M.C. MEHTA versus UNION OF INDIA & ORS.
[2018] 11 S.C.R. 384, Supreme Court of India, 2018
Outcome: IA disposed
Segment: Issues
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M.C. MEHTA
v.
UNION OF INDIA & ORS.
(I.A. Nos. 2310/2008, 2378-2379/2009, 2269,
2270, 2393 and 2381-2384)
In
(W.P. (C) No. 4677 of 1985)
SEPTEMBER 11, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Environmental Law:
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
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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
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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
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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]
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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 17th April, 1984 and 18th August, 1992.
The conduct and correspondence of the Town & Country Planning
Department shows that it was 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 6th 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 6th May, 2002 deserved to be confirmed.
[Para 101] [434-F-H; 435-A-B]
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2.8 Subsequently, EPCA gave another report on 21st
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]
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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 27th 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 27th 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 18th 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
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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 18th August, 1992. Moreover,
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Section 29(1) of the said Act related to any law for the time being
in force - the notification dated 18th 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 13th 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
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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 18th August, 1992
is clearly illegal and contrary to law and must be demolished as
recommended by the Central Empowered Committee. The
constructions made between 17th April, 1984 and 18th August,
1992 are not disturbed.  [Paras 137-139] [445-C-H]
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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
18th 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 18th 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]
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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
Case Law Reference
(2008) 16 SCC 401
referred to
Para 11
[1996] 2 Suppl. SCR 806
referred to
Para 22
[1996] 9 Suppl. SCR 982
referred to
Para 34
(2011) 14 SCC 265
referred to
Para 36
[2004] 3 SCR 128
referred to
Para 41
[2014] 6 SCR 329
distinguished Para 67
[2008] 8 SCR 828
referred to
Para 73
[2000] 2 Suppl. SCR 496
referred to
Para 78
[2014] 2 SCR 203
relied on
Para 141
[1996] 2 SCR 503
relied on
Para 143
[1996] 5 Suppl. SCR 241
relied on
Para 143
CIVIL ORIGINAL JURISDICTION : I.A. No.2310/2008,
I.A. Nos. 2378-2379/2009, I.A. No. 2269,  I.A. No. 2270,
I.A. No. 2393, I.A. Nos. 2381-2384  in Writ Petition (Civil) No. 4677 of
1985
Under Article 32 of the Constitution of India
In Re : Kant Enclave Matters
WITH
I. A. Nos. 2310-2311 in Writ Petition (Civil) No. 202 of 1995.
M.C. MEHTA  v.
UNION OF INDIA & ORS.
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Anil Grover, AAG, Sanjay R. Hegde, Kapil Sibal, S. B. Upadhyay,
Ranjit Kumar (AC), Sr. Advs., A.D.N. Rao (AC), Rishi Raj Sharma,
Sudipto Sircar, Anil Kumar Mishra, Pranjal Kishore, D. C. Pandey,
Rajeev Gurum, Ms. Noopur Singhal, Satish Kumar, Sanjay Kumar Visen,
Pawan Upadhyay,  Ms. Anisha Upadhyay, Sarvjit Pratap Singh, Nishant
Kr., S. Wasim A. Qadri, R. Balasubramanian, Sachin Sharma, Ms.
Subhashini Sen, Pranay Ranjan, D. L. Chidanand, Ritesh Kumar, Raj
Bahadur, Gurmeet Singh Makker, Shivaji M. Jadhav, T. V. George, Ms.
Sharmila Upadhyay, Advs. for the appearing parties.
Petitioner-in-person.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. The principal question that arises in
this batch of substantive applications is whether, in the State of Haryana,
land notified under the provisions of the Punjab Land Preservation Act,
1900 (for short the PLP Act) is forest land or is required to be treated as
forest land.  If so, whether construction carried out by the applicant R.
Kant & Co. on this land is in contravention of the notification dated
18thAugust, 1992 issued under the provisions of the PLP Act, the Forest
(Conservation) Act, 1980 and decisions of this Court.
2. Our answer to both the questions is in the affirmative.  We
have no doubt that land notified by the State of Haryana under the
provisions of the 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 R. Kant
& Co. is clearly in violation of the notification dated 18thAugust, 1992
and in blatant defiance of orders passed by this Court from time to time.
Unfortunately, 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.
There is no doubt that at the end of the day, the State of Haryana comes
out in very poor light and 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.
3. The unfortunate and distressing consequence of this is that
because of a complete lack of any concern for the environmental and
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ecological degradation carried out in the Aravalli hills byinfluential
colonizers like the applicant and what appears to be a very strong mining
lobby in Haryana, the damage caused to the Aravalli hills is irreversible.
It is not only the future generations that have to pay a heavy price for
this environmental degradation, but even the present generation is paying
a heavy price for the environmental and ecological degradation inasmuch
as there is an acute water shortage in the area as prophesied by the
Central Ground Water Board.  In addition, what was once a popular
tourist destination, namely, Badkal Lake has now vanished and the entire
water body has become bone dry. What are the more severe
consequences that will be felt in the years to come, only time and nature
will tell.
Brief background
4. By a communication dated 17th April, 1984 the Commissioner
& Secretary, Town & Country Planning Department of the State of
Haryana granted exemption to the applicant R. Kant & Co. for setting
up a Film Studio and Allied Complex in Khasra Nos. 9 to 16 (owned by
the applicant) in village Anangpur in Faridabad district.  The exemption
was granted under Section 23 of the Haryana Development & Regulation
of Urban Areas Act, 1975 on certain terms and conditions.  Section 23
of the Haryana Development and Regulation of Urban Areas Act, 1975
reads as follows:
“23. Power to exempt– If the Government is of the opinion that
the operation of any of the provisions of this
Act causes undue
hardship or circumstances exist which render it expedient so to
do, it may, subject to such terms and conditions as it may impose,
by a general or special order, exempt any class of persons or
areas from all or any of the provisions of this Act.”
5. The validity of the exemption is not before us and so we need
not delve into the reasons for the exemption. Be that as it may, it appears
that the applicant did not comply with the terms and conditions imposed
upon it and therefore a show cause notice was issued for withdrawal of
the exemption.  The applicant contested the show cause notice and a
hearing was given by the Chief Minister of Haryana being the Minister-
in-charge of the Town & Country Planning Department.  By an order
dated 11th July, 1990 the show cause notice was dropped but some further
terms and conditions were imposed on the applicant.  It is important to
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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note that one of the issues mentioned by the Chief Minister in his order
related to the availability of water.  The significance of this will be adverted
to a little later.  For the present, it may be noted that the order recorded
in paragraph 9 is as follows:
“Director, Town & Country Planning Department further inquired
as to whether any technical as well as physical studies have been
undertaken with regard to the availability of the potable water
tomeet the requirement of this population for the next 20 to 25
years.  In reply to the query of the Director,  Town & Country
Planning Department with regard to the proposed density of the
Complex and the manner in which the requirements of drinking
water is proposed to be met with, the representative of the
Company explained that they have already got a hydrological
survey done for the area from which it has emerged that in 2/3rd
of the site, there are aquifers available at the deeper level
which would be fully exploited to meet the demand of the
water supply for the proposed population of about 30,000.
The Director Town & Country Planning Deptt. observed that as
the company is required to maintain the studio-cum-allied complex
for a period of five years after its completion, the span of availability
of the water from the aquifers is of paramount because ultimately
the responsibility for upkeep and maintenance of this particular
complex would vest with the Faridabad
Complex Administration
or any other Local Authority.  Hence, the company should keep
this particular aspect in view.”[Emphasis supplied by us].
6. It took quite some time for the applicant to accept the terms
and conditions imposed by the Chief Minister in his order dated 11th July,
1990. Eventually, the applicant accepted the terms and conditions and
entered into an agreement on 27th March, 1992 with the State of
Haryana. One of the terms and conditions of the agreement was that
the applicant would complete the entire project of a Film Studio and
Allied Complex within a period of five years; extensions for the area
earmarked for group housing could be considered on merits. It is nobody’s
case that the entire project was completed within a period of five years
and there is nothing on record to suggest that any extension was granted
to the applicant for group housing.
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Notification under the PLP Act and other developments
7. The issue of environmental degradation in the Aravalli hill areas
as well as in the Shivalik hill areas was a matter of concern for the State
of Haryana, as it should be. In this regard, meetings were held and
decisions taken for closing the area between Surajkund and Badkal Lake
under the provisions of the PLP Act. The overall objective of these
discussions and the reference to the PLP Act was for preventing
environmental and ecological degradation of the area due to mining and
quarrying as well as construction activity.
8. On 12th September, 1990 a meeting was held in the context of
closing some areas for purposes of afforestation, particularly those areas
where mining activity was going on.  It was suggested by the Town &
Country Planning Department that areas earmarked for colonisation
should not be closed but no final decision was taken and it was decided
that the list of such areas should be provided or made available for further
directions.  The list was eventually prepared and it included the land of
the applicant, but nothing further happened in this regard.
9. It appears from a reading of the documents before us
(particularly a letter dated 9th June, 1993 sent by the Deputy Conservator
of Forests, Faridabad to the Chief Administrator, Faridabad Complex
Administration, the Administrator of the Haryana Urban Development
Authority and the District Town Planner, Faridabad) that sometime in
1988 the State of Haryana constituted a High-Level Committee for the
development of the area between and around Badkal Lake and Surajkund
Tourist Complexes. It further appears that the High-Level Committee
held several meetings between August 1988 and 1990 and apparently a
Report was submitted recommending that the Aravalli hill area between
these two complexes should be brought under the provisions of the PLP
Act. This seems to have resulted in the issuance of a notification dated
18th August, 1992 under the provisions of Section 4 of the PLP Act.We
had requested learned counsel for the State of Haryana to provide us
with a copy of the Report and the recommendations but they have not
been provided, for whatever reason.
10. The notification prohibited, inter alia, clearing or breaking up
of land not ordinarily under cultivation.  Permission to break the land for
cultivation could be permitted by the Divisional Forest Officer, Faridabad
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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Forest Division.  In any event, construction activity could not be permitted
even by the Divisional Forest Officer.
11. We may note that one of the reasons that appears to have
weighed with the State of Haryana in permitting the breaking up of land
for cultivation is because Haryana is a predominantly agricultural State
with 83% of the total land area under cultivation. This is to be found in
the affidavit dated 25th February, 1997 of Shri S.K. Maheshwari, IAS,
Commissioner & Secretary to the Government of Haryana filed in this
Court in the case of T.N. Godavarman v. Union of India.1 In any
event, as mentioned above, construction activity could not be permitted
even by the Divisional Forest Officer.
12. The notification dated 18th August, 1992 (which included the
land of the applicant and there is no dispute about this) reads as follows:
“No. S.O.104/P.A.-2/1900/S.3/92 – Whereas the Governor of
Haryana is satisfied after the due enquiry that the prohibitions
hereinafter contained are necessary for the purpose of giving effect
to the provisions of the Punjab Land Prevention Act, 1900;
Now, therefore in exercise of the powers conferred by section 4
of the said Act, the Governor of Haryana hereby prohibits the
following acts for a period of thirty years(30 years) with effect
from the date of publication of this order in the official Gazette in
the areas specified in the schedule annexed hereto, the said area
forming
part of the village Anangpur in Ballabhgarh, Tehsil
Faridabad District specified in the schedule annexed Haryana
Government Forest Department Notification No.S.O.59/P.A. -2/
1900/S.3/92, dated 10th April, 1992.
1.  The clearing or breaking up of the land not ordinarily under
cultivation prior to the publication of Haryana Government
Forest Department Notification No.S.O.59/P.A.-2/1900/S.3/
92 dated 10th April, 1992 provided that the breaking in the land
for cultivation may be permitted by the Divisional Forest
Officer, Faridabad Forest Division.
2.    The quarrying of stones or the burnings of lime at place where
such stone or lime had not ordinarily been as quarried or burnt
prior to the publication of the said notification except with the
1 W.P. No. 202 of 1995
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permission of the Collector of Faridabad District who will
consult the Divisional Forest Officer, Faridabad Forest Division
before according such permission.
3.   The cutting of trees or timber or the collection or removal or
subjection to any manufacturing process of any forest produce
other than grass, flower, fruit and honey save for the bonafide
domestic or agricultural purpose of right holders in the land
provided that owners of the land may sell trees or timber after
first obtaining a permit to do so from the Divisional Forest
Officer, Faridabad Forest Division.  Such permit will prescribe
such conditions for sale as may from time to time appear
necessary in the interest of forest conservancy.
4.   The setting on fire of trees, timber of forest produce.
5.   The admission, herding or pasturing, retention of sheep, goats
or camels provided that in case where sickness necessitates
for the keeping of goats, for milk, Divisional Forest Officer,
Faridabad Division may issue a permit at his discretion for the
retention of a limited number of stall-fed goat, to be specified
for a specified period.”
13. In a parallel exercise, steps were taken by the State of Haryana
for publishing a Development Plan for Faridabad.  As a result of this
exercise, the State of Haryana notified the Final Development Plan on
11thDecember, 1991 under Section 29 of the Faridabad Complex
(Regulation and Development) Act, 1971.  One of the factors mentioned
in the notification
justifying the necessity for amendment of the
Development Plan was the rapid increase and scarcity of urbanizable
area in Delhi and the rising population in the National Capital Region.
14. Also, in the meanwhile, it appears that on the basis of the
exemption granted to the applicant in 1984, the Town & Country Planning
Department encouraged the applicant to go ahead with its activity of
colonisation of the land owned by it having an area of about 424.84
acres.  The applicant prepared a layout plan for a Film Studio and Allied
Complex which appears to have been approved by the Town & Country
Planning Department subject to certain terms and conditions on or about
19th December, 1991.
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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15. Therefore, the position as it stood towards the end of August
1992 was that the applicant had the benefit of an exemption under Section
23 of the Haryana Development & Regulation of Urban Areas Act,
1975; the applicant was administratively permitted (if not encouraged)
by the Town & Country Planning Department to construct upon the land
owned by it in village Anangpur; the layout plan prepared by the applicant
was approved by the Town & Country Planning Department and was
apparently in conformity with the Development Plan for Faridabad and
finally, the applicant had entered into an agreement with the State of
Haryana to complete its project of a Film Studio and Allied Complex
within 5 years.  On the other hand, environmental and ecological
degradation in the entire area (which included the land owned by the
applicant) was sought to be prevented by the State of Haryana through
a statutory notification issued by the Forest Department under the
provisions of the PLP Act.  There was, therefore, a dichotomy of views
and a conflict of interest between two Departments of the Haryana
Government – one favouring colonization and the other favouring
environmental protection and conservation.
16. In this back-drop, a doubt arose whether the applicant could
carry on its construction activity for setting up a Film Studio and Allied
Complex in the closed area of the notification.
17. This concern was voiced, amongst others, by
the Principal
Chief Conservator of Forests who sent a communication to the
Commissioner & Secretary of the Forest Department on 31st August,
1992 inquiring whether permission for setting up a Film Studio and Allied
Complex by the applicant could be issued or not. The Principal Chief
Conservator of Forests mentioned in his communication that prior
permission of the Central Government was compulsory for change of
land use. The reason why the Principal Chief Conservator of Forests
mentioned about prior mandatory permission of the Central Government
is because he believed that with the issuance of the notification under
the provisions of the PLP Act, the subject land was a forest or in any
event was required to be treated as a forest and therefore, under the
provisions of the Forest  (Conservation) Act, 1980 the permission of the
Central Government was required for carrying on a non-forest activity
in a forest. We will advert to this issue a little later.
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18. The Principal Chief Conservator of Forests was given a
somewhat casual response to the effect that he could take appropriate
action according to norms.
19.  Apart from the communication dated 31st August, 1992 referred
to above and the response thereto, there was an exchange of letters
between Departments of the State of Haryana with the focal point being
the Town & Country Planning Department requesting that the land
belonging to the applicant may be de-notified and taken out of the purview
of the notification issued under the provisions of the PLP Act. However,
nothing came out of this correspondence and the land of the applicant
was admittedly not de-notified.
20. Eventually on 15th May, 1996 the Conservator of Forests wrote
to the applicant that it was allowed to proceed ahead with its activities in
accordance with the agreement signed with the State of Haryana on
27th March, 1992. Perhaps this permission was granted keeping in mind
that the applicant was required to complete the development works within
a period of five years and also submit a bank guarantee for executing
such development works in terms of the agreement dated 27th March,
1992.  This ‘permission’ was ex facie contrary to the statutorily notified
prohibitions under the PLP Act.
21. Apparently realising this, the above letter was followed up
immediately by another communication sent by the Conservator of Forests
to the Principal Chief Conservator of Forests on 17th May, 1996
requesting that the land owned by the applicant may be de-notified and
that the Haryana Government is morally bound to allow the applicant to
develop the project as per the sanctioned plans.  Nothing came out of
this and the land was not de-notified and no further event of note took
place.
Initial set of orders passed by this Court
22. Around this time, a public interest litigation M.C. Mehta v.
Union of India2  was pending in this Court regarding issues of
deforestation coupled with other environmental issues.
23.  On 10th May, 1996 this Court passed a rather significant order
relating to the Aravalli hills and the areas adjoining the land of the applicant.
This was on the basis of a report prepared by the Haryana Pollution
Control Board and another by the National Environmental Engineering
2 W.P. No. 4677 of 1985
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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Research Institute in respect of environmental degradation and pollution
in the eco-sensitive zone in the Aravalli hills.  By the order dated 10th
May, 1996 this Court prohibited mining within a 2 km radius of Badkal
Lake and Surajkund and construction activity of any type within a radius
of 5 km from Badkal Lake and Surajkund.3  In fact, all open areas were
directed to be converted into green belts.  As a result of this, the applicant
obviously could not carry out any activities in the land owned by it, where
it had proposed to establish a Film Studio and Allied Complex.  The
prohibition imposed by this Court was obviously in addition to the
prohibition imposed by the notification issued under the PLP Act. It is
quite likely that this Court was not even made aware of the notification
under the PLP Act.
24. The order passed by this Court on 10th May, 1996 was sought
to be modified/clarified by the Executive in Haryana on the ground that
in the prohibited 5 km radius, buildings were under construction, plots
had been allotted/sold under various development schemes and the plot
holders had even started construction. Consequently, the vested rights
of several persons were likely to be affected thereby causing them a
huge financial loss.
25. After hearing learned counsel for the parties, this Court took
the view, again on the basis of the above reports, that to protect the two
lakes from environmental degradation, it
would be necessary to limit
construction activity in the close vicinity of the lakes. Consequently, by
an order dated 11th October, 1996 the earlier order of 10th May, 1996
was clarified, inter alia, to the effect that no construction shall be
permitted within the green belt around the two lakes, that is an area
having roughly 1 km radius. As far as the area outside the green belt is
concerned, it was directed that no construction would be permitted for a
further 1 km.  It was, however, clarified that the latter direction would
not apply to plots already sold or allotted prior to 10th May, 1996 in the
developed areas and that unallotted plots in the said areas may be sold
with the prior approval of the concerned authority.  All development
schemes and plans for constructions in the area from 1 km to 5 km
radius of the lakes shall require prior approval from the Central Pollution
Control Board and the Haryana Pollution Control Board.4   The clarification
given by this Court on 11th October, 1996 reads as follows:
3M.C. Mehta v. Union of India, (1996) 8 SCC 462
4 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India,
(1997) 3 SCC 715
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“1. No construction of any type shall be permitted, now onwards,
within the green belt area as shown in Ex. A and Ex. B. The
environment and ecology of this area shall be protected and
preserved by all concerned. A very small area may be permitted,
if it is of utmost necessity, for recreational and tourism purposes.
The said permission shall be granted with the prior approval of
“the Authority”, the Central Pollution Control Board and the
Haryana Pollution Control Board.
2. No construction of any type shall be permitted, now onwards,
in the areas outside the green belt (as shown in Ex. A and Ex. B)
up to one km radius of the Badhkal lake and Surajkund (one km to
be measured from the respective lakes). This direction shall,
however, not apply to the plots already sold/allotted prior to 10-5-
1996 in the developed areas. If any unallotted plots in the said
areas are still available, those may be sold with the prior approval
of ‘the Authority’. Any person owning land in the area may
construct a residential house for his personal use and benefit. The
construction of the said plots, however, can only be permitted up
to two and a half storeys (ground, first floor and second half floor)
subject to the Building Bye-laws/Rules operating in the area. The
residents of the villages, if any, within this area may extend/
reconstruct their houses for personal use but the said construction
shall not be permitted beyond two and a half storeys subject to
Building
Bye-laws/Rules. Any building/house/commercial premises
already under construction on the basis of the sanctioned plan,
prior to 10-5-1996 shall not be affected by this direction.
3. All constructions which are permitted under directions 1 and 2
above shall have the clearance of “the Authority”, the Central
Pollution Control Board and the Haryana Pollution Control Board
before “occupation certificates” are issued in respect of these
buildings by the authorities concerned.
4. All development schemes, and the plans for all types of
constructions relating to all types of buildings in the area from one
km to 5 km radius of the Badkhal Lake and Surajkund (excluding
Delhi areas) shall have prior approval of the Central Pollution
Control Board and the Haryana Pollution Control Board.”
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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26.  According to the applicant, its land was beyond the 1 km
radius but within the 5 km radius and the orders passed by this Court
vitally affected it. The applicant’s view was that its project was mainly a
residential colony having a commercial complex, schools, hospitals and
film studios, but no industry of any nature whatsoever. It had expended
a huge amount in the project, but could not proceed any further with it in
view of the order dated 11th October, 1996 passed by this Court. Given
the nature of the project, it was unreasonable to require the applicant to
obtain no objection certificates from the Pollution Control Boards.
Consequently, a Review Petition being R.P. (C) No. 914 of 1997 was
filed by the applicant on or about 26th February, 1997 seeking a review
of the order 11th October, 1996. It was submitted in the application that
the restrictions imposed by this Court do not pertain to constructions of
the applicant and that the requirement of obtaining a no objection certificate
from the Pollution Control Boards does not apply to the constructions of
the applicant, which fall beyond 1 km but within the 5 km radius of
Badkal Lake and Surajkund.
27. The application for review came up for consideration on
17th March, 1997 when this Court noted that it did not have sufficient
time to dispose of the matter that day. But by way of an interim order it
was directed, inter alia, that a person owning land in the
areas above
mentioned (in the order dated 11th October, 1996) may construct a
residential house up to 2 ½ floors subject to the building bye laws and
rules operating in the area. Those individuals who seek to construct
houses in accordance with the decision of this Court and in conformity
with the relevant rules may file their plans with the competent authority
who may examine and keep the plans ready until further orders. In other
words, even in such cases permission for construction was not granted,
but permission to prepare plans was of course granted. It was further
directed that the authorities should not insist upon the production of a no
objection certificate from the State or Central Pollution Control Board.
The order passed by this Court on 17th March, 1997 reads as follows:
“The grievance of the petitioner is that when individual’s who
seek to construct their houses applying the plans of the Faridabad
Municipal Corporation, the plans are not being approved on the
ground that the clearance certificates are not obtained from the
Pollution Control Board.  We do not have the sufficient time to
dispose of the matter today, we think that,
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1) all the individuals who seek to construct their houses within
2 ½ floors’ range as indicated in the judgment of this Court,
they are  liberty to file plans before the competent
Authority.  The competent Authority would examine whether
the plans are in conformity with the Rules and within 2½
storeys’ range laid down by this Court.  If the authority
finds the plans in conformity with the above Rules and the
directions given by this Court, the same may be examined
and kept ready until further orders.
2) For the examination of these matters, the authorities are
directed not to insist upon production of no objection
certificate from the State or Central Pollution Control
Board.”
28. On or about 2nd July, 1997 the Municipal Corporation of
Faridabad filed a reply to some pending applications and the Review
Petition.  After detailing the facts, including the impact of the orders
passed by this Court, the difficulties faced by the Municipal Corporation
in implementing them and other directions, it was prayed that certain
schemes in the Haryana Urban Development Authority sectors (schemes
mentioned at serial nos. 3, 4 and 5 of the reply) may not be affected by
the order passed by this Court on 11th October, 1996.  With regard to
other projects and development schemes sanctioned in accordance with
the Development Plan prior to the order dated 10th May, 1996 it was
prayed that they may also not be affected by the order passed by this
Court on 11th October, 1996.
Similarly, buildings, houses, commercial
premises already sanctioned prior to 10th May, 1996 in accordance with
the Development Plan may not be affected by the order of 11th October,
1996 and construction may be permitted as per the Development Plan
and building by-laws in force.
29. The Review Petition was again taken up for consideration on
13th May, 1998.  On that date, a modified plan and some maps were
placed before this Court. Upon a perusal of these maps, it transpired
that some areas got excluded from the 1 km green belt, as originally
proposed. It was directed that these areas could be urbanised in
accordance with the applicable laws and rules. With regard to private
lands (such as that of the applicant) it was directed that in the areas
adjoining the Surajkund complex, the State of Haryana may review the
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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position so that only single-storey “hutments” are permitted to be
constructed and “not tall buildings as originally conceived.” The order
passed by this Court was directed to be in modification or substitution of
all earlier orders in that behalf.The order passed on 13th May, 1998 reads
as follows:
“A modified plan has been placed on record.  The area meant to
be left for Surajkund and around has been earmarked on the said
plan by a zig-zag line.  In the face of these altered boundaries
from previous maps, certain areas have come out from the one
kilometre belt as originally proposed.  Whatever areas have fallen
out and whatever are adjacent thereto, urbanization thereof will
take place in accordance with the laws, rules and regulations
applicable to those areas as provided by the Faridabad
Municipal Corporation.
Certain private areas (marked as ‘ABCD’) in which construction
is proposed would have to be viewed again.  We have desired of
the learned counsel for the State of Haryana to render assistance
in that regard so that in the areas adjoining the Surajkund
Complex only single storey hutments get permitted to be
constructed and not tall buildings as originally conceived.
Small areas as shown red on the plan would require to be acquired
for the Complex. This means that the State will have to pay
compensation on acquisition.  But Mr. Salve, learned Senior
Counsel who appears for some of the land owners says that
those
land owners who are owning those two small red patches which
are within the encirclement would surrender the same to the Sate
without compensation.
This order shall be in modification or substitution of all earlier
orders in that behalf.” [Emphasis supplied by us].”
No further orders were passed in this regard, except an order
relating to a hotel complex, with which we are not concerned. The review
petition was then disposed of by this Court on 12th October, 1998.
30. It seems to us that these orders passed by this Court were not
blanket orders which could permit the applicants to ignore the notification
dated 18th August, 1992. The requirement, in terms of the orders passed
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by this Court, continued to be adherence to the laws, rules and regulations
which would necessarily include the notification issued under the
provisions of the PLP Act.
Issues arising out of the orders passed by this Court
31. In this background and context, it appears that some questions
were raised by the Financial Commissioner and Secretary to Government,
Haryana Revenue Department in a letter dated first March, 1999 with
regard to the status of the land owned by the applicant. The issues raised
were to the following effect: (i) whether the applicant is in unauthorised
possession of the land; (ii) whether the applicant has violated any statutory
provision and is using the land in the manner in which it is authorised; (iii)
whether it is permissible for the applicant to develop a residential colony
in the land for which it had obtained an exemption for setting up a Film
Studio and Allied Complex and whether the Town & Country Planning
Department had permitted this.
32. In response to these issues, the Director in the Town & Country
Planning Department wrote to the Financial Commissioner & Secretary
to the State of Haryana on 16th March, 1999 to the following effect:
“Regarding issue No.1.  It is to inform that as per certificates
given by Dist. Revenue Authority from time to time, M/s R. Kant
& Company is in authorised possession of land in Khasra No. 9-16,
vill. Anangpur Distt. Faridabad.  Photos of the certificates given
by Revenue Authority are
enclosed herewith.
Regarding issue No. 2 it is to inform that the Company is using
the land according to approved layout plan and service plan
estimates.
Regarding issue No. 3, it is to inform that in the revised approved
layout plan of Kant Enclave Film Studio and Allied Complex, in
addition to Film Studios provision of resident plots, group housing
and the required social and commercial infrastructure has been
made as per the exemption order of 1984 revocation order of
1990 and an agreement dated 27.3.92 executed by the company
with the Government.  Therefore the provision of residential
plots in Kant Enclave is permissible.” [Emphasis supplied
by us].
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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33. It will be noticed that the Director, Town & Country Planning
Department did not make any reference to the notification dated 18th
August, 1992 issued under the provisions of the PLP Act. This 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 ignore 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.  To say the
least, 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.
Another attempt at colonization
34. In proceedings pertaining to the protection and conservation
of forests throughout the country, this Court passed an order on
12th December, 1996 which is of considerable significance. The order
was passed in Writ Petition No. 202 of 1995 with Writ Petition No. 171
of 1996.5 After hearing the learned Attorney General, learned counsel
for the States, the parties and other applicants as well as the learned
AmicusCuriae it was
held by this Court that the Forest (Conservation)
Act, 1980 was enacted with a view to check further deforestation, which
would ultimately result in ecological imbalance. It was held that therefore
the provisions of the law for conservation of forests and for matters
connected therewith, must apply to all forests, irrespective of the nature
of ownership or classification thereof. It was held:
“………The word “forest” must be understood according to its
dictionary meaning. This description covers all statutorily
recognised forests, whether designated as reserved, protected or
otherwise for the purpose of Section 2(i) of the Forest Conservation
Act. The term “forest land”, occurring in Section 2, will not only
include “forest” as understood in the dictionary sense, but also
any area recorded as forest in the Government record irrespective
of the ownership. This is how it has to be understood for the
purpose of Section 2 of the Act. The provisions enacted in the
5 T.N. Godavarman v. Union of India, (1997) 2 SCC 267
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Forest Conservation Act, 1980 for the conservation of forests
and the matters connected therewith must apply clearly to all
forests so understood irrespective of the ownership or classification
thereof…...”
35. It was further directed that in view of the meaning given to
the word ‘forest’ it is obvious that prior approval of the Central
Government is required for any non-forest activity within the area of
any forest. All ongoing activity within any forest in any State throughout
the country, without the prior approval of the Central Government, must
cease forthwith. Each State Government was also directed to constitute
within one month an Expert Committee to identify areas which are forests,
irrespective of whether they are so notified, recognised or classified
under any law, and irrespective of the ownership of the land of such
forest and also to identify areas which were earlier forests, but stand
degraded, denuded or cleared. In other words, this Court gave a realistic
and pragmatic definition to the word ‘forest’ and ‘forest land’.
36. However, even before that, as far as the State of Haryana is
concerned, an affidavit was filed by Shri Banarsi Das, IFS, Principal
Chief Conservator of Forests, Haryana in Environment Awareness
Forum v. State of Jammu & Kashmir.6 The affidavit dated
8th December, 1996 stated that the total forest area in Haryana is 1,54,706
hectares (1995-96), which includes 11,513 hectares of PLP Act areas.
It further says that earlier
(1985-86) the forest area in Haryana was
1,68,543 hectares, which included 26,499 hectares of PLP Act areas.
The reduction in the forest area was due to the expiry of notifications
issued under the PLP Act and Section 38 of the Indian Forest Act, 1927.
It was noted that steps were taken for protection of forests, which
included the enforcement of regulations under the PLP Act. What is of
significance is that even before the order was passed by this Court on
12th December, 1996 the State of Haryana had acknowledged its
treatment of PLP Act areas as forest land, and as we shall see later, this
was always so.
37. In T.N. Godavarman v. Union of India7 an affidavit was
filed by the State of Haryana on 25th February, 1997. The affidavit was
sworn by Shri S.K. Maheshwari, IAS, Commissioner & Secretary to
the Government of Haryana, Forest Department. In his affidavit,
6 W.P. No. 171 of 1996
7 W.P. No. 202 of 1995
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reference was made to the order passed by this Court on 12th December,
1996. It was stated in the affidavit that as far as identification of areas
which were forests, but stand degraded or denuded or cleared, it would
not be possible to do so without prescribing some cut-off date since land
that is closed under the provisions of the PLP Act “creates forests” and
the Act is as old as 1900. Therefore, a cut-off date of 25th October, 1980
was selected as on that date the Forest (Conservation) Act, 1980 came
into force. It was further stated that land that is closed under the provisions
of the PLP Act is a forest only during the period of closure. After expiry
of the closure period, the land is no longer shown as forest in the records
of the Forest Department. A little later in the affidavit, it was reiterated
that an area closed under the provisions of the PLP Act is “counted as
forest” only during the currency of the closure. Taking all such areas
into consideration, it was stated that the recorded forest cover in the
State of Haryana is now 149,680.49 hectares.
38. Notwithstanding the affidavit, the Director in the Town &
Country Planning Department issued a communication dated 16th March,
1999 to the effect that the provision of residential plots in Kant Enclave
was permissible.  In view of the affidavit of Shri S.K. Maheshwari,
there is enough room to suspect the bonafides of the applicant and the
Town & Country
Planning Department, but we leave it at that.
Further set of orders passed by this Court
39. In the writ petition filed by M.C. Mehta an application was
filed by the Delhi Ridge Management Board on 5th December, 2001
(being IA No. 1785 of 2001) to the effect that large-scale mining activity
near the Delhi-Haryana border was resulting in a large quantity of ground
water being pumped out from mining pits. As far as Delhi is concerned,
the mining and extraction of groundwater had been banned and the Ridge
in Delhi was being protected in terms of the orders passed by this Court
from time to time. However, it was stated in the application that the
Ridge in Haryana also needed to be protected as this was an extension
of the same range. It was submitted that mining, withdrawal of
groundwater and destruction of flora etc. should also be restricted outside
Delhi or at least up to 5 km from the Delhi-Haryana border towards
Haryana. The significance of this application is that it jogs the memory
and recalls the order passed by the Chief Minister of Haryana on
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11th July, 1990 relating to the availability of potable drinking water and
the span of availability of water from the aquifers and their application.
40. Acting upon the application filed by the Delhi Ridge
Management Board, this Court passed an order on 6th May, 2002 as
follows:
“IA No. 1785
Issue notice. Mr Bharat Singh accepts. Reply be filed within four
weeks. Rejoinder be filed within four weeks thereafter. In the
meantime, within 48 hours from today the Chief Secretary,
Government of Haryana is directed to stop all mining activities
and pumping of groundwater in and from an area up to 5
kms from the Delhi-Haryana border in the Haryana side of
the Ridge and also in the Aravalli Hills. [Emphasis supplied
by us].
41. The application appears to have been taken up for consideration
on 22nd July, 2002. The proceedings of that date have not been reported,
but have been mentioned in M.C. Mehta v. Union of India.8  This
Court directed the Environment Pollution Control Authority (EPCA) to
give a report with regard to the environment in the area, preferably after
a personal visit. It was noted that EPCA had been constituted by the
Government of India by a notification dated 29th January, 1998 issued in
exercise of power conferred by Sections 3(1) and 3(3) of the Environment
(Protection) Act, 1986. Generally speaking, EPCA was constituted to
protect and improve the quality of the environment and to prevent, control
and abate environmental pollution.
42. EPCA
did visit the subject area and also took the opinion of
the Central Groundwater Board and in its report of 9th August, 2002 it
recommended that the ban on mining activities and pumping of
groundwater in and from an area up to 5 km from the Delhi-Haryana
border in the Haryana side of the Ridge and also in the Aravalli hills
must be maintained.
43. EPCA gave a further report on 21st October, 2002 reaffirming
its earlier recommendations. It was further recommended that if mining
is allowed to continue in this area, it would have serious implications for
the groundwater reserves. EPCA also noticed uncontrolled construction
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activities that would expand urban habitation considerably in future and
therefore recommended that unless immediate measures were taken to
conserve and augment water resources in the area, an acute survival
crisis could be expected. Interviews with local villagers in the vicinity of
the mines confirmed that water shortage was already a serious problem
in the region.
44. This Court also referred to reports by another expert body,
namely the Central Empowered Committee (CEC). This expert body
was constituted by a notification dated 17th September, 2002 issued by
the Ministry of Environment and Forests in exercise of power conferred
by Section 3(3) of the Environment (Protection) Act, 1986. The CEC
was constituted for monitoring and ensuring compliance of the orders
passed by this Court in relation to forests and wildlife and other related
issues arising out of the orders. The CEC was also expected to submit
reports regarding non-compliance of the orders of this Court, including
in respect of encroachments and removals, working plans, compensatory
afforestation, plantations and other conservation issues.
Reports of the CEC
45. Among the first few reports given by the CEC, one dated
14th December, 2002 deserves mention.  It is not clear what led to this
report, but in any event, it was considered by this Court on 16th December,
2002 and an order was passed as a result of the report that no mining
activity would be
permitted in areas where there is a dispute of applicability
of the Forest (Conservation) Act, 1980 till such time the dispute is resolved
or approval for non-forest activity is accorded under the said Act by the
Central Government.9  This Court also directed that no mining would be
permitted in areas for which a notification under Sections 4 and 5 of the
PLP Act has been issued in regulating the breaking up of the land etc.
and such lands are or were recorded as ‘forest’ in government records
even if the notification period had expired, unless there was approval
under the provisions of the Forest (Conservation) Act, 1980. These
directions are significant and appear, generally, to have been overlooked.
46. Separately and in compliance of orders passed by this Court
on 25th November, 2002 the CEC submitted three reports, all of which
primarily pertained to mining activities in the subject area. These reports
were considered by this Court and dealt with in the judgment and order
9T.N. Godavarman v. Union of India, (2008) 16 SCC 401
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passed on 18th March, 2004.10 In the report dated 22nd January, 2003
(erroneously recorded as June) it was recommended by the CEC that
mining activity may be allowed in the areas closed under the provisions
of the PLP Act “which for the purpose of the [Forest (Conservation)]
Act are ‘forest’ even as per the State Government records, only after
obtaining prior approval under the said Act from the MoEF (Ministry of
Environment and Forests).” In another report, dated 7th February, 2003
it was recommended that the ban on mining activity may continue up to
2 km from Surajkund and Badkal Lakes in terms of the order passed by
this Court on 10th May, 1996.
47. While considering the entire issue, this Court also considered
the question whether areas covered under the PLP Act are ‘forest’ of
any kind. While dealing with this, it was noted that the Forest Department
of the State of Haryana has been treating and showing the closed areas
as ‘forest’ in its records. This Court also adverted to the affidavits filed
in this Court from time to time, including by Shri S.K. Maheshwari and
Shri Banarsi Das. This Court also drew attention to its earlier order of
12th December, 1996 and the fact that the State of Haryana had been
seeking permission of the Central Government to divert such closed
land for non-forestry purposes. This Court also referred to letters dated
26th November, 2002 and 17th September, 2001 wherein a view was
expressed that land closed under the PLP Act
is forest land. This Court,
therefore, declined to permit the State of Haryana to take a somersault
and contend that land closed under the provisions of the PLP Act is not
forest. This is what this Court said in paragraph 82 of the Report:
“In the instant case, it is not necessary to decide the legal effect
of issue of the notification under Sections 4 and/or 5 of the [PLP]
Act. Not only in their record has the area been shown as forest
but affidavits have been filed in this Court stating the area to be
“forest”. In T.N. GodavarmanThirumulkpad v. Union of India
[(1997) 2 SCC 267] this Court held that the term “forest” is to be
understood in the dictionary sense and also that any area regarded
as a forest in government records, irrespective of ownership, would
be a forest. The State of Haryana, besides having filed affidavits
in the forest matters treating such areas as forest for the purposes
of the FC Act has been seeking prior approval from the Central
Government for diversion of such land for non-forestry purpose.
10 M.C. Mehta v. Union of India, (2004) 12 SCC 118
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Reference in this connection may also be made to the affidavit
dated  8-12-1996 filed by Banarsi Das, Principal Chief Conservator
of Forests, Chandigarh, Haryana in Environmental Awareness
Forum v. State of J&K [ Civil Writ No. 171 of 1996]. Our attention
has also been drawn to letter dated 26-11-2002 addressed by the
Divisional Forest Officer, Faridabad to the Mining Officer,
Faridabad forwarding to him a list of blocked forest areas of
Faridabad district and requesting him to ensure that the said forest
areas are not affected by any mining operations as also to a letter
dated 17-9-2001 sent by the Principal Chief Conservator of Forests,
Haryana (Panchkula) to the Director of Environment, Haryana
stating therein that no mining activity can be permitted in the area.
On the facts and circumstances of the case, we cannot permit
the State Government to take a complete somersault in these
proceedings and contend that the earlier stand that the area is
forest was under some erroneous impressions. In the present case,
for the purposes of the FC Act, these areas shall be treated as
forest and for use of it for non-forestry purpose, it would be
necessary to comply with the provisions of the FC Act.”
48. Having considered voluminous material on record, this Court
concluded in the said judgment of 18thMarch, 2004 that it would be
appropriate to constitute a Monitoring Committee, which it did, “to monitor
the overall
eco-restoration efforts in the Aravalli hills and to provide
technical support to the implementing organisations and also to monitor
implementation of recommendations contained in reports referred
herein…” This Court also held that the order dated 6th May, 2002 as
clarified in the judgment cannot be varied or vacated before consideration
of the report of the Monitoring Committee. It was also concluded that
on the facts of the case, the mining activity in areas covered under the
provisions of the PLP Act cannot be undertaken without approval under
the Forest (Conservation) Act, 1980.
49. Therefore, apart from stopping mining activity, this Court also
stopped pumping of groundwater in and from an area upto 5 km from
the Delhi-Haryana border in the Haryana side of the Ridge and also in
the Aravalli hills.
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Further reports of the CEC
50. Notwithstanding the decisions of this Court rendered from
time to time and a wealth of material to the effect that the Aravalli hills
need to be protected, the issue of colonizing the land owned by the
applicant, which was the subject matter of the prohibitory notification
under the provisions of the PLP Act, was kept alive. Applications were
filed by interested parties in this Court and the CEC was required from
time to time to submit reports to this Court.
51.  In a report dated 12th September, 2007 which pertained mainly
to mining activities in Gurgaon and Faridabad districts of Haryana, one
of the recommendations made by the CEC was to the effect that maps
of appropriate scales should be prepared of areas notified under the
provisions of the PLP Act, including areas for which the notifications
have expired. These areas could be cross verified with the help of relevant
afforestation maps, satellite imagery of the relevant times, progress reports
filed in the Aravalli Afforestation Programme and other details. It was
also recommended that these areas may be demarcated and treated as
a prohibited zone for mining activity.
52. In a supplementary report dated 5th December, 2007 it was
recorded by the CEC that it had come to its notice that areas notified
under the provisions of the PLP Act are being used or proposed to be
used for colonisation, farm-houses and other construction activities. It
was noted that in many cases
such user has been permitted by the
concerned departments of the State Government on the strength of
improper no objection certificates granted in the past by the Forest
Department. The CEC stated that the recommendations made in respect
of mining in these areas are equally applicable to activities such as
colonisation, construction of farm-houses, etc. It was recommended that
areas notified under the provisions of the PLP Act, including areas for
which notifications have expired, may also be treated as a prohibited
zone for colonisation, construction of farm-houses and other construction
activities. Such activities in the prohibited zone should be permitted only
if in public interest and after obtaining permission from this Court.
53. Yet another report was required to be submitted by the CEC,
which it did on 28th August, 2008. In the report, it was mentioned that a
meeting was held with officers of the State of Haryana and a two-step
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approach was suggested. The first step was to identify areas where
mining, colonisation, etc. is taking place in the Aravalli hills, but such
activities are prohibited or regulated in those areas by various enactments
and orders of this Court. These would include, amongst others, areas
notified under the provisions of the PLP Act. The second step would be
to lay down broad principles and guidelines in respect of mining,
colonisation and other non-forestry activities in the Aravalli hills which
would, inter alia, provide for an independent monitoring mechanism.
Broadly, only such non-forestry activities would be permitted, that are
absolutely necessary and unavoidable and in public interest.
54. A meeting was held, as mentioned above, for detailing the
procedure and methodology for identification of the prohibited areas,
preparation of macro plans, including closed areas under the PLP Act
and in other areas where orders of this Court have been violated as well
as the provisions of the Forest (Conservation) Act, 1980 for mining and
for colonisation, etc. It was decided that all this would be placed before
this Court for consideration and approval. It is also proposed that after
the necessary maps are prepared of the prohibited areas, macro plans
and identification being completed, a detailed proposal would be placed
before this Court for appropriate directions. It was expected that the
State Government would ensure
immediate cessation of non-forestry
activity going on in any prohibited area and in violation of the orders of
this Court and the provisions of law.
55. Another report was submitted by the CEC on 13th November,
2008 pursuant to directions issued by this Court to file the land-use maps
and macro plans in respect of the Aravalli hills in Haryana. While the
report is considerably detailed, what is of concern to us is that the revenue
map of village Anangpur super-imposed on the satellite imagery revealed
that a large number of colonies, farm-houses and mines were located in
areas closed under the provisions of the PLP Act. One of the prominent
violators was the applicant (Kant Enclave) which had violated the orders
of this Court of 14th May, 2008 (the decision of this Court will be discussed
a little later). The report also mentioned that there was large-scale illegal
use of areas closed under the provisions of the PLP Act for illegal private
gains in blatant violation of the environmental laws and the orders of this
Court. It was suggested that this could not have taken place without the
active connivance and support of the concerned officials. It was also
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noted that the groundwater level in the area was rapidly depleting and
had already been marked as ‘Dark Zone for Ground Water’. In view of
the somewhat alarming situation, it was recommended by the CEC that
colonies, farm-houses, banquet halls and other buildings illegally
constructed in areas closed under the provisions of the PLP Act, such as
Kant Enclave should be demolished.
56. Yet another report (the last one that we are concerned with)
was submitted by the CEC on 15th January, 2009. In this report, it was
stated that the work of super-imposing on all geo-rectified village maps
with the corresponding satellite imageries had been completed. In
addition, village wise land-use maps had been prepared. These comprised
of three components, namely, satellite imagery, scanned village maps
and super-imposed village maps on satellite imagery with marking of
areas notified under the provisions of the PLP Act.
57. It was noted on the above basis that a large number of colonies,
buildings, banquet halls, farm-houses, engineering colleges, schools,
ashrams, etc. were located in areas notified under the provisions of the
PLP Act or areas with forest cover. The CEC expressed the view that
demolition of the above illegal structures and rehabilitation of such areas
(including Kant Enclave) should be taken up by the State of Haryana in
a time-bound manner and no sale or purchase of such lands should be
permitted. The permission earlier granted, if any, for
non-forestry uses
in such areas should be immediately revoked. The State of Haryana had
suggested that large-scale demolition might create a serious law and
order problem, but the CEC did not agree with this. However, the CEC
recommended the regularisation of areas notified under the provisions
of the PLP Act and other forest areas falling in identified Haryana Urban
Development Authority sectors, subject to effective steps being taken
for the demolition of buildings and structures in the areas notified under
the provisions of the PLP Act and other forest areas and rehabilitation
of such areas.
58. In response to the report of the CEC dated 15th January, 2009
the State of Haryana filed an affidavit through Shri Dharam Vir, the
Chief Secretary of the State on 15th March, 2009 in M.C. Mehta v.
Union of India.11..   It was stated in the affidavit that as far as the Municipal
Corporation of Faridabad is concerned, in view of the order dated
11M.C. Mehta v. Union of India, (2004) 12 SCC 118
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13th May, 1998 passed by this Court, the erection of buildings, with due
permission under the applicable law cannot be said to be illegal. Ex facie,
this is incorrect, since this Court permitted, if at all, only the construction
of hutments and not buildings. As far as the Town & Country Planning
Department is concerned, it was stated that Kant Enclave was granted
exemption under Section 23 of the Haryana Development and Regulation
of Urban Areas Act, 1975 on 17th April, 1984 and therefore it would be
in the interest of justice if the constructions that had come up pursuant to
the above exemption may be allowed to exist. The notification dated
18th August, 1992 and the other orders of this Court were conveniently
overlooked.
59. An affidavit dated 25th October, 2010 was filed by the Chief
Town Planner in the Department of Town & Country Planning. It was
stated in the affidavit that the Development Plan for Faridabad had been
prepared in accordance with the Punjab Scheduled Roads and Controlled
Areas Restrictions of Unregulated Development Act, 1963 and the final
Development Plan was published in 1991 in consonance with the NCR
Planning Board Act, 1985. The Development Plans provided, inter alia,
areas to be used for residential, commercial, industrial, public and semi-
public uses, agriculture, open space, etc. In addition, it was stated that
Kant Enclave had been granted exemption under Section 23 of the
Haryana
Development and Regulation of Urban Areas Act, 1975. In
view of this, the State of Haryana through the Forest Department ought
not to have published the notification under Section 4 of the PLP Act,
including therein the area already earmarked for urbanisation in the final
Development Plan. It was stated that the Town & Country Planning
Department had taken steps to exclude the land of the applicant from
the notification issued under the PLP Act and follow-up action was also
taken in this regard. The affidavit is, however, silent about the fact that
the land owned by the applicant was not de-notified in spite of vigorous
efforts of the Town & Country Planning Department. It was stated in
the affidavit that pursuant to the order passed by this Court on 13th May,
1998 the Town & Country Planning Department had approved building
plans and had also issued part completion certificates on 23rd  December,
2004. In view of all these facts as well as in view of the affidavit filed by
the Chief Secretary of the State of Haryana, it would be in the interest
of justice that constructions that had come up in pursuance of the
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exemption granted under the provisions of the Haryana Development
and Regulation of Urban Areas Act, 1975 may be allowed to exist. It
was submitted that a final decision may be taken by this Court and the
State Government would abide by the directions given by this Court on
this issue.
Yet another attempt at colonization is rejected
60. Not content with several letters, reports and decisions of this
Court, the applicant opened up yet another front to push ahead with its
colonisation and construction activity in the land owned by it being Khasra
Nos. 9 to 16 in village Anangpur. The applicant filed I.A. No. 1901 of
2005 in W.P. No. 4677 of 1985 (M.C.  Mehta v. Union of India).  In
this application, it was submitted by the applicant that it was in exclusive
possession of Khasra Nos. 9 to 16 in village Anangpur having purchased
the same from the rightful owners. It was stated that the applicant had
been granted exemption under Section 23 of the Haryana Development
and Regulation of Urban Areas Act, 1975 for setting up its project named
Kant Enclave. The exemption had been granted on 17th April, 1984. It
was stated that the applicant had spent over  50 crores in carrying out
and undertaking developmental work on the land. In addition, the applicant
had sold or booked or allotted 1500 plots to prospective buyers out of
which in about 450-500 cases, conveyance deeds had already been
executed and registered with the concerned authorities. It was submitted
that
the decisions of this Court were mining-centric and were
misconstrued by officers of the Forest Department. Consequently, a
communication dated 31st January, 2005 was issued by the Forest
Department to the District Town Planner, Faridabad to the effect that
the land of the applicant was a closed area under the provisions of the
PLP Act, and therefore non-forest use of the land was prohibited. As a
result of this communication, the District Town Planner refused to sanction
building plans of the plot holders of Kant Enclave or to issue completion
certificates in respect of buildings already completed in terms of sanctions
or approvals earlier granted.
61. On this basis, it was submitted in the application that this Court
may issue appropriate directions to the effect that only mining activities
were prohibited in the subject area and that the orders of this Court did
not affect the construction activities carried on by the applicant in its
project as permitted by the order of this Court dated 13th May, 1998.
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It was prayed that directions may be issued to the State Government to
permit registration of plots and sanction building plans as well as issue
completion certificates.
62. By an order dated 24th July, 2006 this Court directed the Chief
Secretary of Haryana to file an affidavit in response to the application
I.A. No. 1901 of 2005. A detailed affidavit dated 10th September, 2006
was filed by the Chief Secretary Shri Prem Prashant, IAS in which it
was stated, inter alia, that the notification dated 18th August, 1992 issued
under the provisions of the PLP Act covered Khasra Nos. 9 to 16 in
village Anangpur, that is, the land owned by the applicant. It was
categorically stated that since then this land was treated as forest and it
was also included in the list of forests in the Government record.
Reference was also made to the affidavit filed by the Forest Department
in W.P. No. 202 of 1995 to the effect that the subject area was shown as
a forest and that the provisions of the Forest (Conservation) Act, 1980
would be applicable. The affidavit also referred to the order passed by
this Court on 12th December, 1996 to the effect that the term ‘forest’ is
to be understood in the dictionary sense and also that any area regarded
as forest in Government records irrespective of ownership, would be a
forest. Reference was also made to the decision of this Court rendered
on 18th March, 2004 in this regard.
63. The affidavit
further stated that the Principal Chief
Conservator of Forests, had informed the Director, Town & Country
Planning Department by a letter dated 27th January, 2006 that the land
of the applicant being Khasra Nos. 9 to 16 in village Anangpur is notified
under Section 4 of the PLP Act. Therefore, the above area was treated
as a forest in view of the orders passed by this Court on 18th March,
2004. Since the applicant had never submitted any proposal with the
Forest Department for diversion of forest land for non-forestry use, the
Director, Town & Country Planning had asked the applicant by letter
dated 27th June, 2006 to seek the diversion of forest land in Khasra Nos.
9 to 16 in village Anangpur for non-forestry use in accordance with the
provisions of the Forest (Conservation) Act, 1980.
64. The application was taken up for consideration by this Court
and by a judgment and order dated 14th May, 2008 the application was
dismissed.12  A three-judge Bench of this Court noted that the challenge
12M.C. Mehta v. Union of India, (2008) 17 SCC 294
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was really to the communication dated 31st January, 2005. While dealing
with the decisions rendered by this Court from time to time, the three-
judge Bench noted that developing a plot and making construction thereon
would amount to clearing up or breaking up of an area and that would be
in violation of the prohibition contained in the notification of 18th August,
1992. It was held in paragraph 12 of the Report:
“In view of the notification under Section 4 when the clearing or
breaking up of the land is not permitted that itself is a bar from
(sic for) fresh construction because a construction can take place
only if clearing and breaking of an area/land takes place. This
prohibition is clearly contained in the notification of 1992. The
reliance placed by the applicants on clause (g) is clearly
misconceived, inasmuch as the permissible activity allowed within
clause (g) is in favour of inhabitants of town and villages within
the limits or vicinity of any such area. The admitted case is that
the applicants herein have developed plots in the area in question
and have sold it to persons who are not inhabitants of towns and
villages within such specified living area, but could be anybody
from all over the country or outside, and therefore clause (g) of
Section 4 has no application. The factum of developing a plot and
then construction thereon would amount to clearing or breaking
up of an area or land.”
65. This Court also noted the view of the Central Ground
Water
Board to the effect that the area in question in village Anangpur has
been notified as a very precarious groundwater situation and that any
construction activity therein without adequate water reserves will also
have a negative effect. It was also noted that the groundwater table is
already at a critical stage in Faridabad.
66. The decision of this Court rendered on 14th May, 2008 has
attained finality and all the submissions advanced by the applicant were
duly considered and rejected by a Bench of three learned judges of this
Court. The issue whether the applicant could make any construction
whatsoever on the notified land that is Khasra Nos. 9 to 16 in village
Anangpur in violation of the notification issued under the provisions of
the PLP Act was not open to discussion earlier and in any event is no
longer resintegra or open to any further discussion or examination.
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An alleged discordant note
67. The issue of the status of areas closed under the provisions of
the PLP Act came up for consideration in B. S. Sandhu v. Government
of India and others.13  In this case, about 3,700 acres of land in village
Karoran in District Ropar in Punjab was notified under the provisions of
the PLP Act. Despite this, the Forest Hill Golf and Country Club was
established on closed land and was being developed allegedly in blatant
violation of the environment and forest laws as well as orders passed by
this Court on 12th December, 1996.
68. Learned counsel for the applicant relied heavily on this decision
to contend that merely because a notification had been issued under the
provisions of the PLP Act, the closed land does not become ‘forest
land’. This very contention had been raised by the Proprietor/Managing
Director of the Country Club (Sandhu) in the Punjab & Haryana High
Court. It was submitted that his land was private land and it could not be
treated as forest land without a formal notification under Section 35 of
the Indian Forest Act, 1927.
69. According to the State of Punjab, an Expert Committee was
constituted in terms of the orders passed by this Court on 12th December,
1996 and this Expert Committee included the entire area of village Karoran
as forest area in its report. The Punjab and Haryana High Court rejected
the contention urged by Sandhu and that gave rise to appeals which
were
decided by this Court.
70. This Court noted that the notification issued under the provisions
of the PLP Act resulted in the land in village Karoran being recorded as
land under the control of the Forest Department and therefore forest
land. In other words, the basis of the conclusion that the entire land in
village Karoran is forest land was that the land was closed under the
provisions of the PLP Act and was therefore a forest. Consequently, the
first question required to be decided by this Court was whether land
notified under the provisions of the PLP Act is forest land or not.
71. This Court took the view that activities prohibited in closed
areas under the PLP Act are such that are not normally carried on in a
forest. Reference was made to activities such as cultivation, pasturing
of sheep and goats, erection of buildings by inhabitants of towns and
villages, herding, pasturing or retaining cattle etc. Therefore, the closed
13 (2014) 12 SCC 172
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land could not be forest land. This Court observed that land notified
under the provisions of PLP Act may or may not necessarily be forest
land and the decision of the High Court holding that closed land was
forest land was not at all correct in the law. It was held that the High
Court failed to correctly appreciate the meaning of ‘forest’ and ‘forest
land’ as well as the decision of this Court in Godavarman (decided on
12th December, 1996).
72. It was also held that since the Forest (Conservation) Act,
1980 came into force on 25th October, 1980 the High Court had to decide
whether Sandhu’s land was forest land as on that date irrespective of its
classification or ownership. The High Court ought to have examined the
Government record as on 25th October, 1980 before concluding that
Sandhu’s land was forest land and not only the provisions of the PLP
Act and the records of the Forest Department which showed the land to
be forest only because of the fact that the land was closed under the
provisions of the PLP Act.
73. This Court also examined the two decisions rendered in M.C.
Mehta14 15. These decisions were distinguished on the ground that they
related to the Aravalli hills in the State of Haryana and further it was
held therein that the State Forest Department has been treating and
showing the closed area as forest in fact and in law. Consequently, non-
forest activities could not be allowed in such areas without the prior
permission of the Central
Government as mandated by the Forest
(Conservation) Act, 1980. It was noted that this Court has not enquired
into the basis of inclusion of the areas as forest by the State Forest
Department. This Court also did not consider whether land became forest
land by mere inclusion in terms of the notification issued under the PLP
Act. On the other hand, in the case under discussion the Government of
Punjab had stated that the basis of inclusion of the entire land of village
Karoran as forest area in the records of the Forest Department was
that the land was closed under the PLP Act and this basis was not
correct in law.
74. This Court having distinguished the decisions rendered by this
Court in M.C. Mehta and by necessary implication the orders passed in
Godavarman, we do not see how the decision in Sandhu can be of any
assistance to the applicant. The decision in Sandhu must be confined to
its own facts.
14 (2004) 12 SCC 118
15 (2008) 17 SCC 294
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75. We may mention, without comment, that 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.
76. We may also mention, enpassant, the provisions of Section
35(1) of the Indian Forest Act, 1927. This refers to breaking up or clearing
of land for cultivation, pasturing of cattle etc. and reads as follows:
        “35. Protection of forests for special purposes. –
(1) The State Government may, by notification in the Official
Gazette, regulate or prohibit in any forest or waste-land -
        (a) the breaking up or clearing of land for cultivation;
        (b) the pasturing of cattle; or
           (c) the firing or clearing of the vegetation;
when such regulation or prohibition appears necessary for any of
the following purposes: -
(i)   for protection against storms,
winds, rolling stones, floods
and avalanches;
(ii)  for the preservation of the soil on the ridges and slopes and
in the valleys of hilly tracts, the prevention of landslips or of
the formation of ravines, and torrents, or the protection of land
against erosion, or the deposit thereon of sand, stones or gravel;
(iii)  for the maintenance of a water-supply in springs, rivers
and tanks;
(iv)  for the protection of roads, bridges, railways and other
lines of communication;
(v)  for the preservation of the public health.
(2) ………
(3) ………”
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77. We leave it at that because of the distinguishing features in
the M.C. Mehta set of orders as contrasted and recognized with the
facts in Sandhu.
Review in disguise
78. Notwithstanding unambiguous conclusions arrived at by this
Court from time to time on matters pertaining to the environmental
degradation of the Aravalli hills and the implications of a notification
issued under the provisions of the PLP Act, the applicant persisted in
pressing these applications and sought to contend that it was fully entitled,
as of right, to make constructions on the land owned by it and known as
Kant Enclave. Submissions were made by learned counsel for the
applicant on issues that have conclusively been settled by this Court and
in fact, the submissions were only a rehash of submissions made from
time to time and which have been rejected. It was submitted by learned
counsel for the applicant, relying on Delhi Administration v. Gurdip
Singh Uban16 that the applications filed by it and by the Residents Welfare
Association were perfectly maintainable. Reference was made to Point
No. 1 discussed in the decision. This Point reads as follows:
“Whether a party who had lost his case in civil appeal could be
permitted to bypass the procedure of circulation in review matters
and adopt the method of filing applications for “clarification”,
“modification” or “recall” of the said order in civil appeals so that
the matters were not listed in circulation but could be listed in
Court straight away? Whether such applications could be filed
even after dismissal of review applications? What is the procedure
that can be followed in such cases?”
79. This Court considered the question in considerable detail and
deprecated the practice of filing review applications in undeserving cases
without any proper examination of the substance of the applications. It
was noted that indiscriminate filing of such review petitions wastes the
time of the Court and that there must be some seriousness and restraint
in filing review applications. This Court answered the question in the
following manner:
“At the outset, we have to refer to the practice of filing review
applications in large numbers in undeserving cases without properly
examining whether the cases strictly come within the narrow
16 (2000) 7 SCC 296
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confines of Rule XL of the Supreme Court Rules. In several cases,
it has become almost everyday experience that review applications
are filed mechanically as a matter of routine and the grounds for
review are a mere reproduction of the grounds of special leave
and there is no indication as to which ground strictly falls within
the narrow limits of Rule XL of the Rules. We seriously deprecate
this practice. If parties file review petitions indiscriminately, the
time of the Court is unnecessarily wasted, even it be in chambers
where the review petitions are listed. Greater care, seriousness
and restraint is needed in filing review applications.”
80. It was made clear that what is of important is the substance
of the application and not the title given to it and genuine cases requiring
a clarification or modification or a recall would of course be entertained.
It was observed by this Court as follows:
“We should not however be understood as saying that in no case
an application for “clarification”, “modification” or “recall” is
maintainable after the first disposal of the matter. All that we are
saying is that once such an application is listed in Court, the Court
will examine whether it is, in substance, in the nature of review
and is to be rejected with or without costs or requires to be
withdrawn with leave to file a review petition to be listed in
chambers by circulation. Point 1 is decided accordingly.”
81. On this
basis, it was submitted by learned counsel for the
applicant that there was no bar in the applicant moving or pressing
appropriate applications and that is precisely what has been done.
82.  In our opinion, there is nothing in these applications before us
to remotely suggest that the 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.
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83.  That apart, the view expressed by this Court in Gurdip Singh
Uban 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. In our opinion,
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.
84. Considering the substantive applications filed by the applicant,
we are of the clear opinion that these 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. However, we are not detaining ourselves any further in this regard
since we propose 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.
85. Learned counsel for the applicants (Kant & Co. as well as
the Residents Welfare Association of Kant Enclave) and the learned
Amicus made detailed submissions over a couple of days on a variety of
issues that they believed arose in these cases.  Even though we are of
opinion that in view of several decisions rendered by this Court from
time to time, such submissions are not open to be made by learned counsel,
nevertheless, the submissions having been made, we will deal with each
of them.
Is the notified land a forest or treated as a forest?
86. The principal contention urged by learned counsel for the
applicants is that the land in question Khasra Nos. 9 to 16 in village
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Anangpur notified under the provisions of the PLP Act on 18th August,
1992 was not forest land. This submission is clearly liable to be rejected.
(i)   Affidavits of the State of Haryana
87. In this connection, we may refer to the affidavit of Shri Banarsi
Das, IFS, Principal Chief Conservator of Forests, Haryana.  The affidavit
dated 8th December, 1996 was filed in Environmental Awareness Forum
v. State of Jammu & Kashmir.17  In this affidavit it is stated that the
total forest area in Haryana in 1985-86 was 1,68,543 hectares.  This
included 26,499 hectares of areas closed under the PLP Act.  In other
words, as far back as in 1985-86, if not earlier, the Principal Chief
Conservator of Forests of the Government of Haryana considered and
treated areas closed under the provisions of the PLP Act as forest land.
This was well before the present controversy had arisen.  The affidavit
goes on to state that in 1995-96 the total forest area in Haryana was
1,54,706 hectares and this included 11,513 hectares of area closed under
the PLP Act.  It is quite clear to us that as far as the State of Haryana is
concerned, closed areas under the PLP Act were always treated as
forest land and this was well before any controversy arose in the matter.
88. Pursuant to an order passed by this Court an affidavit was
filed on 25th February, 1997 by Shri S.K. Maheshwari, IAS, Commissioner
& Secretary in the Forest Department. The affidavit
was filed in the
case of Godavarman.  It was stated that since the PLP Act came into
force in 1900 some cut-off date was required for identification of forests
and forest land.  This cut-off date was taken as 25th October, 1980 that
is the date on which the Forest (Conservation) Act, 1980 came into
force.  This date was taken only for convenience and for no other reason.
This is clear from the affidavit which also states that closure under the
PLP Act “creates forests” during the period of closure, after which the
land is no longer shown as forest in government records.  The affidavit
reiterates that closed areas are “counted as forest” during the currency
of the closure under the PLP Act.  Therefore, identification of forest
land from 1900 would have been a humungous task and to avoid an
unnecessary exercise, the cut-off date of 25th October, 1980 was taken.
The affidavit cannot be read or understood to mean that land not recorded
as ‘forest’ on 25th October, 1980 in the Government records can never
become or be recognised or treated as ‘forest’. This would be too far-
fetched and would go against the letter and spirit of the PLP Act.
17 W.P. No.171 of 1996
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89. The affidavit of Shri Prem Prashant, IAS, Chief Secretary of
Haryana takes us back beyond 1985-86 and 25th October, 1980.  In the
affidavit dated 10th September, 2006 filed in response to I.A.No.1901 of
2005 filed by the applicants (in M.C. Mehta) Shri Prem Prashant takes
us back to notifications dated 10, 1970 and 10th November, 1980 issued
by the State of Haryana through the Forests and Animal Husbandry
Department and subsequent notifications dated 16th November, 1995
and 28th November, 1997.  This was to bring on record that the provisions
of the PLP Act have been made use of through notifications issued
thereunder for several decades for the protection and preservation of
forests and forest land, even if such lands are not recorded as ‘forest’ in
Government records. This would be in consonance with the provisions
and the spirit of the PLP Act.
90. In an affidavit dated 15th March, 2009 filed by Shri Dharam
Vir, the Chief Secretary of Haryana with reference to the report of the
CEC dated 15th January, 2009 in M.C. Mehta it was submitted that all
constructions made post 17th April, 1984 (the date on which exemption
was granted to the applicants under Section 23 of the Haryana
Development and Regulation of Urban Areas Act, 1975) may be allowed
to exist.  This affidavit must be read in conjunction with the notification
of 18th August, 1992 and if soread, it suggests that the Chief Secretary
desired that constructions made between 17th April, 1984 and
18th August,
1992 may be allowed to exist. However, even Shri Dharam Vir did not
doubt or deny that closed areas under the PLP Act are forest or forest
land. He only suggested a possible reprieve to the applicants.
91. The view of the Government of Haryana is therefore 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 17th April, 1984 and
18thAugust, 1992.
92. Quite apart from the affidavits filed by the State of Haryana
through the Chief Secretary or the Principal Chief Conservator of Forests
or the Commissioner & Secretary of the Forest Department, we are
aware that through the conduct and correspondence of the Town &
Country Planning Department that it was very keen on permitting
construction in closed areas. We are not sure why the Town & Country
Planning Department was persistently going out of its way to be of
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assistance to the applicants but whatever the reason, it was categorical
in recommending the environmental degradation of the Aravalli hills.
(ii) Orders of this Court
93. In addition to the affidavits of the State of Haryana, the various
orders passed by this Court from time to time in Godavarman and in
M.C. Mehta make it very clear that closed areas under the PLP Act are
forest and forest land and need to be treated as forest land.
94. The decisions of this Court, go back to 10th May, 199618 when
this Court proposed to deal with preserving the environment and
controlling pollution through the stoppage of mining operations within the
radius of 5 km from the tourist resorts of Badkal Lake and Surajkund.
This Court considered reports prepared by the Haryana Pollution Control
Board and the National Environmental Engineering Research Institute.
It was noted that the State of Haryana had already prohibited mining
operations within the radius of 5 km from these tourist resorts and on a
consideration of the reports mentioned above, it was concluded that there
shall be no mining activity within a 2 km radius of the tourist resorts of
Badkal Lake and Surajkund. All the mines, which fall within the said
radius shall not be reopened. It was further directed that no construction
activity of any type shall be permitted now onwards within the 5 km
radius of Badkal Lake and Surajkund and all open areas shall be converted
into
green belts. Interestingly, this Court also noted as follows:
“The Badkal lake and Surajkund are monsoon-fed water bodies.
The natural drainage pattern of the surrounding hill areas feed
these water bodies during rainy season. The mining activities in
the vicinity of these tourist resorts may disturb the rainwater drains
which in turn may badly affect the water level as well as the
water quality of these water bodies. The mining may also cause
fractures and cracks in the subsurface, rock layer causing
disturbances to the aquifers which are the source of groundwater.
This may disturb the hydrology of the area.”
95. The order dated 10th May, 1996 was subsequently modified
on 11th October, 199619 to the effect that now onwards construction
activity would not be permitted in certain areas, and there was no blanket
ban. Permission to construct was subject to utmost necessity for
18 M.C. Mehta v. Union of India, (1996) 8 SCC 462
19 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India,
(1997) 3 SCC 715
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recreational and tourism purposes and no other.   However, exemption
was granted to plots already sold or allotted prior to 10th May, 1996 in
developed areas (this was varied subsequently).    It was further directed
as follows:
“All development schemes, and the plans for all types of
constructions relating to all types of buildings in the area from one
km to 5 km radius of the Badkhal Lake and Surajkund (excluding
Delhi areas) shall have prior approval of the Central Pollution
Control Board and the Haryana Pollution Control Board.”
96. Further, with regard to the issue of water management, this
Court referred to the report of the National Environmental Engineering
Research Institute and noted as follows:
“…..According to the report Surajkund lake impounds water from
rain and natural springs. Badkhal Lake is an impoundment formed
due to the construction of an earthen dam. The catchment areas
of these lakes are shown in a figure attached with the report. The
land use and soil types as explained in the report show that the
Badkhal Lake and Surajkund are monsoon-fed water bodies. The
natural drainage pattern of the surrounding hill areas feed these
water bodies during rainy season. Large-scale construction in the
vicinity of these tourist resorts may disturb the rain water drains
which in turn may badly affect the water level as well as the
water quality of these water bodies. It may also cause disturbance
to the aquifers which are the source of ground
water. The
hydrology of the area may also be disturbed.”
97. The reason why we are referring to availability of water, or
the lack of it, is because even the Chief Minister of Haryana in his order
of 11th July, 1990 had noted that the availability of water from the aquifers
is of paramount importance and that aquifers available at the deeper
level would be fully exploited to meet the demand of water supply for
the population of Kant Enclave.
98. 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’.  We had specifically asked
learned counsel for the parties as well as learned Amicus about the
status of Badkal Lake and we were told quite categorically that today
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there is absolutely no water in Badkal Lake. The damage to the
environment has been done and appears to be irreversible.
99. One of the more significant orders was passed by this Court
on 12th December, 1996.20 Through this order, this Court laid down what
could be described as ‘forest’ and ‘forest land’. The view taken was
that the two expressions must be given their dictionary or natural meaning
and if so considered, there can be no doubt that degraded forests and
closed lands under the PLP Act are nothing but forest land.  Similarly,
the orders passed by this Court from time to time in M.C. Mehta make
it loud and clear that the Aravalli hills need protection from environmental
degradation and the laws must be strictly enforced to ensure that there
is no damage caused to the ecology of the Aravalli hills.  In view of the
clear expression of views and conclusions arrived at by this Court from
time to time and repeated on several occasions we have no doubt that
closed areas under the PLP Act are nothing but forest land and deserve
to be treated as such.
100. In the decision rendered on 12th December, 1996 this Court
directed the identification of areas which are ‘forests’ irrespective of
whether they are so notified, recognised or classified under any law, and
irrespective of the ownership of the land of such forest. As a result of
this, each State Government was directed, inter alia, to:
(i) Identify areas which are
“forests”, irrespective of whether
they are so notified, recognised or classified under any law, and
irrespective of the ownership of the land of such forest;
(ii) identify areas which were earlier forests but stand degraded,
denuded or cleared.
101. 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 on 29th
November, 2001 being I.A. No. 1785 of 2001 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
20 T.N. Godavarman v. Union of India, (1997) 2 SCC 267
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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 6th 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
(not reported) requiring EPCA to furnish a report, which it did on
9th August, 2002 to the effect that the order passed on 6th May, 2002
deserved to be confirmed.
102. Subsequently, EPCA gave another report on 21st 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.
103. The blatant and open flouting of orders passed by this Court
resulted in the constitution of the Central Empowered Committee (CEC)
on 17thSeptember, 2002 for monitoring and ensuring compliance of the
orders passed by this Court. The CEC submitted reports to this Court
from time to time. These have already been adverted to and need not be
repeated.
104. In its decision dated 18th March, 2004 this Court considered
all this material and addressed all the issues raised before it including
issues of environmental and ecological degradation.
105. 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 disposed of I.A.
No. 1785 of 2001 and confirmed the order passed on 6th May, 2002 and
held that areas closed under the PLP Act cannot be utilized for non-
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forest purposes without the prior permission of the Central Government
under the provisions of the Forest (Conservation) Act, 1980.
(iii)  Review Petition of Kant Enclave
106. In view of the restrictions imposed by this Court, which
obviously did not suit the applicants, a review petition being R.P. No. 914
of 1997 was filed by R. Kant & Co. on or about 26thFebruary, 1997.  In
the review petition, it was not disclosed that a notification had been
issued under the PLP Act. While concealing this extremely important
fact, a review was sought of the order passed by this Court on
11th October, 1996 to the effect that no permission is required from the
Central Pollution Control Board or the Haryana Pollution Control Board
in respect of the constructions made by the applicant beyond the 1 km
but within the 5 km radius of Badkal Lake and Surajkund.
107. The review petition was taken up for consideration on
17th March, 1997 when it was made clear that plans for construction of
houses could be filed before the Competent Authority who could examine
them in accordance with the applicable rules and if the plans were in
order, they could be “kept ready until further orders.” Since the full facts
were not placed before this Court, an order was passed to the effect
that for the purposes of examination, there should be no insistence by
the concerned authorities on the production of No Objection Certificate
from the Central or State
Pollution Control Board. It was also observed
that 2 ½ storey buildings could be constructed.
108. On 13th May, 1998 the Court modified the order passed on
17th March, 1997 to the effect that in certain private areas where
construction is proposed, only single storey hutments could be permitted
to be constructed and not tall buildings as originally conceived. Therefore,
it is quite clear from the orders passed by this Court that construction
was not permitted until further orders but that plans could be prepared
and examined.
109. A reference to the above orders clearly indicates that 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.
110. In our opinion, it was extremely important for R. Kant & Co.
to have come out with full facts in the review petition filed by it, more
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particularly the fact of the issuance of the notification dated 18thAugust,
1992.The failure to disclose this material fact vitiates the proceedings
initiated by the applicant in this Court.
(iv)  Interlocutory Application filed by the applicant
111.  Notwithstanding complete clarity on the issue of what is a
forest and forest land, the status of closed areas notified under the PLP
Act and issues of environmental and ecological degradation of the Aravalli
hills, the applicants made bold to file I.A. No. 1901 of 2005 (in M.C.
Mehta) sometime in October 2005 in which it was prayed that the
decision rendered by this Court on 18th March, 2004 is restricted only to
mining activities and does not affect the construction activities carried
out by the applicant, which it is entitled to in view of the orders passed
by this Court on 13th May, 1998.
112. In response to the application, an affidavit dated
10th September, 2006 was filed by Shri Prem Prashant, IAS, Chief
Secretary of Haryana in which it was categorically stated that the
provisions of the PLP Act have been taken recourse to from time to
time for the protection of forests and forest land. In this regard, he annexed
notifications issued by the State of Haryana on 12th March, 1970 through
the Forests and Animal Husbandry Department, 10th November, 1980
through the Forest Department, 16th November, 1995 through the Forest
Department and 28th November, 1997 through the Forest Department.
113. The
notification dated 18th August, 1992 was one of such
notifications for the protection of forests and forest lands. It was
categorically stated on affidavit that from the date of the notification,
that is, 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. That the subject land was forest land was
also stated by the Principal Chief Conservator of Forests in a letter
dated 27th 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 27th 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.
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114. The application was taken up for consideration by a Bench
of three learned judges who dismissed the application by a judgment and
order dated 14th May, 2008.21 The issue whether land closed by a
notification issued under the provisions of the PLP Act was forest land
was once again considered by this Court and the decision rendered on
18th March, 2004 was specifically and categorically reiterated.
115. We would have imagined that the applicant R. Kant & Co.
would have learnt a lesson from the dismissal of its review petition, the
interlocutory application as well as the orders passed by this Court from
time to time and reports given by expert bodies, but it does not appear to
have been so. We say this because, after the decision of this Court
rendered on 14th May, 2008 R. Kant & Co. filed an application being
I.A. No. 2310 of 2008 on 11thJuly, 2008 challenging a communication
dated 23rd May, 2008 issued pursuant to the orders passed by this Court.
Subsequently, the applicant also filed I.A. Nos. 2377-79 of 2009 objecting
to the reports filed by the CEC. These I.A.s were not argued before us
and no submissions were made in respect of these I.As.
(v)   Issue again raised in this Court
116. The pendency of the present applications in this Court gave
occasion to the applicants to once again try and raise the issue of closed
areas under the PLP Act being not forest or forest land. Reference was
made to the decision of
this Court in Sandhu. It was submitted that this
Court had struck a discordant note in Sandhu. We cannot agree since
the decision in Sandhu itself distinguished the M.C. Mehta set of orders
both on facts and in law. The decision rendered in Sandhu cannot, by
any stretch of imagination, come to the aid of the applicants.
117. We may only note that in so far as the present case is
concerned, 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 our notice 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,
21 M.C. Mehta v. Union of India, (2008) 17 SCC 294
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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.
118. There is absolutely no doubt that Sandhu is distinguishable
both on facts and in law and it has been recognised as such by this Court
in the judgment delivered in Sandhu.  It was suggested by learned counsel
for the applicants that because this Court did not enquire into the basis
of inclusion of closed areas as forest, therefore the notification dated
18th August, 1992 is vitiated.  Reliance placed on an observation in Sandhu
with respect, may not strictly be valid, in the sense that there was enough
material to indicate why, at least since 1970 closed areas have been
included as forest and treated as forest by the State of Haryana.  We
may add that there was a report of a Committee that eventually led to
the issuance of the notification dated 18th August, 1992 but that was
unfortunately not placed before us in spite of our request to learned
counsel for the State of Haryana.
119. What is of crucial importance and great significance is that
no one has challenged the validity or correctness of the notification dated
18th August, 1992. We do not see how the correctness or validity of the
notification can 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.
120. 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.
121. Taking an overall view of all the facts in the case and the law
on the subject, we have 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.
Mining centric orders
122. The next submission advanced by learned counsel for the
applicants was to the effect that all the orders passed by this Court were
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mining centric and did not relate to construction activity in Kant Enclave.
This argument is stated only to be rejected. The judgments delivered by
this Court have only to be read and understood and it would be more
than obvious that the concern of this Court was to preserve and protect
the environment in and around the Aravalli hills and generally avoid
environmental and ecological degradation of the area both through the
stoppage of mining activity and constructions. Unfortunately, this Court
was unable to enforce its orders in letter and spirit, thanks entirely to the
apathy of the State of Haryana and the persistence of the applicants
with the result that Badkal Lake is today, admittedly, absolutely dry.
123. The culpability of some of the State authorities in ensuring
this tragic situation is quite evident from I.A. No. 2269 of 2007 filed by
the Administrator, Haryana Urban Development Authority, in which the
first prayer is to the effect that this Court should issue an appropriate
direction that the judgment and order dated 18th March, 2004 was
restricted only to mining activities and did not affect the development or
urbanisation or construction activities carried out as per the laws, rules
and regulations of the Municipal Corporation of Faridabad or the Haryana
Urban Development Authority. Despite the clear judgment and order
passed by this Court, the attitude of some sections of the State
Government
obviously did not change and unrestricted development
through mining activity and construction activity was given precedence
over the environment resulting in, amongst other things a parched Badkal
Lake.
Notification issued erroneously
124. It was then contended by learned counsel for the applicants
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. This submission too is stated only to be rejected. 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 deleteKhasra Nos. 9 to 16 in
village Anangpur from the rigours of the notification.
Alleged inapplicability of the notification
125. Reliance was then placed on the provisions of sub-section
(1) and sub-section (7) of Section 29 of the Faridabad Complex
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(Regulation and Development) Act, 1971 to submit that the notification
dated 18th August, 1992 was not applicable to controlled areas. These
provisions read as follows:
“Section 29 - Declaration of controlled area
(1) Notwithstanding any law for the time being in force the Chief
Administrator may, with the previous approval of the State
Government by notification, declare the whole or any part of
the area within the Faridabad Complex including an area within
a distance of 8 kilometers on the outer sides of the boundaries
of Faridabad Complex as a controlled area.
(2) to (6) —————
(7) After considering the objections, suggestions and
representations, if any, and the recommendations of the Chief
Administrator thereon, the State Government shall decide as
to the final plans showing the controlled area and signifying
therein the nature of restrictions and conditions applicable to
the controlled area and publish the same in the Official gazette
and in such other manner as may be prescribed.”
126. 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.
127. We are unable to appreciate the relevance of this submission
for the reason that, as per the Statement of Objects and Reasons, 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 areawhich 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 18th August, 1992. Moreover, Section 29(1)
of the said Act related to any law for the time being in force - the
notification dated 18th August, 1992 came much later and was not in
force when the said Act was enacted.
Other submissions
128. It was then contended that the exemption granted on
17th April, 1984 under the provisions of the Haryana Development and
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Regulation of Urban Areas Act, 1975 exempted the applicant or in any
case Kant Enclave from all the provisions of the said Act. While this
may be so, we do not see how the said Act exempts 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.
129. Learned counsel for the applicants also contended that in
view of the decision rendered by this Court in Sandhu, the subject land
ought to have been an existing forest as on 25th October, 1980 when the
Forest (Conservation) Act, 1980 came into force. In our opinion, this is
not at all a correct interpretation of the decision rendered by this Court
in Sandhu. 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 the interpretation sought to be given by learned counsel
would also emasculate the PLP Act.
130. The final submission of learned counsel for the applicants
was that constructions were made in terms of the orders passed by this
Court on 17th March, 1997 and
13th May, 1998 and in fact, building plans
and sanction plans were approved by the concerned authorities.
Therefore, it must be held by this Court that the members of the Kant
Enclave Residents Welfare Association had acted bonafide and
therefore their houses or constructions should not be demolished as
suggested by the CEC.
131. In this regard, it must be appreciated that the order dated
17th March, 1997as modified on 13th 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 before us, and
indeed it cannot be their case, that the orders of this Court gave a complete
go by to the notification and virtually quashed it even thoughit 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
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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 bonafide.
132. We had asked learned counsel for the applicants to place
before us the details of the construction made in Kant Enclave. The
following chart was then placed before us on 24th July, 2018. This chart
indicates that out of a total of about 1600 plots said to have been carved
out by R. Kant &Co. 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.
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
S.No.
Particulars
Work Done
1. 
Conveyance Deeds Executed 
284 residential plots 
2. 
Conveyance Deeds Executed 
3 commercial plots 
3.
Houses constructed and people living
33 houses
4.
Film Studio (FS-2) constructed
1 no.
5. 
Overhead water tank of 545 KL capacity 
constructed and functional 
3 nos. 
6. 
Underground water tank of 1200 KL 
capacity constructed and functional 
3 nos. 
7. 
Pumping Station (Functional) 
1 no. 
8. 
Pumping Machine (Submersible pumps) 
installed and functional 
9 nos. 
9. 
Sewage Treatment Plant having cost of 
more than Rs. 70,00,000/- installed 
1 no. 
10.
Parks (fully developed) 
14 nos. 
11. 
Roads completed 
136460 Sq. Mtr. (Approx. 
20 KM) 
12. 
Street lights poles erected and energised 
627 nos. 
13. 
Internal sewage pipe lines completed and 
functional 
21150 Mtrs. 
14. 
Storm water drain completed and 
functional
18000 Mtrs. 
15. 
Water supply pipe lines completed and 
functional 
22700 Mtrs. 
16. 
Trees planted 
10000 nos. (Along road 
side and in green belt) 
17. 
Fire hydrants/Fire tanks having 265 CUM 
capacity 
3 nos. 
18. 
Electric sub-station for 650 KV 
transformer 
2 nos.
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133. 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. This could not have happened without the knowledge of the
State of Haryana and its officers who permitted blatant disregard of the
rule of law despite affidavits of the Chief Secretary of the State of
Haryana.  The rule of law seems to have broken down in Haryana and
become the rule of men only to favour the applicants. At this point, we
cannot help but referring to a passage from a judgment of this Court
with regard to the Aravalli hills and the need for their protection. We had
intended to avoid this reference only because it would be repetitive, but
it is painful to see such a mockery of the law and total lack of concern
for the environment and ecology of the Aravalli hills.
134. In the order dated 18th March, 200422 it was stated in
paragraph 58 of the Report as follows:
“The Aravallis, the most distinctive and ancient mountain chain of
peninsular India, mark the site of one of the oldest geological
formations in the world. Heavily eroded and with exposed outcrops
of slate rock and granite, it has summits reaching 4950 feet above
sea level. Due to its geological location, the Aravalli range harbours
a mix of Saharan, Ethiopian, peninsular, oriental and even Malayan
elements of flora and fauna. In the early
part of this century, the
Aravallis were well wooded. There were dense forests with
waterfalls and one could encounter a large number of wild animals.
Today, the changes in the environment at Aravalli are severe.
Though one finds a number of tree species in the hills, timber-
quality trees have almost disappeared. Despite the increase of
population resulting in increase of demand from the forest,
it cannot be questioned nor has it been questioned that to
save the ecology of the Aravalli mountains, the laws have
to be strictly implemented.” [Emphasis supplied by us].
Relief
135. The question that now remains for consideration is whether
any relief is required to be granted to the applicants and if so what relief
should be granted.
22 M.C. Mehta v. Union of India, (2004) 12 SCC 118
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136. There is no doubt that irreversible damage has been caused
to the environment and ecology of the Aravalli hills. The damage was
caused or allowed to be caused, despite a statutory notification issued
under the provisions of the PLP Act. The brazenness of the applicants in
flouting the law is quite apparent. But what is more unfortunate is the
support given to the applicants by the Town & Country Department of
the State of Haryana, despite the reservations of the Forest Department.
The Town & Country Department in apparent collusion with R. Kant &
Co. effectively led a very large number of people up the garden path.
Fortunately, only 33 of them have made some personal constructions –
but it is not clear whether their constructions are pre or post 18th August,
1992.
137. Therefore, we have two categories of persons who have
been taken for a ride by R. Kant & Co. The first category consists of
those who have been conveyed land by R. Kant & Co. and the second
category consists of those who have been conveyed land and have made
constructions.
138. 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 R. Kant &
Co.from the date of the investment.We order accordingly.
139. As far as the second category of persons is concerned, as
submitted by Shri Dharam Vir, Chief Secretary of the State of Haryana
in his affidavit of 15th
March, 2009 there is an available, reasonable and
appropriate course of action to adopt. This course of action is to save or
allow to exist constructions made in Kant Enclave pursuant to the
exemption granted to the applicant (R. Kant & Co.) on 17th April, 1984
under Section 23 of theHaryana 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 18th August, 1992 is clearly illegal and contrary to law and must be
demolished as recommended by the Central Empowered Committee.
We accept the submission made by Shri Dharam Vir and the CEC and
do not disturb the constructions made between 17th April, 1984 and
18th August, 1992. We direct accordingly.
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]
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140. However, in respect of constructions made after 18th August,
1992 there is no option but to direct the State of Haryanato demolish the
illegal and unauthorised constructions. The demolition should be completed
on or before 31st December, 2018. We direct accordingly.
141. In Godrej & Boyce Manufacturing Company Limited v.
State of Maharashtra23 this Court considered the issue of unauthorised
construction from the point of view of a well-meaning citizen who is led
up the garden path by the State, which gives statutory permission for
unauthorised constructions. In the present case of Kant Enclave, well-
meaning citizens have been virtually duped into investing huge
amountsdespiteR. Kant & Co. 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. R. Kant
& Co. 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 R. Kant &
Co. 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 18th
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, we direct that R. Kant & Co. to give them a full refund of their
investment in the land along with interest at 18% per annum from the
date of the investment. We order accordingly.
142. As far as the cost of construction is concerned, we tentatively
quantify it at  50 lakhs. This will be paid to those who constructed after
18th 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. The quantified amount is directed to be paid on or before
31st December, 2018. If anyone who’s construction is demolished in
view of our orders, is not satisfied with the quantification, that person is
23 (2014) 3 SCC 430
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at liberty to proceed againstR. 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 today.
143. The Polluter Pays Principle is a wholesome principle that
has been universally accepted and also adopted and applied in our country
through several decisions of this Court. In this context, we may draw
attention to among two of the earliest decisions rendered by this Court,
namely, Indian Council for Enviro-Legal Action v. Union of India24
and Vellore Citizens’ Welfare Forum v. Union of India.25 The law
having been settled for more than two decades, we are of the view that
it must be applied in a case such as the present. The damage caused to
the Aravalli hills, as already noted, is irreversible. However, perhaps
some of the damage could be remedied - at least we hope so. According
to R. Kant & Co. it has expended  ` 50 crore in developing Kant Enclave.
We do not know the exact or accurate figure but proceed on the basis as
stated. In our opinion, it would be reasonable to require R. Kant & Co.
to deposit 10% of this amount (that is, ` 5 crore) for rehabilitation of the
damaged areas. This amount should be deposited by R. Kant & Co. in
the Aravalli Rehabilitation Fund within one month and in any case on or
before 31st October, 2018.  The matter be listed only for compliance of
this direction in the first half of November 2018.
144. We direct the
incumbent Chief Secretary of the State of
Haryana to ensure compliance with our remaining orders, both in letter
and spirit on or before 31st December, 2018.
145. The substantive applications stand disposed of in the terms
mentioned above.
Kalpana K. Tripathy
                               IAs Disposed of.
24 (1996) 3 SCC 212
25 (1996) 5 SCC 647
M.C. MEHTA  v. UNION OF INDIA & ORS.
[MADAN B. LOKUR, J.]