JITENDRA SINGH versus MINISTRY OF ENVIRONMENT & ORS.
[2019] 14 S.C.R. 220, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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SUPREME COURT REPORTS
[2019] 14 S.C.R.
JITENDRA SINGH
v.
MINISTRY OF ENVIRONMENT & ORS.
(Civil Appeal No. 5109 of 2019)
NOVEMBER 25, 2019
[ARUN MISHRA AND SURYA KANT, JJ.]
Environmental Law:
Environment protection – Allotment of local ponds – To private
industrialists – By Industrial Development Authority – Challenged
before Green Tribunal – Challenge dismissed on the basis of affidavit
by the Authority claiming to develop bigger alternative water-bodies
– Appeal to Supreme Court – Plea of Authority that Government
order dated 3.6.16 permitted destruction of exiting ponds and
allotment thereof to third-parties in extra-ordinary circumstances
and that the land was not a ‘Pokhar’ Pond – Held: Allotment having
been made in 2012, order passed in 2016 would not operate
retrospectively – Moreover, no extra-ordinary circumstances made
out in favour of the allottee – Revenue records show that the land
was a ‘Pokhar’ – Protection of such village commons is essential to
safeguard the right u/Art. 21 of the Constitution – It is also
constitutional obligation of the respondents to ensure protection
and integrity of the environment as enshrined u/Arts. 48-A and 51-
A(g) – The scheme which extinguish local water bodies albeit with
alternatives are violative of constitutional principles and hence
liable to be struck down – Constitution of India – Arts. 48-A and
51-A(g),
Allowing the appeal, the Court
HELD : 1. The respondents have not been able to
demonstrate how the
2016 Government Order can be made
applicable retrospectively, the possession having been given to
the Company in 2012. Notwithstanding this, no case of the present
instance being an extraordinary circumstance (hence permitting
recourse to the exceptional provisions of the Government Order)
has been made before the Court either. Photographs show that
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there is substantial water in the pond, which has not been
controverted. Further, revenue records maintained by  the
Revenue Department themselves show that the land was
‘pokhar’. It is hence not open for the authorities to contradict
and plead against the record without any scientific or empirical
support, for such categorisation had been made by them in the
past. Further, it was conceded by respondent-authorities during
arguments that Khasra No. 490 was also recorded as ‘pokhar’ in
revenue records and that it too had been integrated in the
industrial development project. [Para 12] [226-G-H; 227-A-B]
2. Repeal of the UP Zamindari Abolition and Land Reforms
Act, 1950 and vesting of such ponds and local areas in the State
by Section 57 of the UP Revenue Code, 2006 would not by itself
either change the nature of land contrary to revenue record nor
will defeat the long-established rights of the local people on
commons. [Para 13] [227-C-D]
3. Industrial activities without any rationale classification,
unlike the narrow class exempted under the Government Order
dated 3.6.16 do not serve a social public purpose or benefit the
local people, and thus will be hit by the inalienability bar.
[Para 17] [229-A]
4. Even otherwise, the action of the respondent-authorities
contravenes their Constitutional obligations. Article 48-A of the
Constitution casts a duty on the State to “endeavour to protect
and improve the environment and to safeguard the forests and wild
life
of the country”, and Article 51-A(g) expects every citizen to
perform his fundamental duty to “protect and improve the natural
environment”. A perusal of the Constitutional scheme and judicial
development of environmental law further shows that all persons
have a right to a healthy environment. The State is nothing but a
collective embodiment of citizens, and hence collective duties of
citizens can constructively be imposed on the State.  Therefore,
it is the responsibility of the respondents to ensure the protection
and integrity of the environment, especially one which is a source
for livelihood for rural population and life for local flora and fauna.
[Paras 18 and 19] [229-B-C; 230-A]
JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.
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5. Protection of such village-commons is essential to
safeguard the fundamental right guaranteed by Article 21 of the
Constitution. These common areas are the lifeline of village
communities, and often sustain various chores and provide
resources necessary for life. Waterbodies, specifically, are an
important source of fishery and much needed potable water. Many
areas of the country perennially face a water crisis and access to
drinking water is woefully inadequate for most Indians. Allowing
such invaluable community resources to be taken over by a few
is hence grossly illegal. [Para 20] [230-B-C]
6. The respondents’ scheme of allowing destruction of
existing water bodies and providing for replacements, exhibits a
mechanical application of environmental protection. Although it
might be possible to superficially replicate a waterbody elsewhere,
however, there is no guarantee that the adverse effect of
destroying the earlier one would be offset. The respondents’
reduction of the complex and cascading effects of extinguishing
natural water-bodies into mere numbers and their attempt to
justify the same through replacement by geographically larger
artificial water-bodies, fails to capture the spirit of the
Constitutional scheme and is, therefore, impermissible. Hence,
it is clear that schemes which extinguish local waterbodies albeit
with alternatives, as provided in the 2016 Government Order by
the State of UP, are
violative of Constitutional principles and are
liable to be struck down. [Paras 21 and 22] [230-D-H]
Chigurupati Venkata Subbayya v. Palaguda Anjayya
(1972) 1 SCC 521 : [1972] 3 SCR 172 ; Hinch Lal
Tiwari v. Kamala Devi (2001) 6 SCC 496 : [2001]
1 Suppl. SCR 23 ; Jagpal Singh v. State of Punjab
(2011) 11 SCC 396 : [2011] 2 SCR 250 ; MC Mehta v.
Union of India (1988) 1 SCC 471 : [1988] 2 SCR 530
–  relied on.
Case Law Reference
[1972] 3 SCR 172
relied on
Para 13
[2001] 1 Suppl. SCR 23
relied on
Para 15
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[2011] 2 SCR 250
relied on
Para 16
[1988] 2 SCR 530
relied on
Para 18
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5109
of 2019.
From the Judgment and Order  dated 06.03.2019 of the  National
Green Tribunal, Principal Bench, New Delhi in O.A. No. 161 of 2017.
A. N. S. Nadkarni, ASG, V. K. Shukla, Sr. Adv., S. S. Rebello,
Bharat Singh, Ms. Arzu Paul, M. P. Gupta, Neeleshwar Pavani,
Ms. Shivikka Agarwal, Ms. Riya Soni, G. S. Makker, Sanjeev Kumar
Dubey, Rajmangal Kumar, Hitendra Nath Rath, Sanjay Dubey, Vishal
Kaushik, Shiv Kumar, Vikash Sinha, Shiv Shankar, Rana Sudershan
Biswas, Jai Singh, Uttam Singh Negi, Avijit Roy, Pradeep Misra, Suraj
Singh, Ravindra Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
SURYA KANT, J.
1. The instant statutory appeal has been preferred under Section
22 of the National Green Tribunal Act, 2010 (hereinafter “NGT Act”)
against the order dated 06.03.2019 of the Principal Bench of the National
Green Tribunal (“NGT”), whereby appellant’s grievance against allotment
of local ponds to private industrialists has been dismissed summarily
without any adjudication of the lis or merits, but merely on the basis of
an affidavit filed by Respondent No. 5 (Greater Noida Industrial
Development Authority – hereinafter “GNIDA”) claiming that it was
developing bigger alternative water-bodies.
FACTUAL BACKGROUND
2. The appellant is a permanent resident of village Saini, tehsil
Dadri, of district Gautam Budh
Nagar, which falls in the National Capital
Region. He claims to be a socially-active lawyer dedicated to bettering
the lives of his co-villagers and alleges that the Original Application before
the NGT was triggered when around 18.01.2017 the agents of a private
entity (Respondent No. 6 - M/s Sharp Enterprises Pvt. Ltd. - hereinafter
“Sharp”) using excavataors and other heavy machinery attempted to
forcibly takeover possession of a ‘common-pond’, which had been in
use by local villagers for a century. This was objected to by the villagers,
JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.
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and the appellant subsequently made a complaint on 25.01.2017 to various
authorities including the District Collector. Pointing out revenue records
which elucidate the commons-status of the ponds, he sought directions
to restrain Sharp and its agents. However, there was no action on his
representation for more than 10 days, leading to another attempt by
Sharp at dispossession, compelling the appellant to seek police help. A
few days later, he submitted another representation to the Collector, but
to no avail. Aggrieved, he was left with no recourse but to approach the
NGT by way of an Original Application under Section 14 (read with
Sections 15 and 18) of the NGT Act for adjudication of these
environmental issues.
3. Before the Tribunal, appellant contended that large tracts of his
village (but not the impugned water-bodies) had been acquired under
the Land Acquisition Act, 1894 ostensibly for industrial development by
GNIDA. Subsequently, these acquired lands (including some local ponds)
had been leased to private industrialists, including Sharp in 2012. Using
revenue records obtained under the UP Consolidation of Holdings Act,
appellant showed that Khasra Nos. 552 (1140 sq meters) and 490 (8470
sq meters) were ‘pokhar’ (pond) and Khasra Nos. 522 (1620 sq meters)
and 676 (9804 sq metres) were ‘rajwaha’ (canal). Highlighting  that the
water bodies were vested in the Gram Sabhas per Section 117 of the UP
Zamindari
Abolition and Land Reforms Act, 1950, he contended that
such land had neither been acquired, nor resumed and hence there was
no power with GNIDA to transfer the same to Sharp. He further claimed
to have discovered other similar illegal allotments of water bodies by
GNIDA to other third-parties.
4. The appellant urged that neither the mandatory environmental
clearances under the Environmental (Protection) Act, 1984 had been
obtained by the industrialists nor the statutory authorities applied their
mind that the project would negatively impact the environment and human
health. Laying support on the Ramsar Convention and Rule 4 of the
Wetland (Conservation and Management) Rules, 2010 which prohibited
reclamation of wetlands, setting up or expansion of industries, permanent
construction or any other activity with potentially adverse effects on
ecosystem, he sought cancellation of such illegal allotments and protection
of water-bodies.
5. During pendency of the proceedings, GNIDA’s representatives
started filing up certain ponds and started developing an alternate area
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(1.25 times bigger) as a new waterbody to save the allotment made in
favour of Sharp (as admitted in an additional affidavit filed before the
NGT on 15.01.2019 by GNIDA).
6. Over the course of proceedings, the appellant was permitted to
amend his prayers in the Original Application to enable challenge to all
illegalities concerning village commons. No rejoinder or additional affidavit
was filed by any respondent against the amended Original Application.
7.  The NGT vide its brief impugned order dated 06.03.2019 took
note of this representation of constructing alternate pond and abruptly
concluded that appellant’s substantial grievance had been redressed. It
accordingly dismissed his application, without venturing into the merits
or the lis of the dispute.
CONTENTIONS OF PARTIES
8. This summary dismissal by the NGT has been challenged before
us. Appellant raises grievance against the manner in which the NGT,
without even looking at the sweep of his prayers, disposed off the mater
before it, merely on the strength of a proposed affidavit (which was
actually filed only on 12.03.2019, post adjudication of the application by
the NGT and without any advance copy to the appellant). He further
protests the haste with which his application was disposed of and how
the reluctance by the NGT to conduct even a proper enquiry has resulted
in conferrment of illegal benefits to third-parties, at the cost to the
environment and local residents.
9. The appellant contends
that the disputed pond is situated near
the Aravali hills which are in an arid zone with a low-water table. He
demonstrated how the existing sparse flaura and fauna in the region
was hence unlikely to survive elsewhere. Highlighting the unchecked
urbanisation and construction of concrete jungles in the ecologically
sensitive area, the appellant alleged that Respondent-authorities were in
active connivance with industrialists and real estate companies, were
negligently discharging their duties. This, he contended, violated public
trust and consequently the right to a wholesome environment guaranteed
under Article 21 of the Constitution. Interpreting Article 48A and Article
51-A(g) to place a duty on the State to protect the environment, including
lakes and water-bodies, the appellant has sought intervention of this Court
to save and restore the local ponds.
JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.
[SURYA KANT, J.]
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10. Per contra, learned Counsel for GNIDA (Respondent No. 5)
placed reliance on a Government Order dated 03.06.2016, which he
claimed permitted destruction of existing ponds and allotment of filled-
up land to third-parties in certain extraordinary circumstances, with the
stipulation that 25%-larger alternate water-bodies be developed
elsewhere. Further, he questioned recording of Khasra Nos. 552 and
490 as ‘pokhar’ in revenue record, contending that it was merely ‘slightly
low lying land’ over which some water would get accumulated during
rainy season. There was statedly no water on the pond-land since the
past year, showing that it was merely ordinary in nature. Even if ‘pokhar’,
Khasra Nos. 552 was only 1140 sq. meters in size, which constituted a
miniscule portion (only 1.4%) of the total allotted plot of 80,900 sq. meters.
It was also explained that no other ‘pokhar’ had been included and Khasra
No. 490 had not been allotted to Sharp. GNIDA also put forth a contrary
allegation that the appellant was, in fact, aggrieved by non-disbursement
of compensation and had set up the entire dispute as a rouse to stall
development of the area so that he could instead use it for his private
purpose of cattle grazing.
11. Sharp (Respondent No. 6) has averred that the disputed land
was no longer vested in the Gram Sabha as the UP Zamindari Abolition
and Land Reforms Act, 1950 had been repealed by the UP Revenue
Code, 2006.
This new Code specified that title of all lands including
lakes, ponds, tanks, streams and nallas vest in the State Government.
Through Section 59 of the Code, the land was merely entrusted to the
Gram Panchayat, and the State retained power to alter such entrustment
at any time. It claimed to have paid Rs 25 crores as sale consideration
for leasehold rights over acquired areas and is allegedly suffering as a
result of litigation-induced delays.
ANALYSIS & FINDINGS
12. At the outset, we must note, that the respondents have been
unable to demonstrate how the 2016 Government Order can be made
applicable retrospectively, the possession having been given to Sharp in
2012. Notwithstanding this, no case of the present instance being an
extraordinary circumstance (hence permitting recourse to the exceptional
provisions of the Government Order) has been made before us either.
Further, argument that Khasra No. 552 is a ‘slightly-sloped seasonal
rainfall-catchment area’ and not a ‘pond’, is  creative but without merit.
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Photographs have been placed on record by the appellant showing that
there is substantial water in the pond, which has not been controverted.
Further, revenue records maintained by  the Revenue Department
themselves show that the land was ‘pokhar’. It is hence not open for the
authorities to contradict and plead against the record without any scientific
or empirical support, for such categorisation had been made by them in
the past. Further, it was conceded by respondent-authorities during
arguments that Khasra No. 490 was also recorded as ‘pokhar’ in revenue
records and that it too had been integrated in the industrial development
project.
13. Additionally, it is clear that repeal of the UP Zamindari Abolition
and Land Reforms Act, 1950 and vesting of such ponds and local areas
in the State by Section 57 of the UP Revenue Code, 2006 would not by
itself either change the nature of land contrary to revenue record nor
will defeat the long-established rights of the local people on commons.
Such a proposition had unequivocally been laid down in Chigurupati
Venkata Subbayya v. Palaguda Anjayya1, where this Court negatived
a contention that communal rights in the suit-land stood abolished per
Section 3 of the Estates Abolition Act, 1948 for it provided that estates,
including communal lands, would stand transferred to the Government
free from any encombrance.  Further, it was held that even explicit
destruction of all rights and interests created by the
principal or
landholders, would not apply to community rights as such rights originated
elsewhere.
14. Given that Section 22 of the NGT Act, 2010 specifies that the
nature of the appeal shall be akin to a second appeal as specified under
Section 100 of the Code of Civil Procedure, 1908, we would restrict our
deliberation to a singular substantive question of law. That is, whether it
is permissible for the State to alienate common water-bodies for industrial
activities, under the guise of providing alternatives?
15. In Hinch Lal Tiwari v. Kamala Devi2, this Court settled that
‘ponds’ were a public utility meant for common use and held that they
could not be allotted or commercialised. It had refused to give any weight
to similar arguments of the pond having become levelled, with merely
some portion getting covered during rainy season by water. Importantly,
it emphasised that:
1 (1972) 1 SCC 521.
2 (2001) 6 SCC 496.
JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.
[SURYA KANT, J.]
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“13. It is important to notice that the material resources of
the community like forests, tanks, ponds, hillock, mountain
etc. are nature’s bounty. They maintain delicate ecological
balance. They need to be protected for a proper and healthy
environment which enables people to enjoy a quality life which
is the essence of the guaranteed right under Article 21 of the
Constitution. The Government, including the Revenue
Authorities i.e. Respondents 11 to 13, having noticed that a
pond is falling in disuse, should have bestowed their attention
to develop the same which would, on one hand, have
prevented ecological disaster and on the other provided better
environment for the benefit of the public at large. Such vigil
is the best protection against knavish attempts to seek
allotment in non-abadi sites.”
16. This Court reiterated in Jagpal Singh v. State of Punjab3
and noted that since time immemorial, certain common lands had vested
in village communities for collective benefit. Except in exceptional
circumstances when used exclusively for the downtrodden, these lands
were inalienable. It was observed that such protections, however,
remained on paper, and since Independence powerful people and a corrupt
system had appropriated these lands for personal aggrandisement. Pointing
out the harms in allowing such misappropriation, the Court noted an
urgent public interest in stopping such misdeeds. Further, various directions
were issued for eviction of illegal occupants and restoration of the
common land to villagers. It was explicitly specified that “long duration
of such illegal occupation or huge expenditure in making
constructions thereon” cannot be a “justification for condoning this
illegal act or for regularising the illegal possession”.
17. It is uncontroverted, in the present case, that the Government
Order dated 03.06.2016 was a consequence of the afore-cited judgment
in Jagpal Singh. Curiously, however, Clause 5 of the Government Order
carves an exception of “huge projects/works” (albeit in extraordinary
circumstances) to Jagpal Singh’s  strict principle of non-alienation of
common water-bodies. It is clear that such ground of exception doesn’t
fall under the limited class of grants to “landless labourers or members
of the Scheduled Castes/Scheduled Tribes, or where there is already
a school, dispensary or other public utility on the land”. Such
3 (2011) 11 SCC 396.
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industrial activities without any rationale classification,  unlike the narrow
class exempted, do not serve a social public purpose or benefit the local
people, and thus will be hit by the inalienability bar.
18. Even otherwise, the action of the respondent-authorities
contravenes their Constitutional obligations. Article 48-A of the
Constitution casts a duty on the State to “endeavour to protect and
improve the environment and to safeguard the forests and wild life
of the country”, and Article 51-A(g) expects every citizen to perform
his fundamental duty to “protect and improve the natural environment”.
A perusal of our Constitutional scheme and judicial development of
environmental law further shows that all persons have a right to a healthy
environment. It would be gainsaid that the State is nothing but a collective
embodiment of citizens, and hence collective duties of citizens can
constructively be imposed on the State. Such an interpretation of the
Constitution has also been adopted in MC Mehta v. Union of India4
wherein this Court mandated the State to ensure mandatory
environemental education to all school students in pursuance of the
fundamental duties ensrined in Article 51-A(g):
“24. Having regard to the grave consequences of the pollution
of water and air and the need for protecting and improving
the natural environment which is considered to be one of the
fundamental duties under the Constitution (vide Clause (g)
of Article 51A of the
Constitution) we are of the view that it is
the duty of the Central Government to direct all the educational
institutions throughout India to teach atleast for one hour in
a week lessons relating to the protection and the improvement
of the natural environment including forests, lakes, rivers and
wildlife in the first ten classes. The Central Government shall
get text books written for the said purpose and distribute them
to the educational institutions free of cost. Children should
be taught about the need for maintaining cleanliness
commencing with the cleanliness of the house both inside and
outside, and of the streets in which they live. Clean
surroundings lead to healthy body and healthy mind. Training
of teachers who teach this subject by the introduction of short
term courses for such training shall also be considered. This
should be done throughout India.”
4 (1988) 1 SCC 471.
JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.
[SURYA KANT, J.]
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19. There remains therefore no doubt that it is the responsibility
of the respondents to ensure the protection and integrity of the
environment, especially one which is a source for livelihood for rural
population and life for local flaura and fauna.
20. Protection of such village-commons is essential to safeguard
the fundamental right guaranteed by Article 21 of our Constitution. These
common areas are the lifeline of village communities, and often sustain
various chores and provide resources necessary for life. Waterbodies,
specifically, are an important source of fishery and much needed potable
water. Many areas of this country perennially face a water crisis and
access to drinking water is woefully inadequate for most Indians. Allowing
such invaluable community resources to be taken over by a few is hence
grossly illegal.
21. The respondents’ scheme of allowing destruction of existing
water bodies and providing for replacements, exhibits a mechanical
application of environmental protection. Although it might be possible to
superficially replicate a waterbody elsewhere, however, there is no
guarantee that the adverse effect of destroying the earlier one would be
offset. Destroying the lake at Khasra Nos. 552 and 490, for example,
would kill the vegetation around it and would prevent seepage of
groundwater which would affect the already low water-table in the area.
The people living around the lake would be
compelled to travel all the
way to the alternative site, in this case allegedly almost 3 kms away.
Many animals and marine organisms present in the earlier site would
perish, and wouldn’t resuscitate by merely filling a hole with water
elsewhere. Further, the soil quality and other factors at the alternate site
might not be conducive to growth of the same flora, and the local
environment would be altered permanently. The respondents’ reduction
of the complex and cascading effects of extinguishing natural water-
bodies into mere numbers and their attempt to justify the same through
replacement by geographically larger artificial water-bodies, fails to
capture the spirit of the Constitutional scheme and is, therefore,
impermissible.
22. Hence, it is clear that schemes which extinguish local
waterbodies albeit with alternatives, as provided in the 2016 Government
Order by the State of UP, are violative of Constitutional principles and
are liable to be struck down.
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23. For the reasons stated above, we allow the appeal and set
aside the impugned order passed by the NGT. The allotment of all water
bodies (both ponds and canals), including Khasra Nos. 552 and 490 to
Respondent No. 6, or any other similar third party in village Saini, tehsil
Dadari, district Gautam Budh Nagar is held to be illegal and the same is
hereby quashed. Since this Court has on 15.07.2019 already directed
the parties to maintain status quo, Respondent Nos. 1 to 5 shall restore,
maintain and protect the subject-water bodies in village Saini. Respondents
are further directed to remove all obstructions from the catchment area
through which natural water accumulates in the village ponds, all within
a period of three months.
Kalpana K. Tripathy
Appeal allowed.
JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.
[SURYA KANT, J.]