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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. No.2310/2008, I.A. Nos. 2378-2379/2009,
I.A. No. 2269, I.A. No. 2270, I.A. No. 2393,
I.A. Nos. 2381-2384
IN
W.P. (C) No. 4677 OF 1985
M.C. Mehta ....Petitioner
versus
Union of India & Ors. .... Respondents
In Re : Kant Enclave matters
WITH
I.A. Nos. 2310-2311 IN W.P. (C) No. 202/1995
J U D G M E N T
Madan B. Lokur, J.
1. The principal question that arises in this batch of substantive
applications is whether, in the State of Haryana, land notified under the
provisions of the Punjab Land Preservation Act, 1900 (for short the PLP
Act) is forest land or is required to be treated as forest land. If so, whether
construction carried out by the applicant R. Kant & Co. on this land is in
contravention of the notification dated 18th August, 1992 issued under the
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 2 of 81
provisions of the PLP Act, the Forest (Conservation) Act, 1980 and
decisions of this Court.
2. Our answer to both the questions is in the affirmative. We have no
doubt that land notified by the State of Haryana under the provisions of the
PLP Act must be treated as ‘forest’ and ‘forest land’ and has in fact been
so treated for several decades by the State of Haryana. There is no reason
to change or alter the factual or legal position. The construction activity
carried out by the applicant R. Kant & Co. is clearly in violation of the
notification dated 18th August, 1992 and in blatant defiance of orders
passed by this Court from time to time. Unfortunately, the Town &
Country Planning Department of the State of Haryana has been supporting
the illegalities of the applicant despite strong resistance from the Forest
Department of the State of Haryana. There is no doubt that at the end of
the day, the State of Haryana comes out in very poor light and must be held
accountable for its conflicting and self-destructive stand taken in spite of
affidavits filed by the Chief Secretary of the State of Haryana from time to
time supporting the Forest Department.
3. The unfortunate and distressing consequence of this is that because
of a complete lack of any concern for the environmental and ecological
degradation carried out in the Aravalli hills by influential colonizers like
the applicant and what appears to be a very strong mining lobby in
Haryana, the damage caused to the Aravalli hills is irreversible. It is not
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only the future generations that have to pay a heavy price for this
environmental degradation, but even the present generation is paying a
heavy price for the environmental and ecological degradation inasmuch as
there is an acute water shortage in the area as prophesied by the Central
Ground Water Board. In addition, what was once a popular tourist
destination, namely, Badkal Lake has now vanished and the entire water
body has become bone dry. What are the more severe consequences that
will be felt in the years to come, only time and nature will tell.
Brief background
4. By a communication dated 17th April, 1984 the Commissioner &
Secretary, Town & Country Planning Department of the State of Haryana
granted exemption to the applicant R. Kant & Co. for setting up a Film
Studio and Allied Complex in Khasra Nos. 9 to 16 (owned by the applicant)
in village Anangpur in Faridabad district. The exemption was granted
under Section 23 of the Haryana Development & Regulation of Urban
Areas Act, 1975 on certain terms and conditions. Section 23 of the
Haryana Development and Regulation of Urban Areas Act, 1975 reads as
follows:
“23. Power to exempt– If the Government is of the opinion that
the operation of any of the provisions of this Act causes undue
hardship or circumstances exist which render it expedient so to
do, it may, subject to such terms and conditions as it may impose,
by a general or special order, exempt any class of persons or areas
from all or any of the provisions of this Act.”
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5. The validity of the exemption is not before us and so we need not
delve into the reasons for the exemption. Be that as it may, it appears that
the applicant did not comply with the terms and conditions imposed upon
it and therefore a show cause notice was issued for withdrawal of the
exemption. The applicant contested the show cause notice and a hearing
was given by the Chief Minister of Haryana being the Minister-in-charge
of the Town & Country Planning Department. By an order dated 11th July,
1990 the show cause notice was dropped but some further terms and
conditions were imposed on the applicant. It is important to note that one
of the issues mentioned by the Chief Minister in his order related to the
availability of water. The significance of this will be adverted to a little
later. For the present, it may be noted that the order recorded in paragraph
9 is as follows:
“Director, Town & Country Planning Department further inquired
as to whether any technical as well as physical studies have been
undertaken with regard to the availability of the potable water to
meet the requirement of this population for the next 20 to 25 years.
In reply to the query of the Director, Town & Country Planning
Department with regard to the proposed density of the Complex
and the manner in which the requirements of drinking water is
proposed to be met with, the representative of the Company
explained that they have already got a hydrological survey done
for the area from which it has emerged that in 2/3rd of the site,
there are aquifers available at the deeper level which would be
fully exploited to meet the demand of the water supply for the
proposed population of about 30,000. The Director Town &
Country Planning Deptt. observed that as the company is required
to maintain the studio-cum-allied complex for a period of five
years after its completion, the span of availability of the water from
the aquifers is of paramount because ultimately the responsibility
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for upkeep and maintenance of this particular complex would vest
with the Faridabad Complex Administration or any other Local
Authority. Hence, the company should keep this particular aspect
in view.” [Emphasis supplied by us].
6. It took quite some time for the applicant to accept the terms and
conditions imposed by the Chief Minister in his order dated 11th July, 1990.
Eventually, the applicant accepted the terms and conditions and entered
into an agreement on 27th March, 1992 with the State of Haryana. One of
the terms and conditions of the agreement was that the applicant would
complete the entire project of a Film Studio and Allied Complex within a
period of five years; extensions for the area earmarked for group housing
could be considered on merits. It is nobody’s case that the entire project
was completed within a period of five years and there is nothing on record
to suggest that any extension was granted to the applicant for group
housing.
Notification under the PLP Act and other developments
7. The issue of environmental degradation in the Aravalli hill areas as
well as in the Shivalik hill areas was a matter of concern for the State of
Haryana, as it should be. In this regard, meetings were held and decisions
taken for closing the area between Surajkund and Badkal Lake under the
provisions of the PLP Act. The overall objective of these discussions and
the reference to the PLP Act was for preventing environmental and
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ecological degradation of the area due to mining and quarrying as well as
construction activity.
8. On 12th September, 1990 a meeting was held in the context of
closing some areas for purposes of afforestation, particularly those areas
where mining activity was going on. It was suggested by the Town &
Country Planning Department that areas earmarked for colonisation should
not be closed but no final decision was taken and it was decided that the
list of such areas should be provided or made available for further
directions. The list was eventually prepared and it included the land of the
applicant, but nothing further happened in this regard.
9. It appears from a reading of the documents before us (particularly a
letter dated 9th June, 1993 sent by the Deputy Conservator of Forests,
Faridabad to the Chief Administrator, Faridabad Complex Administration,
the Administrator of the Haryana Urban Development Authority and the
District Town Planner, Faridabad) that sometime in 1988 the State of
Haryana constituted a High-Level Committee for the development of the
area between and around Badkal Lake and Surajkund Tourist Complexes.
It further appears that the High-Level Committee held several meetings
between August 1988 and 1990 and apparently a Report was submitted
recommending that the Aravalli hill area between these two complexes
should be brought under the provisions of the PLP Act. This seems to have
resulted in the issuance of a notification dated 18th August, 1992 under the
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provisions of Section 4 of the PLP Act. We had requested learned counsel
for the State of Haryana to provide us with a copy of the Report and the
recommendations but they have not been provided, for whatever reason.
10. The notification prohibited, inter alia, clearing or breaking up of
land not ordinarily under cultivation. Permission to break the land for
cultivation could be permitted by the Divisional Forest Officer, Faridabad
Forest Division. In any event, construction activity could not be permitted
even by the Divisional Forest Officer.
11. We may note that one of the reasons that appears to have weighed
with the State of Haryana in permitting the breaking up of land for
cultivation is because Haryana is a predominantly agricultural State with
83% of the total land area under cultivation. This is to be found in the
affidavit dated 25th February, 1997 of Shri S.K. Maheshwari, IAS,
Commissioner & Secretary to the Government of Haryana filed in this
Court in the case of T.N. Godavarman v. Union of India.
1
In any event,
as mentioned above, construction activity could not be permitted even by
the Divisional Forest Officer.
12. The notification dated 18th August, 1992 (which included the land of
the applicant and there is no dispute about this) reads as follows:
1 W.P. No. 202 of 1995
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“No. S.O.104/P.A.-2/1900/S.3/92 – Whereas the Governor of
Haryana is satisfied after the due enquiry that the prohibitions
hereinafter contained are necessary for the purpose of giving effect
to the provisions of the Punjab Land Prevention Act, 1900;
Now, therefore in exercise of the powers conferred by section 4 of
the said Act, the Governor of Haryana hereby prohibits the
following acts for a period of thirty years(30 years) with effect
from the date of publication of this order in the official Gazette in
the areas specified in the schedule annexed hereto, the said area
forming part of the village Anangpur in Ballabhgarh, Tehsil
Faridabad District specified in the schedule annexed Haryana
Government Forest Department Notification No.S.O.59/P.A. -
2/1900/S.3/92, dated 10th April, 1992.
1. The clearing or breaking up of the land not ordinarily under
cultivation prior to the publication of Haryana Government
Forest Department Notification No.S.O.59/P.A.-2/1900/S.3/92
dated 10th April, 1992 provided that the breaking in the land for
cultivation may be permitted by the Divisional Forest Officer,
Faridabad Forest Division.
2. The quarrying of stones or the burnings of lime at place where
such stone or lime had not ordinarily been as quarried or burnt
prior to the publication of the said notification except with the
permission of the Collector of Faridabad District who will
consult the Divisional Forest Officer, Faridabad Forest
Division before according such permission.
3. The cutting of trees or timber or the collection or removal or
subjection to any manufacturing process of any forest produce
other than grass, flower, fruit and honey save for the bona fide
domestic or agricultural purpose of right holders in the land
provided that owners of the land may sell trees or timber after
first obtaining a permit to do so from the Divisional Forest
Officer, Faridabad Forest Division. Such permit will prescribe
such conditions for sale as may from time to time appear
necessary in the interest of forest conservancy.
4. The setting on fire of trees, timber of forest produce.
5. The admission, herding or pasturing, retention of sheep, goats
or camels provided that in case where sickness necessitates for
the keeping of goats, for milk, Divisional Forest Officer,
Faridabad Division may issue a permit at his discretion for the
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retention of a limited number of stall-fed goat, to be specified
for a specified period.”
13. In a parallel exercise, steps were taken by the State of Haryana for
publishing a Development Plan for Faridabad. As a result of this exercise,
the State of Haryana notified the Final Development Plan on 11th
December, 1991 under Section 29 of the Faridabad Complex (Regulation
and Development) Act, 1971. One of the factors mentioned in the
notification justifying the necessity for amendment of the Development
Plan was the rapid increase and scarcity of urbanizable area in Delhi and
the rising population in the National Capital Region.
14. Also, in the meanwhile, it appears that on the basis of the exemption
granted to the applicant in 1984, the Town & Country Planning Department
encouraged the applicant to go ahead with its activity of colonisation of the
land owned by it having an area of about 424.84 acres. The applicant
prepared a layout plan for a Film Studio and Allied Complex which appears
to have been approved by the Town & Country Planning Department
subject to certain terms and conditions on or about 19th December, 1991.
15. Therefore, the position as it stood towards the end of August 1992
was that the applicant had the benefit of an exemption under Section 23 of
the Haryana Development & Regulation of Urban Areas Act, 1975; the
applicant was administratively permitted (if not encouraged) by the Town
& Country Planning Department to construct upon the land owned by it in
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village Anangpur; the layout plan prepared by the applicant was approved
by the Town & Country Planning Department and was apparently in
conformity with the Development Plan for Faridabad and finally, the
applicant had entered into an agreement with the State of Haryana to
complete its project of a Film Studio and Allied Complex within 5 years.
On the other hand, environmental and ecological degradation in the entire
area (which included the land owned by the applicant) was sought to be
prevented by the State of Haryana through a statutory notification issued
by the Forest Department under the provisions of the PLP Act. There was,
therefore, a dichotomy of views and a conflict of interest between two
Departments of the Haryana Government – one favouring colonization and
the other favouring environmental protection and conservation.
16. In this back-drop, a doubt arose whether the applicant could carry
on its construction activity for setting up a Film Studio and Allied Complex
in the closed area of the notification.
17. This concern was voiced, amongst others, by the Principal Chief
Conservator of Forests who sent a communication to the Commissioner &
Secretary of the Forest Department on 31st August, 1992 inquiring whether
permission for setting up a Film Studio and Allied Complex by the
applicant could be issued or not. The Principal Chief Conservator of
Forests mentioned in his communication that prior permission of the
Central Government was compulsory for change of land use. The reason
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why the Principal Chief Conservator of Forests mentioned about prior
mandatory permission of the Central Government is because he believed
that with the issuance of the notification under the provisions of the PLP
Act, the subject land was a forest or in any event was required to be treated
as a forest and therefore, under the provisions of the Forest (Conservation)
Act, 1980 the permission of the Central Government was required for
carrying on a non-forest activity in a forest. We will advert to this issue a
little later.
18. The Principal Chief Conservator of Forests was given a somewhat
casual response to the effect that he could take appropriate action according
to norms.
19. Apart from the communication dated 31st August, 1992 referred to
above and the response thereto, there was an exchange of letters between
Departments of the State of Haryana with the focal point being the Town
& Country Planning Department requesting that the land belonging to the
applicant may be de-notified and taken out of the purview of the
notification issued under the provisions of the PLP Act. However, nothing
came out of this correspondence and the land of the applicant was
admittedly not de-notified.
20. Eventually on 15th May, 1996 the Conservator of Forests wrote to
the applicant that it was allowed to proceed ahead with its activities in
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accordance with the agreement signed with the State of Haryana on 27th
March, 1992. Perhaps this permission was granted keeping in mind that the
applicant was required to complete the development works within a period
of five years and also submit a bank guarantee for executing such
development worksin terms of the agreement dated 27th March, 1992. This
‘permission’ was ex facie contrary to the statutorily notified prohibitions
under the PLP Act.
21. Apparently realising this, the above letter was followed up
immediately by another communication sent by the Conservator of Forests
to the Principal Chief Conservator of Forests on 17th May, 1996 requesting
that the land owned by the applicant may be de-notified and that the
Haryana Government is morally bound to allow the applicant to develop
the project as per the sanctioned plans. Nothing came out of this and the
land was not de-notified and no further event of note took place.
Initial set of orders passed by this Court
22. Around this time, a public interest litigation M.C. Mehta v. Union
of India2 was pending in this Court regarding issues of deforestation
coupled with other environmental issues.
23. On 10th May, 1996 this Court passed a rather significant order
relating to the Aravalli hills and the areas adjoining the land of the
2 W.P. No. 4677 of 1985
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applicant. This was on the basis of a report prepared by the Haryana
Pollution Control Board and another by the National Environmental
Engineering Research Institute in respect of environmental degradation
and pollution in the eco-sensitive zone in the Aravalli hills. By the order
dated 10th May, 1996 this Court prohibited mining within a 2 km radius of
Badkal Lake and Surajkund and construction activity of any type within a
radius of 5 km from Badkal Lake and Surajkund.3
In fact, all open areas
were directed to be converted into green belts. As a result of this, the
applicant obviously could not carry out any activities in the land owned by
it, where it had proposed to establish a Film Studio and Allied Complex.
The prohibition imposed by this Court was obviously in addition to the
prohibition imposed by the notification issued under the PLP Act. It is quite
likely that this Court was not even made aware of the notification under
the PLP Act.
24. The order passed by this Court on 10th May, 1996 was sought to be
modified/clarified by the Executive in Haryana on the ground that in the
prohibited 5 km radius, buildings were under construction, plots had been
allotted/sold under various development schemes and the plot holders had
even started construction. Consequently, the vested rights of several
3 M.C. Mehta v. Union of India, (1996) 8 SCC 462
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persons were likely to be affected thereby causing them a huge financial
loss.
25. After hearing learned counsel for the parties, this Court took the
view, again on the basis of the above reports, that to protect the two lakes
from environmental degradation, it would be necessary to limit
construction activity in the close vicinity of the lakes. Consequently, by an
order dated 11th October, 1996 the earlier order of 10th May, 1996 was
clarified, inter alia, to the effect that no construction shall be permitted
within the green belt around the two lakes, that is an area having roughly 1
km radius. As far as the area outside the green belt is concerned, it was
directed that no construction would be permitted for a further 1 km. It was,
however, clarified that the latter direction would not apply to plots already
sold or allotted prior to 10th May, 1996 in the developed areas and that
unallotted plots in the said areas may be sold with the prior approval of the
concerned authority. All development schemes and plans for constructions
in the area from 1 km to 5 km radius of the lakes shall require prior approval
from the Central Pollution Control Board and the Haryana Pollution
Control Board.4 The clarification given by this Court on 11
th October, 1996
reads as follows:
“1. No construction of any type shall be permitted, now onwards,
within the green belt area as shown in Ex. A and Ex. B. The
environment and ecology of this area shall be protected and
4 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India, (1997) 3 SCC 715
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preserved by all concerned. A very small area may be permitted, if
it is of utmost necessity, for recreational and tourism purposes. The
said permission shall be granted with the prior approval of “the
Authority”, the Central Pollution Control Board and the Haryana
Pollution Control Board.
2. No construction of any type shall be permitted, now onwards, in
the areas outside the green belt (as shown in Ex. A and Ex. B) up
to one km radius of the Badhkal lake and Surajkund (one km to be
measured from the respective lakes). This direction shall, however,
not apply to the plots already sold/allotted prior to 10-5-1996 in
the developed areas. If any unallotted plots in the said areas are
still available, those may be sold with the prior approval of ‘the
Authority’. Any person owning land in the area may construct a
residential house for his personal use and benefit. The construction
of the said plots, however, can only be permitted up to two and a
half storeys (ground, first floor and second half floor) subject to
the Building Bye-laws/Rules operating in the area. The residents
of the villages, if any, within this area may extend/reconstruct their
houses for personal use but the said construction shall not be
permitted beyond two and a half storeys subject to Building Byelaws/Rules.
Any building/house/commercial premises already
under construction on the basis of the sanctioned plan, prior to 10-
5-1996 shall not be affected by this direction.
3. All constructions which are permitted under directions 1 and 2
above shall have the clearance of “the Authority”, the Central
Pollution Control Board and the Haryana Pollution Control Board
before “occupation certificates” are issued in respect of these
buildings by the authorities concerned.
4. All development schemes, and the plans for all types of
constructions relating to all types of buildings in the area from one
km to 5 km radius of the Badkhal Lake and Surajkund (excluding
Delhi areas) shall have prior approval of the Central Pollution
Control Board and the Haryana Pollution Control Board.”
26. According to the applicant, its land was beyond the 1 km radius but
within the 5 km radius and the orders passed by this Court vitally affected
it. The applicant’s view was that its project was mainly a residential colony
having a commercial complex, schools, hospitals and film studios, but no
industry of any nature whatsoever. It had expended a huge amount in the
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project, but could not proceed any further with it in view of the order dated
11th October, 1996 passed by this Court. Given the nature of the project, it
was unreasonable to require the applicant to obtain no objection certificates
from the Pollution Control Boards. Consequently, a Review Petition being
R.P. (C) No. 914 of 1997 was filed by the applicant on or about 26th
February, 1997 seeking a review of the order 11th October, 1996. It was
submitted in the application that the restrictions imposed by this Court do
not pertain to constructions of the applicant and that the requirement of
obtaining a no objection certificate from the Pollution Control Boards does
not apply to the constructions of the applicant, which fall beyond 1 km but
within the 5 km radius of Badkal Lake and Surajkund.
27. The application for review came up for consideration on 17th March,
1997 when this Court noted that it did not have sufficient time to dispose
of the matter that day. But by way of an interim order it was directed, inter
alia, that a person owning land in the areas above mentioned (in the order
dated 11th October, 1996) may construct a residential house up to 2 ½ floors
subject to the building bye laws and rules operating in the area. Those
individuals who seek to construct houses in accordance with the decision
of this Court and in conformity with the relevant rules may file their plans
with the competent authority who may examine and keep the plans ready
until further orders. In other words, even in such cases permission for
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construction was not granted, but permission to prepare plans was of course
granted. It was further directed that the authorities should not insist upon
the production of a no objection certificate from the State or Central
Pollution Control Board. The order passed by this Court on 17th March,
1997 reads as follows:
“The grievance of the petitioner is that when individual’s who seek
to construct their houses applying the plans of the Faridabad
Municipal Corporation, the plans are not being approved on the
ground that the clearance certificates are not obtained from the
Pollution Control Board. We do not have the sufficient time to
dispose of the matter today, we think that,
1) all the individuals who seek to construct their houses
within 2 ½ floors’ range as indicated in the judgment of
this Court, they are liberty to file plans before the
competent Authority. The competent Authority would
examine whether the plans are in conformity with the
Rules and within 2½ storeys’ range laid down by this
Court. If the authority finds the plans in conformity with
the above Rules and the directions given by this Court,
the same may be examined and kept ready until further
orders.
2) For the examination of these matters, the authorities are
directed not to insist upon production of no objection
certificate from the State or Central Pollution Control
Board.”
28. On or about 2nd July, 1997 the Municipal Corporation of Faridabad
filed a reply to some pending applications and the Review Petition. After
detailing the facts, including the impact of the orders passed by this Court,
the difficulties faced by the Municipal Corporation in implementing them
and other directions, it was prayed that certain schemes in the Haryana
Urban Development Authority sectors (schemes mentioned at serial nos. 3,
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4 and 5 of the reply) may not be affected by the order passed by this Court
on 11th October, 1996. With regard to other projects and development
schemes sanctioned in accordance with the Development Plan prior to the
order dated 10th May, 1996 it was prayed that they may also not be affected
by the order passed by this Court on 11th October, 1996. Similarly,
buildings, houses, commercial premises already sanctioned prior to 10th
May, 1996 in accordance with the Development Plan may not be affected
by the order of 11th October, 1996 and construction may be permitted as
per the Development Plan and building by-laws in force.
29. The Review Petition was again taken up for consideration on 13th
May, 1998. On that date, a modified plan and some maps were placed
before this Court. Upon a perusal of these maps, it transpired that some
areas got excluded from the 1 km green belt, as originally proposed. It was
directed that these areas could be urbanised in accordance with the
applicable laws and rules. With regard to private lands (such as that of the
applicant) it was directed that in the areas adjoining the Surajkund
complex, the State of Haryana may review the position so that only singlestorey
“hutments” are permitted to be constructed and “not tall buildings
as originally conceived.” The order passed by this Court was directed to be
in modification or substitution of all earlier orders in that behalf. The order
passed on 13th May, 1998 reads as follows:
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“A modified plan has been placed on record. The area meant to be
left for Surajkund and around has been earmarked on the said plan
by a zig-zag line. In the face of these altered boundaries from
previous maps, certain areas have come out from the one kilometre
belt as originally proposed. Whatever areas have fallen out and
whatever are adjacent thereto, urbanization thereof will take place
in accordance with the laws, rules and regulations applicable
to those areas as provided by the Faridabad Municipal
Corporation.
Certain private areas (marked as ‘ABCD’) in which construction
is proposed would have to be viewed again. We have desired of
the learned counsel for the State of Haryana to render assistance in
that regard so that in the areas adjoining the Surajkund
Complex only single storey hutments get permitted to be
constructed and not tall buildings as originally conceived.
Small areas as shown red on the plan would require to be acquired
for the Complex. This means that the State will have to pay
compensation on acquisition. But Mr. Salve, learned Senior
Counsel who appears for some of the land owners says that those
land owners who are owning those two small red patches which
are within the encirclement would surrender the same to the Sate
without compensation.
This order shall be in modification or substitution of all earlier
orders in that behalf.” [Emphasis supplied by us].
No further orders were passed in this regard, except an order relating to a
hotel complex, with which we are not concerned. The review petition was
then disposed of by this Court on 12th October, 1998.
30. It seems to us that these orders passed by this Court were not blanket
orders which could permit the applicants to ignore the notification dated
18th August, 1992. The requirement, in terms of the orders passed by this
Court, continued to be adherence to the laws, rules and regulations which
would necessarily include the notification issued under the provisions of
the PLP Act.
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Issues arising out of the orders passed by this Court
31. In this background and context, it appears that some questions were
raised by the Financial Commissioner and Secretary to Government,
Haryana Revenue Department in a letter dated first March, 1999 with
regard to the status of the land owned by the applicant. The issues raised
were to the following effect: (i) whether the applicant is in unauthorised
possession of the land; (ii) whether the applicant has violated any statutory
provision and is using the land in the manner in which it is authorised; (iii)
whether it is permissible for the applicant to develop a residential colony
in the land for which it had obtained an exemption for setting up a Film
Studio and Allied Complex and whether the Town & Country Planning
Department had permitted this.
32. In response to these issues, the Director in the Town & Country
Planning Department wrote to the Financial Commissioner & Secretary to
the State of Haryana on 16th March, 1999 to the following effect:
“Regarding issue No.1. It is to inform that as per certificates
given by Dist. Revenue Authority from time to time, M/s R.
Kant & Company is in authorised possession of land in
Khasra No. 9-16, vill. Anangpur Distt. Faridabad. Photos of
the certificates given by Revenue Authority are enclosed
herewith.
Regarding issue No. 2 it is to inform that the Company is
using the land according to approved layout plan and service
plan estimates.
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 21 of 81
Regarding issue No. 3, it is to inform that in the revised
approved layout plan of Kant Enclave Film Studio and Allied
Complex, in addition to Film Studios provision of resident
plots, group housing and the required social and commercial
infrastructure has been made as per the exemption order of
1984 revocation order of 1990 and an agreement dated
27.3.92 executed by the company with the Government.
Therefore the provision of residential plots in Kant
Enclave is permissible.” [Emphasis supplied by us].
33. It will be noticed that the Director, Town & Country Planning
Department did not make any reference to the notification dated 18th
August, 1992 issued under the provisions of the PLP Act. This sequence
of events clearly indicates that the Town & Country Planning Department
was very much in favour of the applicant colonizing its land and making
constructions therein on the basis of select administrative orders. It was
quite prepared to, and did, ignore orders passed by this Court from time to
time and also ignore the notification of 18th August, 1992 issued under the
provisions of the PLP Act. The understanding of the Town & Country
Planning Department seems to be that issues of environmental degradation,
pollution and groundwater were not its concern. To say the least, the Town
& Country Planning Department was myopic and brazen in pushing its
agenda - certainly vis-à-vis the applicant versus the environment and in
disregard of a statutory notification.
Another attempt at colonization
34. In proceedings pertaining to the protection and conservation of
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 22 of 81
forests throughout the country, this Court passed an order on 12th
December, 1996 which is of considerable significance. The order was
passed in Writ Petition No. 202 of 1995 with Writ Petition No. 171 of
1996.5 After hearing the learned Attorney General, learned counsel for the
States, the parties and other applicants as well as the learned Amicus Curiae
it was held by this Court that the Forest (Conservation) Act, 1980 was
enacted with a view to check further deforestation, which would ultimately
result in ecological imbalance. It was held that therefore the provisions of
the law for conservation of forests and for matters connected therewith,
must apply to all forests, irrespective of the nature of ownership or
classification thereof. It was held:
“………The word “forest” must be understood according to its
dictionary meaning. This description covers all statutorily
recognised forests, whether designated as reserved, protected or
otherwise for the purpose of Section 2(i) of the Forest
Conservation Act. The term “forest land”, occurring in Section 2,
will not only include “forest” as understood in the dictionary sense,
but also any area recorded as forest in the Government record
irrespective of the ownership. This is how it has to be understood
for the purpose of Section 2 of the Act. The provisions enacted in
the Forest Conservation Act, 1980 for the conservation of forests
and the matters connected therewith must apply clearly to all
forests so understood irrespective of the ownership or
classification thereof…...”
35. It was further directed that in view of the meaning given to the word
‘forest’ it is obvious that prior approval of the Central Government is
5 T.N. Godavarman v. Union of India, (1997) 2 SCC 267
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 23 of 81
required for any non-forest activity within the area of any forest. All
ongoing activity within any forest in any State throughout the country,
without the prior approval of the Central Government, must cease
forthwith. Each State Government was also directed to constitute within
one month an Expert Committee to identify areas which are forests,
irrespective of whether they are so notified, recognised or classified under
any law, and irrespective of the ownership of the land of such forest and
also to identify areas which were earlier forests, but stand degraded,
denuded or cleared. In other words, this Court gave a realistic and
pragmatic definition to the word ‘forest’ and ‘forest land’.
36. However, even before that, as far as the State of Haryana is
concerned, an affidavit was filed by Shri Banarsi Das, IFS, Principal Chief
Conservator of Forests, Haryana in Environment Awareness Forum v.
State of Jammu & Kashmir.
6 The affidavit dated 8th December, 1996
stated that the total forest area in Haryana is 1,54,706 hectares (1995-96),
which includes 11,513 hectares of PLP Act areas. It further says that earlier
(1985-86) the forest area in Haryana was 1,68,543 hectares, which
included 26,499 hectares of PLP Act areas. The reduction in the forest area
was due to the expiry of notifications issued under the PLP Act and Section
38 of the Indian Forest Act, 1927. It was noted that steps were taken for
6 W.P. No. 171 of 1996
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 24 of 81
protection of forests, which included the enforcement of regulations under
the PLP Act. What is of significance is that even before the order was
passed by this Court on 12th December, 1996 the State of Haryana had
acknowledged its treatment of PLP Act areas as forest land, and as we shall
see later, this was always so.
37. In T.N. Godavarman v. Union of India7
an affidavit was filed by
the State of Haryana on 25th February, 1997. The affidavit was sworn by
Shri S.K. Maheshwari, IAS, Commissioner & Secretary to the Government
of Haryana, Forest Department. In his affidavit, reference was made to the
order passed by this Court on 12th December, 1996. It was stated in the
affidavit that as far as identification of areas which were forests, but stand
degraded or denuded or cleared, it would not be possible to do so without
prescribing some cut-off date since land that is closed under the provisions
of the PLP Act “creates forests” and the Act is as old as 1900. Therefore, a
cut-off date of 25th October, 1980 was selected as on that date the Forest
(Conservation) Act, 1980 came into force. It was further stated that land
that is closed under the provisions of the PLP Act is a forest only during
the period of closure. After expiry of the closure period, the land is no
longer shown as forest in the records of the Forest Department. A little later
in the affidavit, it was reiterated that an area closed under the provisions of
7 W.P. No. 202 of 1995
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 25 of 81
the PLP Act is “counted as forest” only during the currency of the closure.
Taking all such areas into consideration, it was stated that the recorded
forest cover in the State of Haryana is now 149,680.49 hectares.
38. Notwithstanding the affidavit, the Director in the Town & Country
Planning Department issued a communication dated 16th March, 1999 to
the effect that the provision of residential plots in Kant Enclave was
permissible. In view of the affidavit of Shri S.K. Maheshwari, there is
enough room to suspect the bona fides of the applicant and the Town &
Country Planning Department, but we leave it at that.
Further set of orders passed by this Court
39. In the writ petition filed by M.C. Mehta an application was filed by
the Delhi Ridge Management Board on 5
th December, 2001 (being IA No.
1785 of 2001) to the effect that large-scale mining activity near the DelhiHaryana
border was resulting in a large quantity of ground water being
pumped out from mining pits. As far as Delhi is concerned, the mining and
extraction of groundwater had been banned and the Ridge in Delhi was
being protected in terms of the orders passed by this Court from time to
time. However, it was stated in the application that the Ridge in Haryana
also needed to be protected as this was an extension of the same range. It
was submitted that mining, withdrawal of groundwater and destruction of
flora etc. should also be restricted outside Delhi or at least up to 5 km from
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 26 of 81
the Delhi-Haryana border towards Haryana. The significance of this
application is that it jogs the memory and recalls the order passed by the
Chief Minister of Haryana on 11th July, 1990 relating to the availability of
potable drinking water and the span of availability of water from the
aquifers and their application.
40. Acting upon the application filed by the Delhi Ridge Management
Board, this Court passed an order on 6th May, 2002 as follows:
“IA No. 1785
Issue notice. Mr Bharat Singh accepts. Reply be filed within four
weeks. Rejoinder be filed within four weeks thereafter. In the
meantime, within 48 hours from today the Chief Secretary,
Government of Haryana is directed to stop all mining activities
and pumping of groundwater in and from an area up to 5 kms
from the Delhi-Haryana border in the Haryana side of the
Ridge and also in the Aravalli Hills. [Emphasis supplied by us].
41. The application appears to have been taken up for consideration on
22nd July, 2002. The proceedings of that date have not been reported, but
have been mentioned in M.C. Mehta v. Union of India.
8 This Court
directed the Environment Pollution Control Authority (EPCA) to give a
report with regard to the environment in the area, preferably after a
personal visit. It was noted that EPCA had been constituted by the
Government of India by a notification dated 29th January, 1998 issued in
exercise of power conferred by Sections 3(1) and 3(3) of the Environment
8
(2004) 12 SCC 118
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 27 of 81
(Protection) Act, 1986. Generally speaking, EPCA was constituted to
protect and improve the quality of the environment and to prevent, control
and abate environmental pollution.
42. EPCA did visit the subject area and also took the opinion of the
Central Groundwater Board and in its report of 9th August, 2002 it
recommended that the ban on mining activities and pumping of
groundwater in and from an area up to 5 km from the Delhi-Haryana border
in the Haryana side of the Ridge and also in the Aravalli hills must be
maintained.
43. EPCA gave a further report on 21st October, 2002 reaffirming its
earlier recommendations. It was further recommended that if mining is
allowed to continue in this area, it would have serious implications for the
groundwater reserves. EPCA also noticed uncontrolled construction
activities that would expand urban habitation considerably in future and
therefore recommended that unless immediate measures were taken to
conserve and augment water resources in the area, an acute survival crisis
could be expected. Interviews with local villagers in the vicinity of the
mines confirmed that water shortage was already a serious problem in the
region.
44. This Court also referred to reports by another expert body, namely
the Central Empowered Committee (CEC). This expert body was
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 28 of 81
constituted by a notification dated 17th September, 2002 issued by the
Ministry of Environment and Forests in exercise of power conferred by
Section 3(3) of the Environment (Protection) Act, 1986. The CEC was
constituted for monitoring and ensuring compliance of the orders passed
by this Court in relation to forests and wildlife and other related issues
arising out of the orders. The CEC was also expected to submit reports
regarding non-compliance of the orders of this Court, including in respect
of encroachments and removals, working plans, compensatory
afforestation, plantations and other conservation issues.
Reports of the CEC
45. Among the first few reports given by the CEC, one dated 14th
December, 2002 deserves mention. It is not clear what led to this report,
but in any event, it was considered by this Court on 16th December, 2002
and an order was passed as a result of the report that no mining activity
would be permitted in areas where there is a dispute of applicability of the
Forest (Conservation) Act, 1980 till such time the dispute is resolved or
approval for non-forest activity is accorded under the said Act by the
Central Government.9
This Court also directed that no mining would be
permitted in areas for which a notification under Sections 4 and 5 of the
PLP Act has been issued in regulating the breaking up of the land etc. and
9 T.N. Godavarman v. Union of India, (2008) 16 SCC 401
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 29 of 81
such lands are or were recorded as ‘forest’ in government records even if
the notification period had expired, unless there was approval under the
provisions of the Forest (Conservation) Act, 1980. These directions are
significant and appear, generally, to have been overlooked.
46. Separately and in compliance of orders passed by this Court on 25th
November, 2002 the CEC submitted three reports, all of which primarily
pertained to mining activities in the subject area. These reports were
considered by this Court and dealt with in the judgment and order passed
on 18th March, 2004.10 In the report dated 22nd January, 2003 (erroneously
recorded as June) it was recommended by the CEC that mining activity
may be allowed in the areas closed under the provisions of the PLP Act
“which for the purpose of the [Forest (Conservation)] Act are ‘forest’ even
as per the State Government records, only after obtaining prior approval
under the said Act from the MoEF (Ministry of Environment and Forests).”
In another report, dated 7th February, 2003 it was recommended that the
ban on mining activity may continue up to 2 km from Surajkund and
Badkal Lakes in terms of the order passed by this Court on 10th May, 1996.
47. While considering the entire issue, this Court also considered the
question whether areas covered under the PLP Act are ‘forest’ of any kind.
While dealing with this, it was noted that the Forest Department of the State
10 M.C. Mehta v. Union of India, (2004) 12 SCC 118
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 30 of 81
of Haryana has been treating and showing the closed areas as ‘forest’ in its
records. This Court also adverted to the affidavits filed in this Court from
time to time, including by Shri S.K. Maheshwari and Shri Banarsi Das.
This Court also drew attention to its earlier order of 12th December, 1996
and the fact that the State of Haryana had been seeking permission of the
Central Government to divert such closed land for non-forestry purposes.
This Court also referred to letters dated 26th November, 2002 and 17th
September, 2001 wherein a view was expressed that land closed under the
PLP Act is forest land. This Court, therefore, declined to permit the State
of Haryana to take a somersault and contend that land closed under the
provisions of the PLP Act is not forest. This is what this Court said in
paragraph 82 of the Report:
“In the instant case, it is not necessary to decide the legal effect of
issue of the notification under Sections 4 and/or 5 of the [PLP] Act.
Not only in their record has the area been shown as forest but
affidavits have been filed in this Court stating the area to be
“forest”. In T.N. Godavarman Thirumulkpad v. Union of India
[(1997) 2 SCC 267] this Court held that the term “forest” is to be
understood in the dictionary sense and also that any area regarded
as a forest in government records, irrespective of ownership, would
be a forest. The State of Haryana, besides having filed affidavits in
the forest matters treating such areas as forest for the purposes of
the FC Act has been seeking prior approval from the Central
Government for diversion of such land for non-forestry purpose.
Reference in this connection may also be made to the affidavit
dated 8-12-1996 filed by Banarsi Das, Principal Chief Conservator
of Forests, Chandigarh, Haryana in Environmental Awareness
Forum v. State of J&K [ Civil Writ No. 171 of 1996]. Our attention
has also been drawn to letter dated 26-11-2002 addressed by the
Divisional Forest Officer, Faridabad to the Mining Officer,
Faridabad forwarding to him a list of blocked forest areas of
Faridabad district and requesting him to ensure that the said forest
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 31 of 81
areas are not affected by any mining operations as also to a letter
dated 17-9-2001 sent by the Principal Chief Conservator of
Forests, Haryana (Panchkula) to the Director of Environment,
Haryana stating therein that no mining activity can be permitted in
the area. On the facts and circumstances of the case, we cannot
permit the State Government to take a complete somersault in
these proceedings and contend that the earlier stand that the area is
forest was under some erroneous impressions. In the present case,
for the purposes of the FC Act, these areas shall be treated as forest
and for use of it for non-forestry purpose, it would be necessary to
comply with the provisions of the FC Act.”
48. Having considered voluminous material on record, this Court
concluded in the said judgment of 18th March, 2004 that it would be
appropriate to constitute a Monitoring Committee, which it did, “to
monitor the overall eco-restoration efforts in the Aravalli hills and to
provide technical support to the implementing organisations and also to
monitor implementation of recommendations contained in reports referred
herein…” This Court also held that the order dated 6th May, 2002 as
clarified in the judgment cannot be varied or vacated before consideration
of the report of the Monitoring Committee. It was also concluded that on
the facts of the case, the mining activity in areas covered under the
provisions of the PLP Act cannot be undertaken without approval under
the Forest (Conservation) Act, 1980.
49. Therefore, apart from stopping mining activity, this Court also
stopped pumping of groundwater in and from an area upto 5 km from the
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 32 of 81
Delhi-Haryana border in the Haryana side of the Ridge and also in the
Aravalli hills.
Further reports of the CEC
50. Notwithstanding the decisions of this Court rendered from time to
time and a wealth of material to the effect that the Aravalli hills need to be
protected, the issue of colonizing the land owned by the applicant, which
was the subject matter of the prohibitory notification under the provisions
of the PLP Act, was kept alive. Applications were filed by interested parties
in this Court and the CEC was required from time to time to submit reports
to this Court.
51. In a report dated 12th September, 2007 which pertained mainly to
mining activities in Gurgaon and Faridabad districts of Haryana, one of the
recommendations made by the CEC was to the effect that maps of
appropriate scales should be prepared of areas notified under the provisions
of the PLP Act, including areas for which the notifications have expired.
These areas could be cross verified with the help of relevant afforestation
maps, satellite imagery of the relevant times, progress reports filed in the
Aravalli Afforestation Programme and other details. It was also
recommended that these areas may be demarcated and treated as a
prohibited zone for mining activity.
52. In a supplementary report dated 5th December, 2007 it was recorded
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 33 of 81
by the CEC that it had come to its notice that areas notified under the
provisions of the PLP Act are being used or proposed to be used for
colonisation, farm-houses and other construction activities. It was noted
that in many cases such user has been permitted by the concerned
departments of the State Government on the strength of improper no
objection certificates granted in the past by the Forest Department. The
CEC stated that the recommendations made in respect of mining in these
areas are equally applicable to activities such as colonisation, construction
of farm-houses, etc. It was recommended that areas notified under the
provisions of the PLP Act, including areas for which notifications have
expired, may also be treated as a prohibited zone for colonisation,
construction of farm-houses and other construction activities. Such
activities in the prohibited zone should be permitted only if in public
interest and after obtaining permission from this Court.
53. Yet another report was required to be submitted by the CEC, which
it did on 28th August, 2008. In the report, it was mentioned that a meeting
was held with officers of the State of Haryana and a two-step approach was
suggested. The first step was to identify areas where mining, colonisation,
etc. is taking place in the Aravalli hills, but such activities are prohibited
or regulated in those areas by various enactments and orders of this Court.
These would include, amongst others, areas notified under the provisions
of the PLP Act. The second step would be to lay down broad principles and
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 34 of 81
guidelines in respect of mining, colonisation and other non-forestry
activities in the Aravalli hills which would, inter alia, provide for an
independent monitoring mechanism. Broadly, only such non-forestry
activities would be permitted, that are absolutely necessary and
unavoidable and in public interest.
54. A meeting was held, as mentioned above, for detailing the procedure
and methodology for identification of the prohibited areas, preparation of
macro plans, including closed areas under the PLP Act and in other areas
where orders of this Court have been violated as well as the provisions of
the Forest (Conservation) Act, 1980 for mining and for colonisation, etc. It
was decided that all this would be placed before this Court for
consideration and approval. It is also proposed that after the necessary
maps are prepared of the prohibited areas, macro plans and identification
being completed, a detailed proposal would be placed before this Court for
appropriate directions. It was expected that the State Government would
ensure immediate cessation of non-forestry activity going on in any
prohibited area and in violation of the orders of this Court and the
provisions of law.
55. Another report was submitted by the CEC on 13th November, 2008
pursuant to directions issued by this Court to file the land-use maps and
macro plans in respect of the Aravalli hills in Haryana. While the report is
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 35 of 81
considerably detailed, what is of concern to us is that the revenue map of
village Anangpur super-imposed on the satellite imagery revealed that a
large number of colonies, farm-houses and mines were located in areas
closed under the provisions of the PLP Act. One of the prominent violators
was the applicant (Kant Enclave) which had violated the orders of this
Court of 14th May, 2008 (the decision of this Court will be discussed a little
later). The report also mentioned that there was large-scale illegal use of
areas closed under the provisions of the PLP Act for illegal private gains
in blatant violation of the environmental laws and the orders of this Court.
It was suggested that this could not have taken place without the active
connivance and support of the concerned officials. It was also noted that
the groundwater level in the area was rapidly depleting and had already
been marked as ‘Dark Zone for Ground Water’. In view of the somewhat
alarming situation, it was recommended by the CEC that colonies, farmhouses,
banquet halls and other buildings illegally constructed in areas
closed under the provisions of the PLP Act, such as Kant Enclave should
be demolished.
56. Yet another report (the last one that we are concerned with) was
submitted by the CEC on 15th January, 2009. In this report, it was stated
that the work of super-imposing on all geo-rectified village maps with the
corresponding satellite imageries had been completed. In addition, village
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 36 of 81
wise land-use maps had been prepared. These comprised of three
components, namely, satellite imagery, scanned village maps and superimposed
village maps on satellite imagery with marking of areas notified
under the provisions of the PLP Act.
57. It was noted on the above basis that a large number of colonies,
buildings, banquet halls, farm-houses, engineering colleges, schools,
ashrams, etc. were located in areas notified under the provisions of the PLP
Act or areas with forest cover. The CEC expressed the view that demolition
of the above illegal structures and rehabilitation of such areas (including
Kant Enclave) should be taken up by the State of Haryana in a time-bound
manner and no sale or purchase of such lands should be permitted. The
permission earlier granted, if any, for non-forestry uses in such areas
should be immediately revoked. The State of Haryana had suggested that
large-scale demolition might create a serious law and order problem, but
the CEC did not agree with this. However, the CEC recommended the
regularisation of areas notified under the provisions of the PLP Act and
other forest areas falling in identified Haryana Urban Development
Authority sectors, subject to effective steps being taken for the demolition
of buildings and structures in the areas notified under the provisions of the
PLP Act and other forest areas and rehabilitation of such areas.
58. In response to the report of the CEC dated 15th January, 2009 the
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 37 of 81
State of Haryana filed an affidavit through Shri Dharam Vir, the Chief
Secretary of the State on 15th March, 2009 in M.C. Mehta v. Union of
India.
11 It was stated in the affidavit that as far as the Municipal
Corporation of Faridabad is concerned, in view of the order dated 13th May,
1998 passed by this Court, the erection of buildings, with due permission
under the applicable law cannot be said to be illegal. Ex facie, this is
incorrect, since this Court permitted, if at all, only the construction of
hutments and not buildings. As far as the Town & Country Planning
Department is concerned, it was stated that Kant Enclave was granted
exemption under Section 23 of the Haryana Development and Regulation
of Urban Areas Act, 1975 on 17th April, 1984 and therefore it would be in
the interest of justice if the constructions that had come up pursuant to the
above exemption may be allowed to exist. The notification dated 18th
August, 1992 and the other orders of this Court were conveniently
overlooked.
59. An affidavit dated 25th October, 2010 was filed by the Chief Town
Planner in the Department of Town & Country Planning. It was stated in
the affidavit that the Development Plan for Faridabad had been prepared in
accordance with the Punjab Scheduled Roads and Controlled Areas
Restrictions of Unregulated Development Act, 1963 and the final
11 W.P. No. 4677 of 1985
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 38 of 81
Development Plan was published in 1991 in consonance with the NCR
Planning Board Act, 1985. The Development Plans provided, inter alia,
areas to be used for residential, commercial, industrial, public and semipublic
uses, agriculture, open space, etc. In addition, it was stated that Kant
Enclave had been granted exemption under Section 23 of the Haryana
Development and Regulation of Urban Areas Act, 1975. In view of this,
the State of Haryana through the Forest Department ought not to have
published the notification under Section 4 of the PLP Act, including therein
the area already earmarked for urbanisation in the final Development Plan.
It was stated that the Town & Country Planning Department had taken
steps to exclude the land of the applicant from the notification issued under
the PLP Act and follow-up action was also taken in this regard. The
affidavit is, however, silent about the fact that the land owned by the
applicant was not de-notified in spite of vigorous efforts of the Town &
Country Planning Department. It was stated in the affidavit that pursuant
to the order passed by this Court on 13th May, 1998 the Town & Country
Planning Department had approved building plans and had also issued part
completion certificates on 23rd December, 2004. In view of all these facts
as well as in view of the affidavit filed by the Chief Secretary of the State
of Haryana, it would be in the interest of justice that constructions that had
come up in pursuance of the exemption granted under the provisions of the
Haryana Development and Regulation of Urban Areas Act, 1975 may be
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 39 of 81
allowed to exist. It was submitted that a final decision may be taken by this
Court and the State Government would abide by the directions given by
this Court on this issue.
Yet another attempt at colonization is rejected
60. Not content with several letters, reports and decisions of this Court,
the applicant opened up yet another front to push ahead with its
colonisation and construction activity in the land owned by it being Khasra
Nos. 9 to 16 in village Anangpur. The applicant filed I.A. No. 1901 of 2005
in W.P. No. 4677 of 1985 (M.C. Mehta v. Union of India). In this
application, it was submitted by the applicant that it was in exclusive
possession of Khasra Nos. 9 to 16 in village Anangpur having purchased
the same from the rightful owners. It was stated that the applicant had been
granted exemption under Section 23 of the Haryana Development and
Regulation of Urban Areas Act, 1975 for setting up its project named Kant
Enclave. The exemption had been granted on 17th April, 1984. It was stated
that the applicant had spent over ₹ 50 crores in carrying out and
undertaking developmental work on the land. In addition, the applicant had
sold or booked or allotted 1500 plots to prospective buyers out of which in
about 450-500 cases, conveyance deeds had already been executed and
registered with the concerned authorities. It was submitted that the
decisions of this Court were mining-centric and were misconstrued by
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 40 of 81
officers of the Forest Department. Consequently, a communication dated
31st January, 2005 was issued by the Forest Department to the District
Town Planner, Faridabad to the effect that the land of the applicant was a
closed area under the provisions of the PLP Act, and therefore non-forest
use of the land was prohibited. As a result of this communication, the
District Town Planner refused to sanction building plans of the plot holders
of Kant Enclave or to issue completion certificates in respect of buildings
already completed in terms of sanctions or approvals earlier granted.
61. On this basis, it was submitted in the application that this Court may
issue appropriate directions to the effect that only mining activities were
prohibited in the subject area and that the orders of this Court did not affect
the construction activities carried on by the applicant in its project as
permitted by the order of this Court dated 13th May, 1998. It was prayed
that directions may be issued to the State Government to permit registration
of plots and sanction building plans as well as issue completion certificates.
62. By an order dated 24th July, 2006 this Court directed the Chief
Secretary of Haryana to file an affidavit in response to the application I.A.
No. 1901 of 2005. A detailed affidavit dated 10th September, 2006 was
filed by the Chief Secretary Shri Prem Prashant, IAS in which it was stated,
inter alia, that the notification dated 18th August, 1992 issued under the
provisions of the PLP Act covered Khasra Nos. 9 to 16 in village
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 41 of 81
Anangpur, that is, the land owned by the applicant. It was categorically
stated that since then this land was treated as forest and it was also included
in the list of forests in the Government record. Reference was also made to
the affidavit filed by the Forest Department in W.P. No. 202 of 1995 to the
effect that the subject area was shown as a forest and that the provisions of
the Forest (Conservation) Act, 1980 would be applicable. The affidavit also
referred to the order passed by this Court on 12th December, 1996 to the
effect that the term ‘forest’ is to be understood in the dictionary sense and
also that any area regarded as forest in Government records irrespective of
ownership, would be a forest. Reference was also made to the decision of
this Court rendered on 18th March, 2004 in this regard.
63. The affidavit further stated that the Principal Chief Conservator of
Forests, had informed the Director, Town & Country Planning Department
by a letter dated 27th January, 2006 that the land of the applicant being
Khasra Nos. 9 to 16 in village Anangpur is notified under Section 4 of the
PLP Act. Therefore, the above area was treated as a forest in view of the
orders passed by this Court on 18th March, 2004. Since the applicant had
never submitted any proposal with the Forest Department for diversion of
forest land for non-forestry use, the Director, Town & Country Planning
had asked the applicant by letter dated 27th June, 2006 to seek the diversion
of forest land in Khasra Nos. 9 to 16 in village Anangpur for non-forestry
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 42 of 81
use in accordance with the provisions of the Forest (Conservation) Act,
1980.
64. The application was taken up for consideration by this Court and by
a judgment and order dated 14th May, 2008 the application was dismissed.12
A three-judge Bench of this Court noted that the challenge was really to
the communication dated 31st January, 2005. While dealing with the
decisions rendered by this Court from time to time, the three-judge Bench
noted that developing a plot and making construction thereon would
amount to clearing up or breaking up of an area and that would be in
violation of the prohibition contained in the notification of 18th August,
1992. It was held in paragraph 12 of the Report:
“In view of the notification under Section 4 when the clearing or
breaking up of the land is not permitted that itself is a bar from (sic
for) fresh construction because a construction can take place only
if clearing and breaking of an area/land takes place. This
prohibition is clearly contained in the notification of 1992. The
reliance placed by the applicants on clause (g) is clearly
misconceived, inasmuch as the permissible activity allowed within
clause (g) is in favour of inhabitants of town and villages within
the limits or vicinity of any such area. The admitted case is that the
applicants herein have developed plots in the area in question and
have sold it to persons who are not inhabitants of towns and
villages within such specified living area, but could be anybody
from all over the country or outside, and therefore clause (g) of
Section 4 has no application. The factum of developing a plot and
then construction thereon would amount to clearing or breaking up
of an area or land.”
12 M.C. Mehta v. Union of India, (2008) 17 SCC 294
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 43 of 81
65. This Court also noted the view of the Central Ground Water Board
to the effect that the area in question in village Anangpur has been notified
as a very precarious groundwater situation and that any construction
activity therein without adequate water reserves will also have a negative
effect. It was also noted that the groundwater table is already at a critical
stage in Faridabad.
66. The decision of this Court rendered on 14th May, 2008 has attained
finality and all the submissions advanced by the applicant were duly
considered and rejected by a Bench of three learned judges of this Court.
The issue whether the applicant could make any construction whatsoever
on the notified land that is Khasra Nos. 9 to 16 in village Anangpur in
violation of the notification issued under the provisions of the PLP Act was
not open to discussion earlier and in any event is no longer res integra or
open to any further discussion or examination.
An alleged discordant note
67. The issue of the status of areas closed under the provisions of the
PLP Act came up for consideration in B.S. Sandhu v. Government of
India and others.
13 In this case, about 3,700 acres of land in village
Karoran in District Ropar in Punjab was notified under the provisions of
the PLP Act. Despite this, the Forest Hill Golf and Country Club was
13 (2014) 12 SCC 172
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 44 of 81
established on closed land and was being developed allegedly in blatant
violation of the environment and forest laws as well as orders passed by
this Court on 12th December, 1996.
68. Learned counsel for the applicant relied heavily on this decision to
contend that merely because a notification had been issued under the
provisions of the PLP Act, the closed land does not become ‘forest land’.
This very contention had been raised by the Proprietor/Managing Director
of the Country Club (Sandhu) in the Punjab & Haryana High Court. It was
submitted that his land was private land and it could not be treated as forest
land without a formal notification under Section 35 of the Indian Forest
Act, 1927.
69. According to the State of Punjab, an Expert Committee was
constituted in terms of the orders passed by this Court on 12th December,
1996 and this Expert Committee included the entire area of village Karoran
as forest area in its report. The Punjab and Haryana High Court rejected
the contention urged by Sandhu and that gave rise to appeals which were
decided by this Court.
70. This Court noted that the notification issued under the provisions of
the PLP Act resulted in the land in village Karoran being recorded as land
under the control of the Forest Department and therefore forest land. In
other words, the basis of the conclusion that the entire land in village
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 45 of 81
Karoran is forest land was that the land was closed under the provisions of
the PLP Act and was therefore a forest. Consequently, the first question
required to be decided by this Court was whether land notified under the
provisions of the PLP Act is forest land or not.
71. This Court took the view that activities prohibited in closed areas
under the PLP Act are such that are not normally carried on in a forest.
Reference was made to activities such as cultivation, pasturing of sheep
and goats, erection of buildings by inhabitants of towns and villages,
herding, pasturing or retaining cattle etc. Therefore, the closed land could
not be forest land. This Court observed that land notified under the
provisions of PLP Act may or may not necessarily be forest land and the
decision of the High Court holding that closed land was forest land was not
at all correct in the law. It was held that the High Court failed to correctly
appreciate the meaning of ‘forest’ and ‘forest land’ as well as the decision
of this Court in Godavarman (decided on 12th December, 1996).
72. It was also held that since the Forest (Conservation) Act, 1980 came
into force on 25th October, 1980 the High Court had to decide whether
Sandhu’s land was forest land as on that date irrespective of its
classification or ownership. The High Court ought to have examined the
Government record as on 25th October, 1980 before concluding that
Sandhu’s land was forest land and not only the provisions of the PLP Act
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 46 of 81
and the records of the Forest Department which showed the land to be
forest only because of the fact that the land was closed under the provisions
of the PLP Act.
73. This Court also examined the two decisions rendered in M.C.
Mehta14 15. These decisions were distinguished on the ground that they
related to the Aravalli hills in the State of Haryana and further it was held
therein that the State Forest Department has been treating and showing the
closed area as forest in fact and in law. Consequently, non-forest activities
could not be allowed in such areas without the prior permission of the
Central Government as mandated by the Forest (Conservation) Act, 1980.
It was noted that this Court has not enquired into the basis of inclusion of
the areas as forest by the State Forest Department. This Court also did not
consider whether land became forest land by mere inclusion in terms of the
notification issued under the PLP Act. On the other hand, in the case under
discussion the Government of Punjab had stated that the basis of inclusion
of the entire land of village Karoran as forest area in the records of the
Forest Department was that the land was closed under the PLP Act and this
basis was not correct in law.
74. This Court having distinguished the decisions rendered by this Court
in M.C. Mehta and by necessary implication the orders passed in
14 (2004) 12 SCC 118
15 (2008) 17 SCC 294
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 47 of 81
Godavarman, we do not see how the decision in Sandhu can be of any
assistance to the applicant. The decision in Sandhu must be confined to its
own facts.
75. We may mention, without comment, that the purpose of issuing a
notification under the PLP Act is to ensure that in the closed area there is
no activity such as cultivation, pasturing of sheep and goats, erection of
buildings, herding, pasturing or retaining cattle etc. Therefore, the
notification is a clear indication that such closed areas must be forest land
or treated as forest land so that such objectionable non-forest activities are
not carried out therein and that activities that are not normally carried out
in forests are prohibited in forest land, so as to preserve and protect such
forest land. A notification under the PLP Act does not convert land into
forest land but recognizes it as such or at least requires it to be treated as
such.
76. We may also mention, en passant, the provisions of Section 35(1) of
the Indian Forest Act, 1927. This refers to breaking up or clearing of land
for cultivation, pasturing of cattle etc. and reads as follows:
“35. Protection of forests for special purposes. – (1) The State
Government may, by notification in the Official Gazette, regulate or
prohibit in any forest or waste-land -
(a) the breaking up or clearing of land for cultivation;
(b) the pasturing of cattle; or
(c) the firing or clearing of the vegetation;
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 48 of 81
when such regulation or prohibition appears necessary for any of the
following purposes: -
(i) for protection against storms, winds, rolling stones, floods
and avalanches;
(ii) for the preservation of the soil on the ridges and slopes and
in the valleys of hilly tracts, the prevention of landslips or of the
formation of ravines, and torrents, or the protection of land against
erosion, or the deposit thereon of sand, stones or gravel;
(iii) for the maintenance of a water-supply in springs, rivers and
tanks;
(iv) for the protection of roads, bridges, railways and other lines
of communication;
(v) for the preservation of the public health.
(2) ………
(3) ………”
77. We leave it at that because of the distinguishing features in the M.C.
Mehta set of orders as contrasted and recognized with the facts in Sandhu.
Review in disguise
78. Notwithstanding unambiguous conclusions arrived at by this Court
from time to time on matters pertaining to the environmental degradation
of the Aravalli hills and the implications of a notification issued under the
provisions of the PLP Act, the applicant persisted in pressing these
applications and sought to contend that it was fully entitled, as of right, to
make constructions on the land owned by it and known as Kant Enclave.
Submissions were made by learned counsel for the applicant on issues that
have conclusively been settled by this Court and in fact, the submissions
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 49 of 81
were only a rehash of submissions made from time to time and which have
been rejected. It was submitted by learned counsel for the applicant, relying
on Delhi Administration v. Gurdip Singh Uban16 that the applications
filed by it and by the Residents Welfare Association were perfectly
maintainable. Reference was made to Point No. 1 discussed in the decision.
This Point reads as follows:
“Whether a party who had lost his case in civil appeal could be
permitted to bypass the procedure of circulation in review matters
and adopt the method of filing applications for “clarification”,
“modification” or “recall” of the said order in civil appeals so that
the matters were not listed in circulation but could be listed in
Court straight away? Whether such applications could be filed
even after dismissal of review applications? What is the procedure
that can be followed in such cases?”
79. This Court considered the question in considerable detail and
deprecated the practice of filing review applications in undeserving cases
without any proper examination of the substance of the applications. It was
noted that indiscriminate filing of such review petitions wastes the time of
the Court and that there must be some seriousness and restraint in filing
review applications. This Court answered the question in the following
manner:
“At the outset, we have to refer to the practice of filing review
applications in large numbers in undeserving cases without
properly examining whether the cases strictly come within the
narrow confines of Rule XL of the Supreme Court Rules. In
several cases, it has become almost everyday experience that
16 (2000) 7 SCC 296
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 50 of 81
review applications are filed mechanically as a matter of routine
and the grounds for review are a mere reproduction of the grounds
of special leave and there is no indication as to which ground
strictly falls within the narrow limits of Rule XL of the Rules. We
seriously deprecate this practice. If parties file review petitions
indiscriminately, the time of the Court is unnecessarily wasted,
even it be in chambers where the review petitions are listed.
Greater care, seriousness and restraint is needed in filing review
applications.”
80. It was made clear that what is of important is the substance of the
application and not the title given to it and genuine cases requiring a
clarification or modification or a recall would of course be entertained. It
was observed by this Court as follows:
“We should not however be understood as saying that in no case
an application for “clarification”, “modification” or “recall” is
maintainable after the first disposal of the matter. All that we are
saying is that once such an application is listed in Court, the Court
will examine whether it is, in substance, in the nature of review
and is to be rejected with or without costs or requires to be
withdrawn with leave to file a review petition to be listed in
chambers by circulation. Point 1 is decided accordingly.”
81. On this basis, it was submitted by learned counsel for the applicant
that there was no bar in the applicant moving or pressing appropriate
applications and that is precisely what has been done.
82. In our opinion, there is nothing in these applications before us to
remotely suggest that the various orders passed by this Court need any
clarification or modification or recall. All issues raised by the applicants
have been considered threadbare by several Benches of this Court and all
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 51 of 81
of them have arrived at a similar conclusion namely that the environmental
and ecological degradation of the Aravalli hills must stop and that
everybody is bound by the terms of the notification issued under the
provisions of the PLP Act and that closed land under the notification dated
18th August, 1992 is a forest and should be treated as a forest.
83. That apart, the view expressed by this Court in Gurdip Singh Uban
cannot be limited only to applications for modification, clarification or
recall. There is a growing tendency to provide different nomenclatures to
applications to side-step the rigours and limitations imposed on an
applicant and the Court in dealing with a review petition. Applications can
be and are titled as applications for directions, rehearing, reconsideration,
revisiting etc. etc. One has only to open a thesaurus and find an equivalent
word and give an application an appropriate nomenclature so that it could
be taken up for consideration in open Court and on its merits and not as a
review petition by circulation. In our opinion, the nomenclature given to
an application is of absolutely no consequence - what is of importance is
the substance of the application and if it is found, in substance, to be an
application for review, it should be dealt with by the Court as such, and by
circulation.
84. Considering the substantive applications filed by the applicant, we
are of the clear opinion that these applications are nothing but disguised
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 52 of 81
review petitions and they should not have been listed for hearing in open
Court without an appropriate order passed by this Court. They should have
first been circulated and dealt with as review petitions and if the concerned
Bench was of the view that they were required to be heard in open Court,
only then should they have been listed for hearing in open Court. However,
we are not detaining ourselves any further in this regard since we propose
to deal with these applications on merits, treating them as applications for
clarification, modification, recall, reconsideration etc. of the orders passed
by this Court from time to time.
85. Learned counsel for the applicants (Kant & Co. as well as the
Residents Welfare Association of Kant Enclave) and the learned Amicus
made detailed submissions over a couple of days on a variety of issues that
they believed arose in these cases. Even though we are of opinion that in
view of several decisions rendered by this Court from time to time, such
submissions are not open to be made by learned counsel, nevertheless, the
submissions having been made, we will deal with each of them.
Is the notified land a forest or treated as a forest?
86. The principal contention urged by learned counsel for the applicants
is that the land in question Khasra Nos. 9 to 16 in village Anangpur notified
under the provisions of the PLP Act on 18th August, 1992 was not forest
land. This submission is clearly liable to be rejected.
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 53 of 81
(i) Affidavits of the State of Haryana
87. In this connection, we may refer to the affidavit of Shri Banarsi Das,
IFS, Principal Chief Conservator of Forests, Haryana. The affidavit dated
8
th December, 1996 was filed in Environmental Awareness Forum v.
State of Jammu & Kashmir.
17
In this affidavit it is stated that the total
forest area in Haryana in 1985-86 was 1,68,543 hectares. This included
26,499 hectares of areas closed under the PLP Act. In other words, as far
back as in 1985-86, if not earlier, the Principal Chief Conservator of
Forests of the Government of Haryana considered and treated areas closed
under the provisions of the PLP Act as forest land. This was well before
the present controversy had arisen. The affidavit goes on to state that in
1995-96 the total forest area in Haryana was 1,54,706 hectares and this
included 11,513 hectares of area closed under the PLP Act. It is quite clear
to us that as far as the State of Haryana is concerned, closed areas under
the PLP Act were always treated as forest land and this was well before
any controversy arose in the matter.
88. Pursuant to an order passed by this Court an affidavit was filed on
25th February, 1997 by Shri S.K. Maheshwari, IAS, Commissioner &
Secretary in the Forest Department. The affidavit was filed in the case of
Godavarman. It was stated that since the PLP Act came into force in 1900
17 W.P. No.171 of 1996
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 54 of 81
some cut-off date was required for identification of forests and forest land.
This cut-off date was taken as 25th October, 1980 that is the date on which
the Forest (Conservation) Act, 1980 came into force. This date was taken
only for convenience and for no other reason. This is clear from the
affidavit which also states that closure under the PLP Act “creates forests”
during the period of closure, after which the land is no longer shown as
forest in government records. The affidavit reiterates that closed areas are
“counted as forest” during the currency of the closure under the PLP Act.
Therefore, identification of forest land from 1900 would have been a
humungous task and to avoid an unnecessary exercise, the cut-off date of
25th October, 1980 was taken. The affidavit cannot be read or understood
to mean that land not recorded as ‘forest’ on 25th October, 1980 in the
Government records can never become or be recognised or treated as
‘forest’. This would be too far-fetched and would go against the letter and
spirit of the PLP Act.
89. The affidavit of Shri Prem Prashant, IAS, Chief Secretary of
Haryana takes us back beyond 1985-86 and 25th October, 1980. In the
affidavit dated 10th September, 2006 filed in response to I.A. No. 1901 of
2005 filed by the applicants (in M.C. Mehta) Shri Prem Prashant takes us
back to notifications dated 10, 1970 and 10th November, 1980 issued by
the State of Haryana through the Forests and Animal Husbandry
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 55 of 81
Department and subsequent notifications dated 16th November, 1995 and
28th November, 1997. This was to bring on record that the provisions of
the PLP Act have been made use of through notifications issued thereunder
for several decades for the protection and preservation of forests and forest
land, even if such lands are not recorded as ‘forest’ in Government records.
This would be in consonance with the provisions and the spirit of the PLP
Act.
90. In an affidavit dated 15th March, 2009 filed by Shri Dharam Vir, the
Chief Secretary of Haryana with reference to the report of the CEC dated
15th January, 2009 in M.C. Mehta it was submitted that all constructions
made post 17th April, 1984 (the date on which exemption was granted to
the applicants under Section 23 of the Haryana Development and
Regulation of Urban Areas Act, 1975) may be allowed to exist. This
affidavit must be read in conjunction with the notification of 18th August,
1992 and if so read, it suggests that the Chief Secretary desired that
constructions made between 17th April, 1984 and 18th August, 1992 may
be allowed to exist. However, even Shri Dharam Vir did not doubt or deny
that closed areas under the PLP Act are forest or forest land. He only
suggested a possible reprieve to the applicants.
91. The view of the Government of Haryana is therefore quite clear and
consistent that land notified under the PLP Act is forest land and no
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 56 of 81
construction can be made thereon but if some dilution is to be made, then
it should be only for the period between 17th April, 1984 and 18th August,
1992.
92. Quite apart from the affidavits filed by the State of Haryana through
the Chief Secretary or the Principal Chief Conservator of Forests or the
Commissioner & Secretary of the Forest Department, we are aware that
through the conduct and correspondence of the Town & Country Planning
Department that it was very keen on permitting construction in closed
areas. We are not sure why the Town & Country Planning Department was
persistently going out of its way to be of assistance to the applicants but
whatever the reason, it was categorical in recommending the
environmental degradation of the Aravalli hills.
(ii) Orders of this Court
93. In addition to the affidavits of the State of Haryana, the various
orders passed by this Court from time to time in Godavarman and in M.C.
Mehta make it very clear that closed areas under the PLP Act are forest
and forest land and need to be treated as forest land.
94. The decisions of this Court, go back to 10th May, 199618 when this
Court proposed to deal with preserving the environment and controlling
18 M.C. Mehta v. Union of India, (1996) 8 SCC 462
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 57 of 81
pollution through the stoppage of mining operations within the radius of 5
km from the tourist resorts of Badkal Lake and Surajkund. This Court
considered reports prepared by the Haryana Pollution Control Board and
the National Environmental Engineering Research Institute. It was noted
that the State of Haryana had already prohibited mining operations within
the radius of 5 km from these tourist resorts and on a consideration of the
reports mentioned above, it was concluded that there shall be no mining
activity within a 2 km radius of the tourist resorts of Badkal Lake and
Surajkund. All the mines, which fall within the said radius shall not be
reopened. It was further directed that no construction activity of any type
shall be permitted now onwards within the 5 km radius of Badkal Lake and
Surajkund and all open areas shall be converted into green belts.
Interestingly, this Court also noted as follows:
“The Badkal lake and Surajkund are monsoon-fed water bodies.
The natural drainage pattern of the surrounding hill areas feed
these water bodies during rainy season. The mining activities 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. The mining may also cause fractures
and cracks in the subsurface, rock layer causing disturbances to the
aquifers which are the source of groundwater. This may disturb the
hydrology of the area.”
95. The order dated 10th May, 1996 was subsequently modified on 11th
October, 199619 to the effect that now onwards construction activity would
19 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India, (1997) 3 SCC 715
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 58 of 81
not be permitted in certain areas, and there was no blanket ban. Permission
to construct was subject to utmost necessity for recreational and tourism
purposes and no other. However, exemption was granted to plots already
sold or allotted prior to 10th May, 1996 in developed areas (this was varied
subsequently). It was further directed as follows:
“All development schemes, and the plans for all types of
constructions relating to all types of buildings in the area from one
km to 5 km radius of the Badkhal Lake and Surajkund (excluding
Delhi areas) shall have prior approval of the Central Pollution
Control Board and the Haryana Pollution Control Board.”
96. Further, with regard to the issue of water management, this Court
referred to the report of the National Environmental Engineering Research
Institute and noted as follows:
“…..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 monsoon-fed water bodies. The natural
drainage pattern of the surrounding hill areas feed these water
bodies during rainy season. Large-scale construction in the vicinity
of these tourist resorts may disturb the rain water 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.”
97. The reason why we are referring to availability of water, or the lack
of it, is because even the Chief Minister of Haryana in his order of 11th
July, 1990 had noted that the availability of water from the aquifers is of
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 59 of 81
paramount importance and that aquifers available at the deeper level would
be fully exploited to meet the demand of water supply for the population
of Kant Enclave.
98. In spite of all these concerns shown to the environment and
availability of water, the fact of the matter is that today Badkal Lake is
bone dry and there is no water in the ‘Lake’. We had specifically asked
learned counsel for the parties as well as learned Amicus about the status
of Badkal Lake and we were told quite categorically that today there is
absolutely no water in Badkal Lake. The damage to the environment has
been done and appears to be irreversible.
99. One of the more significant orders was passed by this Court on 12th
December, 1996.
20 Through this order, this Court laid down what could be
described as ‘forest’ and ‘forest land’. The view taken was that the two
expressions must be given their dictionary or natural meaning and if so
considered, there can be no doubt that degraded forests and closed lands
under the PLP Act are nothing but forest land. Similarly, the orders passed
by this Court from time to time in M.C. Mehta make it loud and clear that
the Aravalli hills need protection from environmental degradation and the
laws must be strictly enforced to ensure that there is no damage caused to
the ecology of the Aravalli hills. In view of the clear expression of views
20 T.N. Godavarman v. Union of India, (1997) 2 SCC 267
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 60 of 81
and conclusions arrived at by this Court from time to time and repeated on
several occasions we have no doubt that closed areas under the PLP Act
are nothing but forest land and deserve to be treated as such.
100. In the decision rendered on 12th December, 1996 this Court directed
the identification of areas which are ‘forests’ irrespective of whether they
are so notified, recognised or classified under any law, and irrespective of
the ownership of the land of such forest. As a result of this, each State
Government was directed, inter alia, to:
(i) Identify areas which are “forests”, irrespective of whether they
are so notified, recognised or classified under any law, and
irrespective of the ownership of the land of such forest;
(ii) identify areas which were earlier forests but stand degraded,
denuded or cleared.
101. Notwithstanding the concern shown by this Court for the
environment and ecology of the Aravalli hills, the tacit support given to the
applicants by the Town & Country Planning Department of the State of
Haryana completely vitiated the efforts of the Forest Department as well
as the orders of this Court. It came to such a pass that the Delhi Ridge
Management Board was compelled to file an application on 29th
November, 2001 being I.A. No. 1785 of 2001 in which it was stated that
the withdrawal and pumping of ground water in the Ridge was a matter of
serious concern. It was, therefore, prayed that the Government of Haryana
may be directed to stop all mining activity and pumping of ground water
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 61 of 81
in and from the area of 5 km from the Delhi-Haryana border in the Haryana
side of the Ridge. This application resulted in this Court passing an order
on 6th May, 2002 directing the stoppage of all mining activity and pumping
of ground water as prayed for. This order was followed by another order
passed by this Court on 22nd July, 2002 (not reported) requiring EPCA to
furnish a report, which it did on 9th August, 2002 to the effect that the order
passed on 6th May, 2002 deserved to be confirmed.
102. Subsequently, EPCA gave another report on 21st October, 2002 on
the basis of information obtained from the Central Ground Water Board to
the effect that mining activity was going on and the mines were operating
below the ground water level which was resulting in exploitation and
destruction of ground water sources.
103. The blatant and open flouting of orders passed by this Court resulted
in the constitution of the Central Empowered Committee (CEC) on 17th
September, 2002 for monitoring and ensuring compliance of the orders
passed by this Court. The CEC submitted reports to this Court from time
to time. These have already been adverted to and need not be repeated.
104. In its decision dated 18th March, 2004 this Court considered all this
material and addressed all the issues raised before it including issues of
environmental and ecological degradation.
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 62 of 81
105. This Court specifically addressed itself to the question whether
closed areas under the PLP Act are ‘forest’ of any kind. This Court noted
that the Forest Department of the State of Haryana showed such areas as
‘forest’ in its records and treated such areas as ‘forest’; affidavits had also
been filed on behalf of the State of Haryana in cases pending in this Court
to the same effect; the word ‘forest’ and ‘forest land’ had been clearly
explained by this Court in its order dated 12th December, 1996 and finally
the Government of Haryana itself sought permission from the Central
Government to divert land closed by notifications under the PLP Act for
non-forest purposes. Therefore, it was held that the State of Haryana
cannot now take a somersault and contend that areas closed under the PLP
Act are not forest. This Court disposed of I.A. No. 1785 of 2001 and
confirmed the order passed on 6th May, 2002 and held that areas closed
under the PLP Act cannot be utilized for non-forest purposes without the
prior permission of the Central Government under the provisions of the
Forest (Conservation) Act, 1980.
(iii) Review Petition of Kant Enclave
106. In view of the restrictions imposed by this Court, which obviously
did not suit the applicants, a review petition being R.P. No. 914 of 1997
was filed by R. Kant & Co. on or about 26th February, 1997. In the review
petition, it was not disclosed that a notification had been issued under the
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 63 of 81
PLP Act. While concealing this extremely important fact, a review was
sought of the order passed by this Court on 11th October, 1996 to the effect
that no permission is required from the Central Pollution Control Board or
the Haryana Pollution Control Board in respect of the constructions made
by the applicant beyond the 1 km but within the 5 km radius of Badkal
Lake and Surajkund.
107. The review petition was taken up for consideration on 17th March,
1997 when it was made clear that plans for construction of houses could be
filed before the Competent Authority who could examine them in
accordance with the applicable rules and if the plans were in order, they
could be “kept ready until further orders.” Since the full facts were not
placed before this Court, an order was passed to the effect that for the
purposes of examination, there should be no insistence by the concerned
authorities on the production of No Objection Certificate from the Central
or State Pollution Control Board. It was also observed that 2 ½ storey
buildings could be constructed.
108. On 13th May, 1998 the Court modified the order passed on 17th
March, 1997 to the effect that in certain private areas where construction
is proposed, only single storey hutments could be permitted to be
constructed and not tall buildings as originally conceived. Therefore, it is
quite clear from the orders passed by this Court that construction was not
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 64 of 81
permitted until further orders but that plans could be prepared and
examined.
109. A reference to the above orders clearly indicates that the State of
Haryana and the applicants had full knowledge of the proceedings in this
Court, but showed no concern for the environment and the ecology of the
area.
110. In our opinion, it was extremely important for R. Kant & Co. to have
come out with full facts in the review petition filed by it, more particularly
the fact of the issuance of the notification dated 18th August, 1992. The
failure to disclose this material fact vitiates the proceedings initiated by the
applicant in this Court.
(iv) Interlocutory Application filed by the applicant
111. Notwithstanding complete clarity on the issue of what is a forest and
forest land, the status of closed areas notified under the PLP Act and issues
of environmental and ecological degradation of the Aravalli hills, the
applicants made bold to file I.A. No. 1901 of 2005 (in M.C. Mehta)
sometime in October 2005 in which it was prayed that the decision
rendered by this Court on 18th March, 2004 is restricted only to mining
activities and does not affect the construction activities carried out by the
applicant, which it is entitled to in view of the orders passed by this Court
on 13th May, 1998.
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 65 of 81
112. In response to the application, an affidavit dated 10th September,
2006 was filed by Shri Prem Prashant, IAS, Chief Secretary of Haryana in
which it was categorically stated that the provisions of the PLP Act have
been taken recourse to from time to time for the protection of forests and
forest land. In this regard, he annexed notifications issued by the State of
Haryana on 12th March, 1970 through the Forests and Animal Husbandry
Department, 10th November, 1980 through the Forest Department, 16th
November, 1995 through the Forest Department and 28th November, 1997
through the Forest Department.
113. The notification dated 18th August, 1992 was one of such
notifications for the protection of forests and forest lands. It was
categorically stated on affidavit that from the date of the notification, that
is, 18th August, 1992 the subject land was being treated as forest and it was
also included in the list of forests in the Government records. This was also
shown as a forest in the affidavit filed by the State of Haryana in
Godavarman. That the subject land was forest land was also stated by the
Principal Chief Conservator of Forests in a letter dated 27th January, 2006
addressed to the Director, Town & Country Planning Department. In fact,
the said Director had required the applicant to seek the diversion of the
forest land for non-forestry purposes by letters dated 27th January, 2006
and 27th June, 2006 but the applicant did not do so. It was specifically
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 66 of 81
pointed out to the applicant in both the letters that constructions made by
the applicant were illegal, but obviously, to no effect.
114. The application was taken up for consideration by a Bench of three
learned judges who dismissed the application by a judgment and order
dated 14th May, 2008.21 The issue whether land closed by a notification
issued under the provisions of the PLP Act was forest land was once again
considered by this Court and the decision rendered on 18th March, 2004
was specifically and categorically reiterated.
115. We would have imagined that the applicant R. Kant & Co. would
have learnt a lesson from the dismissal of its review petition, the
interlocutory application as well as the orders passed by this Court from
time to time and reports given by expert bodies, but it does not appear to
have been so. We say this because, after the decision of this Court rendered
on 14th May, 2008 R. Kant & Co. filed an application being I.A. No. 2310
of 2008 on 11th July, 2008 challenging a communication dated 23rd May,
2008 issued pursuant to the orders passed by this Court. Subsequently, the
applicant also filed I.A. Nos. 2377-79 of 2009 objecting to the reports filed
by the CEC. These I.A.s were not argued before us and no submissions
were made in respect of these I.As.
21 M.C. Mehta v. Union of India, (2008) 17 SCC 294
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 67 of 81
(v) Issue again raised in this Court
116. The pendency of the present applications in this Court gave occasion
to the applicants to once again try and raise the issue of closed areas under
the PLP Act being not forest or forest land. Reference was made to the
decision of this Court in Sandhu. It was submitted that this Court had
struck a discordant note in Sandhu. We cannot agree since the decision in
Sandhu itself distinguished the M.C. Mehta set of orders both on facts and
in law. The decision rendered in Sandhu cannot, by any stretch of
imagination, come to the aid of the applicants.
117. We may only note that in so far as the present case is concerned,
there is a wealth of material to indicate clearly that closed land under the
PLP Act is forest land or in any event, is required to be treated as forest
land. Several notifications issued under the PLP Act have been brought to
our notice which prohibit certain activities which ought not to be carried
out on forest land. The affidavits filed by responsible officers of the State
of Haryana, including affidavits filed by the Chief Secretary unequivocally
state that lands closed under the PLP Act are forest land. Similarly, there
are judgments and orders passed by this Court to the same effect and the
conduct of the State of Haryana, including the Forest Department and its
relationship with the Town & Country Planning Department is a clear
indication that lands closed under the provisions of the PLP Act are nothing
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 68 of 81
but forest or forest land.
118. There is absolutely no doubt that Sandhu is distinguishable both on
facts and in law and it has been recognised as such by this Court in the
judgment delivered in Sandhu. It was suggested by learned counsel for
the applicants that because this Court did not enquire into the basis of
inclusion of closed areas as forest, therefore the notification dated
18th August, 1992 is vitiated. Reliance placed on an observation in Sandhu
with respect, may not strictly be valid, in the sense that there was enough
material to indicate why, at least since 1970 closed areas have been
included as forest and treated as forest by the State of Haryana. We may
add that there was a report of a Committee that eventually led to the
issuance of the notification dated 18th August, 1992 but that was
unfortunately not placed before us in spite of our request to learned counsel
for the State of Haryana.
119. What is of crucial importance and great significance is that no one
has challenged the validity or correctness of the notification dated 18th
August, 1992. We do not see how the correctness or validity of the
notification can be challenged without any direct attack. A collateral attack
cannot be permitted more certainly so by relying upon another decision of
this Court, which has nothing to do with the facts of the present case.
120. On the other hand, the applicants have ‘challenged’ every significant
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 69 of 81
order passed by this Court, either through a Review Petition or through
Interlocutory Applications. The applicants have been unsuccessful in every
such adventure.
121. Taking an overall view of all the facts in the case and the law on the
subject, we have no doubt that Kant Enclave is a forest or is a forest land
or is required to be treated as a forest or forest land and absolutely no
construction activity could have been permitted on it with effect from 18th
August, 1992. Any and all construction activity in Kant Enclave since that
date is illegal and impermissible in law.
Mining centric orders
122. The next submission advanced by learned counsel for the applicants
was to the effect that all the orders passed by this Court were mining centric
and did not relate to construction activity in Kant Enclave. This argument
is stated only to be rejected. The judgments delivered by this Court have
only to be read and understood and it would be more than obvious that the
concern of this Court was to preserve and protect the environment in and
around the Aravalli hills and generally avoid environmental and ecological
degradation of the area both through the stoppage of mining activity and
constructions. Unfortunately, this Court was unable to enforce its orders in
letter and spirit, thanks entirely to the apathy of the State of Haryana and
the persistence of the applicants with the result that Badkal Lake is today,
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 70 of 81
admittedly, absolutely dry.
123. The culpability of some of the State authorities in ensuring this tragic
situation is quite evident from I.A. No. 2269 of 2007 filed by the
Administrator, Haryana Urban Development Authority, in which the first
prayer is to the effect that this Court should issue an appropriate direction
that the judgment and order dated 18th March, 2004 was restricted only to
mining activities and did not affect the development or urbanisation or
construction activities carried out as per the laws, rules and regulations of
the Municipal Corporation of Faridabad or the Haryana Urban
Development Authority. Despite the clear judgment and order passed by
this Court, the attitude of some sections of the State Government obviously
did not change and unrestricted development through mining activity and
construction activity was given precedence over the environment resulting
in, amongst other things a parched Badkal Lake.
Notification issued erroneously
124. It was then contended by learned counsel for the applicants that the
inclusion of Khasra Nos. 9 to 16 in village Anangpur in the notification
dated 18th August, 1992 was a mistake and that it was always the intention
of the State of Haryana to keep this land out of the rigours of the PLP Act.
This submission too is stated only to be rejected. If it was in fact the
intention of the State of Haryana to keep Kant Enclave out of the purview
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 71 of 81
of the notification dated 18th August, 1992 nothing prevented the State
from either issuing a corrigendum or issuing a fresh notification or taking
some positive step to delete Khasra Nos. 9 to 16 in village Anangpur from
the rigours of the notification.
Alleged inapplicability of the notification
125. Reliance was then placed on the provisions of sub-section (1) and
sub-section (7) of Section 29 of the Faridabad Complex (Regulation and
Development) Act, 1971 to submit that the notification dated 18th August,
1992 was not applicable to controlled areas. These provisions read as
follows:
“Section 29 - Declaration of controlled area
(1) Notwithstanding any law for the time being in force the Chief
Administrator may, with the previous approval of the State
Government by notification, declare the whole or any part of
the area within the Faridabad Complex including an area
within a distance of 8 kilometers on the outer sides of the
boundaries of Faridabad Complex as a controlled area.
(2) to (6) ----------
(7) After considering the objections, suggestions and
representations, if any, and the recommendations of the Chief
Administrator thereon, the State Government shall decide as to
the final plans showing the controlled area and signifying
therein the nature of restrictions and conditions applicable to
the controlled area and publish the same in the Official gazette
and in such other manner as may be prescribed.”
126. In terms of Section 2(f) of the said Act, a controlled area means an
area declared under Section 29 of the said Act to be a controlled area.
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 72 of 81
127. We are unable to appreciate the relevance of this submission for the
reason that, as per the Statement of Objects and Reasons, there was a
multiplicity of local authorities in the Faridabad-Ballabhgarh area with the
result that integrated development of this area was not possible.
Consequently, it was essential to devise a set up for administration of this
area which would meet the objectives of rapid and integrated development
and eliminate haphazard development. The said Act was intended to
achieve this objective. Quite clearly, this has nothing to do with the
notification dated 18th August, 1992. Moreover, Section 29(1) of the said
Act related to any law for the time being in force - the notification dated
18th August, 1992 came much later and was not in force when the said Act
was enacted.
Other submissions
128. It was then contended that the exemption granted on 17th April, 1984
under the provisions of the Haryana Development and Regulation of Urban
Areas Act, 1975 exempted the applicant or in any case Kant Enclave from
all the provisions of the said Act. While this may be so, we do not see how
the said Act exempts the applicant or Kant Enclave from the prohibitions
imposed by the subsequent notification dated 18th August, 1992. The said
Act has no relevance or reference to the provisions of the PLP Act.
129. Learned counsel for the applicants also contended that in view of the
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 73 of 81
decision rendered by this Court in Sandhu, the subject land ought to have
been an existing forest as on 25th October, 1980 when the Forest
(Conservation) Act, 1980 came into force. In our opinion, this is not at all
a correct interpretation of the decision rendered by this Court in Sandhu.
It is nobody’s case, and indeed it cannot be anybody’s case that no area can
be declared as a forest after 25th October, 1980. If this were the
interpretation given, then the entire purpose of the order dated 12th
December, 1996 passed by this Court would be rendered meaningless since
it was in terms of this order that forest land was directed to be identified,
even if that land was not so recognised as forest land. Acceptance of the
interpretation sought to be given by learned counsel would also emasculate
the PLP Act.
130. The final submission of learned counsel for the applicants was that
constructions were made in terms of the orders passed by this Court on 17th
March, 1997 and 13th May, 1998 and in fact, building plans and sanction
plans were approved by the concerned authorities. Therefore, it must be
held by this Court that the members of the Kant Enclave Residents Welfare
Association had acted bona fide and therefore their houses or constructions
should not be demolished as suggested by the CEC.
131. In this regard, it must be appreciated that the order dated 17th March,
1997 as modified on 13th May, 1998 permitted construction only in
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 74 of 81
accordance with law and not de hors the notification dated 18th August,
1992. It is not the case of any of the applicants before us, and indeed it
cannot be their case, that the orders of this Court gave a complete go by to
the notification and virtually quashed it even though it was never under
challenge at that point of time or even today. It appears that very large
residential complexes have been constructed despite the orders of this
Court, which did not give any blanket permission to the applicants to make
constructions, according to their whims and fancies. For reasons that are
not at all clear, such constructions were permitted by the concerned
authorities despite the orders of this Court and even though the notification
dated 18th August, 1992 prohibited breaking up of the land. It is difficult,
under the circumstances, to take the view that the applicants and the
concerned authorities had acted bona fide.
132. We had asked learned counsel for the applicants to place before us
the details of the construction made in Kant Enclave. The following chart
was then placed before us on 24th July, 2018. This chart indicates that out
of a total of about 1600 plots said to have been carved out by R. Kant &
Co. in Kant Enclave, conveyance deeds have been executed only in respect
of 284 residential plots and three commercial plots. On the residential
plots, only 33 houses have been constructed and it appears that not one of
them is a single-storey hutment.
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 75 of 81
S.No. Particulars Work Done
1. Conveyance Deeds Executed 284 residential plots
2. Conveyance Deeds Executed 3 commercial plots
3. Houses constructed and people living 33 houses
4. Film Studio (FS-2) constructed 1 no.
5. Overhead water tank of 545 KL capacity
constructed and functional
3 nos.
6. Underground water tank of 1200 KL capacity
constructed and functional
3 nos.
7. Pumping Station (Functional) 1 no.
8. Pumping Machine (Submersible pumps)
installed and functional
9 nos.
9. Sewage Treatment Plant having cost of more
than Rs. 70,00,000/- installed
1 no.
10. Parks (fully developed) 14 nos.
11. Roads completed 136460 Sq. Mtr.
(Approx. 20 KM)
12. Street lights poles erected and energised 627 nos.
13. Internal sewage pipe lines completed and
functional
21150 Mtrs.
14. Storm water drain completed and functional 18000 Mtrs.
15. Water supply pipe lines completed and
functional
22700 Mtrs.
16. Trees planted 10000 nos. (Along
road side and in green
belt)
17. Fire hydrants/Fire tanks having 265 CUM
capacity
3 nos.
18. Electric sub-station for 650 KV transformer 2 nos.
133. The extent of violation of the notification dated 18th August, 1992 is
quite frightening and one can only imagine the phenomenal environmental
and ecological damage caused to the area by the applicants. This could not
have happened without the knowledge of the State of Haryana and its
officers who permitted blatant disregard of the rule of law despite affidavits
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 76 of 81
of the Chief Secretary of the State of Haryana. The rule of law seems to
have broken down in Haryana and become the rule of men only to favour
the applicants. At this point, we cannot help but referring to a passage from
a judgment of this Court with regard to the Aravalli hills and the need for
their protection. We had intended to avoid this reference only because it
would be repetitive, but it is painful to see such a mockery of the law and
total lack of concern for the environment and ecology of the Aravalli hills.
134. In the order dated 18th March, 200422 it was stated in paragraph 58
of the Report as follows:
“The Aravallis, the most distinctive and ancient mountain chain of
peninsular India, mark the site of one of the oldest geological
formations in the world. Heavily eroded and with exposed
outcrops of slate rock and granite, it has summits reaching 4950
feet above sea level. Due to its geological location, the Aravalli
range harbours a mix of Saharan, Ethiopian, peninsular, oriental
and even Malayan elements of flora and fauna. In the early part of
this century, the Aravallis were well wooded. There were dense
forests with waterfalls and one could encounter a large number of
wild animals. Today, the changes in the environment at Aravalli
are severe. Though one finds a number of tree species in the hills,
timber-quality trees have almost disappeared. Despite the
increase of population resulting in increase of demand from
the forest, it cannot be questioned nor has it been questioned
that to save the ecology of the Aravalli mountains, the laws
have to be strictly implemented.” [Emphasis supplied by us].
Relief
135. The question that now remains for consideration is whether any
relief is required to be granted to the applicants and if so what relief should
22 M.C. Mehta v. Union of India, (2004) 12 SCC 118
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 77 of 81
be granted.
136. There is no doubt that irreversible damage has been caused to the
environment and ecology of the Aravalli hills. The damage was caused or
allowed to be caused, despite a statutory notification issued under the
provisions of the PLP Act. The brazenness of the applicants in flouting the
law is quite apparent. But what is more unfortunate is the support given to
the applicants by the Town & Country Department of the State of Haryana,
despite the reservations of the Forest Department. The Town & Country
Department in apparent collusion with R. Kant & Co. effectively led a very
large number of people up the garden path. Fortunately, only 33 of them
have made some personal constructions – but it is not clear whether their
constructions are pre or post 18th August, 1992.
137. Therefore, we have two categories of persons who have been taken
for a ride by R. Kant & Co. The first category consists of those who have
been conveyed land by R. Kant & Co. and the second category consists of
those who have been conveyed land and have made constructions.
138. As far as the first category of persons is concerned, the relief that
can be awarded to them is a full refund of their investment along with
interest at 18% per annum payable entirely by R. Kant & Co. from the date
of the investment. We order accordingly.
139. As far as the second category of persons is concerned, as submitted
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 78 of 81
by Shri Dharam Vir, Chief Secretary of the State of Haryana in his affidavit
of 15th March, 2009 there is an available, reasonable and appropriate course
of action to adopt. This course of action is to save or allow to exist
constructions made in Kant Enclave pursuant to the exemption granted to
the applicant (R. Kant & Co.) on 17th April, 1984 under Section 23 of the
Haryana Development and Regulation of Urban Areas Act, 1975 but
before 18th August, 1992 when the notification under the provisions of the
PLP Act came into force. Any construction made after 18th August, 1992
is clearly illegal and contrary to law and must be demolished as
recommended by the Central Empowered Committee. We accept the
submission made by Shri Dharam Vir and the CEC and do not disturb the
constructions made between 17th April, 1984 and 18th August, 1992. We
direct accordingly.
140. However, in respect of constructions made after 18th August, 1992
there is no option but to direct the State of Haryana to demolish the illegal
and unauthorised constructions. The demolition should be completed on or
before 31st December, 2018. We direct accordingly.
141. In Godrej & Boyce Manufacturing Company Limited v. State of
Maharashtra23 this Court considered the issue of unauthorised
construction from the point of view of a well-meaning citizen who is led
23 (2014) 3 SCC 430
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 79 of 81
up the garden path by the State, which gives statutory permission for
unauthorised constructions. In the present case of Kant Enclave, wellmeaning
citizens have been virtually duped into investing huge amounts
despite R. Kant & Co. and the Town & Country Department of the State
of Haryana being fully aware of the statutory notification dated 18th
August, 1992 and the restrictions placed by the notification. R. Kant & Co.
and the Town & 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 & Country
Department of the State of Haryana. They must pay for this. This is not to
suggest that those who have made constructions after 18th August, 1992 are
completely innocent. Nevertheless, it is necessary to compensate them in
view of the role played by the Town & Country Planning Department of
the State of Haryana. To compensate them for the land, we direct that R.
Kant & Co. to give them a full refund of their investment in the land along
with interest at 18% per annum from the date of the investment. We order
accordingly.
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 80 of 81
142. As far as the cost of construction is concerned, we tentatively
quantify it at ₹ 50 lakhs. This will be paid to those who constructed after
18th August, 1992 and whose construction is directed to be demolished.
The quantified amount will be paid, in equal proportion, by R. Kant & Co.
and the Town & Country Planning Department of the State of Haryana.
The quantified amount is directed to be paid on or before 31st December,
2018. If anyone who’s construction is demolished in view of our orders, is
not satisfied with the quantification, that person is at liberty to proceed
against R. Kant & Co. and the Town & Country Planning Department of
the State of Haryana by way of a civil suit in accordance with law and with
the cause of action arising as on today.
143. The Polluter Pays Principle is a wholesome principle that has been
universally accepted and also adopted and applied in our country through
several decisions of this Court. In this context, we may draw attention to
among two of the earliest decisions rendered by this Court, namely, Indian
Council for Enviro-Legal Action v. Union of India24 and Vellore Citizens'
Welfare Forum v. Union of India.
25 The law having been settled for more
than two decades, we are of the view that it must be applied in a case such
as the present. The damage caused to the Aravalli hills, as already noted,
is irreversible. However, perhaps some of the damage could be remedied -
24 (1996) 3 SCC 212
25 (1996) 5 SCC 647
IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 81 of 81
at least we hope so. According to R. Kant & Co. it has expended ₹ 50 crore
in developing Kant Enclave. We do not know the exact or accurate figure
but proceed on the basis as stated. In our opinion, it would be reasonable
to require R. Kant & Co. to deposit 10% of this amount (that is, ₹ 5 crore)
for rehabilitation of the damaged areas. This amount should be deposited
by R. Kant & Co. in the Aravalli Rehabilitation Fund within one month
and in any case on or before 31st October, 2018. The matter be listed only
for compliance of this direction in the first half of November 2018.
144. We direct the incumbent Chief Secretary of the State of Haryana to
ensure compliance with our remaining orders, both in letter and spirit on
or before 31st December, 2018.
145. The substantive applications stand disposed of in the terms
mentioned above.
………………………J.
(Madan B. Lokur)
New Delhi; .……………………..J.
September 11, 2018 (Deepak Gupta)
