Full Judgment Text
[2008] 8 S.C.R. 828
M.C. MEHTA
v.
UNION OF INDIA & ORS.
I.A. No. 1901
in
I.A. No. 1888
in
(W.P.(c) No. 4677 Of 1985)
MAY 14, 2008
[DR.ARIJIT PASAYAT, C.K. THAKKER AND LOKESHWAR SINGH PANTA, JJ.]
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. I.A. 1901 of 2005 relates to the land situated in
Aravalli Range. Challenge basically is to the communication dated
31.1.2005 by the Divisional Forest officer, Faridabad requesting the
Commissioner, Faridabad, the Administration Haryana, Urban Development
Authority (in short the `HUDA') and the District Town Planner, Faridabad
forwarding list of area closed under Sections 4 & 5 of the Punjab Land
Preservation Act, 1900 (in short the `Act'). It was indicated that these
areas have been declared by this Court to be "forest" and, therefore, penal
action is required to be taken for any non forest activities under the
Forest Conservation Act, 1980 (in short the `Conservation Act'). This
communication was issued purportedly on the basis of this Court's order.
Similar communication was made by the Senior Town Planner, Gurgaon Circle,
Gurgaon intimating Dr. Mathan Singh Kanwar that he has to obtain "NOC" from
the forest department and produce the same before the Senior Town Planner
so that the next course of action with regard to granting occupation
certificate can be carried out. Reference has also been made to a letter
dated 19.9.1999 by the Commissioner and Secretary to Government, Haryana
Forest and Wildlife Department addressed to the Principal Chief
Conservator, Forest Conservation, Haryana on the subject of prohibition in
the areas covered under the Notification issued under the Act. It has been
indicated therein that the Forest Department will not declare areas
notified, under Sections 4 & 5 of the Act as "forest".
2. The background facts show that the State Government decided to notify
the area in question under Section 4 of the Act, prohibiting activities
contained in the said notification dated 18th August, 1992 for a period of
30 years. The effect of the decision in M.C. Mehta v. Union of India &
Ors. (2004 (12) SCC 118) on the areas declared under Sections 4 and 5 of
the Act, have to be noted.
3. Learned counsel for the petitioner in the I.A. No. 1901 and I.A. No.1999
filed by Kant Enclave Residents Welfare Association, I.A. 1955 filed on
behalf of Karamyogi Shelters Pvt. Ltd. and certain other I.As. i.e. I.A.
Nos. 1965-66 and 2024 in I.A. 1901-1904 for impleadment and directions are
filed by PCL Industries. It is the stand that the decision of this Court
in M.C. Mehta's case (supra) fully takes care of the situation. It is
submitted that the decision was mining centric. In the instant case the
development started in 1992. The earlier judgment clearly excluded
constructions already undertaken. There cannot be any retrospective effect
in the inter-fraction of forest and in the instant case the first and in
most of the cases the first licence was granted prior to the Conservation
Act. Reference is also made to Faridabad Complex Requisition and
Development Act, 1971 (in short the `1971 Act') the National Capital Region
Planning Board, 1985 and also to the object of 1971 Act. It is pointed
out that the situation for pre 21.12.1992 period has been dealt with in
paras 80 & 81 of the earlier judgment. Similar stand has been dealt with
and rejected in para 82. It is pointed out that there is an overriding
effect so far as Section 27 is concerned and the1971 Act has to be kept out
of consideration because of Section 27.
4. Learned Amicus curie on the other hand submitted that this Court nowhere
has kept the cases of the applicant out of consideration. In fact the
other questions like the effect of Section 4 were examined.
5. In the order dated 18th August, 1992 issued by the Forest Department of
the Government, Serials 9 to 16 become relevant.
6. It is to be noted that Section 4 is subject to Section 3 Notification.
Conservator of Forest in his letter to M/s R. Kant & Company dated
15.5.1996 noted as follows:
"M/s. R. Kant & Co. 407 Vishal Vhawan 95 Nehru Place, new Delhi 110019 is
allowed to proceed ahead with their plan in Khasra No. 9 to 16 Vill.
Anangpur, Faridabad in accordance with the agreement signed with Haryana
Government. Through Commissioner and Secretary. Town and Country Planning
Haryana dated 27 May 1992."
7. It is to be noted that earlier the focus was on areas and not on khasra
numbers. The stand of the applicants regarding pre 21.12.1992 has been
dealt with in paras 80 &81 of the earlier judgment. The decision of this
Court in M.C. Mehta's case (supra) dealt with the applicability of the
Conservation Act to the areas teated as forest by the State Forest
Department in Paragraphs 78 ,79, 80, 81 & 82. It was inter alia observed
as follows:
"78. The provisions of the Act provide for the conservation of forest and
for matters connected therewith or ancillary or incidental thereto. Any
forest land or portion thereof cannot be used for any non-forest purposes
or assigned by way of leases or otherwise to any private person or to any
authority, corporation, agency or any other organisation not owned, managed
or controlled by the Government, except with the prior approval of the
Central Government. Mining activity within forest area cannot be permitted
in contravention of the provisions of the Act. The Act makes the
contravention of any of the provisions of Section 2 as an offence
punishable in the manner provided in the Act.
79. The controversy is in respect of certain leases where area under the
lease is covered under notification issued under Sections 4 and/or 5 of the
Punjab Land Preservation Act, 1900. The question is whether such area is
"forest" of any kind.
80. Under Section 3 of the aforesaid Act, whenever it appears to the State
Government that it is desirable to provide for the conservation of subsoil
water or the prevention of erosion in any area subject to erosion or likely
to become liable to erosion, such Government may by notification make a
direction accordingly. Under Section 4(b), the State Government has power
to regulate, restrict or prohibit the quarrying of stone or the burning of
lime at places where such stone or lime had not ordinarily been so quarried
or burnt prior to the publication of the notification under Section 3.
Under Section 5(b) in respect of any specified village or villages, or part
or parts thereof, comprised within the limits of any area notified under
Section 3, the State Government may, by special order, temporarily
regulate, restrict or prohibit the quarrying of any stone or the burning of
any lime at places where such stone or lime had ordinarily been so quarried
or burnt prior to the publication of the notification under Section 3. In
respect of some mining areas notifications have been issued under Section 4
and in respect of some, notifications have been issued both under Sections
4 and 5. The submission is that invoking of Sections 3, 4 and 5 is only to
conserve subsoil water and prevention of the area from erosion of land and
is not to create any forest. It has been pointed out that in cases where
the notifications have been issued, only felling of trees had been
prohibited and not quarrying of stone.
81. It cannot be disputed that the State Forest Department has been
treating and showing the aforesaid areas as "forest". The contention urged
on behalf of the State Government is that it was on account of erroneous
viewpoint of the Forest Department. In fact and law, such area is not
"forest" and mining is not prohibited and, therefore the question of
seeking permission under Section 2 of the FC Act does not arise.
82. 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 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 India10 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&K11. 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 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."
8. In para 82 it has been noted that it is not necessary to decide the
legal effect of the issue of the notifications under Sections 4&5 of the
Act.
9. Conclusions in the said case were to the following effect:
"96. 1. The order dated 6-5-2002Ø as clarified hereinbefore cannot be
vacated or varied before consideration of the report of the Monitoring
Committee constituted by this judgment.
2. The notification of environment assessment clearance dated 27-1-1994 is
applicable also when renewal of mining lease is considered after issue of
the notification.
3. On the facts of the case, the mining activity in areas covered under
Sections 4 and/or 5 of the Punjab Land Preservation Act, 1900 cannot be
undertaken without approval under the Forest (Conservation) Act, 1980.
4. No mining activity can be carried out on area over which plantation has
been undertaken under the Aravalli Project by utilisation of foreign funds.
5. The mining activity can be permitted only on the basis of sustainable
development and on compliance of stringent conditions.
6. The Aravalli hill range has to be protected at any cost. In case despite
stringent conditions, there is an adverse irreversible effect on the
ecology in the Aravalli hill range area, at a later date, the total
stoppage of mining activity in the area may have to be considered. For
similar reasons such step may have to be considered in respect of mining in
Faridabad district as well.
7. MOEF is directed to prepare a short-term and long-term action plan for
the restoration of environmental quality of Aravalli hills in Gurgaon
district having regard to what is stated in final report of CMPDI within
four months.
8. Violation of any of the conditions would entail the risk of cancellation
of mining lease. The mining activity shall continue only on strict
compliance of the stipulated conditions."
10. It is to be noted that in the counter affidavit filed by the State of
Haryana on 10.9.2006 it has been inter alia stated as follows:
"This notification covers Khasra Nos. 9 to 16 of the village Anangpur.
Since then this land is being treated as forest and it was also included in
the list of forests in the Government record. The affidavit filed by the
forest department, Haryana in case of CWP No. 202 of 1995 in T.N.
Godavarman Thirumulpad v. Union of India & Ors., this area was shown as a
forest. Section 2 of the Forest Conservation Act, 1980 restricts the de-
reservation of forest or use of forest land for non-forest purposes."
"M/s. R.Kant & Co. present applicant applied for exemption from Haryana
Development and Regulation of Urban Area Act, 1975 for establishment of
Films Studio and Allied Complex at village Anangpur. The Government
exercising the powers conferred by Section 23 of Haryana Development and
Regulation of Urban Area Act, 1975 (hereinafter referred to as `Act of
1975') vide letter dated 17.4.1984 granted the exemption subject to certain
conditions. Prior to notification under Section 4 of Punjab Land
Preservation Act, 1900, the said land was not shown as forest in Government
records. The conditions were:
(a) The company gets the layout plan finally approved from DTCP
within 60 days of the grant of the exemption letter.
(b) The company shall submit a bank guarantee equal to 10% of
the total cost of all development works as certified by the
Director within 60 days of the issue of this letter.
(c) That the exemption is conditional and subject to the
production of title deeds as proof of ownership of the land in
question by M/s. R.Kant and Company."
17. That the applicant failed to comply with the terms and
conditions of the agreement and undertaking of the exemption
granted u/s 23 of the Act of 1975. Therefore a show cause notice
dated 19.12.1986 was issued to the applicant for withdrawal of the
exemption. The copy of the show cause notice dated 19.12.1986 is as
Annexure R-5.
21. That Principal Chief Conservator of Forest vide letter
dated 27.1.2006 informed the Director Town & Country Planning
Department that Khasra Nos. 9 to 16 of Anangpur is notified under
Section 4 of Punjab Land Preservation Act, 1900 vide notification
dated 18.8.1992. Hence the above area was treated as Forest in
view of the order dated 18.3.2004 passed by this Court in M.C.
Mehta's case (supra). Since the applicant never submitted any
proposal with the Forest Department for diversion of Forest land
for non-forestry use under the Forest Conservation Act, 1980,
therefore the Director Town & Country planning asked the applicant
vide letter dated 27.6.2006 to seek the diversion of Forest land in
Khasra Nos. 9 to 16 of village Anangpur for non-forestry use under
the Forest Conservation Act, 1980."
11. Reference can be made to Sections 3, 4 and 5 of the Act. Section 3
inter-alia provides that whenever the State Government with a view to
conserve - (a) sub-soil water; (b) erosion in any area; may make a
notification for the said purpose and Section 4 thereof provides as to what
activities can be prohibited. A perusal of Section 4 and 5 would show that
what can be prohibited is-
(a) The clearing or breaking up of any area/land which was not
under cultivation;
(b) The quarrying of stone or burning of lime which was not so
being done earlier;
(c) The cutting of trees or timber or collection or removal of
any forest produce except for bonafide domestic use;
(d) The setting on fire of trees, timber or forest produce;
(e) The admission, herding, retention or pasturing of animals;
(f) The examination of forest produce;
(g) The grant of permits to the inhabitants of the towns and
villages to take any tree or timber or forest produce for their own
use or to pasture sheep or camel or to cultivate or to make
building etc."
12. 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 fresh
construction because a construction only can take place if clearing and
breaking of an area/land taking 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) in Section 4
has no application. The factum of developing a plot and then construct
therein would amount to clearing or breaking up of an area or land.
13. The judgment in M.C. Mehta's case (supra) notes the argument, which is
presently reiterated that the State Forest Department has been treating and
showing the areas notified under Sections 3, 4 and 5 as forest. This Court
noted this in para-82 of the judgment which has been extracted above.
14. This Court was not only examining the mining activity in the area upto
5 km on the Haryana side of the Ridge, but also in the Aravalli Hills
causing environmental degradation as is apparent from para-1 of the
judgment. Further in para-8, it has been noted that the application that
was filed by Delhi Ridge Management Board not only sought for a direction
to stop all mining activities but also of pumping of ground water in and
from areas upto 5 km from Delhi Haryana border on the Haryana side of the
Ridge, inter-alia stating that this was in the larger interest of
maintaining ecological balance of the environment. As per learned Amicus
Curie location of the applicant company's plots are in the Ridge and in the
Aravalli chain.
15. Under the orders of this Court dated 22.7.2002, the Environmental
Pollution Control Authority (EPCA for short) was directed to give a report
with regard to the Environment in the area preferably after a personal
visit. The objective of the visit by the EPCA members has been noted in
para 12 of the judgment as under:
1. Assessment of the level of compliance with the conditions
laid down in the regulatory procedures like the no-objection
certificate (NOC) granted by authorities to the mine-owners.
2. Evidence of land and habitat degradation in and around the
mining sites.
3. Evidence of misuse and shortage of ground water in the
area.
4. Assessment of the implication of such activities for the
local ecology and drinking water sources in the area.
16. During the visit, it appears EPCA found clear evidence of violation of
some of the key conditions of order of this Court, dated 10.5.1996.
17. EPCA referred to the notification of August, 1992 which report is
extracted at para-14 of the judgment. In fact the EPCA, in its report
regarding compliance of environmental management plans recommended by NEERI
as directed by this Court on 10.5.1996 at SI.No.4 noticed as under:
S1. No. Directive Enforced or not
4 Green belt on either side We saw large-scale
of the road between construction on this
Surajkund and Badkal road from schools to
(P.S. The applicant's management colleges
near the Surajkund) and housing colonies
18. The recommendation of EPCA are as under:
`Not only must further degradation be halted but all efforts must be made
to ensure that the local economy is rejuvenated, with the use of
plantations and local water harvesting-based opportunities. It is indeed
sad to note the plight of people living in these hills who are caught
between losing their water-dependent livelihood and between losing their
only desperate livelihood to break stones in the quarries. It is essential
that the Government of Haryana seriously implements programmes to enhance
the land based livelihood of people - agriculture, animal care and
forestry. Local people must not be thrown into making false choices, which
may secure their present but will destroy their future. Already, all the
village visited by EPCA complained of dire and desperate shortages of
drinking water. Women talked about long queues before taps to collect
water. Clearly water resources of the region are critical inputs to
development and cannot be wasted and destroyed like this. The State
Government must come up with strategies to involve local communities in the
future development of this region'.
19. Central Ground Water Board's report referred to in para-16 shows that
the area in question in Village Anangpur has been notified as a very
precarious ground water situation. Any construction activity therein
without adequate water reserves will also have a negative effect. In
para-24 of M.C. Mehta's case it is noted that ground water table is already
at critical stage in Faridabad.
20. Therefore it is not correct as contended by the applicant that the
nature of lands of the applicant were considered by this Court in the
earlier case and the restrictions did not operate so far as they are
concerned.
21. I.A.s are accordingly dismissed.