Case: JITENDRA SINGH Vs. MINISTRY OF ENVIRONMENT

. The appellant is a permanent resident of village Saini, tehsil Dadri, of district Gautam Budh Nagar, which falls in the National Capital Region. He claims to be a socially¬active lawyer dedicated to bettering the lives of his co-villagers and alleges that the Original Application before the NGT was triggered when around 18.01.2017 the agents of a private entity (Respondent No. 6 ¬ M/s Sharp Enterprises Pvt. Ltd. - hereinafter ?Sharp?) using excavataors and other heavy machinery attempted to forcibly takeover possession of a ‘common¬ pond?, which had been in use by local villagers for a century. This was objected to by the villagers, and the appellant subsequently made a complaint on 25.01.2017 to various authorities including the District Collector. Pointing out revenue records which elucidate the commons¬ status of the ponds, he sought directions to restrain Sharp and its agents. However, there was no action on his representation for more than 10 days, leading to another attempt by Sharp at dispossession, compelling the appellant to seek police help. A few days later, he submitted another representation to the Collector, but to no avail. Aggrieved, he was left with no recourse but to approach the NGT by way of an Original Application under Section 14 (read with Sections 15 and 18) of the NGT Act for adjudication of these environmental issues.Before the Tribunal, appellant contended that large tracts of his village (but not the impugned water-bodies) had been acquired under the Land Acquisition Act, 1894 ostensibly for industrial development by GNIDA. Subsequently, these acquired lands (including some local ponds) had been leased to private industrialists, including Sharp in 2012. Using revenue records obtained under the UP Consolidation of Holdings Act, appellant showed that Khasra Nos. 552 (1140 sq meters) and 490 (8470 sq meters) were ‘pokhar? (pond) and Khasra Nos. 522 (1620 sq meters) and 676 (9804 sq metres) were ‘rajwaha? (canal). Highlighting that the water bodies were vested in the Gram Sabhas per Section 117 of the UP Zamindari Abolition and Land Reforms Act, 1950, he contended that such land had neither been acquired, nor resumed and hence there was no power with GNIDA to transfer the same to Sharp. He further claimed to have discovered other similar illegal allotments of water bodies by GNIDA to other third¬parties.The appellant urged that neither the mandatory environmental clearances under the Environmental (Protection) Act, 1984 had been obtained by the industrialists nor the statutory authorities applied their mind that the project would negatively impact the environment and human health. Laying support on the Ramsar Convention and Rule 4 of the Wetland (Conservation and Management) Rules, 2010 which prohibited reclamation of wetlands, setting up or expansion of industries, permanent construction or any other activity with potentially adverse effects on ecosystem, he sought cancellation of such illegal allotments and protection of water¬bodies.During pendency of the proceedings, GNIDA?s representatives started filing up certain ponds and started developing an alternate area (1.25 times bigger) as a new waterbody to save the allotment made in favour of Sharp (as admitted in an additional affidavit filed before the NGT on 15.01.2019 by GNIDA).Over the course of proceedings, the appellant was permitted to amend his prayers in the Original Application to enable challenge to all illegalities concerning village commons. No rejoinder or additional affidavit was filed by any respondent against the amended Original Application.The NGT vide its brief impugned order dated 06.03.2019 took note of this representation of constructing alternate pond and abruptly concluded that appellant?s substantial grievance had been redressed. It accordingly dismissed his application, without venturing into the merits or the lis of the dispute.

Reasoning: 12. At the outset, we must note, that the respondents have been unable to demonstrate how the 2016 Government Order can be made applicable retrospectively, the possession having been given to Sharp 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 us either. Further, argument that Khasra No. 552 is a ‘slightly¬sloped seasonal rainfall-catchment area? and not a ‘pond?, is creative but without merit. Photographs have been placed on record by the appellant showing 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.Additionally, it is clear that 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.It is uncontroverted, in the present case, that the Government Order dated 03.06.2016 was a consequence of the afore¬cited judgment in Jagpal Singh. Curiously, however, Clause 5 of the Government Order carves an exception of ?huge projects/works? (albeit in extraordinary circumstances) to Jagpal Singh?s strict principle of non¬alienation of common water-bodies. It is clear that such ground of exception doesn?t fall under the limited class of grants to ?landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land?. Such industrial activities without any rationale classification, unlike the narrow class exempted, do not serve a social public purpose or benefit the local people, and thus will be hit by the inalienability bar.There remains therefore no doubt that 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 flaura and fauna.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. Destroying the lake at Khasra Nos. 552 and 490, for example, would kill the vegetation around it and would prevent seepage of groundwater which would affect the already low water¬table in the area. The people living around the lake would be compelled to travel all the way to the alternative site, in this case allegedly almost 3 kms away. Many animals and marine organisms present in the earlier site would perish, and wouldn?t resuscitate by merely filling a hole with water elsewhere. Further, the soil quality and other factors at the alternate site might not be conducive to growth of the same flora, and the local environment would be altered permanently. 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.