M.C. Mehta vs Union of India & Ors.

Construction by applicant-company – Pursuant to exemption granted u/s. 23 of Haryana Development and Regulation of Urban Areas Act, 1975 on 17.04.1984 – By Notification dated 18.08.1992 (issued under Punjab Land Preservation Act, 1900) prohibited constitution activity on the notified land (including the land of the applicant) – In a parallel exercise, steps were taken by the State notifying development plan under Faridabad Complex (Regulation and Development) Act, 1971 – On the basis of exemption granted in 1984, Town and Country Planning Department encouraged the applicant to go ahead with its construction activity – Principal Chief Conservator of Forests was of the view that the land of the applicant was a forest or was required to be treated as forest with the issuance of Notification under PLP Act and hence, under Forest Conservation Act, 1980, permission of Central Government was required for carrying on a non-forest activity – In the meantime several orders were passed by Supreme Court regarding the issue of deforestation coupled with other environmental issues (in respect of the area in which the land in question was situated) – Applications for clarification or modification or recall of orders – Held: The purpose of issuing the notification under PLP Act is to ensure that in the closed area non-forest activities are not carried out – The Notification is a clear indicator that such closed areas must be forest land or treated as forest land – Therefore, the land notified under PLP Act must be treated as ‘forest’ and ‘forest land’ and has in fact been so treated for several decades by the State – Construction activity carried out by the applicant was clearly in violation of the Notification dated 18.8.1992 and in blatant defiance of orders passed by Supreme Court – Town and Country Planning of the State had been supporting the illegalities of the applicant despite strong resistance from the Forest Department of the State – Extent of violation of the Notification is quite frightening as phenomenal environmental and ecological damage has been caused to the area by the applicants – Construction of the land done prior to Notification date i.e. 18.08.1992 is saved and construction after the Notification date being -illegal must be demolished – However, the applicant is directed to compensate for the land, to those who have made construction after the Notification date – Applicant is directed to refund the amount with interest to those, to whom it has conveyed the land – On the principle of ‘Polluter Pays’ applicant is directed to pay 10% of the amount spent in the development of the area, for rehabilitation of the damaged areas.

Practice and Procedure:

Applications filed before Supreme Court – Dealing of – Guiding factors – Held: The nomenclature given to an application is of no consequence – There is a growing tendency to provide different nomenclatures to applications to side-step the rigours of limitations imposed on an applicant and the Court in dealing with a review petition – What is of importance is the substance of the application – If it is found in substance to be an application for review, it should be dealt with by the Court as such, and by circulation.

Disposing of the applications, the Court

HELD: 1.1 There is nothing in the present applications to remotely suggest that various orders passed by this Court need any clarification or modification or recall. All issues raised by the applicants have been considered threadbare by several Benches of this Court and all of them have arrived at a similar conclusion namely that the environmental and ecological degradation of the Aravalli hills must stop and that everybody is bound by the terms of the notification issued under the provisions of the PLP Act and that closed land under the notification dated 18th August, 1992 is a forest and should be treated as a forest. [Para 82] [428-F-H]

1.2 The view expressed by this Court in *Gurdip Singh Uban case cannot be limited only to applications for modification, clarification or recall. There is a growing tendency to provide different nomenclatures to applications to side-step the rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled as applications for directions, rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review petition by circulation. The nomenclature given to an application is of absolutely no consequence - what is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation. [Para 83][429-A-C]

1.3 The present applications are nothing but disguised review petitions and they should not have been listed for hearing in open Court without an appropriate order passed by this Court. They should have first been circulated and dealt with as review petitions and if the concerned Bench was of the view that they were required to be heard in open Court, only then should they have been listed for hearing in open Court. [Para 84] [429-D]

1.4 However, the court proposes to deal with these applications on merits, treating them as applications for clarification, modification, recall, reconsideration etc. of the orders passed by this Court from time to time. [Para 84] [429-E] *Delhi Administration v. Gurdip Singh Uban (2000) 7 SCC 296 : [2000] 2 Suppl. SCR 496 – referred to.

2.1 The land notified by the State of Haryana under the provisions of the Punjab Land Preservation Act, 1900 (PLP Act) must be treated as ‘forest’ and ‘forest land’ and has in fact been so treated for several decades by the State of Haryana. There is no reason to change or alter the factual or legal position. The construction activity carried out by the applicant is clearly in violation of the notification dated 18th August, 1992 and in blatant defiance of orders passed by this Court from time to time. [Para 2][396-E-F]

2.2 The Town & Country Planning Department of the State of Haryana has been supporting the illegalities of the applicant despite strong resistance from the Forest Department of the State of Haryana. The State of Haryana must be held accountable for its conflicting and self-destructive stand taken in spite of affidavits filed by the Chief Secretary of the State of Haryana from time to time supporting the Forest Department. [Para 2] [396-F-G]

2.3 Sequence of events clearly indicates that the Town & Country Planning Department was very much in favour of the applicant colonizing its land and making constructions therein on the basis of select administrative orders. It was quite prepared to, and did, ignore orders passed by this Court from time to time and also ignored the notification of 18th August, 1992 issued under the provisions of the PLP Act. The understanding of the Town & Country Planning Department seems to be that issues of environmental degradation, pollution and groundwater were not its concern. The Town & Country Planning Department was myopic and brazen in pushing its agenda - certainly vis-à-vis the applicant versus the environment and in disregard of a statutory notification. [Para 33] [410-A-C]

2.4 The purpose of issuing a notification under the PLP Act is to ensure that in the closed area there is no activity such as cultivation, pasturing of sheep and goats, erection of buildings, herding, pasturing or retaining cattle etc. Therefore, the notification is a clear indication that such closed areas must be forest land or treated as forest land so that such objectionable non-forest activities are not carried out therein and that activities that are not normally carried out in forests are prohibited in forest land, so as to preserve and protect such forest land. A notification under the PLP Act does not convert land into forest land but recognizes it as such or at least requires it to be treated as such. [Para 75] [426-A-C]

2.5 In view of affidavits filed by Officers of State of Haryana in different cases, quite clear and consistent that land notified under the PLP Act is forest land and no construction can be made thereon but if some dilution is to be made, then it should be only for the period between 17 th April, 1984 and 18 th August, 1992. The conduct and correspondence of the Town & Country Planning Department shows that it w as very keen on permitting construction in closed areas. Thus, it was categorical in recommending the environmental degradation of the Aravalli hills. In addition to the affidavits of the State of Haryana, the various orders passed by this Court from time to time in **Godavarman case and in ***M.C. Mehta case make it very clear that closed areas under the PLP Act are forest and forest land and need to be treated as forest land. [Paras 91, 92 and 93] [431-F-H; 432-A-B]

2.6 In spite of all these concerns shown to the environment and availability of water, the fact of the matter is that today Badkal Lake is bone dry and there is no water in the ‘Lake’. It has been categoricallytold to the Court that today there is absolutely no water in Badkal Lake. The damage to the environment has been done and appears to be irreversible.[Para 98] [433-G-H; 434-A]

2.7 Notwithstanding the concern shown by this Court for the environment and ecology of the Aravalli hills, the tacit support given to the applicants by the Town & Country Planning Department of the State of Haryana completely vitiated the efforts of the Forest Department as well as the orders of this Court. It came to such a pass that the Delhi Ridge Management Board was compelled to file an application in which it was stated that the withdrawal and pumping of ground water in the Ridge was a matter of serious concern. It was, therefore, prayed that the Government of Haryana may be directed to stop all mining activity and pumping of ground water in and from the area of 5 km from the Delhi-Haryana border in the Haryana side of the Ridge. This application resulted in this Court passing an order on 6 th May, 2002 directing the stoppage of all mining activity and pumping of ground water as prayed for. This order was followed by another order passed by this Court on 22nd July, 2002 requiring EPCA to furnish a report, which it did on 9th August, 2002 to the effect that the order passed on 6 th May, 2002 deserved to be confirmed. [Para 101] [434-F-H; 435-A-B]

2.8 Subsequently, EPCA gave another report on 21 st October, 2002 on the basis of information obtained from the Central Ground Water Board to the effect that mining activity was going on and the mines were operating below the ground water level which was resulting in exploitation and destruction of ground water sources. [Para 102] [435-C]

2.9 The blatant and open flouting of orders passed by this Court resulted in the constitution of the Central Empowered Committee (CEC) on 17th September, 2002 for monitoring and ensuring compliance of the orders passed by this Court. The CEC submitted reports to this Court from time to time. [Para 103] [435-D]

2.10 This Court specifically addressed itself to the question whether closed areas under the PLP Act are ‘forest’ of any kind. This Court noted that the Forest Department of the State of Haryana showed such areas as ‘forest’ in its records and treated such areas as ‘forest’; affidavits had also been filed on behalf of the State of Haryana in cases pending in this Court to the same effect; the word ‘forest’ and ‘forest land’ had been clearly explained by this Court in its order dated 12th December, 1996 and finally the Government of Haryana itself sought permission from the Central Government to divert land closed by notifications under the PLP Act for non-forest purposes. Therefore, it was held that the State of Haryana cannot now take a somersault and contend that areas closed under the PLP Act are not forest. This Court held that areas closed under the PLP Act cannot be utilized for non-forest purposes without the prior permission of the Central Government under the provisions of the Forest (Conservation) Act, 1980. [Para 105] [435-E-H; 436-A]

2.11 The State of Haryana and the applicants had full knowledge of the proceedings in this Court, but showed no concern for the environment and the ecology of the area. It was extremely important for the applicant to have come out with full facts in the review petition filed by it, more particularly the fact of the issuance of the notification dated 18th August, 1992. The failure to disclose this material fact vitiates the proceedings initiated by the applicant in this Court. [Paras 109, 110] [436-G-H; 437-A]

2.12 It was categorically stated on affidavit by the State of Haryana that from the date of the notification, dated 18th August, 1992 the subject land was being treated as forest and it was also included in the list of forests in the Government records. This was also shown as a forest in the affidavit filed by the State of Haryana in **Godavarman case. That the subject land was forest land was also stated by the Principal Chief Conservator of Forests in a letter dated 27 th January, 2006 addressed to the Director, Town & Country Planning Department. In fact, the said Director had required the applicant to seek the diversion of the forest land for non-forestry purposes by letters dated 27th January, 2006 and 27 th June, 2006 but the applicant did not do so. It was specifically pointed out to the applicant in both the letters that constructions made by the applicant were illegal, but obviously, to no effect. [Para 113] [437-F-H]

2.13 In the present case there is a wealth of material to indicate clearly that closed land under the PLP Act is forest land or in any event, is required to be treated as forest land. Several notifications issued under the PLP Act have been brought to the notice of the Court which prohibit certain activities which ought not to be carried out on forest land. The affidavits filed by responsible officers of the State of Haryana, including affidavits filed by the Chief Secretary unequivocally state that lands closed under the PLP Act are forest land. Similarly, there are judgments and orders passed by this Court to the same effect and the conduct of the State of Haryana, including the Forest Department and its relationship with the Town & Country Planning Department is a clear indication that lands closed under the provisions of the PLP Act are nothing but forest or forest land. [Para 117] [438-F-G; 439-A]

2.14 No one has challenged the validity or correctness of the notification dated 18 th August, 1992. The correctness or validity of the notification cannot be challenged without any direct attack. A collateral attack cannot be permitted more certainly so by relying upon another decision of this Court, which has nothing to do with the facts of the present case. On the other hand, the applicants have ‘challenged’ every significant order passed by this Court, either through a Review Petition or through Interlocutory Applications. The applicants have been unsuccessful in every such adventure. On the other hand, the applicants have ‘challenged’ every significant order passed by this Court, either through a Review Petition or through Interlocutory Applications. The applicants have been unsuccessful in every such adventure. [Paras 119, 120] [439-D-F]

2.15 Taking an overall view of all the facts in the case and the law on the subject, there is no doubt that Kant Enclave is a forest or is a forest land or is required to be treated as a forest or forest land and absolutely no construction activity could have been permitted on it with effect from 18th August, 1992. Any and all construction activity in Kant Enclave since that date is illegal and impermissible in law. [Para 121] [439-F-G]

2.16 It is also not correct to say that the inclusion of Khasra Nos. 9 to 16 in village Anangpur in the notification dated 18th August, 1992 was a mistake and that it was always the intention of the State of Haryana to keep this land out of the rigours of the PLP Act. If it was in fact the intention of the State of Haryana to keep Kant Enclave out of the purview of the notification dated 18th August, 1992 nothing prevented the State from either issuing a corrigendum or issuing a fresh notification or taking some positive step to delete Khasra Nos. 9 to 16 in village Anangpur from the rigours of the notification. [Para 124] [440-E-G]

2.17 It is not correct that the notification dated 18th August, 1992 was not applicable to controlled areas, in view of provision u/s. 29(7)(1) of Faridabad complex (Regulation and Development) act, 1971. In terms of Section 2(f) of the said Act, a controlled area means an area declared under Section 29 of the said Act to be a controlled area. As per the Statement of Objects and Reasons of the Act, there was a multiplicity of local authorities in the Faridabad-Ballabhgarh area with the result that integrated development of this area was not possible. Consequently, it was essential to devise a set up for administration of this area which would meet the objectives of rapid and integrated development and eliminate haphazard development. The said Act was intended to achieve this objective. Quite clearly, this has nothing to do with the notification dated 18 th August, 1992. Moreover, Section 29(1) of the said Act related to any law for the time being in force - the notification dated 18 th August, 1992 came much later and was not in force when the said Act was enacted. [Paras 125, 126 and 127] [440-H; 441-A, E-G]

2.18 The provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 does not exempt the applicant or Kant Enclave from the prohibitions imposed by the subsequent notification dated 18th August, 1992. The said Act has no relevance or reference to the provisions of the PLP Act. [Para 128] [441-H; 442-C-D]

2.19 It is nobody’s case, and indeed it cannot be anybody’s case that no area can be declared as a forest after 25th October, 1980. If this were the interpretation given, then the entire purpose of the order dated 12th December, 1996 passed by this Court would be rendered meaningless since it was in terms of this order that forest land was directed to be identified, even if that land was not so recognised as forest land. Acceptance of such interpretation would also emasculate the PLP Act. [Para 129] [442-C-D]

2.20 The order of this Court dated 17th March, 1997 as modified on 13 th May, 1998 permitted construction only in accordance with law and not de hors the notification dated 18th August, 1992. It is not the case of any of the applicants that the orders of this Court gave a complete go by to the notification and virtually quashed it even though it was never under challenge at that point of time or even today. It appears that very large residential complexes have been constructed despite the orders of this Court, which did not give any blanket permission to the applicants to make constructions, according to their whims and fancies. For reasons that are not at all clear, such constructions were permitted by the concerned authorities despite the orders of this Court and even though the notification dated 18th August, 1992 prohibited breaking up of the land. It is difficult, under the circumstances, to take the view that the applicants and the concerned authorities had acted bona fide. [Para 131] [442-F-H; 443-A]

2.21 Out of a total of about 1600 plots said to have been carved out by the applicant in Kant Enclave, conveyance deeds have been executed only in respect of 284 residential plots and three commercial plots. On the residential plots, only 33 houses have been constructed and it appears that not one of them is a single-storey hutment. The extent of violation of the notification dated 18th August, 1992 is quite frightening and one can only imagine the phenomenal environmental and ecological damage caused to the area by the applicants. [Paras 132, 133] [443-B-C; 444-A]

B.S. Sandhu v. Government of India and others (2014)

12 SCC 172 : [2014] 6 SCR 329 – distinguished. **T.N. Godavarman v. Union of India (2008) 16 SCC 401;***M.C. Mehta v. Union of India (1996) 8 SCC

462 : [1996] 2 Suppl. SCR 806; **T.N. Godavarman v. Union of India (1997) 2 SCC 267 : [1996] 9 Suppl. SCR 982 ; Environment Awareness Forum v. State of Jammu & Kashmir [ 2011] 14 SCC 265 ; ***M.C. Mehta v. Union of India (2004) 12 SCC 118 : [2004] 3 SCR

128 ; M.C. Mehta v. Union of India and Ors. (2008)

17 SCC 294 : [2008] 8 SCR 828 – referred to.

3.1 There are two categories of persons who have been taken for a ride by the applicant. The first category consists of those who have been conveyed land by the applicant and the second category consists of those who have been conveyed land and have made constructions. As far as the first category of persons is concerned, the relief that can be awarded to them is a full refund of their investment along with interest at 18% per annum payable entirely by the applicant from the date of the investment. As far as the second category of persons is concerned, the course of action is to save or allow to exist constructions made in Kant Enclave pursuant to the exemption granted to the applicant on 17th April, 1984 under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975 but before 18th August, 1992 when the notification under the provisions of the PLP Act came into force. Any construction made after 18 th August, 1992 is clearly illegal and contrary to law and must be demolished as recommended by the Central Empowered Committee. The constructions made between 17 th April, 1984 and 18th August, 1992 are not disturbed. [Paras 137-139] [445-C-H]

3.2 In the present case, well-meaning citizens have been virtually duped into investing huge amounts despite the applicant and the Town & Country Department of the State of Haryana being fully aware of the statutory notification dated 18th August, 1992 and the restrictions placed by the notification. The applicant and the Town & Country Department of the State of Haryana were also fully aware that Kant Enclave is a forest or forest land or treated as a forest or forest land, and therefore any construction made on the land or utilisation of the land for non-forest purposes, without the prior approval of the Central Government, would be illegal and violative of the provisions of the Forest (Conservation) Act, 1980. Notwithstanding this, constructions were made (or allowed to be made) in Kant Enclave with the support, tacit or otherwise, of the applicant and the Town & Country Department of the State of Haryana. They must pay for this. This is not to suggest that those who have made constructions after

18 th August, 1992 are completely innocent. Nevertheless, it is necessary to compensate them in view of the role played by the Town & Country Planning Department of the State of Haryana. To compensate them for the land, the applicant is directed to give them a full refund of their investment. [Para 141] [446-C-F] Godrej & Boyce Manufacturing Company Limited v. State of Maharashtra (2014) 3 SCC 430 : [2014] 2 SCR 203 – relied on.

3.3 As far as the cost of construction is concerned, tentatively it is quantified at Rs. 50 lakhs. This will be paid to those who constructed after 18 th August, 1992 and whose construction is directed to be demolished. The quantified amount will be paid, in equal proportion, by R. Kant & Co. and the Town & Country Planning Department of the State of Haryana. If anyone who’s construction is demolished in view of the our orders of this Court, is not satisfied with the quantification, that person is at liberty to proceed against R. Kant & Co. and the Town & Country Planning Department of the State of Haryana by way of a civil suit in accordance with law and with the cause of action arising as on the date of present judgment. [Para 142] [446-F-H; 447-A]

3.4 The Polluter Pays Principle is a wholesome principle that has been universally accepted and also adopted and applied. The damage caused to the Aravalli hills, is irreversible. However, perhaps some of the damage could be remedied. Acording to the applicant, it has expended ` 50 crore in developing Kant Enclave. It would be reasonable to require the applicant to deposit 10% of this amount (that is, ` 5 crore) for rehabilitation of the damaged areas. [Para 143] [447-B-D]

Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212 : [1996] 2 SCR 503 ; Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC 647 : [1996] 5 Suppl. SCR 241 – relied on