Sukhna Wildlife Sanctuary - No houseing project is valid
the housing project, on the ground that the area in question falls within the catchment
area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary. The Survey Map of India dated 21.09.2004, demarcating the area of Sukhna Lake, is binding on the State of Punjab.
The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is invalid.
= considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, in our opinion, no such project can be allowed to come up in the area in question.
The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. I
t is clear why Government has not been able to protect the ecosensitive zone around a Wildlife and has permitted setting up of highrise buildings up to 92 meters in the area in question, which is not at all permissible.
Resultantly, we hold that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Moreso, in view of the Notification issued with respect to the Sukhna wildlife sanctuary towards the side of Chandigarh Union Territory and also
considering the fact that proposal made by the Punjab Government, confining the Buffer Zone to 100 meters, has rightly not been accepted by MoEF, as the Government of Punjab as well as the MoEF, cannot be the final arbiter in the matter.
The Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary ecosensitive zone. T
he entire exercise of obtaining clearance relating to the project is quashed. We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly. The entire exercise smacks of arbitrariness on the part of
Government including functionaries.
REPORTABLE
SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8398-8399 OF 2019
(ARISING OUT OF SLP(C) NOS.2137521376 OF 2017)
TATA HOUSING DEVELOPMENT COMPANY LTD. ..APPELLANT(S)
VERSUS
AALOK JAGGA AND OTHERS ..RESPONDENT(S)
J U D G M E N T
ARUN MISHRA, J.
1. The appellant has questioned the judgment and order dated
12.04.2017 passed by the High Court of Delhi, concerning the housing
project, on the ground that the area in question falls within the catchment
area of Sukhna Lake and is 123 meters away from the boundary of Sukhna
Wildlife Sanctuary. The Survey Map of India dated 21.09.2004,
demarcating the area of Sukhna Lake, is binding on the State of Punjab.
The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya
Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is invalid.
The environment clearance dated 17.09.2013, granted by State Level
Environment Impact Assessment Authority (SEIAA) for development of the
project is not in conformity with the Notification dated 14.09.2006 of
Ministry of Environment and Forest (MoEF), has also been set aside. It has
also been ordered that if the permission is granted by the State of Punjab
in favour of the appellant if it so desires, it may apply to Central
Government for environmental clearance treating project category 'A.'
2. The Tata HDCL proposed to develop a project, namely, “CAMELOT” in
the revenue estate of villageKansal, TehsilKharar, DistrictMohali, State of
Punjab. The total project area is 52.66 acres, out of which 41.54 acres is to
be developed for group housing builtup area of 4,63,144.54 sqm. The
parking facility is to be provided for 3645 ESS. The estimated population of
the project area was about 9788. The proposed maximum height of the
building was to be 92.65 meters. Environmental clearance was required in
terms of the Notification dated 14.09.2006 issued by MoEF, which
mandates prior to environmental clearance from the Central Government
or by the SEIAA. The Notification has a statutory force having been issued
under Section 3(1) and 3(2)(v) of the Environmental (Protection) Act, 1986
(“E.P. Act”) read with Rule 5(3)(d) of the Environment (Protection) Rules,
1996 (“E.P. Rules”). Tata HDCL applied for environmental clearance from
SEIAA, Punjab. The application was forwarded to the State Expert
Appraisal Committee (SEAC). In the meeting dated 06.06.2009, the
committee awarded “gold grading” to the proposed project and
recommended to forward the project to SEIAA for grant of environmental
clearance subject to the conditions specified therein. The MoEF
recommended for environmental clearance in its meeting held on 09
10.11.2010. However, MoEF had called a report from Northern Regional
Office, Chandigarh vide letter dated 14.10.2010 regarding the proposed
project. A team of officers inspected the project site, and, in the report, the
distance of the housingcumretail project “CAMELOT” from Sukhna
Wildlife Sanctuary is found to be 123 meters on Northern side and 183
meters on the Eastern side. Besides, the report stated that the project falls
in the catchment area of Sukhna Lake as per the Survey of India Map.
3. On 12.01.2011, Tata HDCL addressed a letter to MoEF stating that
the project site does not contribute to the catchment area of Sukhna Lake
as physically the project area does not obstruct the natural flow of water
towards Sukhna Lake.
4. In the meanwhile, C.W.P. No.20425/2010 titled “Aalok Jagga vs.
Union of India and others” was filed in the High Court of Punjab and
Haryana at Chandigarh, challenging the project to be in violation of the
provisions of Punjab New Capital (Periphery) Control Act, 1952 as well as
the E.P. Act claiming that the project lies in the ecosensitive and protected
area, apart from falling within the catchment area of Sukhna Lake.
5. The SEIAA sought clarification from MoEF as to whether it is
competent to consider the application since the Sukhna Wildlife Sanctuary
is located at a distance of 123 meters from the project site as per the report
of Northern Regional Office of MoEF. The High Court vide order dated
26.03.2012 directed the Tata HDCL to comply with the requirements of the
E.P. Act and Wildlife (Protection) Act for obtaining grant of necessary
clearances/sanctions/permissions from the competent authorities.
6. Sarin Memorial Legal Foundation filed Writ Petition (Civil)
No.994/2013 in this Court on 09.11.2013, under Article 32 of the
Constitution of India challenging the decision of SEIAA, Punjab dated
06.09.2013.
7. Order dated 21.08.2013 was passed by the High Court of Punjab and
Haryana in which it was ordered that the project of Tata HDCL would not
be affected by the orders passed on 14.03.2011 and 14.05.2012 in CWP
No.18253/2009. Sarin Memorial Legal Foundation also questioned the said
order in this Court. This Court vide order dated 22.04.2014 disposed of
W.P.(C) No.994/13 and Civil Appeal No.4848/2014 filed by Sarin Legal
Memorial Foundation. The order passed by the High Court of Punjab and
Haryana on 26.03.2012 was set aside. The writ petition was restored; the
matters were transferred for the decision to the High Court of Delhi.
8. Municipal Area of Naya Gaon was notified on 18.10.2006 as the 'Local
Planning Area’ of Naya Gaon. 'Existing Land Use Plan’ and 'Draft Master
Plan’ for Nagar Panchayat Naya Gaon were prepared. Nagar Panchayat
Naya Gaon granted permission to raise the construction to Tata HDCL on
09.04.2012. The Tata HDCL claimed, because of the permission granted,
under Section 6(2) of the Periphery Control Act, 1952, and the
environmental clearance granted under the EP Act, that they were entitled
to proceed with the construction of the project in question. However, the
petitioners, as well as the Chandigarh Administration, disputed the stand
taken by the State of Punjab.
9. Union Territory of Chandigarh has taken the stand that the area falls
within the catchment area of Sukhna Lake as such no construction can be
raised as per the Survey of India Map. It was adjacent to the wildlife
sanctuary, and the distance was 123 meters. There was a violation of the
Periphery Control Act, and also clearance was not granted in terms of
Notification dated 14.09.2006 of MoEF.
10. It is pointed out that under the order passed by this Court to specify
the area as the ecosensitive zone around wildlife sanctuary, the State of
Punjab had forwarded a proposal to the MoEF for permitting the
construction beyond 100 meters that has not been accepted by MoEF. It is
also submitted that towards the other side of the Sukhna Wildlife Santuary
Lake area of 2 km. to 2.75 km. has been declared as an ecosensitive zone.
The MoEF had asked the State of Punjab to send a proposal for keeping the
ecosensitive zone within 1 km. to which the State of Punjab has not
responded for the reasons best known to it.
11. It is also the case set up that initially, the housing project was
proposed for the 'Punjab MLA Society' for construction of residential
houses of MLAs of Punjab Legislature. Subsequently, the said land was
sold to M/s. Hash Builders Private Limited with an understanding that
each member of Punjab MLA Society would be allotted one flat. The
impugned environment clearance dated 17.09.2013 has also suffered from
legal malafides, and it amounts to colourable exercise of power since about
95 MLAs of the State of Punjab are the beneficiaries of the proposed
project.
12. In W.P.(C) No.2999/2014, it was submitted that the proposed project
for extraneous considerations is illegal. The proposed project is located
about 1500 meters from Sukhna Lake and 123 meters from the Wildlife
Sanctuary. The project is zero kilometers from the periphery of
Chandigarh. The project would destroy the wildlife sanctuary and would
cause a serious threat to Sukhna Lake. The High Court had banned all
construction activities in the catchment area of Sukhna Lake in C.W.P.
No.7649/2003. The project would adversely affect the environment within
Chandigarh and increase noise pollution by several manifolds, which would
harm the wildlife present in the adjoining Sukhna Wildlife Sanctuary.
Impact of a highrise building having 28storeys on the edict and norms of
the city of Chandigarh has not been properly considered.
13. The State of Punjab has supported the case set up by Tata HDCL, the
edict of Chandigarh is not applicable in the area in question. Survey of
India Map regarding the catchment area of Sukhna Lake, is not conclusive
since the objections are yet to be heard. SEIAA rightly considered the
application since the nearest distance of Sukhna Wildlife Sanctuary from
the project boundary on the northern side is 123 meters., as per the Office
Memorandum dated 02.12.2009 of MoEF. Tata HDCL has to obtain
clearance from the Standing Committee of the National Board for Wildlife
before starting any work on the site.
14. In the counter affidavit filed by the Union Territory of Chandigarh, it
is submitted that the area in question falls in the catchment area of
Sukhna Lake and the heritage zone of the Capitol Complex, the project
would have a direct impact on the existence of Sukhna Lake and the
environs of Chandigarh City. The Northern side of the Chandigarh, which
is also the catchment area of Sukhna Lake, is an ecologically fragile area
and substantial part thereof comprises of forest area that has been
declared a Wildlife Sanctuary. The Chandigarh Administration is fully
committed to saving the heritage of Chandigarh, its forest area, wildlife
sanctuaries, and preserve Sukhna Lake. The Conservator of Forests of
Chandigarh has written a letter to the Chief Architect, UT of Chandigarh,
for the inclusion of the area proposed as Wildlife Corridor along with the
approval accorded by the Planning Commission of India in the Master Plan
of Chandigarh. It is also submitted that the project is located within the
ecosensitive zone and 10 km. from Sukhna Wildlife Sanctuary, thus the
prior clearance from the Standing Committee of National Board of Wildlife
before seeking environmental clearance was required to be obtained. The
High Court has passed the orders for protection of Sukhna Lake and its
catchment area that no housing, commercial, or industrial project can be
allowed on the North of the Capitol Complex of Chandigarh. Thus, it is
submitted that no construction may be permitted to the North of the
Chandigarh. The environmental clearance has been illegally granted. There
was no jurisdiction to SEIAA, Punjab to grant environmental clearance as
the project in question is category 'A.' The High Court vide order dated
14.05.2012 has also noted that the Chandigarh Administration had
adopted the Survey of India Map as a map of the catchment area of
Sukhna Lake. The order was passed to give wide publicity to the general
public that no construction is permitted in that area. In paragraph 60 of
the impugned judgment, in respect of Survey of India Map, following
finding has been recorded:
“60. xxx xxx xxx
(i) The Survey of India map dated 21.09.2004 is the only document
available on record identifying and demarcating the catchment area of
Sukhna Lake. Admittedly the said map was prepared under the
directions of the High Court of Punjab and Haryana in CWP
No.7649/2003 (Dr. B. Singh vs. Union of India). It is also not in
dispute that the demarcation of boundaries of catchment area was
made after carrying out a survey by Technical Experts and in due
consultation with the State of Punjab, State of Haryana and U.T.
Chandigarh.”
15. The High Court has also referred to the joint inspection report made
on 10.01.2011 by a team of the officer from different department along with
Tata HDCL. The observations of the inspecting team are extracted
hereinunder:
“1. The nearest distance from the boundary of the project site was
measured by the staff members of Forest Department of U.T.
Administration Chandigarh using measuring tape at two points:
i. The nearest distance of Sukhna Wildlife Sanctuary from the project
boundary on northern side is 123 meters.
ii. The distance of Sukhna Wildlife Sanctuary from the boundary of
project area on Eastern side is 185 meters.
It is clarified that a part of the catchment area of Sukhna Lake has been
declared as Sukhna Wildlife Sanctuary under Section 26A of the Wildlife
(Protection) Act, 1972 by Chandigarh Administration vide Notification
No.694HII(4)98/4519 dated 6th March 1998 (copy enclosed).
The Tata Housing Project falls in the jurisdiction of Nagar Panchayat,
Naya Gaon, District Mohali, State of Punjab, which is approximately
1500 metres away from Sukhna Lake (aerial distance). Further, it also
falls under the catchment area of Sukhna Lake as per the Survey of India
map.
2. It has been observed by the team that no construction activities have
been started by the Project authorities at site. Only wire fencing has been
done to demarcate the boundary of the acquired land area. In addition to
it, solar light posts have been raised at different spots of the boundary,
and a site office comprising three rooms has been constructed. It is
stated by the Project Proponent that these offices were constructed by the
Defence Services Cooperative Housing Building Society Ltd., and the Tata
Housing Development Company has only renovated them for using as a
site office. The photographs of different locations of the sites are attached
to show that there is no construction activity at the site so far.
It is also mentioned here that there are existing houses and other
constructed buildings in Kansal area, which are a part of Kansal village
in Punjab and other spontaneous construction.
During the inspection, it has been informed that any notification
declaring ecosensitive zones has not been issued by U.T. Chandigarh
Administration and State Government of Punjab till date.
The report is submitted to the Ministry of Environment and Forests for
kind information and further necessary action."
The High Court has ultimately given the finding that the project site
is found to be a part of the area of Sukhna Lake. The permission granted
by Nagar Panchayat on 05.07.2013 to Tata HDCL has been set aside.
Verification was sought from the MoEF as Sukhna Wildlife Sanctuary was
located at a distance of 123 meters away from the proposed project. SEAC,
Punjab, considered the matter on 18.04.2013. Pursuant to that, Tata
HDCL filed a revised application on 08.05.2013 in Form I and Form IA. In
Form I, the project was described as “Group Housing (CAMELOT) Project"
and it falls under Item 8(b) of the Schedule. The plot area was shown as
52.66 acres, and the net plot area (after the surrender of area for services)
was shown as 46.10 acres. The builtup area was shown as 4,63,144.54
sq.m. Concerning the information as to whether the proposal involves
approval/clearance under the Wildlife Protection Act, 1972, in the form it
was stated:
"Clearance required from Standing Committee of National Wildlife Board,
New Delhi being project within 10 km. from the boundaries of Sukhna
Wildlife Sanctuary, as on date EcoSensitive Zone has not been declared
around Sukhna Wildlife Sanctuary."
16. With respect to wildlife sanctuary, the High Court has made the
following observations:
“183. It is relevant to note that the consideration by EAC of MoEF,
Government of India, was on the basis of the Tata HDCL's first application
dated 25.03.2009. In the light of the stand taken by SEIAA Punjab in its
counter affidavit, it is clear that no EIA Report was prepared after the
submission of the revised application dated 08.05.2013 by Tata HDCL. In
the revised application dated 08.05.2013, it was for the first time admitted
by Tata HDCL that its proposed project is situated within the prohibited
distance of 10 km. from Sukhna Wildlife Sanctuary. It was also admitted
that the ariel distance from the proposed project and Sukhna Lake is 123
meters (N) and 185 meters (E).”
184. xxx xxx xxx
185. Significantly, this is a case where the project in question is situated
within 123 meters from Sukhna Wildlife Sanctuary as recorded in the Site
Inspection Report dated 10.01.2011 on the basis of the inspection of the
project site conducted by a team of officers in the presence of the
representatives of Tata HDCL in compliance with the direction of MoEF vide
letter dated 14.10.2010. Though Tata HDCL addressed a letter dated
12.01.2011 to MoEF explaining that the project area does not obstruct the
natural flow of water towards Sukhna Lake, the factum of location of
Sukhna Wildlife Sanctuary within 123 meters on Northern side and 183
meters on the Eastern side of the project was not disputed. In the light of
the said admitted fact, SEIAA, Punjab in its meeting dated 15.12.2011
decided to get a clarification from MoEF as to whether SEIAA, Punjab is
competent to consider the application and accordingly addressed a letter to
MoEF.”
17. Concerning the declaration of the Buffer Zone around Wildlife
Sanctuary, the following facts have been noted by the High Court:
“193. Regarding the representation of UT Chandigarh dated 09.05.2013
under Section 3 of the Environment (Protection) Act, requesting to declare a
Buffer Zone up to 2 2.75 km. around all sanctuaries, including Sukhna
Wildlife Sanctuary, it is submitted by the learned Senior Counsel that the
State of Punjab by its proposal dated 18.09.2013 thought it fit to confine
the Buffer Zone to 100 meters only. It is also pointed out by the learned
Senior Counsel that so far no notification has been issued by the Central
Government under Section 3 of the Environment Protection Act. Thus, it is
sought to contend that there is no area earmarked as eco sensitive zone
around the Sukhna Wildlife Sanctuary nor a Buffer Zone has been
declared as of today.
194. xxx xxx xxx
195. It is also pointed out by Sh. Gopal Subramaniam that in fact State of
Punjab, had sent a proposal dated 18.09.2013 requesting the Union of
India/MoEF to confine the buffer zone to 100 mtrs. only in the context of
Section 3 of Environment (Protection) Act, 1986.”
18. The High Court has noted that after reserving the matter, a short
affidavit dated 09.03.2017 has been filed on behalf of the Union Territory,
Chandigarh, stating that Ministry of Environment Forests and Climate
Change, in exercise of the powers conferred by Section 3(2) and 3(3) of the
E.P. Act read with Rule 5(3) of the E.P. Rules has notified an area of 1050
hectares, to an extent varying from 2 km. to 2.75 km. from the boundary of
Sukhna Wildlife Sanctuary in the Union Territory of Chandigarh, for that
Notification dated 18.01.2017 has been issued. The High Court has also
relied on the conditions of Notification, which is extracted hereinunder:
“197…….However, after reserving the judgment in the petitions, a short
affidavit dated 09.03.2017 came to be filed on behalf of U.T. Chandigarh in
W.P.(C) No.2924/2014 stating that the Central Government, Ministry of
Environment, Forests and Climate Change, in exercise of the powers
conferred by Section 3(2) and (3) of the Environment (Protection) Act, 1986
read with Rule 5(3) of the Environment (Protection) Rules, 1986 notified an
area of 1050 hectares, to an extent varying from 2.0 kilometers to 2.75
kilometers from the boundary of Sukhna Wildlife Sanctuary in the Union
Territory of Chandigarh on the side of Chandigarh as the Sukhna Wildlife
Sanctuary, EcoSensitive Zone vide Notification dated 18.01.2017. A copy
of the said Notification has also been produced, and Para 4 thereof
contains the list of activities prohibited or to be regulated within Ecosensitive Zone. "Construction Activities" have been included in the said list
under Part B"Regulated Activities." Rule 4 to the extent, it is relevant for
the present case may be extracted hereunder:
"4. list of activities prohibited or to be regulated within EcoSensitive Zone.
All activities in the Ecosensitive Zone shall be governed by the provisions
of the Environment (Protection) Act, 1986 (29 of 1986) and the rules made
thereunder and shall be regulated in the manner specified in the Table
below, namely:
TABLE
A. Prohibited Activities
B. Regulated Activities
12. Construction activities:
No new commercial construction of any kind shall be permitted within 0.5
kilometre (ZoneI) from the boundary of protected area or up to the
boundary of the Ecosensitive Zone whichever is nearer:
Provided that, local people shall be permitted to undertake construction in
their land for their residential use, including the activities listed in subparagraph (1) of paragraph 3.
(a) Construction of all types of new buildings and houses up to a distance
of 0.5 kilometer i.e., in the zoneI shall be prohibited; from 0.5 kilometre to
1.25 kilometre from the boundary of Sukhna Wildlife Sanctuary,
construction of low density (ground coverage less than half of the plot size)
and low rise building (height up to 15 feet) can be allowed if permissible
under the prescribed land use plan of the area; any construction will have
to adhere to the Development Regulation applicable to the area and shall
be regulated as per the Ecosensitive Zone management plan; beyond 1.25
kilometre construction of new buildings and houses shall be regulated as
per existing Chandigarh Administration Building Bylaws and Architectural
Control/Zoning regulation of Union territory Administration. Construction
of basement in ZoneI of Ecosensitive Zone shall not be allowed, however,
reconstruction/repair of building in ZoneI shall be allowed subject to the
restriction as above i.e. construction of low density (ground coverage less
than half of the plot size) and low rise building (height upto 15 feet).
(b) The construction activity related to small scale industries not causing
pollution shall be regulated and kept at the minimum, with the prior
permission from the competent authority as per the applicable rules and
regulations, if any.
(c) The further construction and augmentation of civic amenities shall be
regulated as per the Zonal Master Plan.
198. As could be seen from Para 4 of the above Notification, the
construction activities in the Ecosensitive Zone apart from being governed
by the provisions of the Environment (Protection) Act, 1986 and the Rules made
thereunder shall be regulated in the manner specified therein. Admittedly,
the project in question is located at a distance of 123 meters from Sukhna
Wildlife Sanctuary. Therefore, the construction of the proposed project not
only requires the environmental clearance as provided under the
Notification dated 14.09.2006, but it is also subject to the regulations
provided under Para 4 of the Notification dated 18.01.2017 issued by the
Ministry of Environment, Forests and Climate Change.”
(emphasis supplied)
19. The Notification makes it clear that no new commercial construction
of any kind shall be permitted within 0.5 km. from the boundary of
protected area or up to the boundary of the ecosensitive zone.
Construction of all types of new buildings and houses up to a distance of
0.5 km. in the zoneI shall be prohibited from 0.5 km. to 1.2 km,
construction of low density (ground coverage less than half of the plot size)
and low rise building about 15 feet can be permitted.
20. Given the findings above, recorded by the High Court as to the
distance from the Wildlife Sanctuary, we have heard learned counsel for
the parties on the issue at length. Whether housing activities are
permissible within a short distance of 123 meters from Sukhna Wildlife
Sanctuary, such a project can be permitted to come up.
21. It is not in dispute that proposal, which was sent by the Government
of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from
Sukhna Wildlife Sanctuary, had not been accepted and the direction was
issued to resubmit the proposal for at least 1 km Buffer Zone has not been
forwarded by State of Punjab.
22. In Goa Foundation vs. Union of India, (2011) 15 SCC 791, order for
the purpose of protection of wildlife sanctuary and ecosensitive zone has
been passed to following effect:
“1. The order dated 16102006 refers to a Letter dated 2752005, which
was addressed by the Ministry of Environment and Forests (MoEF) to the
Chief Wildlife Wardens of all States/Union Territories requiring them to
initiate measures for identification of suitable areas and submit detailed
proposals at the earliest. The order passed on that date was that MoEF
shall file an affidavit stating whether the proposals received pursuant to
the letter of 2752005 have been referred to the Standing Committee of
the National Board for Wildlife under the Wildlife (Protection) Act, 1972 or
not. It was further directed that such of the States/Union Territories who
have not responded to the letter dated 2752005 shall do the needful
within four weeks of the communication of the directions of this Court by
the Ministry to them.
2. It seems that despite the letter dated 2752005 and despite the
Ministry having issued reminders and also bringing to the notice of the
States/Union Territories the orders of this Court dated 16102006, the
States/Union Territories have not responded. However, we are told that
the State of Goa alone has sent the proposal, but that too does not appear
to be in full conformity with what was sought for in the letter dated 275
2005.
3. The order earlier passed on 3012006 refers to the decision which was
taken on 2112002 to notify the areas within 10 km of the boundaries of
national parks and sanctuaries as ecosensitive areas. The letter dated 27
52005 is a departure from the decision of 2112002. For the present, in
this case, we are not considering the correctness of this departure. That is
being examined in another case separately. Be that as it may, it is evident
that the States/Union Territories have not given the importance that is
required to be given to most of the laws to protect environment made after
Rio Declaration, 1992.
4. The Ministry is directed to give a final opportunity to all States/Union
Territories to respond to its letter dated 2752005. The State of Goa also
is permitted to give appropriate proposal in addition to what is said to
have already been sent to the Central Government. The communication
sent to the States/Union Territories shall make it clear that if the
proposals are not sent even now within a period of four weeks of receipt of
the communication from the Ministry, this Court may have to consider
passing orders for implementation of the decision that was taken on 211
2002, namely, Notification of the areas within 10 km of the boundaries of
the sanctuaries and national parks as ecosensitive areas with a view to
conserve the forest, wildlife and environment, and having regard to the
precautionary principles. If the States/Union Territories now fail to
respond, they would do so at their own risk and peril.
5. The MoEF would also refer to the Standing Committee of the National
Board for Wildlife, under Sections 5B and 5C(2) of the Wildlife
(Protection) Act, the cases where environment clearance has already been
granted where activities are within 10 km zone.
6. List the matter after eight weeks.”
(emphasis supplied)
23. It was incumbent upon the State of Punjab to send a proposal to the
MoEF, as required but it appears that it has not chosen to do so for a
reason precious project concerning the MLAs is involved, and MoEF has
not accepted its proposal for keeping Buffer Zone to 100 meters. It has also
been pointed out from the respondent side that Naya Gaon forms part of
the Greater Mohali Region in the State of Punjab. In the statutory, Greater
Mohali Area Development Authority, Regional Plan for Greater Mohali
Region in paragraph 14.3.1, it has been mentioned that no development is
possible within 5 kms buffer distance from existing forest i.e., Sukhna
Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of
forests distributed all over the Greater Mohali Region. These have to be
conserved, and the buffer zone recommended should be protected against
urban development.
24. It is also clear that 22.75 km area has been ordered as ecosensitive
zone by the MoEF and the notification dated 18.1.2017 has been issued as
to the adjacent area towards Chandigarh side of the Sukhna Wildlife
Sanctuary.
25. The most potent threat faced by the earth and human civilization as a
whole which is confronted with, today, is environmental degradation and
wildlife degeneration. The need to protect flora and fauna which constitutes
a major portion of our ecosystem is immediate. Development and
urbanization coming at the cost of adversely affecting our natural
surroundings will in turn impact and be the cause of human devastation
as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The
climate change is impacting wildlife by disrupting the timing of natural
events. With warmer temperatures, flowering plants are blooming earlier in
the year and migratory birds are returning from their wintering grounds
earlier in the spring. Wildlife conservation in India has a long history,
dating back to the colonial period when it was rather very restrictive to only
targeted species and that too in a defined geographical area. Then, the
formation of the Wildlife Board at the national level and enactment of
Wildlife Act in 1972 laid the foundation of present day “wildlife
conservation” era in postindependent India. Project Tiger in the 1970s and
the Project Elephant in 1992–both with flagship species–attracted global
attention. India then also became a member of all major international
conservation treaties related to habitat, species and environment like
Ramsar Convention, 1971; Convention on International Trade in
Endangered Species of Wild Fauna and Flora, 1973; Convention on
Migratory Species, 1979; Convention on Biological Diversity, 1992, among
others.
26. The human as well as the wildlife are completely dependent upon
environment for their survival. Human is completely dependent on the
environment. Like the human, the wild life is also dependent on the
environment for it’s survival and also get effected by the environment. The
relationship between the human and animal can be understood by the
foodchain and foodweb. The wildlife is affected by several reasons such
as population, deforestation, urbanization, high number of industries,
chemical effluents, unplanned landuse policies, and reckless use of
natural resources etc.
27. The Directive Principles of State Policy provide that protection and
improvement of environment, safeguarding forest and wildlife have been
duly enjoined upon the Government. Those principles have found
statutory expression in various enactments i.e., Wildlife (Protection) Act,
E.P. Act etc., which have been enforced by this Court in various decisions.
The inaction of State to constitutional and statutory duties cannot be
permitted. The Court has to issue appropriate directions to fulfil the
mandate. Article 51(A) provides fundamental duty to protect and preserve
environment, wild life etc.
28. Articles 48(A) and 51(A)(g) of the Constitution of India reads as under:
“48A. Protection and improvement of environment and
safeguarding of forests and wild life. The State shall endeavour to
protect and improve the environment and to safeguard the forests and
wild life of the country.
51A. Fundamental duties. It shall be the duty of every citizen of
India
(g) to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living
creatures;”
29. In Animal and Environment Legal Defence Fund v. Union of India,
(1997) 3 SCC 549, the Court in order to protect wildlife, forest, tiger
reserve, fragile ecology, dealt with public trust doctrine thus:
“11. Therefore, while every attempt must be made to preserve the
fragile ecology of the forest area, and protect the Tiger Reserve, the
right of the tribals formerly living in the area to keep body and soul
together must also receive proper consideration. Undoubtedly, every
effort should be made to ensure that the tribals, when resettled, are in
a position to earn their livelihood. In the present case it would have
been far more desirable, had the tribals been provided with other
suitable fishing areas outside the National Park or had been given land
for cultivation. Totladoh dam where fishing is permitted is in the heart
of the National Park area. There are other parts of the reservoir which
extend to the borders of the National Park. We are not in a position to
say whether these outlying parts of the reservoir are accessible or
whether they are suitable for fishing, in the absence of any material
being placed before us by the State of Madhya Pradesh or by the
petitioner. Some attempts, however, seem to have been made by the
State of Madhya Pradesh to contain the damage by imposing
conditions on these fishing permits. The permissions which have been
given are subject to the following conditions:
(1) The identified families will be given photo identity cards on the
basis of which only fishing and transport will be permitted;
(2) During the rainy season (months: July to October) fishing will
be totally banned;
(3) During the rest of the year, entry will be permitted in the water
from 12 p.m. to 4 p.m. and transport of fish will be allowed before
sunset;
(4) The photo identity cardholders will not be allowed to enter the
National Park or the islands in the reservoir nor will they be allowed to
make night halts;
(5) Transport of fish will be allowed only on TotladohThuepani
Road from Totladoh reservoir.
15. Since all the claims in respect of the National Park area in the
State of Madhya Pradesh as notified under Section 35(1) have been
taken care of, it is necessary that a final notification under Section
35(4) is issued by the State Government as expeditiously as possible.
In the case of Pradeep Krishen v. Union of India, (1996) 8 SCC 599,
this Court had pointed out that the total forest cover in our country is
far less than the ideal minimum of 1/3rd of the total land. We cannot,
therefore, afford any further shrinkage in the forest cover in our
country. If one of the reasons for this shrinkage is the entry of villagers
and tribals living in and around the sanctuaries and the National Park
there can be no doubt that urgent steps must be taken to prevent any
destruction or damage to the environment, the flora and fauna and
wildlife in those areas. The State Government is, therefore, expected to
act with a sense of urgency in matters enjoined by Article 48A of the
Constitution keeping in mind the duty enshrined in Article 51A(g).
We, therefore, direct that the State Government of the State of Madhya
Pradesh shall expeditiously issue the final notification under Section
35(4) of the Wild Life (Protection) Act, 1972 in respect of the area of the
Pench National Park falling within the State of Madhya Pradesh.”
30. The Doctrine of Public Trust has been considered by this Court in
M.C. Mehta vs. Kamal Nath and others, (1997) 1 SCC 388. This Court has
made the following observations:
“24. The ancient Roman Empire developed a legal theory known as the
"Doctrine of the Public Trust." It was founded on the ideas that certain
common properties such as rivers, seashore, forests and the air were held
by Government in trusteeship for the free and unimpeded use of the
general public. Our contemporary concern about “the environment” bear a
very close conceptual relationship to this legal doctrine. Under the Roman
law these resources were either owned by no one (res nullious) or by every
one in common (res communious). Under the English common law,
however, the Sovereign could own these resources, but the ownership was
limited in nature, the Crown could not grant these properties to private
owners if the effect was to interfere with the public interests in navigation
or fishing. Resources that were suitable for these uses were deemed to be
held in trust by the Crown for the benefit of the public. Joseph L. Sax,
Professor of Law, University of Michigan — proponent of the Modern
Public Trust Doctrine — in an erudite article “Public Trust Doctrine in
Natural Resource Law : Effective Judicial Intervention”, Michigan Law
Review, Vol. 68, Part 1 p. 473, has given the historical background of the
Public Trust Doctrine as under:
“The source of modern public trust law is found in a concept
that received much attention in Roman and English law — the
nature of property rights in rivers, the sea, and the seashore.
That history has been given considerable attention in the legal
literature, need not be repeated in detail here. But two points
should be emphasized. First, certain interests, such as
navigation and fishing, were sought to be preserved for the
benefit of the public; accordingly, property used for those
purposes was distinguished from general public property which
the sovereign could routinely grant to private owners. Second,
while it was understood that in certain common properties —
such as the seashore, highways, and running water —
'perpetual use was dedicated to the public,' it has never been
clear whether the public had an enforceable right to prevent
infringement of those interests. Although the State apparently
did protect public uses, no evidence is available that public
rights could be legally asserted against a recalcitrant
government.”
25. The Public Trust Doctrine primarily rests on the principle that certain
resources like air, sea, waters, and the forests have such a great
importance to the people as a whole that it would be wholly unjustified to
make them a subject of private ownership. The said resources being a gift
of nature, they should be made freely available to everyone irrespective of
the status in life. The doctrine enjoins upon the Government to protect the
resources for the enjoyment of the general public rather than to permit
their use for private ownership or commercial purposes. According to
Professor Sax, the Public Trust Doctrine imposes the following restrictions
on governmental authority:
33. It is no doubt correct that the public trust doctrine under the English
common law extended only to certain traditional uses such as navigation,
commerce, and fishing. But the American Courts in recent cases have
expanded the concept of the public trust doctrine. The observations of the
Supreme Court of California in Mono Lake case, 33 Cal 3d 419, clearly
show the judicial concern in protecting all ecologically important lands, for
example, freshwater, wetlands, or riparian forests. The observations of the
Court in Mono Lake case to the effect that the protection of ecological
values is among the purposes of public trust may give rise to an argument
that the ecology and the environment protection is a relevant factor to
determine which lands, waters or airs are protected by the public trust
doctrine. The Courts in United States are finally beginning to adopt this
reasoning and are expanding the public trust to encompass new types of
lands and waters. In Phillips Petroleum Co. v. Mississippi, 108 SCT 791
(1988), the United States Supreme Court upheld Mississippi's extension of
public trust doctrine to lands underlying nonnavigable tidal areas. The
majority judgment adopted ecological concepts to determine which lands
can be considered tidelands. Phillips Petroleum case assumes importance
because the Supreme Court expanded the public trust doctrine to identify
the tidelands not on commercial considerations but on ecological
concepts. We see no reason why the public trust doctrine should not be
expanded to include all ecosystems operating in our natural resources.”
31. In Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647,
the Court considered the concept of sustainable development thus:
“10. The traditional concept that development and ecology are opposed
to each other is no longer acceptable. “Sustainable Development” is
the answer. In the international sphere, “Sustainable Development” as
a concept came to be known for the first time in the Stockholm
Declaration of 1972. Thereafter, in 1987 the concept was given a
definite shape by the World Commission on Environment and
Development in its report called “Our Common Future”. The
Commission was chaired by the then Prime Minister of Norway, Ms
G.H. Brundtland and as such the report is popularly known as
“Brundtland Report”. In 1991 the World Conservation Union, United
Nations Environment Programme and Worldwide Fund for Nature,
jointly came out with a document called “Caring for the Earth” which
is a strategy for sustainable living. Finally, came the Earth Summit
held in June 1992 at Rio which saw the largest gathering of world
leaders ever in the history — deliberating and chalking out a blueprint
for the survival of the planet. Among the tangible achievements of the
Rio Conference was the signing of two conventions, one on biological
diversity and another on climate change. These conventions were
signed by 153 nations. The delegates also approved by consensus
three nonbinding documents namely, a Statement on Forestry
Principles, a declaration of principles on environmental policy and
development initiatives and Agenda 21, a programme of action into the
next century in areas like poverty, population and pollution. During
the two decades from Stockholm to Rio “Sustainable Development” has
come to be accepted as a viable concept to eradicate poverty and
improve the quality of human life while living within the carrying
capacity of the supporting ecosystems. “Sustainable Development” as
defined by the Brundtland Report means “Development that meets the
needs of the present without compromising the ability of the future
generations to meet their own needs”. We have no hesitation in
holding that “Sustainable Development” as a balancing concept
between ecology and development has been accepted as a part of the
customary international law though its salient features have yet to be
finalised by the international law jurists.
16. The constitutional and statutory provisions protect a person’s right
to fresh air, clean water and pollutionfree environment, but the
source of the right is the inalienable common law right of clean
environment. It would be useful to quote a paragraph from
Blackstone’s commentaries on the Laws of England (Commentaries on
the Laws of England of Sir William Blackstone) Vol. III, fourth edition
published in 1876. Chapter XIII, “Of Nuisance” depicts the law on the
subject in the following words:
“Also, if a person keeps his hogs, or other noisome animals, or
allows filth to accumulate on his premises, so near the house of
another, that the stench incommodes him and makes the air
unwholesome, this is an injurious nuisance, as it tends to deprive
him of the use and benefit of his house. A like injury is, if one’s
neighbour sets up and exercises any offensive trade; as a tanner’s,
a tallowchandler’s, or the like; for though these are lawful and
necessary trades, yet they should be exercised in remote places; for
the rule is, ‘sic utere tuo, ut alienum non leadas’; this therefore is
an actionable nuisance. And on a similar principle a constant
ringing of bells in one’s immediate neighbourhood may be a
nuisance.
… With regard to other corporeal hereditaments; it is a
nuisance to stop or divert water that used to run to another’s
meadow or mill; to corrupt or poison a watercourse, by erecting a
dyehouse or a limepit, for the use of trade, in the upper part of
the stream; to pollute a pond, from which another is entitled to
water his cattle; to obstruct a drain; or in short to do any act in
common property, that in its consequences must necessarily tend
to the prejudice of one’s neighbour. So closely does the law of
England enforce that excellent rule of gospelmorality, of ‘doing to
others, as we would they should do unto ourselves’.””
32. In Intellectuals Forum, Tirupathi vs. State of A.P. and others, (2006) 3
SCC 549, principle of sustainable development has been considered by this
Court, which reads as under:
“84. The world has reached a level of growth in the 21st century as never
before envisaged. While the crisis of economic growth is still on, the key
question which often arises and the courts are asked to adjudicate upon is
whether economic growth can supersede the concern for environmental
protection and whether sustainable development which can be achieved
only by way of protecting the environment and conserving the natural
resources for the benefit of humanity and future generations could be
ignored in the garb of economic growth or compelling human necessity.
The growth and development process are terms without any content,
without an inkling as to the substance of their end results. This inevitably
leads us to the conception of growth and development, which sustains
from one generation to the next in order to secure "our common future." In
pursuit of development, focus has to be on sustainability of development,
and policies towards that end have to be earnestly formulated and
sincerely observed. As Prof. Weiss puts it, "conservation, however, always
takes a back seat in times of economic stress”. It is now an accepted social
principle that all human beings have a fundamental right to a healthy
environment, commensurate with their wellbeing, coupled with a
corresponding duty of ensuring that resources are conserved and
preserved in such a way that present as well as the future generations are
aware of them equally.”
33. In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, the Court evolved
polluter pays principle and observed:
“8. Apart from the above statutes and the rules made thereunder,
Article 48A of the Constitution provides that the State shall
endeavour to protect and improve the environment and to safeguard
the forests and wildlife of the country. One of the fundamental duties
of every citizen as set out in Article 51A(g) is to protect and improve
the natural environment, including forests, lakes, rivers and wildlife
and to have compassion for living creatures. These two articles have to
be considered in the light of Article 21 of the Constitution which
provides that no person shall be deprived of his life and liberty except
in accordance with the procedure established by law. Any disturbance
of the basic environment elements, namely air, water and soil, which
are necessary for “life”, would be hazardous to “life” within the
meaning of Article 21 of the Constitution.
9. In the matter of enforcement of rights under Article 21 of the
Constitution, this Court, besides enforcing the provisions of the Acts
referred to above, has also given effect to fundamental rights under
Articles 14 and 21 of the Constitution and has held that if those rights
are violated by disturbing the environment, it can award damages not
only for the restoration of the ecological balance, but also for the
victims who have suffered due to that disturbance. In order to protect
“life”, in order to protect “environment” and in order to protect “air,
water and soil” from pollution, this Court, through its various
judgments has given effect to the rights available, to the citizens and
persons alike, under Article 21 of the Constitution. The judgment for
removal of hazardous and obnoxious industries from the residential
areas, the directions for closure of certain hazardous industries, the
directions for closure of slaughterhouse and its relocation, the various
directions issued for the protection of the Ridge area in Delhi, the
directions for setting up effluent treatment plants to the industries
located in Delhi, the directions to tanneries etc., are all judgments
which seek to protect the environment.
10. In the matter of enforcement of fundamental rights under Article
21, under public law domain, the Court, in exercise of its powers
under Article 32 of the Constitution, has awarded damages against
those who have been responsible for disturbing the ecological balance
either by running the industries or any other activity which has the
effect of causing pollution in the environment. The Court while
awarding damages also enforces the “POLLUTERPAYS PRINCIPLE”
which is widely accepted as a means of paying for the cost of pollution
and control. To put in other words, the wrongdoer, the polluter, is
under an obligation to make good the damage caused to the
environment.”
34. In M.C. Mehta (Badkhal and Surajkund Lakes matter) vs. Union of
India and others, (1997) 3 SCC 715, this Court had observed:
“6. Mr. Shanti Bhushan, learned Senior Advocate, appearing for some of
the builders had vehemently contended that banning construction within
one km radius from Badkhal and Surajkund is arbitrary. According to
him, it is not based on technical reasons. He has referred to the directions
issued by the Government of India under the Environment Protection Act
and has contended that the construction can at the most be banned
within 200 to 500 metres as was done by the Government of India in the
coastal areas. He has also contended that restriction on construction only
in the areas surrounding Surajkund and Badkhal lakes is hit by Article 14
of the Constitution of India as it is not being extended to other lakes in the
country. We do not agree with Mr. Shanti Bhushan. The functioning of
ecosystems and the status of environment cannot be the same in the
country. Preventive measures have to be taken, keeping in view the
carrying capacity of the ecosystems operating in the environmental
surroundings under consideration. Badkhal and Surajkund lakes are
popular tourist resorts almost next door to the capital city of Delhi. We
have on record the Inspection Report in respect of these lakes by the
National Environmental Engineering Research Institute (NEERI) dated 20
41996, indicating the surroundings, geological features, land use, and
soil types and archaeological significance of the areas surrounding the
lakes. According to the report, Surajkund lake impounds water from rain
and natural springs. Badkhal Lake is an impoundment formed due to the
construction of an earthen dam. The catchment areas of these lakes are
shown in a figure attached with the report. The land use and soil types, as
explained in the report, show that the Badkhal Lake and Surajkund are
monsoonfed water bodies. The natural drainage pattern of the
surrounding hill areas feed these water bodies during rainy season. Largescale construction in the vicinity of these tourist resorts may disturb the
rainwater drains, which in turn may badly affect the water level as well as
the water quality of these water bodies. It may also cause disturbance to
the aquifers which are the source of ground water. The hydrology of the
area may also be disturbed.”
35. In Indian Council for EnviroLegal Action vs. Union of India and others,
(1996) 5 SCC 281, this Court has made the following observations:
“41. With rapid industrialisation taking place, there is an increasing
threat to the maintenance of the ecological balance. The general public is
becoming aware of the need to protect environment. Even though laws
have been passed for the protection of environment, the enforcement of
the same has been tardy, to say the least. With the governmental
authorities not showing any concern with the enforcement of the said
Acts, and with the development taking place for personal gains at the
expense of environment and with disregard of the mandatory provisions of
law, some publicspirited persons have been initiating public interest
litigations. The legal position relating to the exercise of jurisdiction by the
courts for preventing environmental degradation and thereby seeking to
protect the fundamental rights of the citizens is now well settled by
various decisions of this Court. The primary effort of the Court, while
dealing with the environmentalrelated issues, is to see that the
enforcement agencies, whether it be the State or any other authority, take
effective steps for the enforcement of the laws. The courts, in a way, act as
the guardian of the people's fundamental rights, but in regard to many
technical matters, the courts may not be fully equipped. Perforce, it has to
rely on outside agencies for reports and recommendations whereupon
orders have been passed from time to time. Even though it is not the
function of the Court to see the daytoday enforcement of the law, that
being the function of the Executive, but because of the nonfunctioning of
the enforcement agencies, the courts as of necessity have had to pass
orders directing the enforcement agencies to implement the law.”
36. In the aforesaid facts and circumstances of the case, considering the
distance of 123 meters from the Northern side and 183 meters from the
Eastern side of the project in question from wildlife sanctuary, in our
opinion, no such project can be allowed to come up in the area in question.
The State of Punjab was required to act on the basis of Doctrine of Public
Trust. It has failed to do so. The origination of the project itself indicates
that State of Punjab was not acting in furtherance of Doctrine of Public
Trust as 95 MLAs were to be the recipients of the flats. It is clear why
Government has not been able to protect the ecosensitive zone around a
Wildlife and has permitted setting up of highrise buildings up to 92 meters
in the area in question, which is not at all permissible.
37. Resultantly, we hold that such projects cannot be permitted to come
up within such a short distance from the wildlife sanctuary. Moreso, in
view of the Notification issued with respect to the Sukhna wildlife
sanctuary towards the side of Chandigarh Union Territory and also
considering the fact that proposal made by the Punjab Government,
confining the Buffer Zone to 100 meters, has rightly not been accepted by
MoEF, as the Government of Punjab as well as the MoEF, cannot be the
final arbiter in the matter. The Court has to perform its duty in such a
scenario when the authorities have failed to protect the wildlife sanctuary
ecosensitive zone. The entire exercise of obtaining clearance relating to
the project is quashed. We regret that such a scenario has emerged in the
matter and that it involved a large number of MLAs of Punjab Legislative
Assembly. The entire exercise smacks of arbitrariness on the part of
Government including functionaries.
Thus, we dismiss the appeals with the directions mentioned above.
....……………………… J.
(ARUN MISHRA)
…………………………. J.
(M.R. SHAH)
…………………………. J.
(B.R. GAVAI)
NEW DELHI;
NOVEMBER 05, 2019.
