Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4448 OF 2005
VEERU DEVGAN … APPELLANT
VERSUS
STATE OF TAMIL NADU & ANR. … RESPONDENTS
J U D G M E N T
C.K. THAKKER, J.
1. The present appeal is preferred by the
appellant against some of the directions issued
in the judgment delivered by the High Court of
Judicature at Madras on December 23, 1999 in
Civil Writ Petition No. 19842 of 1999. By the
said judgment, the High Court held that though
the appellant herein-writ petitioner in the
High Court-had not violated the terms and
conditions of the permission granted to him to
shoot a film and had not caused damage to the
grassland or adversely affected environment, he
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would deposit Rs. fifty lakhs which will be
utilized for protection and improvement of
environment and the forest in and around
Udhagamandalam.
2. To appreciate the grievance raised by
the appellant in the present appeal, few
relevant facts may be noted.
3. The appellant is the sole proprietor
of M/s Devgan Films which inter alia is engaged
in the production and direction of films since
1996. The appellant conceived an idea of
producing a musical film for children titled
“Raju Chacha”. The appellant initially started
shooting of the said film in the Gulmarg area
in Kashmir but due to Kargil war, the shooting
was postponed. Then, a decision was taken to
change the venue to Schoolmund (Wenlock Downs
Reserve Forest), Ooty in the State of Tamil
Nadu. For the said purpose, the appellant made
an application to the Principal Chief
Conservator of Forests of the State of Tamil
Nadu on August 31, 1999 for issuance of ‘no
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objection certificate’ to shoot a part of the
film in the Nilgiri South and North Division.
On the same day, the Principal Chief
Conservator of Forests granted such permission
for a period of 120 days from October 01, 1999
to March 30, 2000. The appellant deposited an
amount of Rs. 60,000/- @ Rs. 500/- per day for
120 days with the Information and Tourism
Department towards fee for using the area in
question. He also deposited an amount of
Rs.5,000/- under the head “Miscellaneous and
Photograph expenses”. On September 06, 1999,
the Director of Information and Public
Relations granted necessary permission for
shooting in Nilgiri District, Ooty. On October
5, 1999, the appellant furnished a refundable
security deposit of Rs. two lakhs in savings
account towards permission for shooting the
film and erection of pre-fabricated sets in the
designated area. Immediately thereafter on
October 07, 1999, the permission sought by the
appellant was granted to erect sets of a
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particular size. The appellant stated that
similar permissions had been granted for more
than 100 films during previous years for
shooting in the Nilgiri under the Tamil Nadu
Forests Department Code, 1984. A formal
agreement was executed between the sole
proprietor of M/s Devgan Films on the one hand
and the District Forest Officer (‘DFO’ for
short), Nilgiri South Division-respondent
No.2, on the other hand, whereby permission was
granted for shooting the film and erection of
temporary sets of the size of 60mm x 60mm
subject to the conditions specified therein.
The appellant was directed to deposit an amount
of Rs.10,800/- as ground rent for erection of
temporary sets. A copy of the said agreement
has been produced by the appellant in the
present proceedings.
4. It appears that an article was
published on December 03, 1999 in a newspaper
‘Dinamalar’ (Tamil Daily) alleging therein that
grasslands were being damaged and wildlife was
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disturbed by the actions of the appellant.
A notice was, therefore, issued by DFO on
December 06, 1999 to the appellant to show
cause why permission granted to the appellant
should not be cancelled as the appellant had
violated conditions of the agreement. The
appellant was also directed to suspend further
erection of the sets for shooting the film. On
December 9, 1999, the appellant made a
representation to the Chief Secretary of the
State stating that he had taken full care of
the environment and grasslands had not been
damaged. A prayer was also made to drop the
proceedings against the appellant and to allow
the Company to complete the shooting. The
grievance of the appellant is that in spite of
the fact that there was no damage to the
environment and the appellant had not committed
breach of any condition of agreement, the DFO,
without affording an opportunity of hearing to
the appellant, passed an order on December 10,
1999 cancelling the permission on the purported
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ground that the appellant had violated
conditions of the agreement entered into
between the parties and had caused damage to
grasslands.
5. Being aggrieved by the order
cancelling permission, the appellant approached
the High Court by filing a writ petition under
Article 226 of the Constitution challenging the
cancellation of licence. A Non-Governmental
Organization (NGO), namely, Tamil Nadu Green
Movement, on the other hand, challenged the
order dated October 07, 1999 by which
permission was granted to the appellant to
shoot the film “Raju Chacha”.
6. Both the petitions were heard
together. The High Court by the impugned
judgment, dated December 23, 1999, held that it
was not proved that the appellant-licensee had
violated terms and conditions of the licence.
It also recorded a finding on the basis of the
reports submitted by the Forest Authorities
that the appellant had not caused damage to
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environment or grassland. The action of
cancellation of licence and termination of
agreement was, therefore, illegal and contrary
to law. The High Court, however, directed the
appellant to deposit Rs. 50 lakhs for
protection of environment.
7. Being aggrieved by that part of the
order, the appellant has approached this Court.
The judgment of the High Court was delivered on
December 23, 1999. Immediately thereafter,
there was Christmas vacation. According to the
appellant, under the circumstances, he was
constrained to comply with the order passed and
direction issued by the Court.
8. After getting certified copy of the
judgment, the appellant approached this Court
by filing Special Leave Petition on April 03,
2000. On April 24, 2000, notice was issued by
this Court and the matter was ordered to be
tagged with Writ Petition (Civil) No. 202 of
1995 [ T.N. Godavarman Thirumulpad v. Union of
India & Ors .]. It may be stated that in T.N.
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Godavarman , this Court is considering the
larger issue of protection of forests. On April
23, 2001, this Court ordered that any amount
deposited by the writ-petitioner in the High
Court of Madras should be invested in a fixed
deposit in a nationalized Bank. The Special
Leave Petition remained pending for a long
period. On April 01, 2005, however, when the
matter was placed before the Court, it was
noticed that the instant case did not relate to
larger issue raised in T.N. Godavarman but was
an individual one. The Court, hence, ordered to
place the matter before a regular Bench. On
July 22, 2005, leave was granted. On February
25, 2008, a Bench presided over by Hon’ble the
Chief Justice of India directed the Registry to
place the appeal for final hearing during
summer vacation. That is how the matter has
been placed before us.
9. We have heard the learned counsel for
the parties.
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10. The learned counsel for the appellant
strenuously contended that the direction issued
by the High Court to pay Rs. 50 lakhs was
wholly illegal, unlawful and arbitrary. Once a
finding is recorded by the High Court that the
appellant had not violated conditions of
licence or committed breach of the agreement
entered into between the parties and no damage
had been caused to grassland, nor environment
had been adversely affected, the Court had no
power, authority or jurisdiction to direct the
appellant to pay/deposit any amount. The
counsel submitted that affidavits were filed by
the parties, records were called for and
parties were heard. On the basis of the
findings recorded in the reports submitted
before the Court, it concluded that the
appellant had acted in consonance with terms
and conditions of the agreement. Whatever
amount required to be paid towards damage was
actually paid by the appellant. Compounding of
offences under the relevant laws had also been
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done and the requisite amount was paid.
Precisely because of that the Court allowed the
petition filed by the appellant-writ petitioner
and set aside the order dated December 10,
1999. The Court also, only for that reason, did
not grant relief sought by NGO in the other
petition seeking setting aside permission
granted and agreement entered into between the
appellant and the State of Tamil Nadu. The
counsel further submitted that over and above
regular payments which were required to be
made, certain additional amounts were also paid
by the appellant including refundable deposit
of Rs. 2 lakhs. The State was duty bound to
refund even the said amount. On all these
grounds, it was submitted that the appeal
deserves to be allowed by setting aside the
direction of the High Court to deposit Rs. 50
lakhs by the appellant-writ petitioner to the
respondent State Authorities. The State is also
bound to repay refundable deposit of Rs.2
lakhs.
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11. The learned counsel appearing for the
State fairly stated before the Court that the
High Court, no doubt recorded a finding in
favour of the appellant. He, however, submitted
that the High Court was exercising plenary
jurisdiction under Article 226 of the
Constitution. The Court, in exercise of that
jurisdiction, thought it proper to direct the
appellant to deposit Rs. 50 lakhs for
protection of environment. The said amount can
be utilized in general public interest and in
making citizens aware of the environmental
protection.
12. Having heard the learned counsel for
the parties, in our opinion, the direction
issued by the High Court cannot be said to be
in accordance with law or based on the
materials before the Court or conclusions
recorded by the Court on that basis. We have
been taken to the relevant part of the judgment
of the High Court. The High Court considered in
detail the complaint made against the appellant
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as also the reports submitted by the Forest
Authorities. On the basis of the reports, the
Court recorded a finding that there was no
violation on the part of the appellant of terms
and conditions of the agreement entered into
between the appellant and the State and hence
State was not justified in cancelling licence
and terminating the agreement. The High Court,
therefore, set aside the order passed by the
State cancelling licence and terminating
agreement by allowing the petition.
13. Referring to the relevant statutes,
such as, Forest (Conservation) Act, 1980,
Forest (Conservation) Rules, 1981 and Tamil
Nadu Forest Department Code, 1984, the High
Court stated;
“The real question here, however, is
as to whether the words ‘breaking up
or clearing of any forest land or
portion thereof’ are applicable to the
activity undertaken by Producer in the
Schoolmund area. The activity that has
been permitted is the erection of a
temporary set for and shooting a film,
which set is to remain on the land for
a period of about 120 days. The
technology used in erecting the set
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does not involve digging the earth for
support. The set rests on the base of
the G.I. pipes. The base of the G.I.
pipe merely rests on the ground and is
not embedded therein. The set is to be
removed within a matter of few months.
On such removal, the grass will
admittedly regenerate after the
winter. The forest land is to be
restored to its original condition. No
part of the forest land is lost as
would be the case if a structure
involving digging of foundations were
to be constructed. For the duration of
about 120 days the land cannot be used
for other purposes. The land is free
of tree growth. Admittedly, no trees
existed or exist on this land, and no
tree has been cut. The land is
grassland, the land is located very
close to a main Highway, the
plantations which exist at a distance
of about 450 meters are man made
plantations. There is a settlement
with a School also at a distance of
about 450 meters. Close to the
location is a forest road, through
which equipment has been apparently
brought to the site by the Producer.
According to the Producer, the
State Government has consistently been
permitting the shooting of films in
this area. In the counter-affidavit
filed by one Kumar Mangat, who holds a
Power of Attorney from the Producer,
it is stated that several films have
been shot in this area. He has
mentioned the names of certain films,
Betabi in 1997, Deewana in 1992, Allan
in 1995, Sadak in 1995, Khubsoorat in
1999, Hum in 1980s, Jigar in 1992,
Tridev, Ravanraj etc. He has also
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stated that he had reliably learnt
that permission had been granted by
the Department earlier to one
Padmalaya Films, Madras to erect sets
of a dimension of 300 ft x 300 ft in
adjoining area of Paimund on Old
Mysore Road at Udugai, South Range in
the year 1995. The State Governemnt
has not disputed the fact that this
area has been made available in the
past to Producers as a location for
their films. In fact, the Tamil Nadu
Forest Department Code specifically
contemplates the grant of such
permission and also sets out the
authority competent to grant the
permission and the power of that
authority to impose such conditions
and restrictions as may be considered
appropriate by the Chief Conservator
of Forests”.
14. Proceeding further, the Court
observed;
“’Breaking up’ referred to in the
Explanation involves activity such as
extensive digging over a substantial
area, or to considerable depth, or for
a purpose which is of long duration.
Digging wells, or foundation for
houses or tillig the land for purposes
of cultivation in a forest may amount
to breaking up the forest land. The
breaking up should be such as to have
some degree of permanence. All
activity on the forest land does not
amount to breaking up the forest land.
Resting the support for a temporary
set for a few months on the forest
land does not amount to breaking up
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the forest land. So also the laying of
a water pipe of relatively small
diameter, or of electric wires covered
with plastic, a little below the
surface, for a short period cannot be
regarded as amounting to breaking up
the forest land, especially when at
the end of that period of few months
the pipes and wires are to be removed
and the grass will regenerate over
that area.
… … … … …
The shooting of a film, per se, in
a reserve forest cannot be regarded as
a non-forest purpose as defined in
Section 2 of Forest (Conservation)
Act. Nature is meant to be enjoyed at
the least visually, and not merely
kept in a frozen state, unless there
are very special reasons for
preventing entry of people into
special areas, which are sensitive and
delicate, and whose preservation in
their current state is for good
reasons regarded as essential. The
Apex Court has had occasion to
consider the provisions of the Act
largely in the context of claims that
mining activity should be allowed to
continue, or that trees should be
allowed to be cut, or that forest land
be allowed to be leased, or that
buildings be allowed therein. In all
such cases, where deforestation was
the evident consequence, approval of
the Central Government was held to be
mandatory. There is no danger of
deforestation by the erection of a
temporary set rested on the base of
G.I. pipes which merely rest on and
are not rooted in the earth”.
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15. Dealing with the reports submitted by
the Authorities, the Court said;
“In this case, we have reports of the
Collector and the District Forest
Officer. According to the Collector,
in the winter months grass
automatically withers away, and that
only in May, they will naturally
regenerate. According to the District
Forest Officer, the winter ends in
February. Permission given to the
Producer here is only upto the period
which expires long before the month of
May begins, and grass will begin to
regenerate naturally. Moreover, the
minimal damage caused to the grass is
undertaken to be repaired by the
Producer, who even according to the
State’s Officers, has been maintaining
the grass.
Having regard to the facts of
this case, which we have set out in
considerable details in the earlier
part of our Order, we are not
persuaded to hold that the prior
approval of the Central Government in
the circumstances was essential before
the Producer could have proceeded to
put up the temporary set at the
Schoolmund area, or that such
permission is necessary for shooting
the film in the forest.
We do not belittle in anyway,
the genuine concern of the
environmentalists for the preservation
of the forest land in the area. The
granting of permission to erect sets
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is not a part of the standard
conditions subject to which permission
is to be granted for filming in the
area. The details regarding the extent
of the area to be occupied by a
temporary set, it’s weight etc., were
not made known by the Producer to the
Principal Chief Conservator or to the
Director of Information, when he first
applied. That application as we have
seen is a bad one. It is only when he
approached the District Forest Officer
that details were made known. The
District Forest Officer in turn had
only secured permission and
concurrence of the Principal Chief
Conservator over telephone for
incorporating permission to put up the
set in the agreement. We cannot say
that the Producer has been fair to the
State in the manner in which he
secured permission for putting up a
set of this magnitude. It is also not
in dispute that the Petitioner had
compounded alleged offences regarding
the drawing of water from a water
source at some distance for the
purpose of watering the grass in and
around the structure. He had also
compounded an offence for damaging the
grass in some parts, the extent of the
damage is not known. Having regard to
the amount of fine that has been
levied and collected, it could not
have been substantial.
Having regard to this conduct of
the Producer and also having due
regard to the need for ensuring that
no damage is done to the forest land,
we consider it appropriate to appoint
a Commissioner at the cost of the
Producer to supervise all further
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activity of the Producer in
Schoolmund. The Commission may at his
discretion associate such other
persons as he may regard as being
possessed of special knowledge and
experience of the area or of ecology
and administration in his work”.
16. The High Court, however, in para 47,
directed;
“ 47. The producer has obtained the
right to use of this land, though for
a limited period, for a nominal fee,
which does not in the lease represent
the proper value of what he has been
allowed to use. The budget for the
film is said to be Rs.10 crores. It
has been stated by him in
correspondence that he has incurred an
expenditure of about Rs.4 crores for
the erection of the set. Keeping in
view this, and other relevant
considerations, we direct the Producer
of the film to deposit a sum of Rs.50
lakhs (Rupees Fifty Lakhs) in this
Court within a period of one week from
today. That amount shall be utilised
for the activities concerning the
protection and improvement of the
environment and the forest in and
around Udhagamandalam and also for
programme for creating a greater
awareness of the need to preserve the
environment and of the methods to be
employed in that regard. The disbursal
of that amount shall be subject to
further directions to be made by this
Court after receiving the reports from
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the Commissioner appointed by this
Court, who shall consult all such
experts as he may consider to be
capable of giving well informed expert
view on the forests and ecology in and
around Ooty”. (emphasis supplied)
17. In para 51, the Court stated;
“51. In view of the order now
made, and subject to compliance by the
petitioner with the directions given
by us in this order, and the
directions which the Commissioner may
give during the period between now and
the completion of the shooting and the
restoration of the area to it’s
original condition, we set aside the
order of the District Forest Officer
dated 10.12.1999 cancelling the
agreement dated 7.10.1999. We find
that the extreme step of cancellation
of the agreement on the grounds stated
therein was not in the circumstances
justified. The employment of about 125
persons for erecting the set was only
to be expected having regard to it’s
size. The District Forest Officer had
not objected to the employment of that
number till 95% of the set at a cost
of over Rs. 2 crores had been
completed, though he was aware of the
size of the set and the number of
persons employed. Moreover the
relevant clause in the agreement
advisedly used to the term ‘about’ and
did not prohibit the employment of
persons in excess of a specified
number. The persons employed were,
according to Collector, paid Rs.150/-
per day, and there was no complaint
from anyone. The use of water for
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sprinkling the grass and marginal
‘damage’ to grass had been computed
and were not such serious breaches of
the agreement as to warrant its
cancellation”.
18. From the above observations, it is
clear that according to the High Court, the
appellant had not caused damage to the
grassland nor had committed any action which
warranted cancellation of licence and yet it
imposed an enormous condition to deposit Rs. 50
lakhs inter alia on the grounds, namely, (i)
fixation of nominal fee by the State for the
use of the site; and (ii) heavy budget of the
film (Rs.10 crores).
19. The counsel submitted that both the
grounds weighed with the High Court were wholly
irrelevant and totally extraneous to the issue
in question and could not have been taken into
account by the Court while adjudicating lis
between the parties. To satisfy the conscience
of the Court, however, the counsel submitted
that almost on the same terms and conditions,
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permission was granted to several film
producers having more budgets and the case in
hand was not of showing any concession in
favour of the appellant in fixation of fee.
Hence, even on factual ground, the High Court
was not right. The counsel also submitted that
even the film was not commercially successful
and according to the appellant, the producer
had incurred loss.
20. Be that as it may, in our opinion,
legal submission of the learned counsel for the
appellant is well-founded and must be upheld.
If after following proper procedure and
complying with all terms and conditions, the
appellant-writ petitioner was granted
permission to shoot the film and all payments
had been made as per the terms and conditions
of the agreement and there was no finding as to
damage to environment, to grassland or to
wildlife as alleged in the newspaper report and
once the High Court was satisfied on the basis
of the reports submitted by the authorities and
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it set aside the order of cancellation of
licence and termination of agreement, in our
judgment, the High Court could not have
directed the appellant to deposit Rs. 50 lakhs
to be used towards creating greater awareness
for environmental protection and for
preservation of forests.
21. No doubt the High Court was exercising
plenary jurisdiction under Article 226 of the
Constitution. To us, however, even plenary
powers must be exercised judicially and
judiciously on the basis of facts before the
Court and on well-settled principles. Since
the findings recorded by the High Court were in
favour of the appellant-writ petitioner, the
grievance voiced by the appellant that the High
Court was in error in directing deposit of Rs.
50 lakhs is well-founded and the appellant is
entitled to refund of the said amount.
22. As stated by the learned counsel for
the appellant, he had to deposit the said
amount in view of the fact that on deposit of
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the said amount, the appellant was allowed to
proceed with the shooting of the film. He was
thus constrained to make such deposit. It
would, therefore, be appropriate if we direct
refund of the said amount with accrued interest
thereon to the appellant. The State will also
refund Rs.2 lakhs paid by the appellant to the
State towards refundable deposit, however,
without interest. Let such payment be made
within a period of four months from today.
23. For the foregoing reasons, the appeal
is allowed, the order passed by the High Court
to the extent of directing the appellant to
deposit Rs. 50 lakhs by him is set aside and
the said amount with accrued interest is
ordered to be paid to the appellant-writ
petitioner of Civil Writ Petition No. 19842 of
1999. The State will also refund Rs.2 lakhs to
the appellant. On the facts and in the
circumstances of the case, however, there shall
be no order as to costs.
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…………………………………..J.
(C.K. THAKKER)
NEW DELHI, ……………………………………J.
September 11, 2008. (LOKESHWAR SINGH PANTA)