# M.C. MEHTA v. UNION OF INDIA & ORS

- **Citation:** [2018] 11 S.C.R. 384
- **Court:** Supreme Court of India
- **Decided:** 2018-09-11
- **Bench:** Madan B. Lokur, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-c-mehta-v-union-of-india-ors-32261
- **Pages:** 64

## Headnote

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
[2018] 11 S.C.R. 384
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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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SUPREME COURT REPORTS
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that closed land under the notification dated 18th Augu

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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
[2018] 11 S.C.R. 384
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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
M.C. MEHTA v. UNION OF INDIA & ORS.
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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 Ministerin-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.
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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
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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.