1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 5231-32 of 2016
Himachal Pradesh Bus Stand Management .... Appellant
and Development Authority (HPBSM&DA)
Versus
The Central Empowered Committee Etc. & Ors. .... Respondents
With
Civil Appeal Nos. 5229-5230 of 2016
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
This judgment has been divided into sections to facilitate analysis. They are:
A The appeal
B Previous orders of this Court
C The history of the forest land
D The construction of the Bus Stand Complex
E Proceedings before the first respondent
F Proceedings before the NGT
G Report of the District and Sessions Judge, Kangra
H Submissions of counsel
I Analysis
I.1 Environmental rule of law
I.2 Role of courts in ensuring environmental protection
I.3 Illegal activities on forest land
I.4 Jurisdiction of NGT
J Conclusion
PART A
3
A The appeal
1 The civil appeals in the present case arise under Section 22 of the National
Green Tribunal Act, 2010 (“NGT Act”). The correctness of a judgment and order
dated 4 May 2016 of the National Green Tribunal (“NGT”) is in issue.
2 The NGT dealt with an original application filed by the second respondent,
who is also the appellant in companion Civil Appeal Nos. 5229-5230 of 2016, to
challenge a report dated 18 September 2008 of the Central Empowered
Committee (“CEC”), the first respondent. In its report, the CEC concluded, inter
alia, that a part of the Bus Stand Complex constructed by the second respondent
and the appellant at McLeod Ganj in Himachal Pradesh violates the provisions of
the Forest (Conservation) Act, 1980 (“Forest Act”). The CEC recommended the
demolition of the illegal portions.
3 The NGT accepted the findings of the CEC, observing that the Bus Stand
Complex seriously disturbs the ecology of the area in which it has been
constructed. The NGT directed, inter alia, that:
(i) The structure of the Hotel-cum-Restaurant in the Bus Stand Complex be
demolished by the second respondent;
(ii) The second respondent shall pay a compensation of Rs. 15 lacs in terms
of Sections 15 and 17 of the NGT Act;
PART B
4
(iii) The appellant shall pay a compensation of Rs. 10 lacs, while the State of
Himachal Pradesh and its Department of Tourism shall pay a
compensation of Rs. 5 lacs each; and
(iv) The Chief Secretary of the State of Himachal Pradesh shall conduct an
enquiry against the erring officers of the appellant, in order to fasten the
responsibility for the illegal project.
B Previous orders of this Court
4 By an order dated 16 May 2016, this Court admitted the present appeals
and framed the following substantial questions of law, as provided in Section 22
of the NGT Act:
“1. Whether the Tribunal has failed to appreciate that the land
which is subject matter of the appeal had already been
diverted for non - forest use under Section 2 of the Forest
(Conservation) Act, 1980?
2. Whether the Tribunal failed to consider properly the effect
of Section 14 of the Himachal Pradesh Bus Stand
Management and Development Authority Act, 1999 which
empowers the authority to establish and maintain hotels and
restaurants at or near bus stands?
3. Whether the Tribunal exceeded its jurisdiction in holding
that alleged violations of the Himachal Pradesh Town and
Country Planning Act, 1977 are made out even though the
said enactment is absent in the Schedule I of enactments
attached to the National Green Tribunal Act?”
This Court also granted a stay against the operative portion of the NGT’s
judgment directing: (i) the demolition of the Hotel-cum-Restaurant structure in the
Bus Stand Complex; and (ii) an enquiry to be conducted against the appellant’s
officers.
PART C
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5 The above order was modified on 9 September 2016, by lifting the stay
against the enquiry to be conducted against the appellant’s officers. However,
this Court directed that an enquiry shall be conducted by the District and
Sessions Judge, Kangra within whose jurisdiction the Bus Stand Complex is
located. The District and Sessions Judge was directed to place a report before
this Court. Parties to the present appeals were permitted to associate themselves
with the enquiry being conducted by the District and Sessions Judge.
C The history of the forest land
6 The genesis of the present case originates in an order dated 12 November
1997 of the Union Ministry of Environment and Forests (the fourth respondent,
“MOEF”), on a proposal made by the State of Himachal Pradesh, permitting the
diversion of 0.093 hectares of forest land for the construction of a parking space
at McLeod Ganj, in accordance with Section 2 of the Forest Act. The order is
extracted below:
“After careful consideration of the proposal of the State
Government, the competent authority hereby conveys
approval under Section -2 of Forest (Conservation) Act, 1980,
for diversion of 0.093 hectares of forest land for the
construction of parking place at McLeod Ganj, forest division
Dharamsala, District Kangra, HP, subject to following
conditions:
1. Legal status of the forest land will remain unchanged. The
forest land will be restored to forest Department as and when
it is no more required.
2. Compensatory afforestation will be carried out, by planting
at least 250 plants of deodar and ornamental species around
McLeod Ganj town as proposed, at a cost of Rs.11500/ -
which is reported to have been deposited by user agency vide
TC No.3 dt. 02.09.97.
PART C
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3. The Forest land will be used only for the purpose as
mentioned in the proposal.
4. The user agency will abide by any condition that may be
imposed by the State Forest Department in the interest of
afforestation and protection of the forest.
5. This approval is subject to the clearance of the proposal
under other relevant Acts/ Rules / Court's Ruling /Instructions
etc. as applicable to this proposal.
State Government will ensure fulfilment of these conditions.”
7 MOEF issued a further order dated 1 March 2001, diverting another 0.48
hectares of forest land for the construction of a bus stand at McLeod Ganj. The
contents of the order read thus:
“After careful consideration of the proposal of the State
Government, the competent authority hereby conveys
approval for diversion of 0.48 hectares of forest land for
construction' of above mentioned project at Dharmsala, forest
division Dharamsala and district Kangra, H.P., subject to
following conditions.
1. Legal status of the forest land will remain unchanged.
2. Minimum no. of trees as are unavailable may be felled
which should not exceed 17 (seventeen) as proposed.
3. Compensatory afforestation will be carried out, on 0.098
forest land at P46K Dharamsala C.B. Govt. Forest of
Dharamsala forest division at a cost of Rs.14,900/- (Rs.
Fourteen thousand nine hundred) which is reported to have
been deposited by user agency vide cheque No.055710 dated
19.10.2000.
4. Forest Guard hut as proposed in the proposal, will also be
constructed at a cost of Rs.2.25 lacs which is reported to have
been deposited by user agency.
5. The user agency will abide by any condition that may be
imposed by the State Forest Department In the interest of
afforestation and protection of the forest.
6. This forest land will not be used for any other purpose than
that mentioned in the proposal.
PART D
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7. This approval is subject to the clearance of the proposal
under other relevant Acts/Rules /Court's Ruling /Instructions
etc. as applicable to this proposal.
8. The Ministry may revoke suspend the clearance if
implementation of any of the above conditions is not
satisfactory. State Government through state forest
department will ensure fulfillment of these conditions.”
8 Of the above land, an area admeasuring 0.093 hectares is above the main
Dharamshala-McLeod Ganj road while an area admeasuring 0.48 hectares is
below the main road. Both these pieces of land face each other and are a part of
Banoi Reserve Forest. The user agencies responsible for the construction of the
parking space and the bus stand were the S.D.O. Dharamshala and Himachal
Pradesh Tourism Department. The cost of these projects was estimated at Rs. 10
lacs and Rs. 90-95 lacs.
9 In April 2000, the appellant was constituted for the construction of bus
stands in the State of Himachal Pradesh following the enactment of the Himachal
Pradesh Bus Stands Management and Development Authority Act, 1999 (“HP
Bust Stands Act”). In January/February of 2006, the land diverted for non –
forest use under the above orders dated 12 November 1997 and 1 March 2001
was transferred on a 99 year lease to the appellant.
D The construction of the Bus Stand Complex
10 The land transferred to the appellant was to be utilised for the construction
of a parking facility in McLeod Ganj. Given the nature of the costs that would be
incurred for the creation of a ‘modern complex’, the Board of Directors of the
appellant in their meeting held on 7 November 2003 decided to construct a Bus
PART D
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Stand-cum-Parking Complex on a Build-Operate-Transfer basis1
. In furtherance
of this, the appellant invited offers on 19 November 2003. The appellant received
only one offer, which was considered financially unviable since it envisaged a
concession period of 75 years.
11 The appellant decided to alter the nature of the Bus Stand Complex in
order to make it financially viable for private entities by issuing a new Request for
Proposal on 13 July 2004 for the construction of the modified Bus Stand
Complex. Apart from the construction of the bus stand itself on the lower level,
the appellant envisaged further construction in the complex of:
(i) a multi-level commercial complex with shops at the road level;
(ii) a dormitory and a budget hotel at the first, second and third levels;
(iii) a dining facility/restaurant/food plaza at the top level; and
(iv) a parking provision for fifty cars at the road level.
The area of the multi-level commercial complex was to be 2779 M2
; of the road
level parking, 1100 M2
; and of the bus stand at the lower level, 2580 M2 (which
included 359 M2 of area for shops/kiosks).
12 On 13 October 2004, the Board of the appellant approved the lowest bid
submitted by the second respondent for the construction of the Bus Stand
Complex. The second respondent was awarded construction rights through a
‘notice of award’ dated 18 November 2004. The appellant and the second
1 In a BOT project, the public sector grantor grants to a private company the right to develop and operate a facility
or system for a certain period (the "Concession Period"), in what would otherwise be a public sector project.
(See, ‘Concessions, Build-Operate-Transfer (BOT) and Design-Build-Operate (DBO) Projects’ available at
<https://ppp.worldbank.org/public-private-partnership/agreements/concessions-bots-dbos> accessed on 23
December 2020).
PART D
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respondent entered into a ‘Concession Agreement’ on 23 December 2004 under
which the concession period commenced from 15 December 2005, and was to
be for 16 years, 7 months and 15 days.
13 The second respondent started the construction of the Bus Stand Complex
in December 2005 without awaiting the permission of the Town and Country
Planning Department (“TCP Department”), approving the plans and drawings.
14 On 4 March 2006, the TCP Department received an application seeking
approval of the drawings of the Bus Stand Complex. It pointed out shortcomings
in the proposed drawings on 10 March 2006. Through further letters between 28
July 2006 to 19 February 2007, it directed the appellant to provide further
information and to rectify the shortcomings in the proposed construction. During
the midst of this process, the second respondent continued with the construction
of the Bus Stand Complex.
15 Finally, through notices dated 5 October 2006, 8 March 2007 and 5 June
2008, the TCP Department called upon the appellant to halt the construction of
the Bus Stand Complex. The second respondent nonetheless continued with the
construction.
16 On 8 May 2007, the State of Himachal Pradesh sent a proposal to MOEF
requesting, inter alia, that:
(i) The use of the entire land (measuring 0.573 hectares) which was permitted
to be diverted for non – forest use under orders dated 12 November 1997
and 1 March 2001 be changed to the construction of the Bus Stand
Complex; and
PART D
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(ii) The user agency be changed to the appellant.
17 Through its order dated 12 June 2007, MOEF rejected the proposal of the
State of Himachal Pradesh. The order was in the following terms:
“Please refer to your letter No. FFE-B-F(2)-87/97 dated 8th
May, 2007 on the above mentioned subject seeking approval
of Government of India for changing of land use from
construction of parking on 0.093 hectare of forest land and
Bus Stand Complex and Hotel on entire 0.573 hectare of
forest land for non-forestry propose under Forest
(Conservation) Act, 1980 and change in the name of user
agency from SDO(Civil) and HP Tourism Department to HP
Bus Stand Management and Development Authority.
The request of the State Government has been examined
and the competent authority conveys its inability to consider
the same and it is therefore, rejected.”
18 As explained in greater detail below, when proceedings were initiated
before it, CEC directed a halt in construction. The second respondent
approached this Court by filing an interim application. By an order dated 7
September 2007, this Court directed that the second respondent can proceed
with the construction of the bus stand, observing thus:
“In this application, the applicant is seeking a direction for
construction of a bus stand. It is alleged that the C.E.C. has
prevented the applicant from constructing some parking area
near the bus stand. We are told that the C.E.C. is proposing
to inspect the site and shall give a report. We think that
before giving any direction to the applicant, the C.E.C. may
hear the applicant and file a report and meanwhile the work
relating to the construction of bus stand may continue but no
other construction shall be carried out.”
The construction of the Bus Stand Complex was then completed by the second
respondent on 7 July 2008.
PART E
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E Proceedings before the first respondent
19 During the construction by the second respondent, the sixth and the
seventh respondents approached the CEC by filing an application on 20 April
2007, alleging that the construction of the Bus Stand Complex was in violation of
the Forest Act. As stated above, the CEC directed that the construction of the
Bus Stand Complex be halted.
20 The second respondent filed an interim application, in which this Court
passed an order dated 7 September 2007, which has been extracted above. The
second respondent was impleaded in the proceedings before the CEC.
21 The members of the CEC visited the site of the Bus Stand Complex on 27
September 2007. The CEC heard the parties before it on multiple dates. It also
had before it a report dated 18 August 2008 of the Chief Secretary of Himachal
Pradesh.
22 The CEC submitted its report dated 18 September 2008 to this Court. The
salient findings were that:
(i) The construction of the Hotel-cum-Restaurant structure within the Bus
Stand Complex was not permitted, by MOEF’s orders dated 12 November
1997 and 1 March 2001. Hence, the construction is in violation of the
Forest Act;
(ii) The post facto permission sought by the State of Himachal Pradesh from
MOEF for changing the use of the diverted forest land was rejected on 12
June 2007;
PART E
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(iii) The RFP issued by the appellant on 13 July 2004 indicated that a multilevel commercial complex was to be of an area admeasuring 2779 M2
,
while the combined area of the road level parking and the bus stand at the
lower level was to be 3680 M2
. However, the actual area of the multi-level
commercial complex constructed by the second respondent is 3324.89 M2
,
which is 545.89 M2 in excess. Similarly, the actual area of the road level
parking and the bus stand constructed is 9945.65 M2
, which is 6265.65 M2
in excess. This additional construction had been tacitly approved by the
Board of the appellant;
(iv) While the RFP issued by the appellant indicated that only two lower levels
would be constructed for the bus stand, the second respondent had
constructed four additional levels. This had also been tacitly approved by
the Board of the appellant;
(v) The above factors establish connivance between the officers of the
appellant and the second respondent, in order to benefit the second
respondent;
(vi) The construction of the Bus Stand Complex by the second respondent has
been done without the prior approval of the TCP Department. The notices
issued by the Department to halt construction were ignored;
(vii) Due to the nature of the construction of the bus stand at the lower levels,
additional forest area will be required since there was no area for the
buses to turn in; and
PART E
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(viii) No car parking is available for the residents of the hotel in the commercial
complex, who would either have to park on the roads or use the road level
parking in the complex. This would create traffic congestion and will not
increase the net parking available in the area.
23 Based on its conclusions, the CEC issued the following recommendations:
“22. The above clearly highlights that there has been absolute
anarchy in the matter of construction of the parking place and
Bus Stand. At the same time there is a very real need at
McLeod Ganj for both the Parking place and the Bus Stand
Complex on the two pieces of forest land. With a view to
finding a way out of this terrible muddle created by the deep
vested interests and at the same time ensuring that those
who have connived in the serious lapse are not allowed to go
scot free the following is recommended:
a) the hotel complex structure should be pulled down
immediately and the 0.093 ha. of forest land should be
cleared of debris. This should be done within three months.
Thereafter a Parking place may be constructed as was
originally visualized when the project was approved under the
Forest (Conservation) Act, 1980. Prior to that approval of the
Town and Country Planning Department may be taken as
required under the law. This will send a clear signal to the
building mafia and their supporters that such brazen acts of
illegal and unauthorized construction will not be tolerated;
b) the serious shortcomings noted in the construction of Bus
Stand Complex would need to be with the approval of the
Town and Country Planning Department. Towards this end it
is proposed that the State Government may constitute a
Committee with the Chief Secretary as Chairman with the
Principal Chief Conservator of Forests, senior most Engineer
in the State PWD and a representative of MoEF as Members.
The Director, Town and Country Planning Department,
Himachal Pradesh, could be the Member Secretary. The
Committee may immediately go into the entire matter and
may in a time bound manner within two months propose to
this Hon'ble Court how best the Bus Stand Complex can be
salvaged from the present mess so that the State
Government is able to:
i) ensure best and most efficient use of the Bus Stand so that
the maximum number of buses are able to ply from there.
While providing for commercial, shops, public toilets,
PART E
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restaurants, telephone booths and the like at the Bus Stand
the only consideration should be the actual requirements of
the travelling public; and
ii) ensure maximum parking place for vehicles;
c) there has been a collective failure and serious lapses on
the part of the officials and others of the State Government
connected with the unauthorized and illegal construction of
the twin project on the two pieces of forest land and reflects
on the pathetic state of affairs in the matter of governance. In
this background the State Government of Himachal Pradesh
has to take the blame and may be directed to deposit an
amount of Rupees one crore, in a special fund for the
conservation and protection of the forest and wildlife;
d) the State Government may also be directed to
simultaneously identify and initiate stringent and deterrent
action in a time bound manner against all the concerned
persons and officials for complete abdication of their
responsibility and accountability in the matter of governance
and who are responsible for blatantly allowing the
unauthorized and illegal building structures to come up on the
two pieces of forest land in flagrant violation of the Forest
(Conservation) Act, 1980, the HP Town and Country Planning
Act, 1977 and other relevant local laws; and
e) the services of M/S Prashanti Surya Construction
Company should be dispensed with and M/s Prashanti Surya
should be blacklisted and should also be penalized suitably
for the grave illegalities and irregularities knowingly
committed to promote his private interests.”
24 The second respondent then filed another application before this Court for
setting aside the report issued by the CEC. The second respondent argued that
they had not been provided a fair hearing, and had the right to file a detailed
reply.
25 By an order dated 5 October 2015, this Court transferred the proceedings
to the NGT.
PART F
15
F Proceedings before the NGT
26 In its impugned judgment, the NGT noted that the following facts were
indisputable:
“A. At no point of time there was any permission, sanction or
approval granted by the Competent Authority in the State
Government and/or Central Government under the Act of
1980 and even (under) other relevant laws for the hotel and
shopping complex.
B. Right from the initial stages, the hotel and shopping
complex were never a part of the project for which the
Government departments and/or the project proponent even
submitted applications for grant of approval/sanction from the
Competent Authority. MoEF&CC vide its letter dated 12th
June, 2007 had specifically declined the permission for
conversion of the forest land for any other non forest activity.
Once such permission for hotel and shopping complex was
declined, the project proponent could not have been taken up
and commenced any activity.
C. The project proponent not only started the construction
without obtaining appropriate approval and sanction from the
concerned State and the Central Government, but had also
worked in collusion with some of the authorities who
consented [to] the commencement of construction temporarily
which was entirely uncalled for and in fact was illegal.”
27 The NGT further noted that the approval accorded by the MOEF on 12
November 1997 was only for construction of a ‘parking place’ at McLeod Ganj.
Further, on 1 March 2001, approval was accorded only for construction of a ‘bus
stand’ at McLeod Ganj. The State of Himachal Pradesh had no power to
authorize the construction of the Hotel-cum-Restaurant structure and, therefore,
the construction was entirely illegal. It further endorsed the findings by the CEC
and observed:
“3. It is clear from the above report of the CEC that there are
serious violations of law. It is a project coming up in the forest
PART F
16
area without Forest Clearance, and even the consent to
establish and/or operate has not been granted by the
concerned Board. Moreover, this project is bound to have an
adverse impact on environment and ecology. The
recommendations of the CEC clearly state that the whole
complex should be pulled down and only a parking place
must be constructed as was originally visualized, for which
the Forest Clearance under the Act of 1980 has been
granted. The CEC also blames the concerned authorities by
suggesting that there has been collective failure and serious
lapses on part of the State Government and its officials
connected with the unauthorized and illegal construction of
the project, which was constructed on the two pieces of land.
The Report also observed that the State Government should
be directed to deposit Rs. 1 Crore in a special fund and the
project proponent should be blacklisted and penalized
suitably for the grave illegalities and irregularities committed
by him.”
28 The NGT characterized the construction of the Hotel-cum-Restaurant
structure as an intentional violation that exhibited “violation of law coupled with
serious adverse impacts on environment and ecology of the eco sensitive area”
2
.
It held that just as seeking an Environmental Clearance under MOEF’s
Notification dated 14 September 2006 is a precondition to the commencement of
the project, which cannot be derogated from, seeking a Forest Clearance under
Section 2 of the Forest Act was a necessary precondition in the present case
before construction could have begun. It drew on this Court’s jurisprudence on
the precautionary principle, polluter pays principle and the principle of sustainable
development.
2 Para 27 of the impugned judgment.
PART G
17
G Report of the District and Sessions Judge, Kangra
29 In furtherance of this Court’s order dated 16 May 2016, the District and
Sessions Judge submitted his enquiry report on 9 October 2018. The report is
based on documentary evidence and statements from sixteen witnesses.
30 In his report, the District and Sessions Judge has found that the Bus Stand
Complex:
(i) Has been constructed on forest land, in violation of the provisions of the
Forest Act;
(ii) Has been constructed without requisite permissions being obtained from
the TCP Department;
(iii) Does not conform to the plans prepared by third-party consultants hired by
the appellant, which were submitted during the RFP;
(iv) Has not been properly maintained, and is plagued by issues of seepage;
and
(v) Suffers from architectural defects due to which it is extremely difficult for
buses to turn into the bus stand from the main road.
31 The District and Sessions Judge concludes that the second respondent
could not have engaged in this illegal construction without the connivance of the
officials of the following departments: (i) the appellant; (ii) Himachal Pradesh
Tourism Department; (iii) TCP Department; (iv) Forest Department; (v) Municipal
Committee and Municipal Corporation; (vi) Revenue Department; and (vii)
PART G
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Electricity Department. The report states this in the following terms:
“28. I have no hesitation to conclude that the officials/officers
of all the departments were hand in gloves with the M/s
Prashanti Surya Construction Company, in order to give
undue advantage to M/s Prashanti Surya Construction
Company including the financial benefits. For the same these
officers/officials are liable. It is a case of serious lapse and
failure on the part of officers/officials of State Government,
who were duty bound to take prompt and immediate action to
stop the un-authorised and illegal construction of the structure
in dispute. So, it is my humble submission that concerned
Disciplinary Authority/Authorities of the State Government be
directed to take deterrent action against the defaulting
officers/officials. It appears that the CEO and Board of
Directors suo moto assumed the powers to change the
conceptual plan and allowed the construction work of illegal
structure on the spot by throwing into the air the statutory
provisions of law. Moreover, the structure of bus stand on the
spot has not been properly erected. As submitted here in
above, due to pillars, there was lack of sufficient space for
turning the buses and at the same time there is no separate
entry and exit point of the buses. The structure has not been
properly maintained and seepage was found on the spot.
There is no separate place for idle bus parking. So, it appears
that the Bus Stand Authority’ has got no control over the
maintenance of the bus stand structure and it is not paying
any heed in this regard. In view of my submissions, it is a
case of open favoritism of M/s Prashanti Surya Construction
Company. All the concerned Authorities were well aware of
the legal requirements, but they preferred to continue with the
illegal construction without following the legal requirements. It
cannot be believed that the construction work on the spot
continued from mid 2005 to beginning 2009 without
connivance [sic of] the aforesaid Government Agencies and
these officials/officers.”
PART H
19
H Submissions of counsel
32 Challenging the impugned judgment of the NGT, the appellant has made
the following submissions:
(i) The appellant had been legitimately provided the land for the construction
of the Bus Stand Complex, when the forest land was diverted for “nonforest purposes” through orders dated 12 November 1997 and 1 March
2001 issued by the MOEF;
(ii) The appellant included the Hotel-cum-Restaurant structure in the Bus
Stand Complex to make it more commercially viable, for which it then
assigned the rights to the second respondent without assigning it any
interest in the land;
(iii) While this was in public knowledge from the beginning, the sixth and
seventh respondents did not raise any objections then but only did so
belatedly when the construction of the Bus Stand Complex was already
underway;
(iv) In relation to the violations of the Himachal Pradesh Town and Country
Planning Act, 1977 (“TCP Act”):
(a) once the project was handed over to the second respondent, it was
their responsibility to get appropriate permissions;
(b) arguments in relation to violation of the TCP Act were not raised by the
sixth and seventh respondents before the CEC or the NGT;
(c) the NGT cannot, in any case, consider violations of the TCP Act; and
PART H
20
(d) the Deputy Commissioner Kangra had recommended, by a letter dated
13 April 2007 addressed to the Director of the TCP Department for
relaxation in respect of the parameters since this was a first of its kind
parking complex at a hill station which regularly suffers from traffic
congestion.
(v) Section 14(3)(e) of the HP Bus Stands Act empowers the appellant to
establish and maintain hotels and restaurants at or near bus stands. There
was no secrecy or wrongdoing in awarding the project to the second
respondent, it having made the lowest bid. The project was to be
constructed on a BOT basis and would be handed back to the State of
Himachal Pradesh at the end of the concession period;
(vi) Since by the orders dated 12 November 1997 and 1 March 2001
permission had already been obtained to divert the land for a “non-forest
purpose”, no further consents from the MOEF were needed for the
construction of the Hotel-cum-Restaurant. Even so, the State of Himachal
Pradesh, by way of abundant caution, moved an application to seek its
consent for change of land use for the construction of a Hotel-cumRestaurant structure within the Bus Stand Complex. On 12 June 2007, the
application was not dismissed on merits through a speaking order, but only
owing to an “inability to consider the same” since proceedings were
ongoing before the CEC; and
(vii) The Explanation attached to Section 2 of the Forest Act expressly provides
that “non forest purpose” means the breaking up or clearing of any forest
PART H
21
land or portion thereof for any purpose other than re-afforestation. As a
result, the incidental and ancillary facilities of the Hotel-cum-Restaurant
structure in the Bus Stand Complex were sanctioned by the clearances
already granted.
33 Supporting the submission of the appellant, the second respondent
submits that:
(i) It decided to participate in the project because it was not limited to the bus
stand, but also included the management of the Hotel-cum-Restaurant
which made it commercially viable. Under the Concession Agreement, the
second respondent was to build the bus stand, parking and Hotel-cumRestaurant which it would retain until the year 2022, following which it
would stand transferred to the State of Himachal Pradesh. According to the
second respondent, this was done through a transparent process;
(ii) The CEC incorrectly decided the application filed by the sixth and seventh
respondents without properly understanding the second respondent’s
reasons for constructing the additional floors in the structure, which was
due to the strength and condition of the soil. The same error was made by
the NGT in its impugned judgment;
(iii) The allegation that the appellant acted in a biased manner are unfounded.
The appellant is a nodal independent statutory authority for maintenance of
modern commercial bus stand infrastructure. The appellant is empowered
under Section 14(3)(e) of the HP Bus Stands Act to establish and maintain
hotels and restaurants at or near bus stands. At the relevant time, the
PART H
22
appellant did not have adequate financial resources to construct bus
stands on its own and so it took a policy decision for their construction by
seeking private participation on a BOT basis;
(iv) ‘Not an inch of forest land’ was encroached upon other than what was
permitted by the MOEF. Further, on the lower parcel of land, minimum
trees were felled by the forest department and on the upper portion of land
there were no trees. The felling and removing of the trees was done strictly
in accordance with the permission granted;
(v) The District and Sessions Judge ignored the public nature of the project
and that the land will revert to the State of Himachal Pradesh after the
concession period. There is nothing to suggest that the second respondent
constructed the project with the objective of obtaining wrongful gain or
undue advantage. The second respondent has invested more than Rs. 19
crores in the public project in question, with a major chunk of it being
sourced through bank borrowings. Under the financial scheme of the
project, 70% of the revenue was to be recovered by the second
respondent from the Hotel-cum-Restaurant and 30% from the operation of
the bus stand. Hence, since the Hotel-cum-Restaurant has not been
operationalized, the second respondent, after making the investment in the
project, has not been able to receive proportionate returns and has been
forced to face a financial crisis, for no fault of its own;
(vi) The second respondent is no longer managing or operating the parking
space and the bus stand after the District Magistrate, Kangra by an order
PART H
23
dated 7 June 2019 under Section 144 of Code of Criminal Procedure,
1973, constituted and authorized an Executive Committee to take control
of the parking space and run it free of cost in public interest. Further, the
District Magistrate, through an order dated 31 July 2019, notified the space
available at McLeod Ganj Bus Stand as public parking place under Section
117 of the Motor Vehicles Act, 1988, in the interest of the efficient
organization of the transport system;
(vii) The NGT erred in not directing the Central Government to consider the
possibility of granting ex-post facto clearance to the Hotel-cum-Restaurant
structure of the Bus Stand Complex under Section 2 of the Forest Act,
given that the construction of the Hotel-cum-Restaurant structure took
place pursuant to a tender floated by a statutory authority;
(viii) The NGT overlooked the fact that the CEC’s report dated 18 September
2008 was prepared without following the principles of natural justice. This
was because it was prepared on the basis of the second affidavit dated 18
August 2008 filed by the Chief Secretary of the State of Himachal Pradesh,
which was not served upon the second respondent; and
(ix) The NGT should have considered that the appellant had made a
representation to the second respondent in the Concession Agreement
that all the necessary permissions have been obtained by it for the
execution of the Bus Stand Complex.
34 The State of Himachal Pradesh has made the following submissions:
PART H
24
(i) The Bus Stand Complex had all requisite permissions, and had been
constructed lawfully without the conferment of undue benefits to the
second respondent;
(ii) The report of the District and Sessions Judge dated 9 October 2018 is
flawed because:
(a) the appellant did not ask for permission from the MOEF, since such
permission was already available;
(b) the project was constructed in accordance with approved plans, and
keeping in mind the topography of the area; and
(c) the maintenance of the project could not be questioned because its
upkeep had to be abandoned in 2009 after the litigation began.
(iii) As regards the findings in the report of the District and Sessions Judge
dated 9 October 2018, the reason why no consent for the construction of
the Hotel-cum-Restaurant structure was separately sought was because
the appellant was under the impression that the consent for diverting forest
land for a “non-forest purpose”, granted by the MOEF by its orders dated
12 November 1997 and 1 March 2001, was sufficient.
35 The State of Himachal Pradesh argues that this is a case involving
procedural lapses, as opposed to illegality. The setting up of such projects in the
State is a gigantic task given the peculiar topography and other conditions
existing there. The project, if allowed to be continued/completed, will not only
provide facilities of a modular bus stand to the people of the town but also, the
provision of a commercial complex will cater to economical services to
PART H
25
commuters, besides providing opportunities of employment to the local
population. However, if the structure is ordered to be demolished at this stage, it
is likely to cause environmental damage since it will be difficult to dispose of the
huge debris emanating from the demolition as the area is congested and covered
with extensive vegetation. Some part of the proceeds received as income from
the commercial complex may be utilized to compensate the loss that might have
been caused to the environment and ecology of the area due to the construction
of the Bus Stand Complex.
36 The State of Himachal Pradesh later submitted before this Court on 3
November 2020 that it had taken steps for initiating prosecutions for violations of
the provisions of the Forest Act. It placed on record, through an affidavit, the
steps taken by it.
37 Opposing these submissions and arguing in support of NGT’s impugned
judgment, the CEC submits the following:
(i) The forest land was permitted to be diverted for “non-forest purposes” only
for the construction of a bus stand and parking space. However, the
appellant expanded the scope to include a Hotel-cum-Restaurant without
prior permission;
(ii) The second respondent started construction of the Bus Stand Complex
without approval of the drawings and plans by the TCP Department, which
later pointed out issues with the plans; and
PART H
26
(iii) On 12 June 2007, MOEF rejected the request of the State of Himachal
Pradesh for the extension of the use of the forest land for anything other
than a bus stand and a parking space.
38 Supporting the submissions of the CEC, the sixth and seventh
respondents submit:
(i) The de-reservation of forest land for the construction of the Hotel-cumRestaurant structure in the Bus Stand Complex was in violation of: (i)
Section 2(i) of the Forest Act; and (ii) the order dated 13 November 2000
issued by this Court in Centre for Environmental Law, WWF - I vs Union
of India3
, which held that further land shall not be de-reserved pending
further orders from this Court;
(ii) As such, the actions of the appellant and the second respondent in
deliberately violating the provisions of the Forest Act constitute a violation
of the “environmental rule of law” enunciated by this Court in Hanuman
Laxman Aroskar vs Union of India4
; and
(iii) The entire Bus Stand Complex was constructed without requisite
permissions under the TCP Act.
39 The MOEF has accepted the report submitted by the District and Sessions
Judge in its entirety and stands by its findings.
40 The rival submissions now fall for our consideration.
3 Writ Petition (Civil) No. 337 of 1995
4 (2019) 15 SCC 401
PART I
27
I Analysis
41 The construction of the Hotel-cum-Restaurant structure in the Bus Stand
Complex is illegal and constitutes a brazen violation of law. The permission which
was granted by MOEF on 12 November 1997 was only for construction of a
‘parking place’ at McLeod Ganj. Similarly, the permission granted on 1 March
2001 was granted for constructing a ‘bus stand’ in the same area. At no point was
any permission granted for the construction of a hotel or commercial structure.
NGT’s finding on this count commends acceptance. The appellant, on being
granted permission to engage in construction for a specified purpose, unlawfully
utilised that permission as the basis to construct a different structure which was
not authorized. It has done so in disregard of the provisions of the Forest Act.
42 Section 2 of the Forest Act reads as follows:
“2. Restriction on the de-reservation of forests or use of forest
land for non-forest purpose.— Notwithstanding anything
contained in any other law for the time being in force in a
State, no State Government or other authority shall make,
except with the prior approval of the Central Government, any
order directing—
(i) that any reserved forest (within the meaning of the
expression “reserved forest” in any law for the time being in
force in that State) or any portion thereof, shall cease to be
reserved;
(ii) that any forest land or any portion thereof may be used for
any non-forest purpose;
(iii) that any forest land or any portion thereof may be
assigned by way of lease or otherwise to any private person
or to any authority, corporation, agency or any other
organisation not owned, managed or controlled by
Government;
(iv) that any forest land or any portion thereof may be cleared
of trees which have grown naturally in that land or portion, for
the purpose of using it for reafforestation.
PART I
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Explanation.— For the purposes of this section “non-forest
purpose” means the breaking up or clearing of any forest land
or portion thereof for—
(a) the cultivation of tea, coffee, spices, rubber, palms, oilbearing plants, horticulture crops or medicinal plants;
(b) any purpose other than reafforestation,
but does not include any work relating or ancillary to
conservation, development and management of forests and
wild-life, namely, the establishment of check-posts, fire lines,
wireless communications and construction of fencing, bridges
and culverts, dams, waterholes, trench marks, boundary
marks, pipelines or other like purposes.”
The provisions of Section 2 mandate strict and punctilious compliance. Mere
substantial compliance is not enough. The construction of the Hotel-cumRestaurant structure is entirely illegal, having been carried out in clear breach of
this mandatory statutory stipulation. That officials of statutory bodies of the State
Government have connived at the violation of law is a reflection on the nature of
governance by those who are expected to act within the bounds of law.
43 The report of the CEC is a serious indictment of the actions of the
appellant. The CEC report indicates that: (i) the construction of the Hotel-cumRestaurant structure in Bus Stand Complex was illegal; (ii) the land was a
reserved forest; (iii) there was no valid permission for diversion for the land for
the construction of the Hotel-cum-Restaurant structure; (iv) Forest Act consent
was taken only for the parking facility and the bus stand; (v) there was no valid
approval from the TCP Department of the plans of the entire Bus Stand Complex;
and (vi) the finally constructed Bus Stand Complex is not in conformity with the
appellant’s own proposed plans in the RFP.
PART I
29
44 The findings which were arrived at in NGT’s judgment are supported by the
report submitted by the District and Sessions Judge. The report presents a
striking analysis of the manner in which the Hotel-cum-Restaurant structure was
constructed in breach of statutory requirements and how this was made possible
by the connivance of multiple state actors. The relevant findings from the report
are excerpted below:
“4. The EPC has prepared the conceptual plan Ex. Cl
I4A, but the bus stand authority went on to flout the aforesaid
conceptual plan and on its own and decided to construct bus
stand-cum-parking and hotel complex on two pieces of forest
land under BOT basis. No sanction or approval was obtained
by the Bus Stand Authority under the provision of Forest
(Conservation) Act, 1980 for diversion of forest land to use
the same for non - forest purpose. The Government of India
Ministry of Environment and Forest, turned down the request
to use the forest land for non-forest purpose and change the
name of user agency from SDO(C) and H.P. Tourism
Department to Bus Stand Authority vide copy of letter Ex.
Cl03.
...
7. The illegal construction of disputed structure was raised
with sole motive to give undue advantage to M/s Prashanti
Surya Construction Company and for the same Bus Stand
Authority is primarily responsible and in addition to that the
officers/officials of other concerned departments are also
responsible.
...
12. In this case the Bus Stand Authority did not inform in
writing the Director of Town and Country Planning
Department, regarding the construction work in question as
discussed here in above in the aforesaid statutory provisions.
Said information should have been given by the CEO of the
Bus Stand Authority in the year of 2005 when the construction
work started on the spot. So, the CEO of Bus Stand Authority
in the year 2005, is responsible for ignoring the statutory
provisions of Section 28 of the H.P. Town and Country
Planning Act.”
PART I
30
45 NGT acted within its mandate in a case of this nature, where the appellant
actively allowed the perpetration of a structure in breach of environmental norms.
Not looking askance at the construction of the Hotel-cum-Restaurant structure, in
an area which the NGT rightly describes as the “lap of nature”, will put us on the
path of judicially sanctioned environmental destruction.
I.1 Environmental rule of law
46 In a constitutional framework which is intended to create, foster and protect
a democracy committed to liberal values, the rule of law provides the
cornerstone. The rule of law is to be distinguished from rule by the law. The
former comprehends the setting up of a legal regime with clearly defined rules
and principles of even application, a regime of law which maintains the
fundamental postulates of liberty, equality and due process. The rule of law
postulates a law which is answerable to constitutional norms. The law in that
sense is accountable as much as it is capable of exacting compliance. Rule by
the law on the other hand can mean rule by a despotic law. It is to maintain the
just quality of the law and its observance of reason that rule of law precepts in
constitutional democracies rest on constitutional foundations. A rule of law
framework encompasses rules of law but it does much more than that. It
embodies matters of substance and process. It dwells on the institutions which
provide the arc of governance. By focussing on the structural norms which guide
institutional decision making, rule of law frameworks recognise the vital role
played by institutions and the serious consequences of leaving undefined the
norms and processes by which they are constituted, composed and governed. A
PART I
31
modern rule of law framework is hence comprehensive in its sweep and ambit. It
recognises that liberty and equality are the focal point of a just system of
governance and without which human dignity can be subverted by administrative
discretion and absolute power. Rule of law then dwells beyond a compendium
which sanctifies rules of law. Its elements comprise of substantive principles,
processual guarantees and institutional safeguards that are designed to ensure
responsive, accountable and sensitive governance.
47 The environmental rule of law, at a certain level, is a facet of the concept of
the rule of law. But it includes specific features that are unique to environmental
governance, features which are sui generis. The environmental rule of law seeks
to create essential tools – conceptual, procedural and institutional to bring
structure to the discourse on environmental protection. It does so to enhance our
understanding of environmental challenges – of how they have been shaped by
humanity’s interface with nature in the past, how they continue to be affected by
its engagement with nature in the present and the prospects for the future, if we
were not to radically alter the course of destruction which humanity’s actions
have charted. The environmental rule of law seeks to facilitate a multi–
disciplinary analysis of the nature and consequences of carbon footprints and in
doing so it brings a shared understanding between science, regulatory decisions
and policy perspectives in the field of environmental protection. It recognises that
the ‘law’ element in the environmental rule of law does not make the concept
peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw
within the fold all stakeholders in formulating strategies to deal with current
challenges posed by environmental degradation, climate change and the
PART I
32
destruction of habitats. The environmental rule of law seeks a unified
understanding of these concepts. There are significant linkages between
concepts such as sustainable development, the polluter pays principle and the
trust doctrine. The universe of nature is indivisible and integrated. The state of
the environment in one part of the earth affects and is fundamentally affected by
what occurs in another part. Every element of the environment shares a
symbiotic relationship with the others. It is this inseparable bond and connect
which the environmental rule of law seeks to explore and understand in order to
find solutions to the pressing problems which threaten the existence of humanity.
The environmental rule of law is founded on the need to understand the
consequences of our actions going beyond local, state and national boundaries.
The rise in the oceans threatens not just maritime communities. The rise in
temperatures, dilution of glaciers and growing desertification have consequences
which go beyond the communities and creatures whose habitats are threatened.
They affect the future survival of the entire eco-system. The environmental rule of
law attempts to weave an understanding of the connections in the natural
environment which make the issue of survival a unified challenge which confronts
human societies everywhere. It seeks to build on experiential learnings of the
past to formulate principles which must become the building pillars of
environmental regulation in the present and future. The environmental rule of law
recognises the overlap between and seeks to amalgamate scientific learning,
legal principle and policy intervention. Significantly, it brings attention to the
rules, processes and norms followed by institutions which provide regulatory
governance on the environment. In doing so, it fosters a regime of open,
PART I
33
accountable and transparent decision making on concerns of the environment. It
fosters the importance of participatory governance – of the value in giving a voice
to those who are most affected by environmental policies and public projects. The
structural design of the environmental rule of law composes of substantive,
procedural and institutional elements. The tools of analysis go beyond legal
concepts. The result of the framework is more than just the sum total of its parts.
Together, the elements which it embodies aspire to safeguard the bounties of
nature against existential threats. For it is founded on the universal recognition
that the future of human existence depends on how we conserve, protect and
regenerate the environment today.
48 In its decision in Hanuman Laxman Aroskar vs Union of India (supra),
this Court, speaking through one of us (DY Chandrachud, J.) recognized the
importance of protecting the environmental rule of law. The court observed:
“142. Fundamental to the outcome of this case is a quest for
environmental governance within a rule of law paradigm.
Environmental governance is founded on the need to promote
environmental sustainability as a crucial enabling factor which
ensures the health of our ecosystem.
143. Since the Stockholm Conference, there has been a
dramatic expansion in environmental laws and institutions
across the globe. In many instances, these laws and
institutions have helped to slow down or reverse
environmental degradation. However, this progress is also
accompanied, by a growing understanding that there is a
considerable implementation gap between the requirements
of environmental laws and their implementation and
enforcement — both in developed and developing countries
alike
…
156. The rule of law requires a regime which has effective,
accountable and transparent institutions. Responsive,
inclusive, participatory and representative decision making
PART I
34
are key ingredients to the rule of law. Public access to
information is, in similar terms, fundamental to the
preservation of the rule of law. In a domestic context,
environmental governance that is founded on the rule of law
emerges from the values of our Constitution. The health of
the environment is key to preserving the right to life as a
constitutionally recognised value under Article 21 of the
Constitution. Proper structures for environmental decision
making find expression in the guarantee against arbitrary
action and the affirmative duty of fair treatment under Article
14 of the Constitution.”
49 In its first global report on environmental rule of law in January 2019, the
United Nations Environment Programme (“UNEP”) has presciently stated5
:
“If human society is to stay within the bounds of critical
ecological thresholds, it is imperative that environmental laws
are widely understood, respected, and enforced and the
benefits of environmental protection are enjoyed by people
and the planet. Environmental rule of law offers a framework
for addressing the gap between environmental laws on the
books and in practice and is key to achieving the Sustainable
Development Goals.
...
Successful implementation of environmental law depends on
the ability to quickly and efficiently resolve environmental
disputes and punish environmental violations. Providing
environmental adjudicators and enforcers with the tools that
allow them to respond to environmental matters flexibly,
transparently, and meaningfully is a critical building block of
environmental rule of law.”
50 The need to adjudicate disputes over environmental harm within a rule of
law framework is rooted in a principled commitment to ensure fidelity to the legal
framework regulating environmental protection in a manner that transcends a
case-by-case adjudication. Before this mode of analysis gained acceptance, we
faced a situation in which, despite the existence of environmental legislation on
5 UNEP, ‘Environmental Rule of Law First Global Report’ (January 2019), pgs viii and 223.
PART I
35
the statute books, there was an absence of a set of overarching judicially
recognized principles that could inform environmental adjudication in a manner
that was stable, certain and predictable. In an article in the Asia-Pacific Journal of
Environmental Law (2014), Bruce Pardy describes this conundrum in the
following terms6
:
“Environmental regulations and standards typically identify
specific limits or prohibitions on detrimental activities or
substances. They are created to reflect the principles and
prohibitions contained in the statute under which they are
promulgated. However, where the contents of the statute are
themselves indeterminate, there is no concrete rule or set of
criteria to apply to formulate the standards. Their
development can therefore be highly political and potentially
arbitrary.
...
Instead of serving to protect citizens' environmental welfare,
an indeterminate environmental law facilitates a utilitarian
calculus that allows diffuse interests to be placed aside when
they are judged to be less valuable than competing
considerations.”
51 However, even while using the framework of an environmental rule of law,
the difficulty we face is this – when adjudicating bodies are called on to
adjudicate on environmental infractions, the precise harm that has taken place is
often not susceptible to concrete quantification. While the framework provides
valuable guidance in relation to the principles to be kept in mind while
adjudicating upon environmental disputes, it does not provide clear pathways to
determine the harm caused in multifarious factual situations that fall for judicial
consideration. The determination of such harm requires access to scientific data
which is often times difficult to come by in individual situations.
6 Bruce Pardy, ‘Towards an Environmental Rule of Law’, 17 Asia Pacific Journal of Environmental Law 163
(2014).
PART I
36
52 In an article in the Georgetown Environmental Law Review (2020), Arnold
Kreilhuber and Angela Kariuki explain the manner in which the environmental
rule of law seeks to resolve this imbroglio7
:
“One of the main distinctions between environmental rule of
law and other areas of law is the need to make decisions to
protect human health and the environment in the face of
uncertainty and data gaps. Instead of being paralyzed into
inaction, careful documentation of the state of knowledge and
uncertainties allows the regulated community, stakeholders,
and other institutions to more fully understand why certain
decisions were made.”
The point, therefore, is simply this – the environmental rule of law calls on us, as
judges, to marshal the knowledge emerging from the record, limited though it
may sometimes be, to respond in a stern and decisive fashion to violations of
environmental law. We cannot be stupefied into inaction by not having access to
complete details about the manner in which an environmental law violation has
occurred or its full implications. Instead, the framework, acknowledging the
imperfect world that we inhabit, provides a roadmap to deal with environmental
law violations, an absence of clear evidence of consequences notwithstanding.
53 In the case before us, it is not possible for us to determine in quantifiable
terms the exact effect of the construction of the Hotel-cum-Restaurant structure
by the appellant and the second respondent on the ecology of the area. Both of
them have tried to argue that the number of trees felled by them, in the case of
the present construction, is what it would have been, had they only built a bus
stand and a parking space. However, what we can record a determination on is
7 Arnold Kreilhuber and Angela Kariuki, ‘Environmental Rule of Law in the Context of Sustainable Development’,
32 Georgetown Environmental Law Review 591 (2020).
PART I
37
the way in which the appellant and second respondent have gone about
achieving this object. Specifically, the parties have engaged in the construction
without complying with the plans drawn by the appellant’s third-party consultants,
which were agreed to by them in the RFP. The construction proceeded even
when the TCP Department tried to halt it, refusing to approve its plans. Even the
post facto refusal by the MOEF for changing the nature of the diverted forest land
was not enough to stop the parties. Ultimately, when they were forced to halt the
construction by the CEC, they proceeded with it under the guise of an order of
this Court which permitted only legal construction. A combination of these
circumstances highlights not only conduct oblivious of the environmental
consequences of their actions, but an active disdain for them in favour of
commercial benefits. While the second respondent was a private entity, they
were actively supported in these efforts by the appellant. Hence, it is painfully
clear that their actions stand in violation of the environmental rule of law.
Whatever else the environmental rule of law may mean, it surely means that
construction of this sort cannot receive our endorsement, no matter what its
economic benefits may be. A lack of scientific certainty is no ground to imperil the
environment.
I.2 Role of courts in ensuring environmental protection
54 In a recent decision of this Court in Bengaluru Development Authority
vs Sudhakar Hegde8
, this Court, speaking through one of us (DY Chandrachud,
J.) held:
8 2020 SCC OnLine SC 328
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38
“107. The adversarial system is, by its nature, rights based. In
the quest for justice, it is not uncommon to postulate a
winning side and a losing side. In matters of the environment
and development however, there is no trade-off between the
two. The protection of the environment is an inherent
component of development and growth…
108. Professor Corker draws attention to the idea that the
environmental protection goes beyond lawsuits. Where the
state and statutory bodies fail in their duty to comply with the
regulatory framework for the protection of the environment,
the courts, acting on actions brought by public spirited
individuals are called to invalidate such actions…
109. The protection of the environment is premised not only
on the active role of courts, but also on robust institutional
frameworks within which every stakeholder complies with its
duty to ensure sustainable development. A framework of
environmental governance committed to the rule of law
requires a regime which has effective, accountable and
transparent institutions. Equally important is responsive,
inclusive, participatory and representative decision making.
Environmental governance is founded on the rule of law and
emerges from the values of our Constitution. Where the
health of the environment is key to preserving the right to life
as a constitutionally recognized value under Article 21 of the
Constitution, proper structures for environmental decision
making find expression in the guarantee against arbitrary
action and the affirmative duty of fair treatment under Article
14 of the Constitution. Sustainable development is premised
not merely on the redressal of the failure of democratic
institutions in the protection of the environment, but ensuring
that such failures do not take place.”
55 In Lal Bahadur vs State of Uttar Pradesh9
, this Court underscored the
principles that are the cornerstone of our environmental jurisprudence, as
emerging from a settled line of precedent: the precautionary principle, the polluter
pays principle and sustainable development. This Court further noted the
importance of judicial intervention for ensuring environmental protection. In a
recent decision in State of Meghalaya & others vs All Dimasa Students
9 (2018) 15 SCC 407.
PART I
39
Union10, this Court reiterated the key principles of environmental jurisprudence in
India, while awarding costs of Rs. 100 crores on the State of Meghalaya for
engaging in illegal coal mining.
56 The UNEP report (supra) also goes on to note11:
“Courts and tribunals must be able to grant meaningful legal
remedies in order to resolve disputes and enforce
environmental laws. As shown in Figure 5.12, legal remedies
are the actions, such as fines, jail time, and injunctions, that
courts and tribunals are empowered to order. For
environmental laws to have their desired effect and for there
to be adequate incentives for compliance with environmental
laws, the remedies must both redress the past environmental
harm and deter future harm.”
57 In its Global Judicial Handbook on Environmental Constitutionalism, the
UNEP has further noted12:
“Courts matter. They are essential to the rule of law. Without
courts, laws can be disregarded, executive officials left
unchecked, and people left without recourse. And the
environment and the human connection to it can suffer.
Judges stand in the breach.”
58 The above discussion puts into perspective our decision in the present
appeals, through which we shall confirm the directions given by the NGT in its
impugned judgment. The role of courts and tribunals cannot be overstated in
ensuring that the ‘shield’ of the “rule of law” can be used as a facilitative
instrument in ensuring compliance with environmental regulations.
10 (2019) 8 SCC 177. 11 Supra at note 5, pg 213. 12 UNEP, Global Judicial Handbook on Environmental Constitutionalism (3rd edition, 2019), pg 7.
PART I
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I.3 Illegal activities on forest land
59 We are not traversing unexplored territory. In the past, this Court has
clamped down on illegal activities on reserved forest land specifically, and in
violation of environmental laws more generally, and taken to task those
responsible for it. In a recent three-judge bench decision of this Court in the case
of Hospitality Association of Mudumalai vs In Defence of Environment and
Animals13, this Court was confronted with a situation involving illegal commercial
activities taking place in an elephant corridor. Justice S. Abdul Nazeer, speaking
for the Court, held as follows:
“42… the “Precautionary Principle” has been accepted as a
part of the law of our land. Articles 21, 47, 48A and 51A(g) of
the Constitution of India give a clear mandate to the State to
protect and improve the environment and to safeguard the
forests and wild life of the country. It is the duty of every
citizen of India to protect and improve the natural environment
including forests and wild life and to have compassion for
living creatures. The Precautionary Principle makes it
mandatory for the State Government to anticipate, prevent
and attack the causes of environmental degradation.”
60 In Goel Ganga Developers India Pvt. Ltd. vs Union of India14, this Court
dealt with a situation in which the project proponent had engaged in construction
that was contrary to the environmental clearance granted to it. Coming down on
the project proponent, a two-judge bench, speaking through Justice Deepak
Gupta, held as follows:
“64. Having held so we are definitely of the view that the
project proponent who has violated law with impunity cannot
be allowed to go scot-free. This Court has in a number of
13 2020 SCC OnLine SC 838. 14 (2018) 18 SCC 257.
PART I
41
cases awarded 5% of the project cost as damages. This is
the general law. However, in the present case we feel that
damages should be higher keeping in view the totally
intransigent and unapologetic behaviour of the project
proponent. He has manoeuvred and manipulated officials and
authorities. Instead of 12 buildings, he has constructed 18;
from 552 flats the number of flats has gone up to 807 and
now two more buildings having 454 flats are proposed. The
project proponent contends that he has made smaller flats
and, therefore, the number of flats has increased. He could
not have done this without getting fresh EC. With the increase
in the number of flats the number of persons residing therein
is bound to increase. This will impact the amount of water
requirement, the amount of parking space, the amount of
open area, etc. Therefore, in the present case, we are clearly
of the view that the project proponent should be and is
directed to pay damages of Rs 100 crores or 10% of the
project cost, whichever is more.”
61 In M.C. Mehta vs Union of India15, a two judge Bench of this Court held
that the land notified under Punjab Land Preservation Act, 1900 in the Kant
Enclave was to be treated as “forest land”. As a result, any construction made on
the land or its utilization for “non-forest purposes” without Central Government
approval was violative of the Forest Act and therefore illegal. The relevant
excerpt of this Court’s decision, speaking through Justice Madan B. Lokur, is as
follows:
“132... R. Kant & Co. and the Town and Country Department
of the State of Haryana being fully aware of the statutory
Notification dated 18-8-1992 and the restrictions placed by
the notification. R. Kant & Co. and the Town and Country
Department of the State of Haryana were also fully aware that
Kant Enclave is a forest or forest land or treated as a forest or
forest land, and therefore any construction made on the land
or utilisation of the land for non-forest purposes, without the
prior approval of the Central Government, would be illegal
and violative of the provisions of the Forest (Conservation)
Act, 1980. Notwithstanding this, constructions were made (or
allowed to be made) in Kant Enclave with the support, tacit or
otherwise, of R. Kant & Co. and the Town and Country
Department of the State of Haryana. They must pay for this.”
15 (2018) 18 SCC 397.
PART I
42
62 In the present set of appeals, the forest land was allowed to be used by the
MOEF for the specific purposes of constructing a ‘parking space’ and ‘bus stand’
in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this
permission, even when granted an opportunity to do so. Hence, any construction
undertaken by the second respondent, even with the tacit approval of the
appellant being a statutory authority under the HP Bus Stands Act, will be illegal.
I.4 Jurisdiction of NGT
63 An ancillary issue now remains for our consideration, which is whether the
NGT could have adjudicated upon a violation of the TCP Act, which is not an Act
present in Schedule I of the NGT Act. In a recent two-judge Bench decision of
this Court in State of M.P. vs Centre for Environment Protection Research &
Development16, one of us speaking for the Court (Justice Indira Banerjee), held
as follows:
“41. The Tribunal constituted under the NGT Act has
jurisdiction under Section 14 of the said Act to decide all civil
cases where any substantial question relating to environment
including enforcement of any right relating to environment is
involved and such question arises out of the implementation
of the enactments specified in Schedule I to the said Act,
which includes the Air (Prevention and Control of Pollution)
Act, 1981 and the Environment (Protection) Act, 1986.
42. In view of the definition of “substantial question relating to
environment” in Section 2(1)(m) of the NGT Act, the learned
Tribunal can examine and decide the question of violation of
any specific statutory environmental obligation, which affects
or is likely to affect a group of individuals, or the community at
large.
43. For exercise of power under Section 14 of the NGT Act, a
substantial question of law should be involved including any
16 (2020) 9 SCC 781.
PART J
43
legal right to environment and such question should arise out
of implementation of the specified enactments.
44. Violation of any specific statutory environmental obligation
gives rise to a substantial question of law and not just
statutory obligations under the enactments specified in
Schedule I. However, the question must arise out of
implementation of one or more of the enactments specified in
Schedule I.”
The provisions of the TCP Act required the appellant and second respondent to
take prior permission from the TCP Department before changing the nature of the
land through their construction. Non-conformity with this stipulation led to a
violation of their environmental obligations. In any case, this question is academic
because the NGT’s impugned judgment grounds its decision in the appellant and
second respondent’s violation of Section 2 of the Forest Act, which is an Act
present within Schedule I of the NGT Act.
J Conclusion
64 Based on our analysis above, we uphold the directions which have been
issued by the NGT in its judgment. By the earlier orders dated 16 May 2016 and
9 September 2016, this court only stayed NGT’s direction in relation to the
demolition of the Hotel-cum-Restaurant structure. The appellant has tried to
argue against the demolition of the Hotel-cum-Restaurant structure in the Bus
Stand Complex, submitting that it may be allowed to stand for their use. However,
we cannot accept this submission. Doing so would legalise what is an otherwise
entirely illegal construction, the reasons for which have been adduced by us in
the judgment above.
65 Hence, we direct that the process of demolishing the Hotel-cumRestaurant structure in the Bus Stand Complex be commenced within two weeks
PART J
44
from the date of the judgment and the structure shall be demolished by the
second respondent within one month thereafter. In the event of default, the Chief
Conservator of Forest along with the administration of district Dharamshala shall
demolish the structure and recover the cost and expenses as arrears of land
revenue from the second respondent.
66 Further, as directed by the NGT, the State of Himachal Pradesh and the
second respondent can utilise the parking space and the bus stand in the Bus
Stand Complex, after the demolition of the Hotel-cum-Restaurant structure.
However, this has to be in accordance with orders dated 12 November 1997 and
1 March 2001 issued by the MOEF, i.e., it shall not be used for any purpose other
than parking of cars and buses, as the case may be.
67 The appeals are accordingly disposed of.
68 Pending application(s), if any, stand disposed of.
…….………….…………………...........................J.
[Dr Dhananjaya Y Chandrachud]
…….…………………………...............................J.
[Indu Malhotra]
…….…………………………...............................J.
[Indira Banerjee]
New Delhi;
January 12, 2021.
