Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICITON
INTERLOCUTORY APPLICATION NO. 1901
IN
INTERLOCUTORY APPLICATION NO. 1888
IN
WRIT PETITION (CIVIL) NO. 4677 of 1985
M.C. Mehta ...Appellant
Versus
Union of India & Ors. ...Respondents
WITH
Interlocutory Application No.1955 in Interlocutory Application
No.1988 in W.P. (C) No. 4677 of 1985
JUDGMENT
Dr. ARIJIT PASAYAT, J.
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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
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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.
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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
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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
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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
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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
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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:
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"96. 1. The order dated 6-5-2002 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.
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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
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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,
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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;
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(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
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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
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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.
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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
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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’.
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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.
.....................................J
(DR. ARIJIT PASAYAT)
.....................................J
(C.K. THAKKER)
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.....................................J
(LOKESHWAR SINGH PANTA)
New Delhi,
May 14, 2008
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