while passing final  orders and ordering Garhwal Mandal Vikas Nigam ( GMVN ) to ensure its compliance by removing the disputed “pre-fabricated lodging houses as a hotel for tourists on the slopes of a Bugyal.. below the peak of Tungnath temple, at Chopta.” In passing, Justice Dhawan, covered a whole range of issues, that all of us see now as a routine, which are not only eye-sores but now a major health-hazard, destroyer and Enemy Number One of not only Uttarakhand Himalayas, but almost everywhere. These included:

( i )  construction of commercial building in Bugyals and reserve forest areas,

( ii ) indiscriminate import of plastic and non-bio-degradable material, playing havoc with the ecology and environment of the hills,

( iii ) the above, causing disappearance of little streams and water sources on which hill people rely upon.. and which kills green life on the slopes of mountains,

( iv ) tourist and trekking pilgrimage routes … trekkers devoid of civic sense .. throw non bio-degradable materials on the slopes … mountain routes are being littered,

( v ) commercial activities, like kiosks and tea-shops at places where they ought not to be.. have been encouraged by the State administration,

( vi ) the ‘warming up’ phenomenon

Justice Dhawan took strongly objected to the defence mounted by Chairman GMVN and Director Tourism for not shifting the pre-fab huts in question, on the ground that the disputed complex was constructed with the Government of India funds and after obtaining due clearance from the Governments of UP and India. He painfully observed:

“Merely because money has been spent is no ground,” he added, “ to degrade ecology and environment.” Quoting Supreme Court rulings, which had held that “such violations were illegalities which were not curable…The violations of environment cannot continue and upsetting an ecological balance will be judged with even more strict standards” Justice Dhawan categorically ruled that “money has been spent by Nigam ( GMVN )  on putting pre-fabricated structures and tents on the Bugyals was a misplaced expenditure..clearly, putting a tourist lodging house on a Bugyal was a mistake..the Bugyal belongs to the people .. Nature has tailored it. It is not for man to erode the sanctity of this area.”.

The 19 paragraph long judgement deserves to be included as a reading material in all educational institutions, training institutions, and its copies particularly deserves to be distributed among all those who are anxious to promote tourism in treks like the Khalia Top, Bhujani, Phalyati, Thala Gwar, Hiramani etc, after having accounted for Dyara Bugyal, not heeding what Justice Dhawan’s bench ordered, so emphatically, way back in October, 1996 ! As this writer wondered, whether this Order has subsequently not been up-turned, by a subsequent Court pronouncement, he has been informed, that twice the then UP Govt went up with Special Leave Petitions before the Supreme Court of India, and these have been dismissed ! Now, as RTI application has already been filed by this writer, as the Garhwal Post article, seems to have been taken not very seriously by all those, who should have been better counselled, the matter rests, with the Government of Uttarakhand, and all those, who may have become, wittingly or unwittingly, clear contemners of this land –mark Judgement of 1997, which certainly will be taken to the fence.

This writer, as Kumaon Commissioner accompanied with Subhash Kumar, the  Garhwal Commissioner, who had very deftly pushed ‘ his senior and esteemed colleague ( this writer ) to share what all was being attempted in Kumaon, in tune with what the esteemed Court had been stressing, during the earlier hearings’. As Kumaon Commissioner this writer spent considerable time explaining how a Master Plan for the Naini Tal Lake Authority Area had been prepared ( a printed copy was submitted during the hearing ) and pains that have been taken to achieve this major task ( incidently, the existing Naini Tal Master Plan, a continuation of the same Master Plan, that shifted the burden of the CDO Offices to the Bhim Tal Lake area- which caused no small irritation among the trading classes of the lake city. The CDO offices were housed in the Old Secretariat, which afterwards housed the Naini Tal High Court ! )

Vast Learning, Acknowledging Help

On his request, the two of us, Shubhash Kumar and this writer, went to his Chambers, for a cup of tea, as he had offered. We found him sitting, with a table in his front, and as a quick glance showed, it consisted of all old issues of PAHAR, and majority of my personal publications on Kumaon-Garhwal, and Nain Singh ! “ I have read”, he pointed out to the stack of neatly arranged books, “ each of these, cover to cover ! ”. Later, at the office of the Chief Standing Counsel, who handled this matter, there was quite a crowd, who wished to meet the two Commissioners, who had appeared in this case. We learnt that the word had got round the High Court that it was a record hearing, as for the first time Justice Dhawan had patiently heard two officials, without interrupting them even once ! Justice Dhawan, we learned later, was a terror and when the issues related to any environment related issue – better counsel was, be patient and do the bidding! The milling crowd, shaking our hands, consisted of curious lawyers.

Needless to say, we became good friends, he would always address this writer, just as “Raghu”, both while speaking on phone or while writing a personal letter. His wife Belinda, a Fulbright Scholar, became our family-friend, often consulting my collection of books and material on Nain Singh, on which she wished to write herself, taking down notes, in our UP Academy Residence, at Ardwell Camp, while Manju offered her coffee and snacks. Justice Dhawan, would often tweak my administrative history back-ground, when writing judgements on issues like Nazul lands. He would most obligingly quote the assistance this writer was able to afford him and he would most graciously acknowledge the assistance in his Judgements, quite like he did, acknowledging the assistance that was offered by the then two Commissioner, as also the counsel  appearing on behalf of the petitioner, then advocate Sudhanshu Dhulia.

This writer recalls, how when once the then Law Secretary of UP rang up this writer asking for one book which had been quoted as edited by him ( this writer ), in the Judgement on Nazul Land decided by him. After checking it this writer informed the Law Secretary, that it was a rare book that this writer had reprinted, under an Academy Re-print Series, which Justice Dhawan had first read in the Academy, where he had stayed as a personal guest, and later quoted in his Judgement. This writer informed the Law Secretary, it was a book that had been published by his predecessor in office only, of course, well 100 years ago ! The kind of due-diligence that Justice Ravi Dhawan excelled in is so rare these days, and no wonder, the counsels appearing before him, had better be well prepared – which we experienced that day in the Allahabad High Court.

Lost Heritage and Disappearing Culture

Recalling his memory this writer went though once more through his Nain Singh Memorial Lecture, that he delivered, in absence of this writer, however, at specific request conveyed through Prof Ajay S. Rawat, another member of his close circle of ‘Pahari – friends’, as he called it. It was quite common to find Justice Ravi Dhawan and Belinda Dhawan attending various functions organized either by PAHAR or say, UP Academy of Administration, at Naini Tal. Justice Dhawan had started his career as a lawyer in 1965 at Allahabad, as the introduction to the printed speech he delivered reads, ( 26 June , 1997 ), “ after three decades as a practicing lawyer he was invited to occupy one of the highest judicial positions in Uttar Pradesh, as Justice of the Allahabad High Court.”  As a Judge he achieved a double distinction of being a Green Activist for combating problems relating to environment and urban planning. Those who may be familiar with the demolition order of Horticulture Complex in the only Green Alfred Park of Allahabad would recall that he was equally against encroachment in ‘public spaces’, which he held ‘belonged to the people’. Indeed, he was a ‘Peoples’ Judge, as much as a Green Judge’. His Judgements on protecting the environment of UP Hills as well as championing the cause of marginalized Hill-people, via compensations awarded to the victims of the atrocities committed against the Uttarakhand Activists at Muzzaffarnagar are both considered, landmark cases.  His Judgement awarding compensations to the activists detained in remote jails of Ballia and other eastern UP Jails, introduced the concept of Torts, in UP judicial history. This writer, and Subhash Kumar, as the then Divisional Commissioners, were privy to how zealously he guarded the privacy of certain victims, in these cases. Later, when he was heading the Patna High Court, as its Chief Justice, he shared with this writer not only the proceedings of these cases ( Rampur Tiraha, Muzzafarnagar ), as these appeared in major news papers but also certain personal copies of very sensitive documents. Perhaps he considered this writer, safer than other official vaults, as no such stores are sensitive to human sensibilities.

Nuggets of Judicial Wisdom & Sensibilities

The Nain Singh Memorial Lecture delivered by him, as one reads it once more, reveals how deeply felt for these pristine meadows, Bugyals and how deeply he felt about the people, when they have to take recourse to migration from their homes, due to circumstance beyond their control. There could be no better tribute to one of the most distinguished well-wisher of mountains and mountain-people, than just to quote, what he said delivering that memorable Address nearly two decades ago. While his Nain Singh Memorial Lectures deserves to be read, again and again, by young and old alike, some of his nuggets of wisdom, deserve to be marvelled at, considering that the address was delivered almost two decades ago !

On Border Villages

What happened to these hamlets or villages, for example to name a few, Milum. Burfu, Tola and Martoli ? After the winter War with China, in 1962, the border into Tibet was closed and sealed. The beginning of the end of these villages had been laid.

On Environment Protection

Now, more and more the tendency has been to leave environment protection to the courts. But, does this work ? I can say with certainty not very well in the State of Uttar Pradesh ( UP Hills then was in UP ). Wrongful occupation of lands protected for conforming uses ( parks, sanctuaries, reserved forests, banks of lakes and streams, pasture lands and meadows ) finds the State, its departments and its agencies litigating to defend irregular grants and licences – a building within a Park ( alluding to the Alfred Pak case), a hotel which may slide into a lake ( a Naini Tal case ) and a motel on the slopes of an alpine meadow, ordained by nature as pasture for sheep ( referring to the Chopta Bugyal  case )

On ‘Selling Tourist Destinations’ ( a la Khalia Top today )

The public sector organisations of the State of UP, taking care of tourism, I am given to understand is beginning to sell the Johar valley, as a destination, is inviting private investors to open hotels/motels to attract tourist. O far Kumaon has been lucky that the Kumaon Mandal Vikas Nigam has not been as active as Garhwal Mandal Vikas Nigam –so far Kumaon has seen less of the kind of ‘development’ –if I may use the expression –that would turn every town to a Naini Tal or Mussoorie. May be there is still a chance for the people of Kumaon to exert some control over the pollution forced upon them … In environment and ecological matters, disregard of court orders is the rule- not the exception ( how prophetic, see Dayara Bugyal Trekking, see Khalia Top !)

On Creating a Critical Mass

The only hope for saving the Himalayan ecology would be a critical mass of all four factors; Bureaucrats sensitized to the issue, Response Courts, Strong Laws and Public awareness of the need to protect

On Change in bureaucratic and the legal public justice set up

At the grass root level the public justice system prevalent in the hills cannot be the one that functions in the plains.. what is needed is…a system of administration or a public justice system not tailored for the convenience of the officials, lawyers or the judges, but oriented to respond and intertwined with the life and the problems of the people of the hills.

On a litigation-free society

In these areas of the hills, the people are not litigation minded. Even in Naini Tal, the statistics show that cases from the hills are only 30% the rest are the disputes are from the Turai of the district. In Munsyari, the pending civil cases are none, zero – when I inspected the Court there and only 10 petty criminal cases had been registered by the police in the year. The same trend was there of a litigation free society when my father visited the area as an administrative judge in the sixties. What does this tell you of the nature of the people of this area ?

On Why Spare the Bugyals  ?

Life in these parts is enmeshed with the tiller and reaper of the short harvest off the terraced field, the herdsmen grazing sheep primarily and the horsemen who are professional breeders. These are professional herdsmen who look after, and for hire or reward, arrange grazing for others, Sheep on high altitude are the rapid haulage system of goods and merchandize. Each sheep or mountain goat carries a 5 kg load. A flock of 500 transports 2500 kg irrespective of the altitude, at the rate of 3kms per hour. The sheep grazers will share the off-spring while they tend to the flocks of others. They move up and down with the snow-line, finding pastures which nature has readily provided.

Here comes the understanding as to whom these Bugyals really belong, just listen to Justice Dhawan: “  I was told by these grazers at the high altitude many years ago, before the Turai region had been occupied with settlers, during the winter the flocks of the mountain goats and the sheep were taken down to the Turai regions. This is not possible today…today in the Turai there is theft of their animals ( a fact unheard of  at the high altitudes and deep in the mountain valleys). Every petty official in the area, if the Turai is visited for grazing, demands a huk or dastoori of a goat or a sheep frequently. Thus on this pinching, they are constrained to avoid Turai and remain on the mountains low or high depending on the shifting snow-line between summer and winter. This increases pressure on the mountain meadows. This ” concludes Justice Dhawan, “ is living example of  manmade factors which are affecting the ecological balance. And, to crown it all the administration, basically trained for the plains and unmindful and insensitive to the ecology of the hills is with belligerence attempting to establish five star hotels and motels on the Bugyals of Kumaon and Garhwal, the only grazing grounds left for the sheep and the mountain goats – the shepherd is part and parcel of this ecosystem. Terrorizing the shepherd to get off from the Bugyal, tailored  by nature for his flock and him with the backing of an armed constabulary to make way for a hotel, is the negation of the natural and human mountain ecology.”  

Real Tribute to Justice Dhawan

Many of his close friends and admirers, including this writer, shall never be able to live down the fact that after creation of Uttarakhand we have miserably failed to pay our deepest gratitude for what he has done to protect its ecology and environment, empathetic treatment and financial relief to the hundreds of Uttarkhand State activists who were detained in inaccessible eastern UP jails in open denial of basic human rights, Muzzafarnagar atrocities victims, particularly innocent women agitators, and so on. Saving the high altitude Himalayan Bugyals, and habitats, from mindless “ mass-trekking “ organized again, by State Tourism agencies like KMVN and GMVN, now supported by bigger agencies like the Uttarakhand Tourism Development Board, in open collusion with the Tourism Development Associations, like The Youth Hostel Association of India, that have absolutely no regard either of what incalculable harm they are doing to the sensitive Himalayan ecology but also the livelihoods of the most vulnerable sections of the poorest sections of the hill society, would be the real tribute to this great Environmentalist Judge – Justice Ravi Dhawan.  

  • R.S. Tolia has already filed an RTI application seeking details of the Khalia Top: trekking of the Year 2016 in preparation of taking this flagrant devastation of Himalayan Bugyals. Join Save the Bugyals Movement, as a real tribute to the late beloved Justice Ravi S Dhawan, in your own way.

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