Environmental laws: Forest land – Diversion of forest land for construction of bus stand and parking space at McLeod Ganj – Construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex – Legality of – By order dated 12 November 1997, MOEF permitted diversion of 0.093 hectares of forest land for construction of a parking space at McLeod Ganj in accordance with s.2 of the Forest Act – Another order dated 1 March 2001 was passed by MOEF diverting another 0.48 hectares of forest land for construction of a bus stand at McLeod Ganj – In April 2000, appellant-authority was constituted for construction of bus stands in the State of Himachal Pradesh – In 2006, the land diverted for non-forest use under orders dated 12 November 1997 and 1 March 2001 was transferred on a 99 year lease to the appellant for construction of parking facility in McLeod Ganj – Appellant decided to construct a Bus Stand-cum-Parking Complex and approved the lowest bid of second respondent – Second respondent started construction of the Bus stand Complex without awaiting approval of plans and drawings by the Town and Country Planning (TCP) Department – Subsequently TCP Department received application seeking approval of drawings of Bus Stand Complex – TCP Department pointed out certain shortcomings – As second respondent continued with the construction without rectifying the shortcomings, TCP Department called upon the appellant to halt the construction of Bus Stand Complex – Relying upon the report of CEC, NGT gave findings that the project proponent not only started the construction without obtaining appropriate approval and sanction from the concerned State and Central Government but had also worked in collusion with some of the authorities who consented to the commencement of construction which was entirely uncalled ETC. & ORS.
for and was illegal – Hence instant appeal – Held: The construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex was illegal and constituted a brazen violation of law – The permission which was granted by MOEF on 12 November 1997 was only for construction of a ‘parking place’ at McLeod Ganj – Similarly, the permission granted on 1 March 2001 was granted for constructing a ‘bus stand’ in the same area – At no point was any permission granted for the construction of a hotel or commercial structure – Appellant, on being granted permission to engage in construction for a specified purpose, unlawfully utilised that permission as the basis to construct a different structure which was not authorized – It did so in disregard of the provisions of the Forest Act – The provisions of s.2 of the Forest Act mandated strict and punctilious compliance – Mere substantial compliance is not enough – The officials of statutory bodies of the State Government connived at the violation of law which is a reflection on the nature of governance by those who are expected to act within the bounds of law – NGT acted within its mandate in a case of this nature, where the appellant actively allowed the perpetration of a structure in breach of environmental norms – Not looking askance at the construction of the Hotel-cum-Restaurant structure, in an area which the NGT rightly describes as the “lap of nature”, would lead on the path of judicially sanctioned environmental destruction – Directions passed to demolish the Hotel-cum-Restaurant structure in the Bus Stand Complex – Further, as directed by the NGT, the State of Himachal Pradesh and the second respondent can utilise the parking space and the bus stand in the Bus Stand Complex, after the demolition of the Hotel-cum-Restaurant structure – However, this should be in accordance with orders dated 12 November 1997 and 1 March 2001 issued by the MOEF, i.e., it shall not be used for any purpose other than parking of cars and buses, as the case may be – Forest Act – s.2 – Himachal Pradesh Town and Country Planning Act, 1977.
Environmental laws: Environmental rule of law – Essential features of – Held: It seeks to facilitate a multi-disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection – It recognises that the ‘law’ element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges – On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats – Environmental rule of law seeks a unified understanding of these concepts – There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. Environmental rule of law – Violation of – In the case in hand, the exact effect of the construction of the Hotel-cum-Restaurant structure by the appellant and the second respondent on the ecology of the area cannot be determined in quantifiable terms – The parties engaged in the construction without complying with the plans drawn by the appellant’s third-party consultants, which were agreed to by them in the RFP – The construction proceeded even when the TCP Department tried to halt it, refusing to approve its plans – Even the post facto refusal by the MOEF for changing the nature of the diverted forest land was not enough to stop the parties – Ultimately, when they were forced to halt the construction by the CEC, they proceeded with it under the guise of an order of this Court which permitted only legal construction – A combination of these circumstances highlighted not only conduct oblivious of the environmental consequences of their actions, but an active disdain for them in favour of commercial benefits – While the second respondent was a private entity, they were actively supported in these efforts by the appellant – Hence, their actions stood in violation of the environmental rule of law – The environmental rule of law surely means that construction of this sort cannot receive acceptance, no matter what its economic benefits may be.
Jurisprudence: Rule of law and Rule by the law – Distinction between – In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone – The rule of law is to be distinguished from rule by the law – The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process – The rule of law postulates a law which is answerable to constitutional ETC. & ORS.
norms – The law in that sense is accountable as much as it is capable of exacting compliance – Rule by the law on the other hand can mean rule by a despotic law – It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations – A rule of law framework dwells on the institutions which provide the arc of governance – By focussing on the structural norms which guide institutional decision making, rule of law frameworks recognise the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed – A modern rule of law framework is hence comprehensive in its sweep and ambit – It recognises that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power – Rule of law then dwells beyond a compendium which sanctifies rules of law – Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance.
National Green Tribunal Act, 2010: Whether the NGT could have adjudicated upon a violation of the TCP Act, which is not an Act present in Schedule I of the NGT Act – Held: The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP Department before changing the nature of the land through their construction – Non-conformity with this stipulation led to a violation of their environmental obligations – In any case, this question is academic in the instant case because the NGT’s impugned judgment grounds its decision in the appellant and second respondent’s violation of s.2 of the Forest Act, which is an Act present within Schedule I of the NGT Act – Forest Act – s.2 – Himachal Pradesh Town and Country Planning Act, 1977.
Disposing of the appeals, the Court
HELD: 1. The report of the CEC is a serious indictment of the actions of the appellant. The CEC report indicates that: (i) the construction of the Hotel-cum-Restaurant structure in Bus Stand Complex was illegal; (ii) the land was a reserved forest;
(iii) there was no valid permission for diversion for the land for the construction of the Hotel-cum-Restaurant structure; (iv) Forest Act consent was taken only for the parking facility and the bus stand; (v) there was no valid approval from the TCP Department of the plans of the entire Bus Stand Complex; and
(vi) the finally constructed Bus Stand Complex is not in conformity with the appellant’s own proposed plans in the RFP. The report submitted by the District and Sessions Judge presents a striking analysis of the manner in which the Hotel-cum-Restaurant structure was constructed in breach of statutory requirements and how this was made possible by the connivance of multiple state actors. The findings which were arrived at in NGT’s judgment are supported by the report submitted by the District and Sessions Judge. NGT acted within its mandate in a case of this nature, where the appellant actively allowed the perpetration of a structure in breach of environmental norms. Not looking askance at the construction of the Hotel-cum-Restaurant structure, in an area which the NGT rightly describes as the “lap of nature”, will would lead on the path of judicially sanctioned environmental destruction.[Paras 43, 44, 45][375-F-H; 376-A-B, H; 377-A]
2.1 In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations. A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focussing on the structural norms which guide ETC. & ORS.
institutional decision making, rule of law frameworks recognise the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed. A modern rule of law framework is hence comprehensive in its sweep and ambit. It recognises that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance. [Para 46][377-B-G]
2.2 The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools – conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges – of how they have been shaped by humanity’s interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity’s actions have charted. The environmental rule of law seeks to facilitate a multi-disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognises that the ‘law’ element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognises the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance – of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the ETC. & ORS.
universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today. [Para 47][377-G-H; 378-A-H; 379-A-C]
Centre for Environmental Law, WWF- I v. Union of India [2013] 6 SCR 757; Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401 : [2019] 5 SCR 916 – referred to.
2.3 The need to adjudicate disputes over environmental harm within a rule of law framework is rooted in a principled commitment to ensure fidelity to the legal framework regulating environmental protection in a manner that transcends a case-bycase adjudication. Before this mode of analysis gained acceptance, we faced a situation in which, despite the existence of environmental legislation on the statute books, there was an absence of a set of overarching judicially recognized principles that could inform environmental adjudication in a manner that was stable, certain and predictable.However, even while using the framework of an environmental rule of law, the difficulty we face is this – when adjudicating bodies are called on to adjudicate on environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating upon environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations that fall for judicial consideration. The determination of such harm requires access to scientific data which is often times difficult to come by an individual situations. [Paras 50, 51][380-F-G; 381-D-E]
2.4 In the case in hand, it is not possible to determine in quantifiable terms the exact effect of the construction of the Hotelcum-Restaurant structure by the appellant and the second respondent on the ecology of the area. Both of them have tried to argue that the number of trees felled by them, in the case of the present construction, is what it would have been, had they only built a bus stand and a parking space. However, the parties have engaged in the construction without complying with the plans drawn by the appellant’s third-party consultants, which were agreed to by them in the RFP. The construction proceeded even when the TCP Department tried to halt it, refusing to approve its plans. Even the post facto refusal by the MOEF for changing the nature of the diverted forest land was not enough to stop the parties. Ultimately, when they were forced to halt the construction by the CEC, they proceeded with it under the guise of an order of this Court which permitted only legal construction. A combination of these circumstances highlights not only conduct oblivious of the environmental consequences of their actions, but an active disdain for them in favour of commercial benefits. While the second respondent was a private entity, they were actively supported in these efforts by the appellant. Hence, their actions stood in violation of the environmental rule of law. The environmental rule of law surely means that construction of this sort cannot receive acceptance, no matter what its economic benefits may be. A lack of scientific certainty is no ground to imperil the environment. [Para 53][382-B-G]
Bengaluru Development Authority vs. Sudhakar Hegde 2020 SCC OnLine SC 328; Lal Bahadur vs. State of Uttar Pradesh (2018) 15 SCC 407; State of Meghalaya & others vs. All Dimasa Students Union (2019) 8 SCC
177 : [2019] 8 SCR 297; Hospitality Association of Mudumalai vs. In Defence of Environment and Animals 2020 SCC OnLine SC 838; Goel Ganga Developers
India Pvt. Ltd. vs. Union of India (2018) 18 SCC 257; M.C. Mehta vs. Union of India (2018) 18 SCC 397 : [2018] 11 SCR 384 – referred to.
3. In the present set of appeals, the forest land was allowed to be used by the MOEF for the specific purposes of constructing a ‘parking space’ and ‘bus stand’ in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this permission, even when granted an opportunity to do so. Hence, any construction undertaken by the second respondent, even with the tacit approval of the appellant being a statutory authority under the HP Bus Stands Act, will be illegal. [Para 62][386-E-F]
4. The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP ETC. & ORS.
Department before changing the nature of the land through their construction. Non-conformity with this stipulation led to a violation of their environmental obligations. In any case, this question is academic because the NGT’s impugned judgment grounds its decision in the appellant and second respondent’s violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act. [Para 63][387-E-F]
State of M.P. v. Centre for Environment Protection Research & Development (2020) 9 SCC 781 – referred to.
5. The directions issued by the NGT in its judgment are upheld. By the earlier orders dated 16 May 2016 and 9 September 2016, this court only stayed NGT’s direction in relation to the demolition of the Hotel-cum-Restaurant structure. The argument of the appellant against the demolition of the Hotel-cumRestaurant structure in the Bus Stand Complex, submitting that it may be allowed to stand for their use is not accepted otherwise it would legalise what is an otherwise entirely illegal construction. The process of demolishing the Hotel-cum-Restaurant structure in the Bus Stand Complex is directed to commence within two weeks from the date of the judgment and the structure shall be demolished by the second respondent within one month thereafter. In the event of default, the Chief Conservator of Forest along with the administration of district Dharamshala shall demolish the structure and recover the cost and expenses as arrears of land revenue from the second respondent. Further, as directed by the NGT, the State of Himachal Pradesh and the second respondent can utilise the parking space and the bus stand in the Bus Stand Complex, after the demolition of the Hotel-cumRestaurant structure. However, this has to be in accordance with orders dated 12 November 1997 and 1 March 2001 issued by the MOEF, i.e., it shall not be used for any purpose other than parking of cars and buses, as the case may be. [Paras 64, 65, 66][387-G-H; 388-A-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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