Case: Himachal Pradesh Bus Stand Management and Development Authority (HPBSM&amp;DA) Vs. The Central Empowered Committee Etc. &amp; Ors

duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. 60. In Goel Ganga Developers India Pvt. Ltd. vs Union of India14, this Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows: 64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more. 61. In M.C. Mehta vs Union of India (2018) 18 SCC 397, a two judge Bench of this Court held that the land notified under Punjab Land Preservation Act, 1900 in the Kant Enclave was to be treated as forest land. As a result, any construction made on the land or its utilization for non-forest purposes without Central Government approval was violative of the Forest Act and therefore illegal. The relevant excerpt of this Courts decision, speaking through Justice Madan B. Lokur, is as follows: 132... R. Kant & Co. and the Town and Country Department of the State of Haryana being fully aware of the statutory Notification dated 18-8-1992 and the restrictions placed by the notification. R. Kant & Co. and the Town and 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 R. Kant & Co. and the Town and Country Department of the State of Haryana. They must pay for this. 62. 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. I.4 Jurisdiction of NGT 63. An ancillary issue now remains for our consideration, which is 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. In a recent two-judge Bench decision of this Court in State of M.P. vs Centre for Environment Protection Research & Development (2020) 9 SCC 781, one of us speaking for the Court (Justice Indira Banerjee), held as follows: 41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. 42. In view of the definition of substantial question relating to environment in Section 2(1)(m) of the NGT Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large. 43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments. 44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I. 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 because the NGTs impugned judgment grounds its decision in the appellant and second respondents violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act. J. Conclusion

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]41. The construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex is illegal and constitutes 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. NGTs finding on this count commends acceptance. The 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 has done so in disregard of the provisions of the Forest Act.The provisions of Section 2 mandate strict and punctilious compliance. Mere substantial compliance is not enough. The construction of the Hotel-cum- Restaurant structure is entirely illegal, having been carried out in clear breach of this mandatory statutory stipulation. That officials of statutory bodies of the State Government have connived at the violation of law is a reflection on the nature of governance by those who are expected to act within the bounds of law.43. 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 appellants own proposed plans in the RFP.44. The findings which were arrived at in NGTs judgment are supported by the report submitted by the District and Sessions Judge. The report 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 relevant findings from the report are excerpted below:4. The EPC has prepared the conceptual plan Ex. Cl I4A, but the bus stand authority went on to flout the aforesaid conceptual plan and on its own and decided to construct bus stand-cum-parking and hotel complex on two pieces of forest land under BOT basis. No sanction or approval was obtained by the Bus Stand Authority under the provision of Forest (Conservation) Act, 1980 for diversion of forest land to use the same for non - forest purpose. The Government of India Ministry of Environment and Forest, turned down the request to use the forest land for non-forest purpose and change the name of user agency from SDO(C) and H.P. Tourism Department to Bus Stand Authority vide copy of letter Ex. Cl03.7. The illegal construction of disputed structure was raised with sole motive to give undue advantage to M/s Prashanti Surya Construction Company and for the same Bus Stand Authority is primarily responsible and in addition to that the officers/officials of other concerned departments are also responsible.12. In this case the Bus Stand Authority did not inform in writing the Director of Town and Country Planning Department, regarding the construction work in question as discussed here in above in the aforesaid statutory provisions. Said information should have been given by the CEO of the Bus Stand Authority in the year of 2005 when the construction work started on the spot. So, the CEO of Bus Stand Authority in the year 2005, is responsible for ignoring the statutory provisions of Section 28 of the H.P. Town and Country Planning Act.45. 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 put us on the path of judicially sanctioned environmental destruction.48. In its decision in Hanuman Laxman Aroskar vs Union of India (supra), this Court, speaking through one of us (DY Chandrachud, J.) recognized the importance of protecting the environmental rule of law. The court observed:142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem.143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement — both in developed and developing countries alike156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution.The point, therefore, is simply this – the environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding.53. In the case before us, it is not possible for us to determine in quantifiable terms 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. 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, what we can record a determination on is the way in which the appellant and second respondent have gone about achieving this object. Specifically, the parties have engaged in the construction without complying with the plans drawn by the appellants 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, it is painfully clear that their actions stand in violation of the environmental rule of law. Whatever else the environmental rule of law may mean, it surely means that construction of this sort cannot receive our endorsement, no matter what its economic benefits may be. A lack of scientific certainty is no ground to imperil the environment.54. In a recent decision of this Court in Bengaluru Development Authority vs Sudhakar Hegde 2020 SCC OnLine SC 328, this Court, speaking through one of us (DY Chandrachud, J.) held:107. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth…108. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions…109. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.55. In Lal Bahadur vs State of Uttar Pradesh (2018) 15 SCC 407,  this Court underscored the principles that are the cornerstone of our environmental jurisprudence, as emerging from a settled line of precedent: the precautionary principle, the polluter pays principle and sustainable development. This Court further noted the importance of judicial intervention for ensuring environmental protection. In a recent decision in State of Meghalaya & others vs All Dimasa Students Union (2019) 8 SCC 177,  this Court reiterated the key principles of environmental jurisprudence in India, while awarding costs of Rs. 100 crores on the State of Meghalaya for engaging in illegal coal mining.58. The above discussion puts into perspective our decision in the present appeals, through which we shall confirm the directions given by the NGT in its impugned judgment. The role of courts and tribunals cannot be overstated in ensuring that the shield of the rule of law can be used as a facilitative instrument in ensuring compliance with environmental regulations.59. We are not traversing unexplored territory. In the past, this Court has clamped down on illegal activities on reserved forest land specifically, and in violation of environmental laws more generally, and taken to task those responsible for it. In a recent three-judge bench decision of this Court in the case of Hospitality Association of Mudumalai vs In Defence of Environment and Animals 2020 SCC OnLine SC 838, this Court was confronted with a situation involving illegal commercial activities taking place in an elephant corridor. Justice S. Abdul Nazeer, speaking for the Court, held as follows:42… the Precautionary Principle has been accepted as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation.60. In Goel Ganga Developers India Pvt. Ltd. vs Union of India14, this Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows:64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more.62. 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.In a recent two-judge Bench decision of this Court in State of M.P. vs Centre for Environment Protection Research & Development (2020) 9 SCC 781,  one of us speaking for the Court (Justice Indira Banerjee), held as follows:41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.42. In view of the definition of substantial question relating to environment in Section 2(1)(m) of the NGT Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large.43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments.44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I.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 because the NGTs impugned judgment grounds its decision in the appellant and second respondents violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act.