# HIMACHAL PRADESH BUS STAND MANAGEMENT AND DEVELOPMENT AUTHORITY (HPBSM & DA) v. THE CENTRAL EMPOWERED COMMITTEE ETC. & ORS

- **Citation:** [2021] 1 S.C.R. 344
- **Court:** Supreme Court of India
- **Decided:** 2021-01-12
- **Case number:** Civil Appeal Nos. 5231-32 of 2016
- **Bench:** Dr. Dhananjaya Y Chandrachud, Indu Malhotra, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/himachal-pradesh-bus-stand-management-and-development-authority-hpbsm-da-v-the-34660
- **Pages:** 45

## Headnote

Environmental laws: Forest land - Diversion of forest land
for construction of bus stand and parking space at McLeod Ganj -
Construction of the Hotel-cum-Restaurant structure in the Bus Stand
Complex - Legality of - By order dated 12 November 1997, MOEF
permitted diversion of 0.093 hectares of forest land for construction
of a parking space at McLeod Ganj in accordance with s.2 of the
Forest Act - Another order dated 1 March 2001 was passed by
MOEF diverting another 0.48 hectares of forest land for
construction of a bus stand at McLeod Ganj - In April 2000,
appellant-authority was constituted for construction of bus stands
in the State of Himachal Pradesh - In 2006, the land diverted for
non-forest use under orders dated 12 November 1997 and 1 March
2001 was transferred on a 99 year lease to the appellant for
construction of parking facility in McLeod Ganj - Appellant
decided to construct a Bus Stand-cum-Parking Complex and
approved the lowest bid of second respondent - Second respondent
started construction of the Bus stand Complex without awaiting
approval of plans and drawings by the Town and Country Planning
(TCP) Department - Subsequently TCP Department received
application seeking approval of drawings of Bus Stand Complex -
TCP Department pointed out certain shortcomings - As second
respondent continued with the construction without rectifying the
shortcomings, TCP Department called upon the appellant to halt
the construction of Bus Stand Complex - Relying upon the report of
CEC, NGT gave findings that the project proponent not only started
the construction without obtaining appropriate approval and
sanction from the concerned State and Central Government but had
also worked in collusion with some of the authorities who consented
to the commencement of construction which was entirely uncalled
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for and was illegal - Hence instant appeal - Held: The construction
of the Hotel-cum-Restaurant structure in the Bus Stand Complex
was illegal and constituted a brazen violation of law - The permission
which was granted by MOEF on 12 November 1997 was only for
construction of a 'parking place' at McLeod Ganj - Similarly, the
permission granted on 1 March 2001 was granted for constructing
a 'bus stand' in the same area - At no point was any permission
granted for the construction of a hotel or commercial structure -
Appellant, on being granted permission to engage in construction
for a specified purpose, unlawfully utilised that permission as the
basis to construct a different structure which was not authorized -
It did so in disregard of the provisions of the Forest Act - The
provisions of s.2 of the Forest Act mandated strict and punctilious
compliance - Mere substantial compliance is not enough - The
officials of statutory bodies of the State Government connived at
the violation of law which is a reflection on the nature of governance
by those who are expected to act within the bounds of law - NGT
acted within its mandate in a case of this nature, where the appellant
actively allowed the perpetration of a structure in breach of
environmental norms - Not looking askance at the construction of
the Hotel-cum-Restaurant structure, in an area which the NGT rightly
describes as the "lap of nature", would lead on the path of judicially
sanctioned environmental destruction - Directions passed to
demolish the Hotel-cum-Restaurant structure in the Bus Stand
Complex - Further, as directed by the NGT, the State of Himachal
Pradesh and the second respondent can utilise the parking space
and the bus stand in the Bus Stand Complex, after the demolition of
the Hotel-cum-Restaurant structure - However, this should be in
accordance with orders dated 12 November 1997 and 1 March 2001
issued by the MOEF, i.e., it shall not be used for any purpose other
than parking of cars and buses, as the case may be - Forest Act -
s.2 - Himachal Pradesh Town and Country Planning Act, 1977.
Environmental laws: Environmental rule of law - Es

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[2021] 1 S.C.R.
 [2021] 1 S.C.R. 344
HIMACHAL PRADESH BUS STAND MANAGEMENT AND
DEVELOPMENT AUTHORITY (HPBSM & DA)
v.
THE CENTRAL EMPOWERED COMMITTEE ETC. & ORS.
(Civil Appeal Nos. 5231-32 of 2016)
JANUARY 12, 2021
[DR. DHANANJAYA Y CHANDRACHUD,
INDU MALHOTRA AND INDIRA BANERJEE, JJ.]
Environmental laws: Forest land - Diversion of forest land
for construction of bus stand and parking space at McLeod Ganj -
Construction of the Hotel-cum-Restaurant structure in the Bus Stand
Complex - Legality of - By order dated 12 November 1997, MOEF
permitted diversion of 0.093 hectares of forest land for construction
of a parking space at McLeod Ganj in accordance with s.2 of the
Forest Act - Another order dated 1 March 2001 was passed by
MOEF diverting another 0.48 hectares of forest land for
construction of a bus stand at McLeod Ganj - In April 2000,
appellant-authority was constituted for construction of bus stands
in the State of Himachal Pradesh - In 2006, the land diverted for
non-forest use under orders dated 12 November 1997 and 1 March
2001 was transferred on a 99 year lease to the appellant for
construction of parking facility in McLeod Ganj - Appellant
decided to construct a Bus Stand-cum-Parking Complex and
approved the lowest bid of second respondent - Second respondent
started construction of the Bus stand Complex without awaiting
approval of plans and drawings by the Town and Country Planning
(TCP) Department - Subsequently TCP Department received
application seeking approval of drawings of Bus Stand Complex -
TCP Department pointed out certain shortcomings - As second
respondent continued with the construction without rectifying the
shortcomings, TCP Department called upon the appellant to halt
the construction of Bus Stand Complex - Relying upon the report of
CEC, NGT gave findings that the project proponent not only started
the construction without obtaining appropriate approval and
sanction from the concerned State and Central Government but had
also worked in collusion with some of the authorities who consented
to the commencement of construction which was entirely uncalled
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for and was illegal - Hence instant appeal - Held: The construction
of the Hotel-cum-Restaurant structure in the Bus Stand Complex
was illegal and constituted a brazen violation of law - The permission
which was granted by MOEF on 12 November 1997 was only for
construction of a 'parking place' at McLeod Ganj - Similarly, the
permission granted on 1 March 2001 was granted for constructing
a 'bus stand' in the same area - At no point was any permission
granted for the construction of a hotel or commercial structure -
Appellant, on being granted permission to engage in construction
for a specified purpose, unlawfully utilised that permission as the
basis to construct a different structure which was not authorized -
It did so in disregard of the provisions of the Forest Act - The
provisions of s.2 of the Forest Act mandated strict and punctilious
compliance - Mere substantial compliance is not enough - The
officials of statutory bodies of the State Government connived at
the violation of law which is a reflection on the nature of governance
by those who are expected to act within the bounds of law - NGT
acted within its mandate in a case of this nature, where the appellant
actively allowed the perpetration of a structure in breach of
environmental norms - Not looking askance at the construction of
the Hotel-cum-Restaurant structure, in an area which the NGT rightly
describes as the "lap of nature", would lead on the path of judicially
sanctioned environmental destruction - Directions passed to
demolish the Hotel-cum-Restaurant structure in the Bus Stand
Complex - Further, as directed by the NGT, the State of Himachal
Pradesh and the second respondent can utilise the parking space
and the bus stand in the Bus Stand Complex, after the demolition of
the Hotel-cum-Restaurant structure - However, this should be in
accordance with orders dated 12 November 1997 and 1 March 2001
issued by the MOEF, i.e., it shall not be used for any purpose other
than parking of cars and buses, as the case may be - Forest Act -
s.2 - Himachal Pradesh Town and Country Planning Act, 1977.
Environmental laws: Environmental rule of law - Essential
features of - Held: It seeks to facilitate a multi-disciplinary analysis
of the nature and consequences of carbon footprints and in doing
so it brings a shared understanding between science, regulatory
decisions and policy perspectives in the field of environmental
protection - It recognises that the 'law' element in the environmental
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ETC. & ORS.
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SUPREME COURT REPORTS
[2021] 1 S.C.R.
rule of law does not make the concept peculiarly the preserve of
lawyers and judges - On the contrary, it seeks to draw within the
fold all stakeholders in formulating strategies to deal with current
challenges posed by environmental degradation, climate change
and the destruction of habitats - Environmental rule of law seeks a
unified understanding of these concepts - There are significant
linkages between concepts such as sustainable development, the
polluter pays principle and the trust doctrine.
Environmental rule of law - Violation of - In the case in hand,
the exact effect of the construction of the Hotel-cum-Restaurant
structure by the appellant and the second respondent on the ecology
of the area cannot be determined in quantifiable terms - The parties
engaged in the construction without complying with the plans drawn
by the appellant's third-party consultants, which were agreed to by
them in the RFP - The construction proceeded even when the TCP
Department tried to halt it, refusing to approve its plans - Even the
post facto refusal by the MOEF for changing the nature of the
diverted forest land was not enough to stop the parties - Ultimately,
when they were forced to halt the construction by the CEC, they
proceeded with it under the guise of an order of this Court which
permitted only legal construction - A combination of these
circumstances highlighted not only conduct oblivious of the
environmental consequences of their actions, but an active disdain
for them in favour of commercial benefits - While the second
respondent was a private entity, they were actively supported in
these efforts by the appellant - Hence, their actions stood in violation
of the environmental rule of law - The environmental rule of law
surely means that construction of this sort cannot receive acceptance,
no matter what its economic benefits may be.
Jurisprudence: Rule of law and Rule by the law - Distinction
between - In a constitutional framework which is intended to create,
foster and protect a democracy committed to liberal values, the rule
of law provides the cornerstone - The rule of law is to be
distinguished from rule by the law - The former comprehends the
setting up of a legal regime with clearly defined rules and principles
of even application, a regime of law which maintains the
fundamental postulates of liberty, equality and due process - The
rule of law postulates a law which is answerable to constitutional
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norms - The law in that sense is accountable as much as it is capable
of exacting compliance - Rule by the law on the other hand can
mean rule by a despotic law - It is to maintain the just quality of the
law and its observance of reason that rule of law precepts in
constitutional democracies rest on constitutional foundations - A
rule of law framework dwells on the institutions which provide the
arc of governance - By focussing on the structural norms which
guide institutional decision making, rule of law frameworks
recognise the vital role played by institutions and the serious
consequences of leaving undefined the norms and processes by
which they are constituted, composed and governed - A modern
rule of law framework is hence comprehensive in its sweep and
ambit - It recognises that liberty and equality are the focal point of
a just system of governance and without which human dignity can
be subverted by administrative discretion and absolute power - Rule
of law then dwells beyond a compendium which sanctifies rules of
law - Its elements comprise of substantive principles, processual
guarantees and institutional safeguards that are designed to ensure
responsive, accountable and sensitive governance.
National Green Tribunal Act, 2010: Whether the NGT could
have adjudicated upon a violation of the TCP Act, which is not an
Act present in Schedule I of the NGT Act - Held: The provisions of
the TCP Act required the appellant and second respondent to take
prior permission from the TCP Department before changing the
nature of the land through their construction - Non-conformity with
this stipulation led to a violation of their environmental obligations
- In any case, this question is academic in the instant case because
the NGT's impugned judgment grounds its decision in the appellant
and second respondent's violation of s.2 of the Forest Act, which is
an Act present within Schedule I of the NGT Act - Forest Act - s.2 -
Himachal Pradesh Town and Country Planning Act, 1977.
Disposing of the appeals, the Court
HELD: 1. The report of the CEC is a serious indictment of
the actions of the appellant. The CEC report indicates that: (i)
the construction of the Hotel-cum-Restaurant structure in Bus
Stand Complex was illegal; (ii) the land was a reserved forest;
 (HPBSM & DA) v. THE CENTRAL EMPOWERED COMMITTEE
ETC. & ORS.
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(iii) there was no valid permission for diversion for the land for
the construction of the Hotel-cum-Restaurant structure; (iv)
Forest Act consent was taken only for the parking facility and the
bus stand; (v) there was no valid approval from the TCP
Department of the plans of the entire Bus Stand Complex; and
(vi) the finally constructed Bus Stand Complex is not in conformity
with the appellant's own proposed plans in the RFP. The report
submitted by the District and Sessions Judge presents a striking
analysis of the manner in which the Hotel-cum-Restaurant
structure was constructed in breach of statutory requirements
and how this was made possible by the connivance of multiple
state actors. The findings which were arrived at in NGT's
judgment are supported by the report submitted by the District
and Sessions Judge. NGT acted within its mandate in a case of
this nature, where the appellant actively allowed the perpetration
of a structure in breach of environmental norms. Not looking
askance at the construction of the Hotel-cum-Restaurant
structure, in an area which the NGT rightly describes as the
"lap of nature", will would lead on the path of judicially sanctioned
environmental destruction.[Paras 43, 44, 45][375-F-H;
376-A-B, H; 377-A]
2.1 In a constitutional framework which is intended to create,
foster and protect a democracy committed to liberal values, the
rule of law provides the cornerstone. The rule of law is to be
distinguished from rule by the law. The former comprehends the
setting up of a legal regime with clearly defined rules and principles
of even application, a regime of law which maintains the
fundamental postulates of liberty, equality and due process. The
rule of law postulates a law which is answerable to constitutional
norms. The law in that sense is accountable as much as it is
capable of exacting compliance. Rule by the law on the other
hand can mean rule by a despotic law. It is to maintain the just
quality of the law and its observance of reason that rule of law
precepts in constitutional democracies rest on constitutional
foundations. A rule of law framework encompasses rules of law
but it does much more than that. It embodies matters of substance
and process. It dwells on the institutions which provide the arc
of governance. By focussing on the structural norms which guide
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institutional decision making, rule of law frameworks recognise
the vital role played by institutions and the serious consequences
of leaving undefined the norms and processes by which they are
constituted, composed and governed. A modern rule of law
framework is hence comprehensive in its sweep and ambit. It
recognises that liberty and equality are the focal point of a just
system of governance and without which human dignity can be
subverted by administrative discretion and absolute power. Rule
of law then dwells beyond a compendium which sanctifies rules
of law. Its elements comprise of substantive principles,
processual guarantees and institutional safeguards that are
designed to ensure responsive, accountable and sensitive
governance. [Para 46][377-B-G]
2.2 The environmental rule of law, at a certain level, is a
facet of the concept of the rule of law. But it includes specific
features that are unique to environmental governance, features
which are sui generis. The environmental rule of law seeks to
create essential tools - conceptual, procedural and institutional
to bring structure to the discourse on environmental protection.
It does so to enhance our understanding of environmental
challenges - of how they have been shaped by humanity's interface
with nature in the past, how they continue to be affected by its
engagement with nature in the present and the prospects for the
future, if we were not to radically alter the course of destruction
which humanity's actions have charted. The environmental rule
of law seeks to facilitate a multi-disciplinary analysis of the nature
and consequences of carbon footprints and in doing so it brings a
shared understanding between science, regulatory decisions and
policy perspectives in the field of environmental protection. It
recognises that the 'law' element in the environmental rule of
law does not make the concept peculiarly the preserve of lawyers
and judges. On the contrary, it seeks to draw within the fold all
stakeholders in formulating strategies to deal with current
challenges posed by environmental degradation, climate change
and the destruction of habitats. The environmental rule of law
seeks a unified understanding of these concepts. There are
significant linkages between concepts such as sustainable
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ETC. & ORS.
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[2021] 1 S.C.R.
development, the polluter pays principle and the trust doctrine.
The universe of nature is indivisible and integrated. The state of
the environment in one part of the earth affects and is
fundamentally affected by what occurs in another part. Every
element of the environment shares a symbiotic relationship with
the others. It is this inseparable bond and connect which the
environmental rule of law seeks to explore and understand in
order to find solutions to the pressing problems which threaten
the existence of humanity. The environmental rule of law is
founded on the need to understand the consequences of our
actions going beyond local, state and national boundaries. The
rise in the oceans threatens not just maritime communities. The
rise in temperatures, dilution of glaciers and growing
desertification have consequences which go beyond the
communities and creatures whose habitats are threatened. They
affect the future survival of the entire eco-system. The
environmental rule of law attempts to weave an understanding of
the connections in the natural environment which make the issue
of survival a unified challenge which confronts human societies
everywhere. It seeks to build on experiential learnings of the
past to formulate principles which must become the building
pillars of environmental regulation in the present and future. The
environmental rule of law recognises the overlap between and
seeks to amalgamate scientific learning, legal principle and policy
intervention. Significantly, it brings attention to the rules,
processes and norms followed by institutions which provide
regulatory governance on the environment. In doing so, it fosters
a regime of open, accountable and transparent decision making
on concerns of the environment. It fosters the importance of
participatory governance - of the value in giving a voice to those
who are most affected by environmental policies and public
projects. The structural design of the environmental rule of law
composes of substantive, procedural and institutional elements.
The tools of analysis go beyond legal concepts. The result of the
framework is more than just the sum total of its parts. Together,
the elements which it embodies aspire to safeguard the bounties
of nature against existential threats. For it is founded on the
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universal recognition that the future of human existence depends
on how we conserve, protect and regenerate the environment
today. [Para 47][377-G-H; 378-A-H; 379-A-C]
Centre for Environmental Law, WWF- I v. Union of India
[2013] 6 SCR 757; Hanuman Laxman Aroskar v. Union
of India (2019) 15 SCC 401 : [2019] 5 SCR 916 -
referred to.
2.3 The need to adjudicate disputes over environmental
harm within a rule of law framework is rooted in a principled
commitment to ensure fidelity to the legal framework regulating
environmental protection in a manner that transcends a case-bycase adjudication. Before this mode of analysis gained acceptance,
we faced a situation in which, despite the existence of
environmental legislation on the statute books, there was an
absence of a set of overarching judicially recognized principles
that could inform environmental adjudication in a manner that
was stable, certain and predictable.However, even while using
the framework of an environmental rule of law, the difficulty we
face is this - when adjudicating bodies are called on to adjudicate
on environmental infractions, the precise harm that has taken
place is often not susceptible to concrete quantification. While
the framework provides valuable guidance in relation to the
principles to be kept in mind while adjudicating upon
environmental disputes, it does not provide clear pathways to
determine the harm caused in multifarious factual situations that
fall for judicial consideration. The determination of such harm
requires access to scientific data which is often times difficult
to come by an individual situations. [Paras 50, 51][380-F-G;
381-D-E]
2.4 In the case in hand, it is not possible to determine in
quantifiable terms the exact effect of the construction of the Hotelcum-Restaurant structure by the appellant and the second
respondent on the ecology of the area. Both of them have tried
to argue that the number of trees felled by them, in the case of
the present construction, is what it would have been, had they
only built a bus stand and a parking space. However, the parties
have engaged in the construction without complying with the plans
 (HPBSM & DA) v. THE CENTRAL EMPOWERED COMMITTEE
ETC. & ORS.
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drawn by the appellant's third-party consultants, which were
agreed to by them in the RFP. The construction proceeded even
when the TCP Department tried to halt it, refusing to approve its
plans. Even the post facto refusal by the MOEF for changing the
nature of the diverted forest land was not enough to stop the
parties. Ultimately, when they were forced to halt the construction
by the CEC, they proceeded with it under the guise of an order
of this Court which permitted only legal construction. A
combination of these circumstances highlights not only conduct
oblivious of the environmental consequences of their actions,
but an active disdain for them in favour of commercial benefits.
While the second respondent was a private entity, they were
actively supported in these efforts by the appellant. Hence, their
actions stood in violation of the environmental rule of law. The
environmental rule of law surely means that construction of this
sort cannot receive acceptance, no matter what its economic
benefits may be. A lack of scientific certainty is no ground to
imperil the environment. [Para 53][382-B-G]
Bengaluru Development Authority vs. Sudhakar Hegde
2020 SCC OnLine SC 328; Lal Bahadur vs. State of
Uttar Pradesh (2018) 15 SCC 407; State of Meghalaya
& others vs. All Dimasa Students Union (2019) 8 SCC
177 : [2019] 8 SCR 297; Hospitality Association of
Mudumalai vs. In Defence of Environment and Animals
2020 SCC OnLine SC 838; Goel Ganga Developers
India Pvt. Ltd. vs. Union of India (2018) 18 SCC 257;
M.C. Mehta vs. Union of India (2018) 18 SCC 397 :
[2018] 11 SCR 384 - referred to.
3. In the present set of appeals, the forest land was allowed
to be used by the MOEF for the specific purposes of constructing
a 'parking space' and 'bus stand' in McLeod Ganj. MOEF made
a conscious decision not to modify the terms of this permission,
even when granted an opportunity to do so. Hence, any
construction undertaken by the second respondent, even with
the tacit approval of the appellant being a statutory authority under
the HP Bus Stands Act, will be illegal. [Para 62][386-E-F]
4. The provisions of the TCP Act required the appellant
and second respondent to take prior permission from the TCP
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Department before changing the nature of the land through their
construction. Non-conformity with this stipulation led to a violation
of their environmental obligations. In any case, this question is
academic because the NGT's impugned judgment grounds its
decision in the appellant and second respondent's violation of
Section 2 of the Forest Act, which is an Act present within
Schedule I of the NGT Act. [Para 63][387-E-F]
State of M.P. v. Centre for Environment Protection
Research & Development (2020) 9 SCC 781 - referred
to.
5. The directions issued by the NGT in its judgment are
upheld. By the earlier orders dated 16 May 2016 and 9 September
2016, this court only stayed NGT's direction in relation to the
demolition of the Hotel-cum-Restaurant structure. The argument
of the appellant against the demolition of the Hotel-cumRestaurant structure in the Bus Stand Complex, submitting that
it may be allowed to stand for their use is not accepted otherwise
it would legalise what is an otherwise entirely illegal construction.
The process of demolishing the Hotel-cum-Restaurant structure
in the Bus Stand Complex is directed to commence within two
weeks from the date of the judgment and the structure shall be
demolished by the second respondent within one month
thereafter. In the event of default, the Chief Conservator of Forest
along with the administration of district Dharamshala shall
demolish the structure and recover the cost and expenses as
arrears of land revenue from the second respondent. Further, as
directed by the NGT, the State of Himachal Pradesh and the second
respondent can utilise the parking space and the bus stand in the
Bus Stand Complex, after the demolition of the Hotel-cumRestaurant structure. However, this has to be in accordance with
orders dated 12 November 1997 and 1 March 2001 issued by
the MOEF, i.e., it shall not be used for any purpose other than
parking of cars and buses, as the case may be. [Paras 64, 65,
66][387-G-H; 388-A-D]
Case Law Reference
[2013] 6 SCR 757
referred to
Para 38 (i)
 (HPBSM & DA) v. THE CENTRAL EMPOWERED COMMITTEE
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[2019] 5 SCR 916
referred to
Para 38 (ii)
(2018) 15 SCC 407
referred to
Para 55
[2019] 8 SCR 297
referred to
Para 55
(2018) 18 SCC 257
referred to
Para 60
[2018] 11 SCR 384
referred to
Para 61
(2020) 9 SCC 781
referred to
Para 63
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 52315232 of 2016.
From the Judgment and Order dated 04.05.2016 of the National
Green Tribunal Principal Bench, New Delhi in Miscellaneous Application
No. 1180 of 2015 and 1181 of 2015.
With
Civil Appeal Nos. 5229-5230 of 2016.
Abhinav Mukerji, AAG, Suryaprakash V Raju, ASG, Parag P
Tripathi, Suryanarayana Singh, Ajit Kr Sinha, Sr. Advs., Ashim Shridhar,
Ms. Mishika Bajpai, Gopal Jha, Ms. Niyati, Shreyash Bhardwaj, Ms.
Pragati Neekhra, Gurmeet Singh Makker, R Bala, M P Gupta, Anmol
Chandan, R K Verma, Annam D. N. Rao, Rahul Mishra, Mrs. Bihu
Sharma, Ms. Pratishtha Vij, Ritwick Dutta, Ms. Srishti Agnihotri, Ms.
Kanika Sood, Ms. Sanjana Grace Thomas, Ms. Anmol Gupta, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis.
They are:
A
The appeal
B
Previous orders of this Court
C
The history of the forest land
D
The construction of the Bus Stand Complex
E
Proceedings before the first respondent
F
Proceedings before the NGT
A
B
C
D
E
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G
Report of the District and Sessions Judge, Kangra
H
Submissions of counsel
I
Analysis
I.1 Environmental rule of law
I.2 Role of courts in ensuring environmental protection
I.3 Illegal activities on forest land
I.4 Jurisdiction of NGT
J
Conclusion
A. The appeal
1. The civil appeals in the present case arise under Section 22 of
the National Green Tribunal Act, 2010 ("NGT Act"). The correctness
of a judgment and order dated 4 May 2016 of the National Green Tribunal
("NGT") is in issue.
2. The NGT dealt with an original application filed by the second
respondent, who is also the appellant in companion Civil Appeal Nos.
5229-5230 of 2016, to challenge a report dated 18 September 2008 of
the Central Empowered Committee ("CEC"), the first respondent. In
its report, the CEC concluded, inter alia, that a part of the Bus Stand
Complex constructed by the second respondent and the appellant at
McLeod Ganj in Himachal Pradesh violates the provisions of the Forest
(Conservation) Act, 1980 ("Forest Act"). The CEC recommended the
demolition of the illegal portions.
3. The NGT accepted the findings of the CEC, observing that the
Bus Stand Complex seriously disturbs the ecology of the area in which it
has been constructed. The NGT directed, inter alia, that:
(i)
The structure of the Hotel-cum-Restaurant in the Bus Stand
Complex be demolished by the second respondent;
(ii)
The second respondent shall pay a compensation of Rs. 15
lacs in terms of Sections 15 and 17 of the NGT Act;
(iii)
The appellant shall pay a compensation of Rs. 10 lacs, while
the State of Himachal Pradesh and its Department of
Tourism shall pay a compensation of Rs. 5 lacs each; and
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(iv)
The Chief Secretary of the State of Himachal Pradesh shall
conduct an enquiry against the erring officers of the
appellant, in order to fasten the responsibility for the illegal
project.
B. Previous orders of this Court
4. By an order dated 16 May 2016, this Court admitted the present
appeals and framed the following substantial questions of law, as provided
in Section 22 of the NGT Act:
"1. Whether the Tribunal has failed to appreciate that the land
which is subject matter of the appeal had already been diverted
for non - forest use under Section 2 of the Forest (Conservation)
Act, 1980?
2. Whether the Tribunal failed to consider properly the effect of
Section 14 of the Himachal Pradesh Bus Stand Management and
Development Authority Act, 1999 which empowers the authority
to establish and maintain hotels and restaurants at or near bus
stands?
3. Whether the Tribunal exceeded its jurisdiction in holding that
alleged violations of the Himachal Pradesh Town and Country
Planning Act, 1977 are made out even though the said enactment
is absent in the Schedule I of enactments attached to the National
Green Tribunal Act?"
This Court also granted a stay against the operative portion of the
NGT's judgment directing: (i) the demolition of the Hotel-cum-Restaurant
structure in the Bus Stand Complex; and (ii) an enquiry to be conducted
against the appellant's officers.
5. The above order was modified on 9 September 2016, by lifting
the stay against the enquiry to be conducted against the appellant's
officers. However, this Court directed that an enquiry shall be conducted
by the District and Sessions Judge, Kangra within whose jurisdiction the
Bus Stand Complex is located. The District and Sessions Judge was
directed to place a report before this Court. Parties to the present appeals
were permitted to associate themselves with the enquiry being conducted
by the District and Sessions Judge.
C. The history of the forest land
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6. The genesis of the present case originates in an order dated 12
November 1997 of the Union Ministry of Environment and Forests (the
fourth respondent, "MOEF"), on a proposal made by the State of
Himachal Pradesh, permitting the diversion of 0.093 hectares of forest
land for the construction of a parking space at McLeod Ganj, in
accordance with Section 2 of the Forest Act. The order is extracted
below:
"After careful consideration of the proposal of the State
Government, the competent authority hereby conveys approval
under Section -2 of Forest (Conservation) Act, 1980, for diversion
of 0.093 hectares of forest land for the construction of parking
place at McLeod Ganj, forest division Dharamsala, District Kangra,
HP, subject to following conditions:
1. Legal status of the forest land will remain unchanged. The
forest land will be restored to forest Department as and when it is
no more required.
2. Compensatory afforestation will be carried out, by planting at
least 250 plants of deodar and ornamental species around McLeod
Ganj town as proposed, at a cost of Rs.11500/ - which is reported
to have been deposited by user agency vide TC No.3 dt. 02.09.97.
3. The Forest land will be used only for the purpose as mentioned
in the proposal.
4. The user agency will abide by any condition that may be imposed
by the State Forest Department in the interest of afforestation
and protection of the forest.
5. This approval is subject to the clearance of the proposal under
other relevant Acts/ Rules / Court's Ruling /Instructions etc. as
applicable to this proposal.
State Government will ensure fulfilment of these conditions."
7. MOEF issued a further order dated 1 March 2001, diverting
another 0.48 hectares of forest land for the construction of a bus stand
at McLeod Ganj. The contents of the order read thus:
"After careful consideration of the proposal of the State
Government, the competent authority hereby conveys approval
for diversion of 0.48 hectares of forest land for construction' of
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above mentioned project at Dharmsala, forest division Dharamsala
and district Kangra, H.P., subject to following conditions.
1. Legal status of the forest land will remain unchanged.
2. Minimum no. of trees as are unavailable may be felled which
should not exceed 17 (seventeen) as proposed.
3. Compensatory afforestation will be carried out, on 0.098 forest
land at P46K Dharamsala C.B. Govt. Forest of Dharamsala forest
division at a cost of Rs.14,900/- (Rs. Fourteen thousand nine
hundred) which is reported to have been deposited by user agency
vide cheque No.055710 dated 19.10.2000.
4. Forest Guard hut as proposed in the proposal, will also be
constructed at a cost of Rs.2.25 lacs which is reported to have
been deposited by user agency.
5. The user agency will abide by any condition that may be imposed
by the State Forest Department In the interest of afforestation
and protection of the forest.
6. This forest land will not be used for any other purpose than that
mentioned in the proposal.
7. This approval is subject to the clearance of the proposal under
other relevant Acts/Rules /Court's Ruling /Instructions etc. as
applicable to this proposal.
8. The Ministry may revoke suspend the clearance if
implementation of any of the above conditions is not satisfactory.
State Government through state forest department will ensure
fulfillment of these conditions."
8. Of the above land, an area admeasuring 0.093 hectares is above
the main Dharamshala-McLeod Ganj road while an area admeasuring
0.48 hectares is below the main road. Both these pieces of land face
each other and are a part of Banoi Reserve Forest. The user agencies
responsible for the construction of the parking space and the bus stand
were the S.D.O. Dharamshala and Himachal Pradesh Tourism
Department. The cost of these projects was estimated at Rs. 10 lacs
and Rs. 90-95 lacs.
9. In April 2000, the appellant was constituted for the construction
of bus stands in the State of Himachal Pradesh following the enactment
of the Himachal Pradesh Bus Stands Management and Development
Authority Act, 1999 ("HP Bust Stands Act"). In January/February of
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2006, the land diverted for non - forest use under the above orders
dated 12 November 1997 and 1 March 2001 was transferred on a 99
year lease to the appellant.
D. The construction of the Bus Stand Complex
10. The land transferred to the appellant was to be utilised for the
construction of a parking facility in McLeod Ganj. Given the nature of
the costs that would be incurred for the creation of a 'modern complex',
the Board of Directors of the appellant in their meeting held on 7
November 2003 decided to construct a Bus Stand-cum-Parking Complex
on a Build-Operate-Transfer basis1. In furtherance of this, the appellant
invited offers on 19 November 2003. The appellant received only one
offer, which was considered financially unviable since it envisaged a
concession period of 75 years.
11. The appellant decided to alter the nature of the Bus Stand
Complex in order to make it financially viable for private entities by
issuing a new Request for Proposal on 13 July 2004 for the construction
of the modified Bus Stand Complex. Apart from the construction of the
bus stand itself on the lower level, the appellant envisaged further
construction in the complex of:
(i)
a multi-level commercial complex with shops at the road
level;
(ii)
a dormitory and a budget hotel at the first, second and third
levels;
(iii)
a dining facility/restaurant/food plaza at the top level; and
(iv)
a parking provision for fifty cars at the road level.
The area of the multi-level commercial complex was to be 2779
M2; of the road level parking, 1100 M2; and of the bus stand at the lower
level, 2580 M2 (which included 359 M2 of area for shops/kiosks).
1 In a BOT project, the public sector grantor grants to a private company the right to
develop and operate a facility or system for a certain period (the "Concession Period"),
in what would otherwise be a public sector project. (See, 'Concessions, Build-OperateTransfer (BOT) and Design-Build-Operate (DBO) Projects' available at <https://
ppp.worldbank.org/public-private-partnership/agreements/concessions-bots-dbos>
accessed on 23 December 2020).
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12. On 13 October 2004, the Board of the appellant approved the
lowest bid submitted by the second respondent for the construction of
the Bus Stand Complex. The second respondent was awarded
construction rights through a 'notice of award' dated 18 November 2004.
The appellant and the second respondent entered into a 'Concession
Agreement' on 23 December 2004 under which the concession period
commenced from 15 December 2005, and was to be for 16 years, 7
months and 15 days.
13. The second respondent started the construction of the Bus
Stand Complex in December 2005 without awaiting the permission of
the Town and Country Planning Department ("TCP Department"),
approving the plans and drawings.
14. On 4 March 2006, the TCP Department received an application
seeking approval of the drawings of the Bus Stand Complex. It pointed
out shortcomings in the proposed drawings on 10 March 2006. Through
further letters between 28 July 2006 to 19 February 2007, it directed the
appellant to provide further information and to rectify the shortcomings
in the proposed construction. During the midst of this process, the second
respondent continued with the construction of the Bus Stand Complex.
15. Finally, through notices dated 5 October 2006, 8 March 2007
and 5 June 2008, the TCP Department called upon the appellant to halt
the construction of the Bus Stand Complex. The second respondent
nonetheless continued with the construction.
16. On 8 May 2007, the State of Himachal Pradesh sent a proposal
to MOEF requesting, inter alia, that:
(i)
The use of the entire land (measuring 0.573 hectares) which
was permitted to be diverted for non - forest use under
orders dated 12 November 1997 and 1 March 2001 be
changed to the construction of the Bus Stand Complex;
and
(ii)
The user agency be changed to the appellant.
17. Through its order dated 12 June 2007, MOEF rejected the
proposal of the State of Himachal Pradesh. The order was in the following
terms:
"Please refer to your letter No. FFE-B-F(2)-87/97 dated 8th May,
2007 on the above mentioned subject seeking approval of
Government of India for changing of land use from construction
of parking on 0.093 hectare of forest land and Bus Stand Complex
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and Hotel on entire 0.573 hectare of forest land for non-forestry
propose under Forest (Conservation) Act, 1980 and change in the
name of user agency from SDO(Civil) and HP Tourism
Department to HP Bus Stand Management and Development
Authority.
The request of the State Government has been examined and the
competent authority conveys its inability to consider the same and
it is therefore, rejected."
18. As explained in greater detail below, when proceedings were
initiated before it, CEC directed a halt in construction. The second
respondent approached this Court by filing an interim application. By an
order dated 7 September 2007, this Court directed that the second
respondent can proceed with the construction of the bus stand, observing
thus:
"In this application, the applicant is seeking a direction for
construction of a bus stand. It is alleged that the C.E.C. has
prevented the applicant from constructing some parking area near
the bus stand. We are told that the C.E.C. is proposing to inspect
the site and shall give a report. We think that before giving any
direction to the applicant, the C.E.C. may hear the applicant and
file a report and meanwhile the work relating to the construction
of bus stand may continue but no other construction shall be carried
out."
The construction of the Bus Stand Complex was then completed
by the second respondent on 7 July 2008.
E. Proceedings before the first respondent
19. During the construction by the second respondent, the sixth
and the seventh respondents approached the CEC by filing an application
on 20 April 2007, alleging that the construction of the Bus Stand Complex
was in violation of the Forest Act. As stated above, the CEC directed
that the construction of the Bus Stand Complex be halted.
20. The second respondent filed an interim application, in which
this Court passed an order dated 7 September 2007, which has been
extracted above. The second respondent was impleaded in the
proceedings before the CEC.
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21. The members of the CEC visited the site of the Bus Stand
Complex on 27 September 2007. The CEC heard the parties before it on
multiple dates. It also had before it a report dated 18 August 2008 of the
Chief Secretary of Himachal Pradesh.
22. The CEC submitted its report dated 18 September 2008 to
this Court.