Environmental Law:
Environment protection – Allotment of local ponds – To private industrialists – By Industrial Development Authority – Challenged before Green Tribunal – Challenge dismissed on the basis of affidavit by the Authority claiming to develop bigger alternative water-bodies – Appeal to Supreme Court – Plea of Authority that Government order dated 3.6.16 permitted destruction of exiting ponds and allotment thereof to third-parties in extra-ordinary circumstances and that the land was not a ‘Pokhar’ Pond – Held: Allotment having been made in 2012, order passed in 2016 would not operate retrospectively – Moreover, no extra-ordinary circumstances made out in favour of the allottee – Revenue records show that the land was a ‘Pokhar’ – Protection of such village commons is essential to safeguard the right u/Art. 21 of the Constitution – It is also constitutional obligation of the respondents to ensure protection and integrity of the environment as enshrined u/Arts. 48-A and 51A(g) – The scheme which extinguish local water bodies albeit with alternatives are violative of constitutional principles and hence liable to be struck down – Constitution of India – Arts. 48-A and 51-A(g),
Allowing the appeal, the Court
HELD : 1. The respondents have not been able to demonstrate how the 2016 Government Order can be made applicable retrospectively, the possession having been given to the Company in 2012. Notwithstanding this, no case of the present instance being an extraordinary circumstance (hence permitting recourse to the exceptional provisions of the Government Order) has been made before the Court either. Photographs show that there is substantial water in the pond, which has not been controverted. Further, revenue records maintained by the Revenue Department themselves show that the land was ‘pokhar’. It is hence not open for the authorities to contradict and plead against the record without any scientific or empirical support, for such categorisation had been made by them in the past. Further, it was conceded by respondent-authorities during arguments that Khasra No. 490 was also recorded as ‘pokhar’ in revenue records and that it too had been integrated in the industrial development project. [Para 12] [226-G-H; 227-A-B]
2. Repeal of the UP Zamindari Abolition and Land Reforms Act, 1950 and vesting of such ponds and local areas in the State by Section 57 of the UP Revenue Code, 2006 would not by itself either change the nature of land contrary to revenue record nor will defeat the long-established rights of the local people on commons. [Para 13] [227-C-D]
3. Industrial activities without any rationale classification, unlike the narrow class exempted under the Government Order dated 3.6.16 do not serve a social public purpose or benefit the local people, and thus will be hit by the inalienability bar. [Para 17] [229-A]
4. Even otherwise, the action of the respondent-authorities contravenes their Constitutional obligations. Article 48-A of the Constitution casts a duty on the State to “endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”, and Article 51-A(g) expects every citizen to perform his fundamental duty to “protect and improve the natural environment”. A perusal of the Constitutional scheme and judicial development of environmental law further shows that all persons have a right to a healthy environment. The State is nothing but a collective embodiment of citizens, and hence collective duties of citizens can constructively be imposed on the State. Therefore, it is the responsibility of the respondents to ensure the protection and integrity of the environment, especially one which is a source for livelihood for rural population and life for local flora and fauna. [Paras 18 and 19] [229-B-C; 230-A]
5. Protection of such village-commons is essential to safeguard the fundamental right guaranteed by Article 21 of the Constitution. These common areas are the lifeline of village communities, and often sustain various chores and provide resources necessary for life. Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of the country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal. [Para 20] [230-B-C]
6. The respondents’ scheme of allowing destruction of existing water bodies and providing for replacements, exhibits a mechanical application of environmental protection. Although it might be possible to superficially replicate a waterbody elsewhere, however, there is no guarantee that the adverse effect of destroying the earlier one would be offset. The respondents’ reduction of the complex and cascading effects of extinguishing natural water-bodies into mere numbers and their attempt to justify the same through replacement by geographically larger artificial water-bodies, fails to capture the spirit of the Constitutional scheme and is, therefore, impermissible. Hence, it is clear that schemes which extinguish local waterbodies albeit with alternatives, as provided in the 2016 Government Order by the State of UP, are violative of Constitutional principles and are liable to be struck down. [Paras 21 and 22] [230-D-H] Chigurupati Venkata Subbayya v. Palaguda Anjayya (1972) 1 SCC 521 : [1972] 3 SCR 172 ; Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496 : [2001]
1 Suppl. SCR 23 ; Jagpal Singh v. State of Punjab (2011) 11 SCC 396 : [2011] 2 SCR 250 ; MC Mehta v. Union of India (1988) 1 SCC 471 : [1988] 2 SCR 530 – relied on.
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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