Case: TATA HOUSING DEVELOPMENT COMPANY LIMITED Vs. AALOK JAGGA

e Survey Map of India dated 21.09.2004, demarcating the area of Sukhna Lake, is binding on the State of Punjab. The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is invalid. The environment clearance dated 17.09.2013, granted by State Level Environment Impact Assessment Authority (SEIAA) for development of the project is not in conformity with the Notification dated 14.09.2006 of Ministry of Environment and Forest (MoEF), has also been set aside. It hasalso been ordered that if the permission is granted by the State of Punjab in favour of the appellant if it so desires, it may apply to Central Government for environmental clearance treating project category A.  2. The Tata HDCL proposed to develop a project, namely, CAMELOT in the revenue estate of village-Kansal, Tehsil-Kharar, District-Mohali, State of Punjab. The total project area is 52.66 acres, out of which 41.54 acres is to be developed for group housing built-up area of 4,63,144.54 sqm. The parking facility is to be provided for 3645 ESS. The estimated population of the project area was about 9788. The proposed maximum height of the building was to be 92.65 meters. Environmental clearance was required in terms of the Notification dated 14.09.2006 issued by MoEF, which mandates prior to environmental clearance from the Central Government or by the SEIAA. The Notification has a statutory force having been issued under Section 3(1) and 3(2)(v) of the Environmental (Protection) Act, 1986 ( E.P. Act) read with Rule 5(3)(d) of the Environment (Protection) Rules, 1996 ( E.P. Rules). Tata HDCL applied for environmental clearance from SEIAA, Punjab. The application was forwarded to the State Expert Appraisal Committee (SEAC). In the meeting dated 06.06.2009, the committee awarded gold grading to the proposed project and recommended to forward the project to SEIAA for grant of environmental clearance subject to the conditions specified therein. The MoEF recommended for environmental clearance in its meeting held on 09- 10.11.2010. However, MoEF had called a report from Northern RegionalOffice, Chandigarh vide letter dated 14.10.2010 regarding the proposed project. A team of officers inspected the project site, and, in the report, the distance of the housing-cum-retail project CAMELOT from Sukhna Wildlife Sanctuary is found to be 123 meters on Northern side and 183 meters on the Eastern side. Besides, the report stated that the project falls in the catchment area of Sukhna Lake as per the Survey of India Map.  3. On 12.01.2011, Tata HDCL addressed a letter to MoEF stating that the project site does not contribute to the catchment area of Sukhna Lake as physically the project area does not obstruct the natural flow of water towards Sukhna Lake.  4. In the meanwhile, C.W.P. No.20425/2010 titled Aalok Jagga vs. Union of India and others was filed in the High Court of Punjab and Haryana at Chandigarh, challenging the project to be in violation of the provisions of Punjab New Capital (Periphery) Control Act, 1952 as well as the E.P. Act claiming that the project lies in the eco-sensitive and protected area, apart from falling within the catchment area of Sukhna Lake.  5. The SEIAA sought clarification from MoEF as to whether it is competent to consider the application since the Sukhna Wildlife Sanctuary is located at a distance of 123 meters from the project site as per the report of Northern Regional Office of MoEF. The High Court vide order dated 26.03.2012 directed the Tata HDCL to comply with the requirements of theE.P. Act and Wildlife (Protection) Act for obtaining grant of necessary clearances/sanctions/permissions from the competent authorities.  6. Sarin Memorial Legal Foundation filed Writ Petition (Civil) No.994/2013 in this Court on 09.11.2013, under Article 32 of the Constitution of India challenging the decision of SEIAA, Punjab dated 06.09.2013.  7. Order dated 21.08.2013 was passed by the High Court of Punjab and Haryana in which it was ordered that the project of Tata HDCL would not be affected by the orders passed on 14.03.2011 and 14.05.2012 in CWP No.18253/2009. Sarin Memorial Legal Foundation also questioned the said order in this Court. This Court vide order dated 22.04.2014 disposed of W.P.(C) No.994/13 and Civil Appeal No.4848/2014 filed by Sarin Legal Memorial Foundation. The order passed by the High Court of Punjab and Haryana on 26.03.2012 was set aside. The writ petition was restored; the matters were transferred for the decision to the High Court of Delhi.  8. Municipal Area of Naya Gaon was notified on 18.10.2006 as the Local Planning Area of Naya Gaon. Existing Land Use Plan and Draft Master Plan for Nagar Panchayat Naya Gaon were prepared. Nagar Panchayat Naya Gaon granted permission to raise the construction to Tata HDCL on 09.04.2012. The Tata HDCL claimed, because of the permission granted, under Section 6(2) of the Periphery Control Act, 1952, and the environmental clearance granted under the EP Act, that they were entitledto proceed with the construction of the project in question. However, the petitioners, as well as the Chandigarh Administration, disputed the stand taken by the State of Punjab.  9. Union Territory of Chandigarh has taken the stand that the area falls within the catchment area of Sukhna Lake as such no construction can be raised as per the Survey of India Map. It was adjacent to the wildlife sanctuary, and the distance was 123 meters. There was a violation of the Periphery Control Act, and also clearance was not granted in terms of Notification dated 14.09.2006 of MoEF.  10. It is pointed out that under the order passed by this Court to specify the area as the eco-sensitive zone around wildlife sanctuary, the State of Punjab had forwarded a proposal to the MoEF for permitting the construction beyond 100 meters that has not been accepted by MoEF. It is also submitted that towards the other side of the Sukhna Wildlife Santuary Lake area of 2 km. to 2.75 km. has been declared as an eco-sensitive zone. The MoEF had asked the State of Punjab to send a proposal for keeping the eco-sensitive zone within 1 km. to which the State of Punjab has not responded for the reasons best known to it.  11. It is also the case set up that initially, the housing project was proposed for the Punjab MLA Society for construction of residential houses of MLAs of Punjab Legislature. Subsequently, the said land wassold to M/s. Hash Builders Private Limited with an understanding that each member of Punjab MLA Society would be allotted one flat. The impugned environment clearance dated 17.09.2013 has also suffered from legal malafides, and it amounts to colourable exercise of power since about 95 MLAs of the State of Punjab are the beneficiaries of the proposed project.  12. In W.P.(C) No.2999/2014, it was submitted that the proposed project for extraneous considerations is illegal. The proposed project is located about 1500 meters from Sukhna Lake and 123 meters from the Wildlife Sanctuary. The project is zero kilometers from the periphery of Chandigarh. The project would destroy the wildlife sanctuary and would cause a serious threat to Sukhna Lake. The High Court had banned all construction activities in the catchment area of Sukhna Lake in C.W.P. No.7649/2003. The project would adversely affect the environment within Chandigarh and increase noise pollution by several manifolds, which would harm the wildlife present in the adjoining Sukhna Wildlife Sanctuary. Impact of a high-rise building having 28-storeys on the edict and norms of the city of Chandigarh has not been properly considered.  13. The State of Punjab has supported the case set up by Tata HDCL, the edict of Chandigarh is not applicable in the area in question. Survey of India Map regarding the catchment area of Sukhna Lake, is not conclusive since the objections are yet to be heard. SEIAA rightly considered theapplication since the nearest distance of Sukhna Wildlife Sanctuary from the project boundary on the northern side is 123 meters., as per the Office Memorandum dated 02.12.2009 of MoEF. Tata HDCL has to obtain clearance from the Standing Committee of the National Board for Wildlife before starting any work on the site.  14. In the counter affidavit filed by the Union Territory of Chandigarh, it is submitted that the area in question falls in the catchment area of Sukhna Lake and the heritage zone of the Capitol Complex, the project would have a direct impact on the existence of Sukhna Lake and the environs of Chandigarh City. The Northern side of the Chandigarh, which is also the catchment area of Sukhna Lake, is an ecologically fragile area and substantial part thereof comprises of forest area that has been declared a Wildlife Sanctuary. The Chandigarh Administration is fully committed to saving the heritage of Chandigarh, its forest area, wildlife sanctuaries, and preserve Sukhna Lake. The Conservator of Forests of Chandigarh has written a letter to the Chief Architect, UT of Chandigarh, for the inclusion of the area proposed as Wildlife Corridor along with the approval accorded by the Planning Commission of India in the Master Plan of Chandigarh. It is also submitted that the project is located within the eco-sensitive zone and 10 km. from Sukhna Wildlife Sanctuary, thus the prior clearance from the Standing Committee of National Board of Wildlife before seeking environmental clearance was required to be obtained. The High Court has passed the orders for protection of Sukhna Lake and itscatchment area that no housing, commercial, or industrial project can be allowed on the North of the Capitol Complex of Chandigarh. Thus, it is submitted that no construction may be permitted to the North of the Chandigarh. The environmental clearance has been illegally granted. There was no jurisdiction to SEIAA, Punjab to grant environmental clearance as the project in question is category A. The High Court vide order dated 14.05.2012 has also noted that the Chandigarh Administration had adopted the Survey of India Map as a map of the catchment area of Sukhna Lake. The order was passed to give wide publicity to the general public that no construction is permitted in that area. In paragraph 60 of the impugned judgment, in respect of Survey of India Map, following finding has been recorded:(i) The Survey of India map dated 21.09.2004 is the only document available on record identifying and demarcating the catchment area of Sukhna Lake. Admittedly the said map was prepared under the directions of the High Court of Punjab and Haryana in CWP No.7649/2003 (Dr. B. Singh vs. Union of India). It is also not in dispute that the demarcation of boundaries of catchment area was made after carrying out a survey by Technical Experts and in due consultation with the State of Punjab, State of Haryana and U.T. Chandigarh15. The High Court has also referred to the joint inspection report made on 10.01.2011 by a team of the officer from different department along with Tata HDCL. The observations of the inspecting team are extracted hereinunder:1. The nearest distance from the boundary of the project site was measured by the staff members of Forest Department of U.T. Administration Chandigarh using measuring tape at two points:  i. The nearest distance of Sukhna Wildlife Sanctuary from the project boundary on northern side is 123 meters.  ii. The distance of Sukhna Wildlife Sanctuary from the boundary of project area on Eastern side is 185 meters. It is clarified that a part of the catchment area of Sukhna Lake has been declared as Sukhna Wildlife Sanctuary under Section 26-A of the Wildlife (Protection) Act, 1972 by Chandigarh Administration vide Notification No.694-HII(4)98/4519 dated 6th March 1998 (copy enclosed).  The Tata Housing Project falls in the jurisdiction of Nagar Panchayat, Naya Gaon, District Mohali, State of Punjab, which is approximately 1500 metres away from Sukhna Lake (aerial distance). Further, it also falls under the catchment area of Sukhna Lake as per the Survey of India map.  2. It has been observed by the team that no construction activities have been started by the Project authorities at site. Only wire fencing has been done to demarcate the boundary of the acquired land area. In addition to it, solar light posts have been raised at different spots of the boundary, and a site office comprising three rooms has been constructed. It is stated by the Project Proponent that these offices were constructed by the Defence Services Cooperative Housing Building Society Ltd., and the Tata Housing Development Company has only renovated them for using as a site office. The photographs of different locations of the sites are attached to show that there is no construction activity at the site so far.  It is also mentioned here that there are existing houses and other constructed buildings in Kansal area, which are a part of Kansal village in Punjab and other spontaneous construction.  During the inspection, it has been informed that any notification declaring eco-sensitive zones has not been issued by U.T. Chandigarh Administration and State Government of Punjab till date.  The report is submitted to the Ministry of Environment and Forests for kind information and further necessary actionThe High Court has ultimately given the finding that the project site is found to be a part of the area of Sukhna Lake. The permission granted by Nagar Panchayat on 05.07.2013 to Tata HDCL has been set aside. Verification was sought from the MoEF as Sukhna Wildlife Sanctuary was located at a distance of 123 meters away from the proposed project. SEAC, Punjab, considered the matter on 18.04.2013. Pursuant to that, Tata HDCL filed a revised application on 08.05.2013 in Form I and Form IA. InForm I, the project was described as Group Housing (CAMELOT) Project and it falls under Item 8(b) of the Schedule. The plot area was shown as 52.66 acres, and the net plot area (after the surrender of area for services) was shown as 46.10 acres. The built-up area was shown as 4,63,144.54 sq.m. Concerning the information as to whether the proposal involves approval/clearance under the Wildlife Protection Act, 1972, in the form it was stated:Clearance required from Standing Committee of National Wildlife Board, New Delhi being project within 10 km. from the boundaries of Sukhna Wildlife Sanctuary, as on date Eco-Sensitive Zone has not been declared around Sukhna Wildlife Sanctuary16. With respect to wildlife sanctuary, the High Court has made the following observations:183. It is relevant to note that the consideration by EAC of MoEF, Government of India, was on the basis of the Tata HDCLs first application dated 25.03.2009. In the light of the stand taken by SEIAA Punjab in its counter affidavit, it is clear that no EIA Report was prepared after the submission of the revised application dated 08.05.2013 by Tata HDCL. In the revised application dated 08.05.2013, it was for the first time admitted by Tata HDCL that its proposed project is situated within the prohibited distance of 10 km. from Sukhna Wildlife Sanctuary. It was also admitted that the ariel distance from the proposed project and Sukhna Lake is 123 meters (N) and 185 meters (E).  184. xxx xxx xxx  185. Significantly, this is a case where the project in question is situated within 123 meters from Sukhna Wildlife Sanctuary as recorded in the Site Inspection Report dated 10.01.2011 on the basis of the inspection of the project site conducted by a team of officers in the presence of the representatives of Tata HDCL in compliance with the direction of MoEF vide letter dated 14.10.2010. Though Tata HDCL addressed a letter dated 12.01.2011 to MoEF explaining that the project area does not obstruct the natural flow of water towards Sukhna Lake, the factum of location of Sukhna Wildlife Sanctuary within 123 meters on Northern side and 183 meters on the Eastern side of the project was not disputed. In the light of the said admitted fact, SEIAA, Punjab in its meeting dated 15.12.2011 decided to get a clarification from MoEF as to whether SEIAA, Punjab is competent to consider the application and accordingly addressed a letter to MoEF17. Concerning the declaration of the Buffer Zone around Wildlife Sanctuary, the following facts have been noted by the High Court:193. Regarding the representation of UT Chandigarh dated 09.05.2013 under Section 3 of the Environment (Protection) Act, requesting to declare a Buffer Zone up to 2 - 2.75 km. around all sanctuaries, including Sukhna Wildlife Sanctuary, it is submitted by the learned Senior Counsel that the State of Punjab by its proposal dated 18.09.2013 thought it fit to confine the Buffer Zone to 100 meters only. It is also pointed out by the learned Senior Counsel that so far no notification has been issued by the Central Government under Section 3 of the Environment Protection Act. Thus, it is sought to contend that there is no area earmarked as eco sensitive zone around the Sukhna Wildlife Sanctuary nor a Buffer Zone has been declared as of today.  194. xxx xxx xxx  195. It is also pointed out by Sh. Gopal Subramaniam that in fact State of Punjab, had sent a proposal dated 18.09.2013 requesting the Union of India/MoEF to confine the buffer zone to 100 mtrs. only in the context of Section 3 of Environment (Protection) Act, 198618. The High Court has noted that after reserving the matter, a short affidavit dated 09.03.2017 has been filed on behalf of the Union Territory, Chandigarh, stating that Ministry of Environment Forests and Climate Change, in exercise of the powers conferred by Section 3(2) and 3(3) of the E.P. Act read with Rule 5(3) of the E.P. Rules has notified an area of 1050 hectares, to an extent varying from 2 km. to 2.75 km. from the boundary of Sukhna Wildlife Sanctuary in the Union Territory of Chandigarh, for that Notification dated 18.01.2017 has been issued. The High Court has also relied on the conditions of Notification, which is extracted hereinunder:197…….However, after reserving the judgment in the petitions, a short affidavit dated 09.03.2017 came to be filed on behalf of U.T. Chandigarh in W.P.(C) No.2924/2014 stating that the Central Government, Ministry of Environment, Forests and Climate Change, in exercise of the powers conferred by Section 3(2) and (3) of the Environment (Protection) Act, 1986 read with Rule 5(3) of the Environment (Protection) Rules, 1986 notified anarea of 1050 hectares, to an extent varying from 2.0 kilometers to 2.75 kilometers from the boundary of Sukhna Wildlife Sanctuary in the Union Territory of Chandigarh on the side of Chandigarh as the Sukhna Wildlife Sanctuary, Eco-Sensitive Zone vide Notification dated 18.01.2017. A copy of the said Notification has also been produced, and Para 4 thereof contains the list of activities prohibited or to be regulated within Eco- sensitive Zone. Construction Activities have been included in the said list under Part B-Regulated Activities. Rule 4 to the extent, it is relevant for the present case may be extracted hereunder:  4. list of activities prohibited or to be regulated within Eco-Sensitive Zone. - All activities in the Eco-sensitive Zone shall be governed by the provisions of the Environment (Protection) Act, 1986 (29 of 1986) and the rules made thereunder and shall be regulated in the manner specified in the Table below, namely:A. Prohibited Activities  B. Regulated Activities  12. Construction activities:  No new commercial construction of any kind shall be permitted within 0.5 kilometre (Zone-I) from the boundary of protected area or up to the boundary of the Eco-sensitive Zone whichever is nearer:  Provided that, local people shall be permitted to undertake construction in their land for their residential use, including the activities listed in sub- paragraph (1) of paragraph 3.  (a) Construction of all types of new buildings and houses up to a distance of 0.5 kilometer i.e., in the zone-I shall be prohibited; from 0.5 kilometre to 1.25 kilometre from the boundary of Sukhna Wildlife Sanctuary, construction of low density (ground coverage less than half of the plot size) and low rise building (height up to 15 feet) can be allowed if permissible under the prescribed land use plan of the area; any construction will have to adhere to the Development Regulation applicable to the area and shall be regulated as per the Eco-sensitive Zone management plan; beyond 1.25 kilometre construction of new buildings and houses shall be regulated as per existing Chandigarh Administration Building Bylaws and Architectural Control/Zoning regulation of Union territory Administration. Construction of basement in Zone-I of Eco-sensitive Zone shall not be allowed, however, reconstruction/repair of building in Zone-I shall be allowed subject to the restriction as above i.e. construction of low density (ground coverage less than half of the plot size) and low rise building (height upto 15 feet).  (b) The construction activity related to small scale industries not causing pollution shall be regulated and kept at the minimum, with the prior permission from the competent authority as per the applicable rules and regulations, if any.  (c) The further construction and augmentation of civic amenities shall be regulated as per the Zonal Master Plan.  198. As could be seen from Para 4 of the above Notification, the construction activities in the Eco-sensitive Zone apart from being governed by the provisions of the Environment (Protection) Act, 1986 and the Rules madethereunder shall be regulated in the manner specified therein. Admittedly, the project in question is located at a distance of 123 meters from Sukhna Wildlife Sanctuary. Therefore, the construction of the proposed project not only requires the environmental clearance as provided under the Notification dated 14.09.2006, but it is also subject to the regulations provided under Para 4 of the Notification dated 18.01.2017 issued by the Ministry of Environment, Forests and Climate Change.

Reasoning:
19. The Notification makes it clear that no new commercial construction of any kind shall be permitted within 0.5 km. from the boundary of protected area or up to the boundary of the eco-sensitive zone. Construction of all types of new buildings and houses up to a distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2 km, construction of low density (ground coverage less than half of the plot size) and low rise building about 15 feet can be permitted20. Given the findings above, recorded by the High Court as to the distance from the Wildlife Sanctuary, we have heard learned counsel for the parties on the issue at length21. It is not in dispute that proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab23. It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters. It has also been pointed out from the respondent side that Naya Gaon forms part of the Greater Mohali Region in the State of Punjab. In the statutory, Greater Mohali Area Development Authority, Regional Plan for Greater Mohali Region in paragraph 14.3.1, it has been mentioned that no development is possible within 5 kms buffer distance from existing forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of forests distributed all over the Greater Mohali Region. These have to be conserved, and the buffer zone recommended should be protected against urban development24. It is also clear that 2-2.75 km area has been ordered as eco-sensitive zone by the MoEF and the notification dated 18.1.2017 has been issued as to the adjacent area towards Chandigarh side of the Sukhna Wildlife Sanctuary27. The Directive Principles of State Policy provide that protection and improvement of environment, safeguarding forest and wildlife have been duly enjoined upon the Government. Those principles have found statutory expression in various enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which have been enforced by this Court in various decisions. The inaction of State to constitutional and statutory duties cannot be permitted. The Court has to issue appropriate directions to fulfil the mandate25. The most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The climate change is impacting wildlife by disrupting the timing of natural events. With warmer temperatures, flowering plants are blooming earlier in the year and migratory birds are returning from their wintering grounds earlier in the spring. Wildlife conservation in India has a long history, dating back to the colonial period when it was rather very restrictive to only targeted species and that too in a defined geographical area. Then, the formation of the Wildlife Board at the national level and enactment of Wildlife Act in 1972 laid the foundation of present day wildlife conservation era in post-independent India. Project Tiger in the 1970s and the Project Elephant in 1992–both with flagship species–attracted global attention. India then also became a member of all major international conservation treaties related to habitat, species and environment like Ramsar Convention, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention on Migratory Species, 1979; Convention on Biological Diversity, 1992, among others26. The human as well as the wildlife are completely dependent upon environment for their survival. Human is completely dependent on the environment. Like the human, the wild life is also dependent on the environment for its survival and also get effected by the environment. The relationship between the human and animal can be understood by the food-chain and food-web. The wildlife is affected by several reasons such as population, deforestation, urbanization, high number of industries, chemical effluents, unplanned land-use policies, and reckless use of natural resources etc.