# TATA HOUSING DEVELOPMENT COMPANY LTD v. AALOK JAGGA AND OTHERS

- **Citation:** [2019] 13 S.C.R. 577
- **Court:** Supreme Court of India
- **Decided:** 2019-11-05
- **Case number:** Civil Appeal Nos. 8398-8399 of 2019
- **Bench:** Arun Mishra, M. R. Shah, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tata-housing-development-company-ltd-v-aalok-jagga-and-others-33307
- **Pages:** 28

## Headnote

Environment Laws:
Environment (Protection) Act, 1986 - Environment (Protection)
Rules, 1996 - Housing project - Environment clearance - Housing
project coming up within the catchment area of Sukhna Lake and
at a short distance of 123 meters from Sukhna Wildlife Sanctuary -
Challenge to - Held: Considering the distance of 123 meters from
the Northern side and 183 meters from the Eastern side of the project
from wildlife sanctuary, such project cannot be allowed to come up
in the area - Origination of the project indicates that State of Punjab
failed to act in furtherance of Doctrine of Public Trust as 95 MLAs
were to be the recipients of the flats - Government permitted setting
up of high-rise buildings up to 92 meters in the area which was not
at all permissible - Moreso, in view of the Notification issued with
respect to the Sukhna wildlife sanctuary towards the side of
Chandigarh Union Territory that no new commercial construction
of any kind shall be permitted within 0.5 km from the boundary of
protected area or up to the boundary of the eco-sensitive zone and
also the fact that proposal made by the Punjab Government,
confining the Buffer Zone to 100 meters, was rightly not accepted
by MoEF, the Government of Punjab as well as MoEF, cannot be
the final arbiter in the matter - Court has to perform its duty in
such a scenario when the authorities have failed to protect the
wildlife sanctuary eco-sensitive zone - Thus, the entire exercise of
obtaining clearance relating to the project quashed - Doctrine of
Public Trust.
Environment: Environmental degradation and wildlife
degeneration - Need for protection and preservation of environment,
safeguarding forest and wildlife - Development and urbanization
adversely affects our natural surroundings - Constitution of
India - Arts. 48(A), 51(A).
 [2019] 13 S.C.R. 577
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[2019] 13 S.C.R.
Dismissing the appeals, the Court
HELD: 1.1 Proposal, which was sent by the Government of
Punjab to the MoEF, to keep the Buffer Zone within 100 meters
from Sukhna Wildlife Sanctuary, had not been accepted and the
direction was issued to resubmit the proposal for at least 1 km
Buffer Zone has not been forwarded by State of Punjab. It was
incumbent upon the State of Punjab to send a proposal to the
MoEF, as required but it appears that it has not chosen to do so
for a reason precious project concerning the MLAs is involved,
and MoEF has not accepted its proposal for keeping Buffer Zone
to 100 meters. It has also been pointed out from the respondent
side that Naya Gaon forms part of the Greater Mohali Region in
the State of Punjab. In the statutory, Greater Mohali Area
Development Authority, Regional Plan for Greater Mohali Region
in paragraph 14.3.1, it has been mentioned that no development
is possible within 5 kms buffer distance from existing forest i.e.,
Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are
several pockets of forests distributed all over the Greater Mohali
Region. These have to be conserved, and the buffer zone
recommended should be protected against urban development.
It is also clear that 2-2.75 km area has been ordered as ecosensitive zone by the MoEF and the notification dated 18.1.2017
has been issued as to the adjacent area towards Chandigarh side
of the Sukhna Wildlife Sanctuary. [Para 21, 23, 24] [591-F-G;
593-D-F]
1.4 The most potent threat faced by the earth and human
civilization as a whole which is confronted with, today, is
environmental degradation and wildlife degeneration. The need
to protect flora and fauna which constitutes a major portion of
our ecosystem is immediate. Development and urbanization
coming at the cost of adversely affecting our natural surroundings
will in turn impact and be the cause of human devastation as was
seen in the 2013 floods in Uttarakhand and in 2018 in Kerala.
The climate change is impacting wildlife by disrupting the timing
of natural events. With warmer temperatures, flowering pla

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TATA HOUSING DEVELOPMENT COMPANY LTD.
v.
AALOK JAGGA AND OTHERS
(Civil Appeal Nos. 8398-8399 of 2019)
NOVEMBER 05, 2019
[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
Environment Laws:
Environment (Protection) Act, 1986 - Environment (Protection)
Rules, 1996 - Housing project - Environment clearance - Housing
project coming up within the catchment area of Sukhna Lake and
at a short distance of 123 meters from Sukhna Wildlife Sanctuary -
Challenge to - Held: Considering the distance of 123 meters from
the Northern side and 183 meters from the Eastern side of the project
from wildlife sanctuary, such project cannot be allowed to come up
in the area - Origination of the project indicates that State of Punjab
failed to act in furtherance of Doctrine of Public Trust as 95 MLAs
were to be the recipients of the flats - Government permitted setting
up of high-rise buildings up to 92 meters in the area which was not
at all permissible - Moreso, in view of the Notification issued with
respect to the Sukhna wildlife sanctuary towards the side of
Chandigarh Union Territory that no new commercial construction
of any kind shall be permitted within 0.5 km from the boundary of
protected area or up to the boundary of the eco-sensitive zone and
also the fact that proposal made by the Punjab Government,
confining the Buffer Zone to 100 meters, was rightly not accepted
by MoEF, the Government of Punjab as well as MoEF, cannot be
the final arbiter in the matter - Court has to perform its duty in
such a scenario when the authorities have failed to protect the
wildlife sanctuary eco-sensitive zone - Thus, the entire exercise of
obtaining clearance relating to the project quashed - Doctrine of
Public Trust.
Environment: Environmental degradation and wildlife
degeneration - Need for protection and preservation of environment,
safeguarding forest and wildlife - Development and urbanization
adversely affects our natural surroundings - Constitution of
India - Arts. 48(A), 51(A).
 [2019] 13 S.C.R. 577
577
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
Dismissing the appeals, the Court
HELD: 1.1 Proposal, which was sent by the Government of
Punjab to the MoEF, to keep the Buffer Zone within 100 meters
from Sukhna Wildlife Sanctuary, had not been accepted and the
direction was issued to resubmit the proposal for at least 1 km
Buffer Zone has not been forwarded by State of Punjab. It was
incumbent upon the State of Punjab to send a proposal to the
MoEF, as required but it appears that it has not chosen to do so
for a reason precious project concerning the MLAs is involved,
and MoEF has not accepted its proposal for keeping Buffer Zone
to 100 meters. It has also been pointed out from the respondent
side that Naya Gaon forms part of the Greater Mohali Region in
the State of Punjab. In the statutory, Greater Mohali Area
Development Authority, Regional Plan for Greater Mohali Region
in paragraph 14.3.1, it has been mentioned that no development
is possible within 5 kms buffer distance from existing forest i.e.,
Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are
several pockets of forests distributed all over the Greater Mohali
Region. These have to be conserved, and the buffer zone
recommended should be protected against urban development.
It is also clear that 2-2.75 km area has been ordered as ecosensitive zone by the MoEF and the notification dated 18.1.2017
has been issued as to the adjacent area towards Chandigarh side
of the Sukhna Wildlife Sanctuary. [Para 21, 23, 24] [591-F-G;
593-D-F]
1.4 The most potent threat faced by the earth and human
civilization as a whole which is confronted with, today, is
environmental degradation and wildlife degeneration. The need
to protect flora and fauna which constitutes a major portion of
our ecosystem is immediate. Development and urbanization
coming at the cost of adversely affecting our natural surroundings
will in turn impact and be the cause of human devastation as was
seen in the 2013 floods in Uttarakhand and in 2018 in Kerala.
The climate change is impacting wildlife by disrupting the timing
of natural events. With warmer temperatures, flowering plants
are blooming earlier in the year and migratory birds are returning
from their wintering grounds earlier in the spring. Wildlife
conservation in India has a long history, dating back to the colonial
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period when it was rather very restrictive to only targeted species
and that too in a defined geographical area. Then, the formation
of the Wildlife Board at the national level and enactment of
Wildlife Act in 1972 laid the foundation of present day "wildlife
conservation" era in post-independent India. Project Tiger in
the 1970s and the Project Elephant in 1992-both with flagship
species-attracted global attention. India then also became a
member of all major international conservation treaties related
to habitat, species and environment like Ramsar Convention,
1971; Convention on International Trade in Endangered Species
of Wild Fauna and Flora, 1973; Convention on Migratory Species,
1979; Convention on Biological Diversity, 1992, among others.
[Para 25] [593-G-H; 594-A-C]
1.5 The human as well as the wildlife are completely
dependent upon environment for their survival. Human is
completely dependent on the environment. Like the human, the
wild life is also dependent on the environment for it's survival
and also get effected by the environment. The relationship
between the human and animal can be understood by the foodchain and food-web. The wildlife is affected by several reasons
such as population, deforestation, urbanization, high number of
industries, chemical effluents, unplanned land-use policies, and
reckless use of natural resources etc. [Para 26] [594-D-E]
1.6 The Directive Principles of State Policy provide that
protection and improvement of environment, safeguarding forest
and wildlife have been duly enjoined upon the Government.
Those principles have found statutory expression in various
enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which
have been enforced by this Court in various decisions. The
inaction of State to constitutional and statutory duties cannot be
permitted. The Court has to issue appropriate directions to fulfil
the mandate. Article 51(A) provides fundamental duty to protect
and preserve environment, wild life etc. [Para 27] [594-F-G]
1.7 In the facts and circumstances of the case, considering
the distance of 123 meters from the Northern side and 183 meters
from the Eastern side of the project in question from wildlife
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sanctuary, no such project can be allowed to come up in the area
in question. The State of Punjab was required to act on the basis
of Doctrine of Public Trust. It has failed to do so. The origination
of the project itself indicates that State of Punjab was not acting
in furtherance of Doctrine of Public Trust as 95 MLAs were to
be the recipients of the flats. It is clear why Government has not
been able to protect the eco-sensitive zone around a Wildlife
and has permitted setting up of high-rise buildings up to 92
meters in the area in question, which is not at all permissible.
[Para 36] [604-C-E]
1.8 Such projects cannot be permitted to come up within
such a short distance from the wildlife sanctuary. Moreso, in view
of the Notification issued with respect to the Sukhna wildlife
sanctuary towards the side of Chandigarh Union Territory and
also considering the fact that proposal made by the Punjab
Government, confining the Buffer Zone to 100 meters, has rightly
not been accepted by MoEF, as the Government of Punjab as
well as the MoEF, cannot be the final arbiter in the matter. The
Court has to perform its duty in such a scenario when the
authorities have failed to protect the wildlife sanctuary ecosensitive zone. The entire exercise of obtaining clearance relating
to the project is quashed. Such a scenario has emerged in the
matter and that it involved a large number of MLAs of Punjab
Legislative Assembly. The entire exercise smacks of arbitrariness
on the part of Government including functionaries. [Para 37]
[604-E-G]
Goa Foundation v. Union of India (2011) 15 SCC
791 ; Animal and Environment Legal Defence Fund v.
Union of India (1997) 3 SCC 549 : [1997] 2 SCR
728 ; M.C. Mehta v. Kamal Nath and others (1997) 1
SCC 388 : [1996] 10 Suppl. SCR 12 ; Vellore Citizens'
Welfare Forum v. Union of India (1996) 5 SCC 647 :
[1996] 5 Suppl. SCR 241 ; Intellectuals Forum, Tirupathi
v. State of A.P. and others (2006) 3 SCC 549 : [2006] 2
SCR 419 ; M.C. Mehta v. Kamal Nath (2000) 6 SCC
213 : [2000] 1 Suppl. SCR 389 ; M.C. Mehta (Badkhal
and Surajkund Lakes matter) v. Union of India and
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others (1997) 3 SCC 715 : [1996] 7 Suppl. SCR 465 ;
Indian Council for Enviro-Legal Action v. Union of
India and others (1996) 5 SCC 281 : [1996] 1 Suppl.
SCR 507 - referred to.
Case Law Reference
(2011) 15 SCC 791
referred to
Para 22
[1997] 2 SCR 728
referred to
Para 29
[1996] 10 Suppl. SCR 12
referred to
Para 30
[1996] 5 Suppl. SCR 241
referred to
Para 31
[2006] 2 SCR 419
referred to
Para 32
[2000] 1 Suppl. SCR 389
referred to
Para 33
[1996] 7 Suppl. SCR 465
referred to
Para 34
[1996] 1 Suppl. SCR 507
referred to
Para 35
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 83988399 of 2019.
From the Judgment and Order 12.04.2017 of the High Court of
Delhi at New Delhi in W.P. (C) Nos. 2999 and 2924 of 2014.
Shyam Divan, Sr. Adv., Manu Nair, Neelabh Shreesh, Ms. Suvarna
Kashyap, S. S. Shroff, Advs. for the Appellant.
A.N.S. Nadkarni, ASG, Ashok Kumar Srivastava, P. S. Patwalia,
Puneet Bali, Sr. Advs., Pranay Ranjan, Vijay Prakash, Gurmeet Singh
Makker, Vijay Prakash, Dhruv Sheoran, Gauravjit Singh Patwalia, Ashok
K. Mahajan, Ms. Natasha Dalmia, Karan Bharihoke, Raj Kamal, Siddhant
Sharma, Aditya Soni, Navkiran Bolay, Ms. Manmeet Arora, Ms. Nidhi
Mohan Parashar, Ms. Samapika Biswal, Keshav, S. Shriram, Sangram
S. Saron, Ms. Vandana Rani, Rahul Gupta, Shubham Bhalla, Lalit Kumar,
Advs. for the Respondents.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The appellant has questioned the judgment and order dated
12.04.2017 passed by the High Court of Delhi, concerning the housing
project, on the ground that the area in question falls within the catchment
area of Sukhna Lake and is 123 meters away from the boundary of
Sukhna Wildlife Sanctuary. The Survey Map of India dated 21.09.2004,
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK
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demarcating the area of Sukhna Lake, is binding on the State of Punjab.
The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya
Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is
invalid. The environment clearance dated 17.09.2013, granted by State
Level Environment Impact Assessment Authority (SEIAA) for
development of the project is not in conformity with the Notification
dated 14.09.2006 of Ministry of Environment and Forest (MoEF), has
also been set aside. It has also been ordered that if the permission is
granted by the State of Punjab in favour of the appellant if it so desires,
it may apply to Central Government for environmental clearance treating
project category 'A.'
2. The Tata HDCL proposed to develop a project, namely,
"CAMELOT" in the revenue estate of village-Kansal, Tehsil-Kharar,
District-Mohali, State of Punjab. The total project area is 52.66 acres,
out of which 41.54 acres is to be developed for group housing built-up
area of 4,63,144.54 sqm. The parking facility is to be provided for 3645
ESS. The estimated population of the project area was about 9788. The
proposed maximum height of the building was to be 92.65 meters.
Environmental clearance was required in terms of the Notification dated
14.09.2006 issued by MoEF, which mandates prior to environmental
clearance from the Central Government or by the SEIAA. The
Notification has a statutory force having been issued under Section 3(1)
and 3(2)(v) of the Environmental (Protection) Act, 1986 ("E.P. Act")
read with Rule 5(3)(d) of the Environment (Protection) Rules, 1996 ("E.P.
Rules"). Tata HDCL applied for environmental clearance from SEIAA,
Punjab. The application was forwarded to the State Expert Appraisal
Committee (SEAC). In the meeting dated 06.06.2009, the committee
awarded "gold grading" to the proposed project and recommended to
forward the project to SEIAA for grant of environmental clearance
subject to the conditions specified therein. The MoEF recommended for
environmental clearance in its meeting held on 09-10.11.2010. However,
MoEF had called a report from Northern Regional Office, Chandigarh
vide letter dated 14.10.2010 regarding the proposed project. A team of
officers inspected the project site, and, in the report, the distance of the
housing-cum-retail project "CAMELOT" from Sukhna Wildlife Sanctuary
is found to be 123 meters on Northern side and 183 meters on the Eastern
side. Besides, the report stated that the project falls in the catchment
area of Sukhna Lake as per the Survey of India Map.
3. On 12.01.2011, Tata HDCL addressed a letter to MoEF stating
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that the project site does not contribute to the catchment area of Sukhna
Lake as physically the project area does not obstruct the natural flow of
water towards Sukhna Lake.
4. In the meanwhile, C.W.P. No.20425/2010 titled "Aalok Jagga
vs. Union of India and others" was filed in the High Court of Punjab and
Haryana at Chandigarh, challenging the project to be in violation of the
provisions of Punjab New Capital (Periphery) Control Act, 1952 as well
as the E.P. Act claiming that the project lies in the eco-sensitive and
protected area, apart from falling within the catchment area of Sukhna
Lake.
5. The SEIAA sought clarification from MoEF as to whether it is
competent to consider the application since the Sukhna Wildlife Sanctuary
is located at a distance of 123 meters from the project site as per the
report of Northern Regional Office of MoEF. The High Court vide order
dated 26.03.2012 directed the Tata HDCL to comply with the
requirements of the E.P. Act and Wildlife (Protection) Act for obtaining
grant of necessary clearances/sanctions/permissions from the competent
authorities.
6. Sarin Memorial Legal Foundation filed Writ Petition (Civil)
No.994/2013 in this Court on 09.11.2013, under Article 32 of the
Constitution of India challenging the decision of SEIAA, Punjab dated
06.09.2013.
7. Order dated 21.08.2013 was passed by the High Court of Punjab
and Haryana in which it was ordered that the project of Tata HDCL
would not be affected by the orders passed on 14.03.2011 and 14.05.2012
in CWP No.18253/2009. Sarin Memorial Legal Foundation also
questioned the said order in this Court. This Court vide order dated
22.04.2014 disposed of W.P.(C) No.994/13 and Civil Appeal No.4848/
2014 filed by Sarin Legal Memorial Foundation. The order passed by
the High Court of Punjab and Haryana on 26.03.2012 was set aside.
The writ petition was restored; the matters were transferred for the
decision to the High Court of Delhi.
8. Municipal Area of Naya Gaon was notified on 18.10.2006 as
the 'Local Planning Area' of Naya Gaon. 'Existing Land Use Plan' and
'Draft Master Plan' for Nagar Panchayat Naya Gaon were prepared.
Nagar Panchayat Naya Gaon granted permission to raise the construction
to Tata HDCL on 09.04.2012. The Tata HDCL claimed, because of the
permission granted, under Section 6(2) of the Periphery Control Act,
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK
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1952, and the environmental clearance granted under the EP Act, that
they were entitled to proceed with the construction of the project in
question. However, the petitioners, as well as the Chandigarh
Administration, disputed the stand taken by the State of Punjab.
9. Union Territory of Chandigarh has taken the stand that the
area falls within the catchment area of Sukhna Lake as such no
construction can be raised as per the Survey of India Map. It was adjacent
to the wildlife sanctuary, and the distance was 123 meters. There was a
violation of the Periphery Control Act, and also clearance was not granted
in terms of Notification dated 14.09.2006 of MoEF.
10. It is pointed out that under the order passed by this Court to
specify the area as the eco-sensitive zone around wildlife sanctuary, the
State of Punjab had forwarded a proposal to the MoEF for permitting
the construction beyond 100 meters that has not been accepted by MoEF.
It is also submitted that towards the other side of the Sukhna Wildlife
Santuary Lake area of 2 km. to 2.75 km. has been declared as an ecosensitive zone. The MoEF had asked the State of Punjab to send a
proposal for keeping the eco-sensitive zone within 1 km. to which the
State of Punjab has not responded for the reasons best known to it.
11. It is also the case set up that initially, the housing project was
proposed for the 'Punjab MLA Society' for construction of residential
houses of MLAs of Punjab Legislature. Subsequently, the said land was
sold to M/s. Hash Builders Private Limited with an understanding that
each member of Punjab MLA Society would be allotted one flat. The
impugned environment clearance dated 17.09.2013 has also suffered
from legal malafides, and it amounts to colourable exercise of power
since about 95 MLAs of the State of Punjab are the beneficiaries of the
proposed project.
12. In W.P.(C) No.2999/2014, it was submitted that the proposed
project for extraneous considerations is illegal. The proposed project is
located about 1500 meters from Sukhna Lake and 123 meters from the
Wildlife Sanctuary. The project is zero kilometers from the periphery of
Chandigarh. The project would destroy the wildlife sanctuary and would
cause a serious threat to Sukhna Lake. The High Court had banned all
construction activities in the catchment area of Sukhna Lake in C.W.P.
No.7649/2003. The project would adversely affect the environment within
Chandigarh and increase noise pollution by several manifolds, which
would harm the wildlife present in the adjoining Sukhna Wildlife Sanctuary.
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Impact of a high-rise building having 28-storeys on the edict and norms
of the city of Chandigarh has not been properly considered.
13. The State of Punjab has supported the case set up by Tata
HDCL, the edict of Chandigarh is not applicable in the area in question.
Survey of India Map regarding the catchment area of Sukhna Lake, is
not conclusive since the objections are yet to be heard. SEIAA rightly
considered the application since the nearest distance of Sukhna Wildlife
Sanctuary from the project boundary on the northern side is 123 meters.,
as per the Office Memorandum dated 02.12.2009 of MoEF. Tata HDCL
has to obtain clearance from the Standing Committee of the National
Board for Wildlife before starting any work on the site.
14. In the counter affidavit filed by the Union Territory of
Chandigarh, it is submitted that the area in question falls in the catchment
area of Sukhna Lake and the heritage zone of the Capitol Complex, the
project would have a direct impact on the existence of Sukhna Lake and
the environs of Chandigarh City. The Northern side of the Chandigarh,
which is also the catchment area of Sukhna Lake, is an ecologically
fragile area and substantial part thereof comprises of forest area that
has been declared a Wildlife Sanctuary. The Chandigarh Administration
is fully committed to saving the heritage of Chandigarh, its forest area,
wildlife sanctuaries, and preserve Sukhna Lake. The Conservator of
Forests of Chandigarh has written a letter to the Chief Architect, UT of
Chandigarh, for the inclusion of the area proposed as Wildlife Corridor
along with the approval accorded by the Planning Commission of India
in the Master Plan of Chandigarh. It is also submitted that the project is
located within the eco-sensitive zone and 10 km. from Sukhna Wildlife
Sanctuary, thus the prior clearance from the Standing Committee of
National Board of Wildlife before seeking environmental clearance was
required to be obtained. The High Court has passed the orders for
protection of Sukhna Lake and its catchment area that no housing,
commercial, or industrial project can be allowed on the North of the
Capitol Complex of Chandigarh. Thus, it is submitted that no construction
may be permitted to the North of the Chandigarh. The environmental
clearance has been illegally granted. There was no jurisdiction to SEIAA,
Punjab to grant environmental clearance as the project in question is
category 'A.' The High Court vide order dated 14.05.2012 has also
noted that the Chandigarh Administration had adopted the Survey of
India Map as a map of the catchment area of Sukhna Lake. The order
was passed to give wide publicity to the general public that no construction
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is permitted in that area. In paragraph 60 of the impugned judgment, in
respect of Survey of India Map, following finding has been recorded:
"60. xxx xxx
xxx
(i)
The Survey of India map dated 21.09.2004 is the only
document available on record identifying and demarcating the
catchment area of Sukhna Lake. Admittedly the said map
was prepared under the directions of the High Court of Punjab
and Haryana in CWP No.7649/2003 (Dr. B. Singh vs. Union
of India). It is also not in dispute that the demarcation of
boundaries of catchment area was made after carrying out a
survey by Technical Experts and in due consultation with the
State of Punjab, State of Haryana and U.T. Chandigarh."
15. The High Court has also referred to the joint inspection report
made on 10.01.2011 by a team of the officer from different department
along with Tata HDCL. The observations of the inspecting team are
extracted hereinunder:
"1. The nearest distance from the boundary of the project site
was measured by the staff members of Forest Department of
U.T. Administration Chandigarh using measuring tape at two points:
i. The nearest distance of Sukhna Wildlife Sanctuary from the
project boundary on northern side is 123 meters.
ii. The distance of Sukhna Wildlife Sanctuary from the boundary
of project area on Eastern side is 185 meters.
It is clarified that a part of the catchment area of Sukhna Lake
has been declared as Sukhna Wildlife Sanctuary under Section
26-A of the Wildlife (Protection) Act, 1972 by Chandigarh
Administration vide Notification No.694-HII(4)98/4519 dated 6th
March 1998 (copy enclosed).
The Tata Housing Project falls in the jurisdiction of Nagar
Panchayat, Naya Gaon, District Mohali, State of Punjab, which is
approximately 1500 metres away from Sukhna Lake (aerial
distance). Further, it also falls under the catchment area of Sukhna
Lake as per the Survey of India map.
2. It has been observed by the team that no construction activities
have been started by the Project authorities at site. Only wire
fencing has been done to demarcate the boundary of the acquired
land area. In addition to it, solar light posts have been raised at
different spots of the boundary, and a site office comprising three
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rooms has been constructed. It is stated by the Project Proponent
that these offices were constructed by the Defence Services
Cooperative Housing Building Society Ltd., and the Tata Housing
Development Company has only renovated them for using as a
site office. The photographs of different locations of the sites are
attached to show that there is no construction activity at the site
so far.
It is also mentioned here that there are existing houses and other
constructed buildings in Kansal area, which are a part of Kansal
village in Punjab and other spontaneous construction.
During the inspection, it has been informed that any notification
declaring eco-sensitive zones has not been issued by U.T.
Chandigarh Administration and State Government of Punjab till
date.
The report is submitted to the Ministry of Environment and Forests
for kind information and further necessary action."
The High Court has ultimately given the finding that the project
site is found to be a part of the area of Sukhna Lake. The permission
granted by Nagar Panchayat on 05.07.2013 to Tata HDCL has been set
aside. Verification was sought from the MoEF as Sukhna Wildlife
Sanctuary was located at a distance of 123 meters away from the
proposed project. SEAC, Punjab, considered the matter on 18.04.2013.
Pursuant to that, Tata HDCL filed a revised application on 08.05.2013 in
Form I and Form IA. In Form I, the project was described as "Group
Housing (CAMELOT) Project" and it falls under Item 8(b) of the
Schedule. The plot area was shown as 52.66 acres, and the net plot area
(after the surrender of area for services) was shown as 46.10 acres.
The built-up area was shown as 4,63,144.54 sq.m. Concerning the
information as to whether the proposal involves approval/clearance under
the Wildlife Protection Act, 1972, in the form it was stated:
"Clearance required from Standing Committee of National Wildlife
Board, New Delhi being project within 10 km. from the boundaries
of Sukhna Wildlife Sanctuary, as on date Eco-Sensitive Zone has
not been declared around Sukhna Wildlife Sanctuary."
16. With respect to wildlife sanctuary, the High Court has made
the following observations:
"183. It is relevant to note that the consideration by EAC of MoEF,
Government of India, was on the basis of the Tata HDCL's first
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application dated 25.03.2009. In the light of the stand taken by
SEIAA Punjab in its counter affidavit, it is clear that no EIA Report
was prepared after the submission of the revised application dated
08.05.2013 by Tata HDCL. In the revised application dated
08.05.2013, it was for the first time admitted by Tata HDCL that
its proposed project is situated within the prohibited distance of 10
km. from Sukhna Wildlife Sanctuary. It was also admitted that
the ariel distance from the proposed project and Sukhna Lake is
123 meters (N) and 185 meters (E)."
184. xxx xxx
xxx
185. Significantly, this is a case where the project in question is
situated within 123 meters from Sukhna Wildlife Sanctuary as
recorded in the Site Inspection Report dated 10.01.2011 on the
basis of the inspection of the project site conducted by a team of
officers in the presence of the representatives of Tata HDCL in
compliance with the direction of MoEF vide letter dated
14.10.2010. Though Tata HDCL addressed a letter dated
12.01.2011 to MoEF explaining that the project area does not
obstruct the natural flow of water towards Sukhna Lake, the
factum of location of Sukhna Wildlife Sanctuary within 123 meters
on Northern side and 183 meters on the Eastern side of the project
was not disputed. In the light of the said admitted fact, SEIAA,
Punjab in its meeting dated 15.12.2011 decided to get a clarification
from MoEF as to whether SEIAA, Punjab is competent to consider
the application and accordingly addressed a letter to MoEF."
17. Concerning the declaration of the Buffer Zone around Wildlife
Sanctuary, the following facts have been noted by the High Court:
"193. Regarding the representation of UT Chandigarh dated
09.05.2013 under Section 3 of the Environment (Protection)
Act, requesting to declare a Buffer Zone up to 2 - 2.75 km. around
all sanctuaries, including Sukhna Wildlife Sanctuary, it is submitted
by the learned Senior Counsel that the State of Punjab by its
proposal dated 18.09.2013 thought it fit to confine the Buffer Zone
to 100 meters only. It is also pointed out by the learned Senior
Counsel that so far no notification has been issued by the Central
Government under Section 3 of the Environment Protection Act.
Thus, it is sought to contend that there is no area earmarked as
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eco sensitive zone around the Sukhna Wildlife Sanctuary nor a
Buffer Zone has been declared as of today.
194. xxx xxx
xxx
195. It is also pointed out by Sh. Gopal Subramaniam that in fact
State of Punjab, had sent a proposal dated 18.09.2013 requesting
the Union of India/MoEF to confine the buffer zone to 100 mtrs.
only in the context of Section 3 of Environment (Protection) Act,
1986."
18. The High Court has noted that after reserving the matter, a
short affidavit dated 09.03.2017 has been filed on behalf of the Union
Territory, Chandigarh, stating that Ministry of Environment Forests and
Climate Change, in exercise of the powers conferred by Section 3(2)
and 3(3) of the E.P. Act read with Rule 5(3) of the E.P. Rules has
notified an area of 1050 hectares, to an extent varying from 2 km. to
2.75 km. from the boundary of Sukhna Wildlife Sanctuary in the Union
Territory of Chandigarh, for that Notification dated 18.01.2017 has been
issued. The High Court has also relied on the conditions of Notification,
which is extracted hereinunder:
"197.......However, after reserving the judgment in the petitions,
a short affidavit dated 09.03.2017 came to be filed on behalf of
U.T. Chandigarh in W.P.(C) No.2924/2014 stating that the Central
Government, Ministry of Environment, Forests and Climate
Change, in exercise of the powers conferred by Section 3(2) and
(3) of the Environment (Protection) Act, 1986 read with Rule
5(3) of the Environment (Protection) Rules, 1986 notified an area
of 1050 hectares, to an extent varying from 2.0 kilometers to 2.75
kilometers from the boundary of Sukhna Wildlife Sanctuary in the
Union Territory of Chandigarh on the side of Chandigarh as the
Sukhna Wildlife Sanctuary, Eco-Sensitive Zone vide Notification
dated 18.01.2017. A copy of the said Notification has also been
produced, and Para 4 thereof contains the list of activities prohibited
or to be regulated within Eco-sensitive Zone. "Construction
Activities" have been included in the said list under Part B-
"Regulated Activities." Rule 4 to the extent, it is relevant for the
present case may be extracted hereunder:
"4. list of activities prohibited or to be regulated within Eco-Sensitive
Zone. - All activities in the Eco-sensitive Zone shall be governed
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by the provisions of the Environment (Protection) Act, 1986 (29
of 1986) and the rules made thereunder and shall be regulated in
the manner specified in the Table below, namely:-
TABLE
A. Prohibited Activities
B. Regulated Activities
12. Construction activities:
No new commercial construction of any kind shall be permitted
within 0.5 kilometre (Zone-I) from the boundary of protected area
or up to the boundary of the Eco-sensitive Zone whichever is
nearer:
Provided that, local people shall be permitted to undertake
construction in their land for their residential use, including the
activities listed in sub-paragraph (1) of paragraph 3.
(a) Construction of all types of new buildings and houses up to a
distance of 0.5 kilometer i.e., in the zone-I shall be prohibited;
from 0.5 kilometre to 1.25 kilometre from the boundary of Sukhna
Wildlife Sanctuary, construction of low density (ground coverage
less than half of the plot size) and low rise building (height up to
15 feet) can be allowed if permissible under the prescribed land
use plan of the area; any construction will have to adhere to the
Development Regulation applicable to the area and shall be
regulated as per the Eco-sensitive Zone management plan; beyond
1.25 kilometre construction of new buildings and houses shall be
regulated as per existing Chandigarh Administration Building
Bylaws and Architectural Control/Zoning regulation of Union
territory Administration. Construction of basement in Zone-I of
Eco-sensitive Zone shall not be allowed, however, reconstruction/
repair of building in Zone-I shall be allowed subject to the restriction
as above i.e. construction of low density (ground coverage less
than half of the plot size) and low rise building (height upto 15
feet).
(b) The construction activity related to small scale industries not
causing pollution shall be regulated and kept at the minimum, with
the prior permission from the competent authority as per the
applicable rules and regulations, if any.
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(c) The further construction and augmentation of civic amenities
shall be regulated as per the Zonal Master Plan.
198. As could be seen from Para 4 of the above Notification, the
construction activities in the Eco-sensitive Zone apart from being
governed by the provisions of the Environment (Protection) Act,
1986 and the Rules made thereunder shall be regulated in the
manner specified therein. Admittedly, the project in question is
located at a distance of 123 meters from Sukhna Wildlife
Sanctuary. Therefore, the construction of the proposed project
not only requires the environmental clearance as provided under
the Notification dated 14.09.2006, but it is also subject to the
regulations provided under Para 4 of the Notification dated
18.01.2017 issued by the Ministry of Environment, Forests and
Climate Change."
(emphasis supplied)
19. The Notification makes it clear that no new commercial
construction of any kind shall be permitted within 0.5 km. from the
boundary of protected area or up to the boundary of the eco-sensitive
zone. Construction of all types of new buildings and houses up to a
distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2
km, construction of low density (ground coverage less than half of the
plot size) and low rise building about 15 feet can be permitted.
20. Given the findings above, recorded by the High Court as to
the distance from the Wildlife Sanctuary, we have heard learned counsel
for the parties on the issue at length. Whether housing activities are
permissible within a short distance of 123 meters from Sukhna Wildlife
Sanctuary, such a project can be permitted to come up.
21. It is not in dispute that proposal, which was sent by the
Government of Punjab to the MoEF, to keep the Buffer Zone within 100
meters from Sukhna Wildlife Sanctuary, had not been accepted and the
direction was issued to resubmit the proposal for at least 1 km Buffer
Zone has not been forwarded by State of Punjab.
22. In Goa Foundation vs. Union of India, (2011) 15 SCC 791,
order for the purpose of protection of wildlife sanctuary and eco-sensitive
zone has been passed to following effect:
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"1. The order dated 16-10-2006 refers to a Letter dated 27-52005, which was addressed by the Ministry of Environment and
Forests (MoEF) to the Chief Wildlife Wardens of all States/Union
Territories requiring them to initiate measures for identification of
suitable areas and submit detailed proposals at the earliest. The
order passed on that date was that MoEF shall file an affidavit
stating whether the proposals received pursuant to the letter of
27-5-2005 have been referred to the Standing Committee of the
National Board for Wildlife under the Wildlife (Protection) Act,
1972 or not. It was further directed that such of the States/Union
Territories who have not responded to the letter dated 27-5-2005
shall do the needful within four weeks of the communication of
the directions of this Court by the Ministry to them.
2. It seems that despite the letter dated 27-5-2005 and despite the
Ministry having issued reminders and also bringing to the notice
of the States/Union Territories the orders of this Court dated 1610-2006, the States/Union Territories have not responded.
However, we are told that the State of Goa alone has sent the
proposal, but that too does not appear to be in full conformity with
what was sought for in the letter dated 27-5-2005.
3. The order earlier passed on 30-1-2006 refers to the decision
which was taken on 21-1-2002 to notify the areas within 10 km of
the boundaries of national parks and sanctuaries as eco-sensitive
areas. The letter dated 27-5-2005 is a departure from the decision
of 21-1-2002. For the present, in this case, we are not considering
the correctness of this departure. That is being examined in another
case separately. Be that as it may, it is evident that the States/
Union Territories have not given the importance that is required
to be given to most of the laws to protect environment made after
Rio Declaration, 1992.
4. The Ministry is directed to give a final opportunity to all States/
Union Territories to respond to its letter dated 27-5-2005. The
State of Goa also is permitted to give appropriate proposal in
addition to what is said to have already been sent to the Central
Government. The communication sent to the States/Union
Territories shall make it clear that if the proposals are not sent
even now within a period of four weeks of receipt of the
communication from the Ministry, this Court may have to consider
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passing orders for implementation of the decision that was taken
on 21-1-2002, namely, Notification of the areas within 10 km of
the boundaries of the sanctuaries and national parks as ecosensitive areas with a view to conserve the forest, wildlife and
environment, and having regard to the precautionary principles. If
the States/Union Territories now fail to respond, they would do so
at their own risk and peril.
5. The MoEF would also refer to the Standing Committee of the
National Board for Wildlife, under Sections 5-B and 5-C(2) of the
Wildlife (Protection) Act, the cases where environment clearance
has already been granted where activities are within 10 km zone.
6. List the matter after eight weeks."
(emphasis supplied)
23. It was incumbent upon the State of Punjab to send a proposal
to the MoEF, as required but it appears that it has not chosen to do so for
a reason precious project concerning the MLAs is involved, and MoEF
has not accepted its proposal for keeping Buffer Zone to 100 meters. It
has also been pointed out from the respondent side that Naya Gaon
forms part of the Greater Mohali Region in the State of Punjab. In the
statutory, Greater Mohali Area Development Authority, Regional Plan
for Greater Mohali Region in paragraph 14.3.1, it has been mentioned
that no development is possible within 5 kms buffer distance from existing
forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there
are several pockets of forests distributed all over the Greater Mohali
Region. These have to be conserved, and the buffer zone recommended
should be protected against urban development.
24. It is also clear that 2-2.75 km area has been ordered as ecosensitive zone by the MoEF and the notification dated 18.1.2017 has
been issued as to the adjacent area towards Chandigarh side of the
Sukhna Wildlife Sanctuary.
25. The most potent threat faced by the earth and human
civilization as a whole which is confronted with, today, is environmental
degradation and wildlife degeneration. The need to protect flora and
fauna which constitutes a major portion of our ecosystem is immediate.
Development and urbanization coming at the cost of adversely affecting
our natural surroundings will in turn impact and be the cause of human
devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in
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Kerala. The climate change is impacting wildlife by disrupting the timing
of natural events.