HIMACHAL PRADESH BUS STAND MANAGEMENT AND DEVELOPMENT AUTHORITY (HPBSM & DA) versus THE CENTRAL EMPOWERED COMMITTEE ETC. & ORS. on 12 January 2021

SUPREME COURT REPORTS

[2021] 1 S.C.R.

AHIMACHAL PRADESH BUS STAND MANAGEMENT ANDDEVELOPMENT AUTHORITY (HPBSM & DA)

v.

THE CENTRAL EMPOWERED COMMITTEE ETC. & ORS.

B(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 landCfor construction of bus stand and parking space at McLeod Ganj –Construction of the Hotel-cum-Restaurant structure in the Bus StandComplex – Legality of – By order dated 12 November 1997, MOEFpermitted diversion of 0.093 hectares of forest land for constructionof a parking space at McLeod Ganj in accordance with s.2 of theDForest Act – Another order dated 1 March 2001 was passed byMOEF diverting another 0.48 hectares of forest land forconstruction of a bus stand at McLeod Ganj – In April 2000,appellant-authority was constituted for construction of bus standsin the State of Himachal Pradesh – In 2006, the land diverted fornon-forest use under orders dated 12 November 1997 and 1 MarchE2001 was transferred on a 99 year lease to the appellant forconstruction of parking facility in McLeod Ganj – Appellantdecided to construct a Bus Stand-cum-Parking Complex andapproved the lowest bid of second respondent – Second respondentstarted construction of the Bus stand Complex without awaitingFapproval of plans and drawings by the Town and Country Planning(TCP) Department – Subsequently TCP Department receivedapplication seeking approval of drawings of Bus Stand Complex –TCP Department pointed out certain shortcomings – As secondrespondent continued with the construction without rectifying theshortcomings, TCP Department called upon the appellant to haltGthe construction of Bus Stand Complex – Relying upon the report ofCEC, NGT gave findings that the project proponent not only startedthe construction without obtaining appropriate approval andsanction from the concerned State and Central Government but hadalso worked in collusion with some of the authorities who consentedto the commencement of construction which was entirely uncalledH

for and was illegal – Hence instant appeal – Held: The constructionof the Hotel-cum-Restaurant structure in the Bus Stand Complexwas illegal and constituted a brazen violation of law – The permissionwhich was granted by MOEF on 12 November 1997 was only forconstruction of a ‘parking place’ at McLeod Ganj – Similarly, thepermission granted on 1 March 2001 was granted for constructinga ‘bus stand’ in the same area – At no point was any permissiongranted for the construction of a hotel or commercial structure –Appellant, on being granted permission to engage in constructionfor a specified purpose, unlawfully utilised that permission as thebasis to construct a different structure which was not authorized –It did so in disregard of the provisions of the Forest Act – Theprovisions of s.2 of the Forest Act mandated strict and punctiliouscompliance – Mere substantial compliance is not enough – Theofficials of statutory bodies of the State Government connived atthe violation of law which is a reflection on the nature of governanceby those who are expected to act within the bounds of law – NGTacted within its mandate in a case of this nature, where the appellantactively allowed the perpetration of a structure in breach ofenvironmental norms – Not looking askance at the construction ofthe Hotel-cum-Restaurant structure, in an area which the NGT rightlydescribes as the “lap of nature”, would lead on the path of judiciallysanctioned environmental destruction – Directions passed todemolish the Hotel-cum-Restaurant structure in the Bus StandComplex – Further, as directed by the NGT, the State of HimachalPradesh and the second respondent can utilise the parking spaceand the bus stand in the Bus Stand Complex, after the demolition ofthe Hotel-cum-Restaurant structure – However, this should be inaccordance with orders dated 12 November 1997 and 1 March 2001issued by the MOEF, i.e., it shall not be used for any purpose otherthan 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 – Essentialfeatures of – Held: It seeks to facilitate a multi-disciplinary analysisof the nature and consequences of carbon footprints and in doingso it brings a shared understanding between science, regulatorydecisions and policy perspectives in the field of environmentalprotection – It recognises that the ‘law’ element in the environmental AB

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Arule of law does not make the concept peculiarly the preserve oflawyers and judges – On the contrary, it seeks to draw within thefold all stakeholders in formulating strategies to deal with currentchallenges posed by environmental degradation, climate changeand the destruction of habitats – Environmental rule of law seeks aunified understanding of these concepts – There are significantBlinkages between concepts such as sustainable development, thepolluter 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-Restaurantstructure by the appellant and the second respondent on the ecologyCof the area cannot be determined in quantifiable terms – The partiesengaged in the construction without complying with the plans drawnby the appellant’s third-party consultants, which were agreed to bythem in the RFP – The construction proceeded even when the TCPDepartment tried to halt it, refusing to approve its plans – Even theDpost facto refusal by the MOEF for changing the nature of thediverted forest land was not enough to stop the parties – Ultimately,when they were forced to halt the construction by the CEC, theyproceeded with it under the guise of an order of this Court whichpermitted only legal construction – A combination of thesecircumstances highlighted not only conduct oblivious of theEenvironmental consequences of their actions, but an active disdainfor them in favour of commercial benefits – While the secondrespondent was a private entity, they were actively supported inthese efforts by the appellant – Hence, their actions stood in violationof the environmental rule of law – The environmental rule of law Fsurely 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 – Distinctionbetween – In a constitutional framework which is intended to create,foster and protect a democracy committed to liberal values, the ruleGof law provides the cornerstone – The rule of law is to bedistinguished from rule by the law – The former comprehends thesetting up of a legal regime with clearly defined rules and principlesof even application, a regime of law which maintains thefundamental postulates of liberty, equality and due process – Therule of law postulates a law which is answerable to constitutionalH

norms – The law in that sense is accountable as much as it is capableof exacting compliance – Rule by the law on the other hand canmean rule by a despotic law – It is to maintain the just quality of thelaw and its observance of reason that rule of law precepts inconstitutional democracies rest on constitutional foundations – Arule of law framework dwells on the institutions which provide thearc of governance – By focussing on the structural norms whichguide institutional decision making, rule of law frameworksrecognise the vital role played by institutions and the seriousconsequences of leaving undefined the norms and processes bywhich they are constituted, composed and governed – A modernrule of law framework is hence comprehensive in its sweep andambit – It recognises that liberty and equality are the focal point ofa just system of governance and without which human dignity canbe subverted by administrative discretion and absolute power – Ruleof law then dwells beyond a compendium which sanctifies rules oflaw – Its elements comprise of substantive principles, processualguarantees and institutional safeguards that are designed to ensureresponsive, accountable and sensitive governance.

Conclusion

National Green Tribunal Act, 2010: Whether the NGT couldhave adjudicated upon a violation of the TCP Act, which is not anAct present in Schedule I of the NGT Act – Held: The provisions ofthe TCP Act required the appellant and second respondent to takeprior permission from the TCP Department before changing thenature of the land through their construction – Non-conformity withthis stipulation led to a violation of their environmental obligations– In any case, this question is academic in the instant case becausethe NGT’s impugned judgment grounds its decision in the appellantand second respondent’s violation of s.2 of the Forest Act, which isan 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 ofthe actions of the appellant. The CEC report indicates that: (i)the construction of the Hotel-cum-Restaurant structure in BusStand Complex was illegal; (ii) the land was a reserved forest; AB

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A(iii) there was no valid permission for diversion for the land forthe construction of the Hotel-cum-Restaurant structure; (iv)Forest Act consent was taken only for the parking facility and thebus stand; (v) there was no valid approval from the TCPDepartment of the plans of the entire Bus Stand Complex; and(vi) the finally constructed Bus Stand Complex is not in conformityBwith the appellant’s own proposed plans in the RFP. The reportsubmitted by the District and Sessions Judge presents a strikinganalysis of the manner in which the Hotel-cum-Restaurantstructure was constructed in breach of statutory requirementsand how this was made possible by the connivance of multipleCstate actors. The findings which were arrived at in NGT’sjudgment are supported by the report submitted by the Districtand Sessions Judge. NGT acted within its mandate in a case ofthis nature, where the appellant actively allowed the perpetrationof a structure in breach of environmental norms. Not lookingaskance at the construction of the Hotel-cum-RestaurantDstructure, in an area which the NGT rightly describes as the“lap of nature”, will would lead on the path of judicially sanctionedenvironmental 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,Efoster and protect a democracy committed to liberal values, therule of law provides the cornerstone. The rule of law is to bedistinguished from rule by the law. The former comprehends thesetting up of a legal regime with clearly defined rules and principlesof even application, a regime of law which maintains theFfundamental postulates of liberty, equality and due process. Therule of law postulates a law which is answerable to constitutionalnorms. The law in that sense is accountable as much as it iscapable of exacting compliance. Rule by the law on the otherhand 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 lawGprecepts in constitutional democracies rest on constitutionalfoundations. A rule of law framework encompasses rules of lawbut it does much more than that. It embodies matters of substanceand process. It dwells on the institutions which provide the arcof governance. By focussing on the structural norms which guideH

institutional decision making, rule of law frameworks recognisethe vital role played by institutions and the serious consequencesof leaving undefined the norms and processes by which they areconstituted, composed and governed. A modern rule of lawframework is hence comprehensive in its sweep and ambit. Itrecognises that liberty and equality are the focal point of a justsystem of governance and without which human dignity can besubverted by administrative discretion and absolute power. Ruleof law then dwells beyond a compendium which sanctifies rulesof law. Its elements comprise of substantive principles,processual guarantees and institutional safeguards that aredesigned to ensure responsive, accountable and sensitivegovernance. [Para 46][377-B-G]

2.2 The environmental rule of law, at a certain level, is afacet of the concept of the rule of law. But it includes specificfeatures that are unique to environmental governance, featureswhich are sui generis. The environmental rule of law seeks tocreate essential tools – conceptual, procedural and institutionalto bring structure to the discourse on environmental protection.It does so to enhance our understanding of environmentalchallenges – of how they have been shaped by humanity’s interfacewith nature in the past, how they continue to be affected by itsengagement with nature in the present and the prospects for thefuture, if we were not to radically alter the course of destructionwhich humanity’s actions have charted. The environmental ruleof law seeks to facilitate a multi-disciplinary analysis of the natureand consequences of carbon footprints and in doing so it brings ashared understanding between science, regulatory decisions andpolicy perspectives in the field of environmental protection. Itrecognises that the ‘law’ element in the environmental rule oflaw does not make the concept peculiarly the preserve of lawyersand judges. On the contrary, it seeks to draw within the fold allstakeholders in formulating strategies to deal with currentchallenges posed by environmental degradation, climate changeand the destruction of habitats. The environmental rule of lawseeks a unified understanding of these concepts. There aresignificant linkages between concepts such as sustainable AB

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Adevelopment, the polluter pays principle and the trust doctrine.The universe of nature is indivisible and integrated. The state ofthe environment in one part of the earth affects and isfundamentally affected by what occurs in another part. Everyelement of the environment shares a symbiotic relationship withthe others. It is this inseparable bond and connect which theBenvironmental rule of law seeks to explore and understand inorder to find solutions to the pressing problems which threatenthe existence of humanity. The environmental rule of law isfounded on the need to understand the consequences of ouractions going beyond local, state and national boundaries. TheCrise in the oceans threatens not just maritime communities. Therise in temperatures, dilution of glaciers and growingdesertification have consequences which go beyond thecommunities and creatures whose habitats are threatened. Theyaffect the future survival of the entire eco-system. Theenvironmental rule of law attempts to weave an understanding ofDthe connections in the natural environment which make the issueof survival a unified challenge which confronts human societieseverywhere. It seeks to build on experiential learnings of thepast to formulate principles which must become the buildingpillars of environmental regulation in the present and future. TheEenvironmental rule of law recognises the overlap between andseeks to amalgamate scientific learning, legal principle and policyintervention. Significantly, it brings attention to the rules,processes and norms followed by institutions which provideregulatory governance on the environment. In doing so, it fostersa regime of open, accountable and transparent decision makingFon concerns of the environment. It fosters the importance ofparticipatory governance – of the value in giving a voice to thosewho are most affected by environmental policies and publicprojects. The structural design of the environmental rule of lawcomposes of substantive, procedural and institutional elements.GThe tools of analysis go beyond legal concepts. The result of theframework is more than just the sum total of its parts. Together,the elements which it embodies aspire to safeguard the bountiesof nature against existential threats. For it is founded on the H

universal recognition that the future of human existence dependson how we conserve, protect and regenerate the environmenttoday. [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. Unionof India (2019) 15 SCC 401 : [2019] 5 SCR 916 –referred to.

2.3 The need to adjudicate disputes over environmentalharm within a rule of law framework is rooted in a principledcommitment to ensure fidelity to the legal framework regulatingenvironmental protection in a manner that transcends a case-by-case adjudication. Before this mode of analysis gained acceptance,we faced a situation in which, despite the existence ofenvironmental legislation on the statute books, there was anabsence of a set of overarching judicially recognized principlesthat could inform environmental adjudication in a manner thatwas stable, certain and predictable.However, even while usingthe framework of an environmental rule of law, the difficulty weface is this – when adjudicating bodies are called on to adjudicateon environmental infractions, the precise harm that has takenplace is often not susceptible to concrete quantification. Whilethe framework provides valuable guidance in relation to theprinciples to be kept in mind while adjudicating uponenvironmental disputes, it does not provide clear pathways todetermine the harm caused in multifarious factual situations thatfall for judicial consideration. The determination of such harmrequires access to scientific data which is often times difficultto 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 inquantifiable terms the exact effect of the construction of the Hotel-cum-Restaurant structure by the appellant and the secondrespondent on the ecology of the area. Both of them have triedto argue that the number of trees felled by them, in the case ofthe present construction, is what it would have been, had theyonly built a bus stand and a parking space. However, the partieshave engaged in the construction without complying with the plans A

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Adrawn by the appellant’s third-party consultants, which wereagreed to by them in the RFP. The construction proceeded evenwhen the TCP Department tried to halt it, refusing to approve itsplans. Even the post facto refusal by the MOEF for changing thenature of the diverted forest land was not enough to stop theparties. Ultimately, when they were forced to halt the constructionBby the CEC, they proceeded with it under the guise of an orderof this Court which permitted only legal construction. Acombination of these circumstances highlights not only conductoblivious of the environmental consequences of their actions,but an active disdain for them in favour of commercial benefits.CWhile the second respondent was a private entity, they wereactively supported in these efforts by the appellant. Hence, theiractions stood in violation of the environmental rule of law. Theenvironmental rule of law surely means that construction of thissort cannot receive acceptance, no matter what its economicbenefits may be. A lack of scientific certainty is no ground toDimperil the environment. [Para 53][382-B-G]

Bengaluru Development Authority vs. Sudhakar Hegde2020 SCC OnLine SC 328; Lal Bahadur vs. State ofUttar Pradesh (2018) 15 SCC 407; State of Meghalaya& others vs. All Dimasa Students Union (2019) 8 SCCE177 : [2019] 8 SCR 297; Hospitality Association ofMudumalai vs. In Defence of Environment and Animals2020 SCC OnLine SC 838; Goel Ganga DevelopersIndia Pvt. Ltd. vs. Union of India (2018) 18 SCC 257;M.C. Mehta vs. Union of India (2018) 18 SCC 397 :F[2018] 11 SCR 384 – referred to.

3. In the present set of appeals, the forest land was allowedto be used by the MOEF for the specific purposes of constructinga ‘parking space’ and ‘bus stand’ in McLeod Ganj. MOEF madea conscious decision not to modify the terms of this permission,Geven when granted an opportunity to do so. Hence, anyconstruction undertaken by the second respondent, even withthe tacit approval of the appellant being a statutory authority underthe HP Bus Stands Act, will be illegal. [Para 62][386-E-F]

4. The provisions of the TCP Act required the appellantHand second respondent to take prior permission from the TCP

Department before changing the nature of the land through theirconstruction. Non-conformity with this stipulation led to a violationof their environmental obligations. In any case, this question isacademic because the NGT’s impugned judgment grounds itsdecision in the appellant and second respondent’s violation ofSection 2 of the Forest Act, which is an Act present withinSchedule I of the NGT Act. [Para 63][387-E-F]

State of M.P. v. Centre for Environment ProtectionResearch & Development (2020) 9 SCC 781 – referredto.

5. The directions issued by the NGT in its judgment areupheld. By the earlier orders dated 16 May 2016 and 9 September2016, this court only stayed NGT’s direction in relation to thedemolition of the Hotel-cum-Restaurant structure. The argumentof the appellant against the demolition of the Hotel-cum-Restaurant structure in the Bus Stand Complex, submitting thatit may be allowed to stand for their use is not accepted otherwiseit would legalise what is an otherwise entirely illegal construction.The process of demolishing the Hotel-cum-Restaurant structurein the Bus Stand Complex is directed to commence within twoweeks from the date of the judgment and the structure shall bedemolished by the second respondent within one monththereafter. In the event of default, the Chief Conservator of Forestalong with the administration of district Dharamshala shalldemolish the structure and recover the cost and expenses asarrears of land revenue from the second respondent. Further, asdirected by the NGT, the State of Himachal Pradesh and the secondrespondent can utilise the parking space and the bus stand in theBus Stand Complex, after the demolition of the Hotel-cum-Restaurant structure. However, this has to be in accordance withorders dated 12 November 1997 and 1 March 2001 issued bythe MOEF, i.e., it shall not be used for any purpose other thanparking 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 757referred toPara 38 (i)

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[2021] 1 S.C.R.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5231-5232 of 2016.

CFrom the Judgment and Order dated 04.05.2016 of the NationalGreen Tribunal Principal Bench, New Delhi in Miscellaneous ApplicationNo. 1180 of 2015 and 1181 of 2015.

With

Civil Appeal Nos. 5229-5230 of 2016.D

Abhinav Mukerji, AAG, Suryaprakash V Raju, ASG, Parag PTripathi, 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, AnmolChandan, R K Verma, Annam D. N. Rao, Rahul Mishra, Mrs. BihuESharma, Ms. Pratishtha Vij, Ritwick Dutta, Ms. Srishti Agnihotri, Ms.Kanika Sood, Ms. Sanjana Grace Thomas, Ms. Anmol Gupta, Advs. forthe appearing parties.

The Judgment of the Court was delivered by FDR. DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into sections to facilitate analysis.They are:

AThe appeal

BPrevious orders of this Court

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CThe history of the forest land

DThe construction of the Bus Stand Complex EProceedings before the first respondent FProceedings before the NGTH

(HPBSM & DA) v. THE CENTRAL EMPOWERED COMMITTEEETC. & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

GReport of the District and Sessions Judge, KangraA

HSubmissions of counsel

IAnalysis

I.1 Environmental rule of law

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I.2 Role of courts in ensuring environmental protection I.3 Illegal activities on forest land I.4 Jurisdiction of NGT

JConclusion

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A. The appeal

1. The civil appeals in the present case arise under Section 22 ofthe National Green Tribunal Act, 2010 (“NGT Act”). The correctnessof a judgment and order dated 4 May 2016 of the National Green Tribunal(“NGT”) is in issue.

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2. The NGT dealt with an original application filed by the secondrespondent, who is also the appellant in companion Civil Appeal Nos.5229-5230 of 2016, to challenge a report dated 18 September 2008 ofthe Central Empowered Committee (“CEC”), the first respondent. Inits report, the CEC concluded, inter alia, that a part of the Bus StandComplex constructed by the second respondent and the appellant atMcLeod Ganj in Himachal Pradesh violates the provisions of the Forest(Conservation) Act, 1980 (“Forest Act”). The CEC recommended thedemolition of the illegal portions.

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3. The NGT accepted the findings of the CEC, observing that theBus Stand Complex seriously disturbs the ecology of the area in which ithas been constructed. The NGT directed, inter alia, that:

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(i) The structure of the Hotel-cum-Restaurant in the Bus StandComplex be demolished by the second respondent;

(ii) The second respondent shall pay a compensation of Rs. 15Glacs in terms of Sections 15 and 17 of the NGT Act;

(iii) The appellant shall pay a compensation of Rs. 10 lacs, whilethe State of Himachal Pradesh and its Department ofTourism shall pay a compensation of Rs. 5 lacs each; and A(iv)The Chief Secretary of the State of Himachal Pradesh shallconduct an enquiry against the erring officers of theappellant, in order to fasten the responsibility for the illegalproject.

B. Previous orders of this CourtB

4. By an order dated 16 May 2016, this Court admitted the presentappeals and framed the following substantial questions of law, as providedin Section 22 of the NGT Act:

“1. Whether the Tribunal has failed to appreciate that the landwhich is subject matter of the appeal had already been divertedCfor non - forest use under Section 2 of the Forest (Conservation)Act, 1980?

2. Whether the Tribunal failed to consider properly the effect ofSection 14 of the Himachal Pradesh Bus Stand Management andDevelopment Authority Act, 1999 which empowers the authorityDto establish and maintain hotels and restaurants at or near busstands?

3. Whether the Tribunal exceeded its jurisdiction in holding thatalleged violations of the Himachal Pradesh Town and CountryPlanning Act, 1977 are made out even though the said enactmentEis absent in the Schedule I of enactments attached to the NationalGreen Tribunal Act?”

This Court also granted a stay against the operative portion of theNGT’s judgment directing: (i) the demolition of the Hotel-cum-Restaurantstructure in the Bus Stand Complex; and (ii) an enquiry to be conductedFagainst the appellant’s officers.

5. The above order was modified on 9 September 2016, by liftingthe stay against the enquiry to be conducted against the appellant’sofficers. However, this Court directed that an enquiry shall be conductedby the District and Sessions Judge, Kangra within whose jurisdiction theGBus Stand Complex is located. The District and Sessions Judge wasdirected to place a report before this Court. Parties to the present appealswere permitted to associate themselves with the enquiry being conductedby 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 12November 1997 of the Union Ministry of Environment and Forests (thefourth respondent, “MOEF”), on a proposal made by the State ofHimachal Pradesh, permitting the diversion of 0.093 hectares of forestland for the construction of a parking space at McLeod Ganj, inaccordance with Section 2 of the Forest Act. The order is extractedbelow:

“After careful consideration of the proposal of the StateGovernment, the competent authority hereby conveys approvalunder Section -2 of Forest (Conservation) Act, 1980, for diversionof 0.093 hectares of forest land for the construction of parkingplace at McLeod Ganj, forest division Dharamsala, District Kangra,HP, subject to following conditions:

1. Legal status of the forest land will remain unchanged. Theforest land will be restored to forest Department as and when it isno more required.

2. Compensatory afforestation will be carried out, by planting atleast 250 plants of deodar and ornamental species around McLeodGanj town as proposed, at a cost of Rs.11500/ - which is reportedto 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 mentionedin the proposal.

4. The user agency will abide by any condition that may be imposedby the State Forest Department in the interest of afforestationand protection of the forest.

5. This approval is subject to the clearance of the proposal underother relevant Acts/ Rules / Court’s Ruling /Instructions etc. asapplicable to this proposal.

State Government will ensure fulfilment of these conditions.”

7. MOEF issued a further order dated 1 March 2001, divertinganother 0.48 hectares of forest land for the construction of a bus standat McLeod Ganj. The contents of the order read thus:

“After careful consideration of the proposal of the StateGovernment, the competent authority hereby conveys approvalfor diversion of 0.48 hectares of forest land for construction’ of A

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above mentioned project at Dharmsala, forest division Dharamsalaand district Kangra, H.P., subject to following conditions.

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1. Legal status of the forest land will remain unchanged.

2. Minimum no. of trees as are unavailable may be felled whichshould not exceed 17 (seventeen) as proposed.

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3. Compensatory afforestation will be carried out, on 0.098 forestland at P46K Dharamsala C.B. Govt. Forest of Dharamsala forestdivision at a cost of Rs.14,900/- (Rs. Fourteen thousand ninehundred) which is reported to have been deposited by user agencyvide cheque No.055710 dated 19.10.2000.

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4. Forest Guard hut as proposed in the proposal, will also beconstructed at a cost of Rs.2.25 lacs which is reported to havebeen deposited by user agency.

5. The user agency will abide by any condition that may be imposedDby the State Forest Department In the interest of afforestationand protection of the forest.

6. This forest land will not be used for any other purpose than thatmentioned in the proposal.

7. This approval is subject to the clearance of the proposal underEother relevant Acts/Rules /Court’s Ruling /Instructions etc. asapplicable to this proposal.

8. The Ministry may revoke suspend the clearance ifimplementation of any of the above conditions is not satisfactory.State Government through state forest department will ensureFfulfillment of these conditions.”

8. Of the above land, an area admeasuring 0.093 hectares is abovethe main Dharamshala-McLeod Ganj road while an area admeasuring0.48 hectares is below the main road. Both these pieces of land faceeach other and are a part of Banoi Reserve Forest. The user agenciesGresponsible for the construction of the parking space and the bus standwere the S.D.O. Dharamshala and Himachal Pradesh TourismDepartment. The cost of these projects was estimated at Rs. 10 lacsand Rs. 90-95 lacs.

9. In April 2000, the appellant was constituted for the constructionHof bus stands in the State of Himachal Pradesh following the enactmentof the Himachal Pradesh Bus Stands Management and DevelopmentAuthority Act, 1999 (“HP Bust Stands Act”). In January/February of 2006, the land diverted for non – forest use under the above ordersdated 12 November 1997 and 1 March 2001 was transferred on a 99year lease to the appellant.

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D. The construction of the Bus Stand Complex

10. The land transferred to the appellant was to be utilised for theconstruction of a parking facility in McLeod Ganj. Given the nature ofthe costs that would be incurred for the creation of a ‘modern complex’,the Board of Directors of the appellant in their meeting held on 7November 2003 decided to construct a Bus Stand-cum-Parking Complexon a Build-Operate-Transfer basis[1]. In furtherance of this, the appellantinvited offers on 19 November 2003. The appellant received only oneoffer, which was considered financially unviable since it envisaged aconcession period of 75 years.

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11. The appellant decided to alter the nature of the Bus StandComplex in order to make it financially viable for private entities byissuing a new Request for Proposal on 13 July 2004 for the constructionof the modified Bus Stand Complex. Apart from the construction of thebus stand itself on the lower level, the appellant envisaged furtherconstruction in the complex of:

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(i) a multi-level commercial complex with shops at the roadlevel;E

(ii) a dormitory and a budget hotel at the first, second and thirdlevels;

(iii) a dining facility/restaurant/food plaza at the top level; and

(iv) a parking provision for fifty cars at the road level.

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The area of the multi-level commercial complex was to be 2779M[2]; of the road level parking, 1100 M[2]; and of the bus stand at the lowerlevel, 2580 M[2] (which included 359 M[2] of area for shops/kiosks).

1 In a BOT project, the public sector grantor grants to a private company the right todevelop 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-Operate-Transfer (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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A12. On 13 October 2004, the Board of the appellant approved thelowest bid submitted by the second respondent for the construction ofthe Bus Stand Complex. The second respondent was awardedconstruction rights through a ‘notice of award’ dated 18 November 2004.The appellant and the second respondent entered into a ‘ConcessionAgreement’ on 23 December 2004 under which the concession periodBcommenced from 15 December 2005, and was to be for 16 years, 7months and 15 days.

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13. The second respondent started the construction of the BusStand Complex in December 2005 without awaiting the permission ofthe Town and Country Planning Department (“TCP Department”),Capproving the plans and drawings.

14. On 4 March 2006, the TCP Department received an applicationseeking approval of the drawings of the Bus Stand Complex. It pointedout shortcomings in the proposed drawings on 10 March 2006. Throughfurther letters between 28 July 2006 to 19 February 2007, it directed theDappellant to provide further information and to rectify the shortcomingsin the proposed construction. During the midst of this process, the secondrespondent continued with the construction of the Bus Stand Complex.

15. Finally, through notices dated 5 October 2006, 8 March 2007and 5 June 2008, the TCP Department called upon the appellant to haltEthe construction of the Bus Stand Complex. The second respondentnonetheless continued with the construction.

16. On 8 May 2007, the State of Himachal Pradesh sent a proposalto MOEF requesting, inter alia, that:

(i) The use of the entire land (measuring 0.573 hectares) whichFwas permitted to be diverted for non – forest use underorders dated 12 November 1997 and 1 March 2001 bechanged to the construction of the Bus Stand Complex;and

(ii) The user agency be changed to the appellant.G17. Through its order dated 12 June 2007, MOEF rejected theproposal of the State of Himachal Pradesh. The order was in the followingterms:

“Please refer to your letter No. FFE-B-F(2)-87/97 dated 8[th] May,2007 on the above mentioned subject seeking approval ofHGovernment of India for changing of land use from constructionof parking on 0.093 hectare of forest land and Bus Stand Complex

and Hotel on entire 0.573 hectare of forest land for non-forestrypropose under Forest (Conservation) Act, 1980 and change in thename of user agency from SDO(Civil) and HP TourismDepartment to HP Bus Stand Management and DevelopmentAuthority.

The request of the State Government has been examined and thecompetent authority conveys its inability to consider the same andit is therefore, rejected.”

18. As explained in greater detail below, when proceedings wereinitiated before it, CEC directed a halt in construction. The secondrespondent approached this Court by filing an interim application. By anorder dated 7 September 2007, this Court directed that the secondrespondent can proceed with the construction of the bus stand, observingthus:

“In this application, the applicant is seeking a direction forconstruction of a bus stand. It is alleged that the C.E.C. hasprevented the applicant from constructing some parking area nearthe bus stand. We are told that the C.E.C. is proposing to inspectthe site and shall give a report. We think that before giving anydirection to the applicant, the C.E.C. may hear the applicant andfile a report and meanwhile the work relating to the constructionof bus stand may continue but no other construction shall be carriedout.”

The construction of the Bus Stand Complex was then completedby the second respondent on 7 July 2008.

E. Proceedings before the first respondent

19. During the construction by the second respondent, the sixthand the seventh respondents approached the CEC by filing an applicationon 20 April 2007, alleging that the construction of the Bus Stand Complexwas in violation of the Forest Act. As stated above, the CEC directedthat the construction of the Bus Stand Complex be halted.

20. The second respondent filed an interim application, in whichthis Court passed an order dated 7 September 2007, which has beenextracted above. The second respondent was impleaded in theproceedings before the CEC.

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A21. The members of the CEC visited the site of the Bus StandComplex on 27 September 2007. The CEC heard the parties before it onmultiple dates. It also had before it a report dated 18 August 2008 of theChief Secretary of Himachal Pradesh.

22. The CEC submitted its report dated 18 September 2008 toBthis Court. The salient findings were that:

(i) The construction of the Hotel-cum-Restaurant structurewithin the Bus Stand Complex was not permitted, byMOEF’s orders dated 12 November 1997 and 1 March2001. Hence, the construction is in violation of the ForestCAct;

(ii) The post facto permission sought by the State of HimachalPradesh from MOEF for changing the use of the divertedforest land was rejected on 12 June 2007;

(iii) The RFP issued by the appellant on 13 July 2004 indicatedDthat a multi-level commercial complex was to be of an areaadmeasuring 2779 M2, while the combined area of the roadlevel parking and the bus stand at the lower level was to be3680 M2. However, the actual area of the multi-levelcommercial complex constructed by the second respondentEis 3324.89 M2, which is 545.89 M2 in excess. Similarly, theactual area of the road level parking and the bus standconstructed is 9945.65 M2, which is 6265.65 M2 in excess.This additional construction had been tacitly approved bythe Board of the appellant; F(iv)While the RFP issued by the appellant indicated that onlytwo lower levels would be constructed for the bus stand,the second respondent had constructed four additional levels.This had also been tacitly approved by the Board of theappellant;

(v) The above factors establish connivance between the officersGof the appellant and the second respondent, in order tobenefit the second respondent;

(vi) The construction of the Bus Stand Complex by the secondrespondent has been done without the prior approval of theTCP Department. The notices issued by the Department toHhalt construction were ignored;

(vii) Due to the nature of the construction of the bus stand atthe lower levels, additional forest area will be required sincethere was no area for the buses to turn in; and

(viii) No car parking is available for the residents of the hotel inthe commercial complex, who would either have to park onthe roads or use the road level parking in the complex. Thiswould create traffic congestion and will not increase thenet parking available in the area.

23. Based on its conclusions, the CEC issued the followingrecommendations:

“22. The above clearly highlights that there has been absoluteanarchy in the matter of construction of the parking place andBus Stand. At the same time there is a very real need at McLeodGanj for both the Parking place and the Bus Stand Complex onthe two pieces of forest land. With a view to finding a way out ofthis terrible muddle created by the deep vested interests and atthe same time ensuring that those who have connived in the seriouslapse are not allowed to go scot free the following is recommended:

a) the hotel complex structure should be pulled down immediatelyand the 0.093 ha. of forest land should be cleared of debris. Thisshould be done within three months. Thereafter a Parking placemay be constructed as was originally visualized when the projectwas approved under the Forest (Conservation) Act, 1980. Priorto that approval of the Town and Country Planning Departmentmay be taken as required under the law. This will send a clearsignal to the building mafia and their supporters that such brazenacts of illegal and unauthorized construction will not be tolerated;

b) the serious shortcomings noted in the construction of Bus StandComplex would need to be with the approval of the Town andCountry Planning Department. Towards this end it is proposedthat the State Government may constitute a Committee with theChief Secretary as Chairman with the Principal Chief Conservatorof Forests, senior most Engineer in the State PWD and arepresentative of MoEF as Members. The Director, Town andCountry Planning Department, Himachal Pradesh, could be theMember Secretary. The Committee may immediately go into theentire matter and may in a time bound manner within two months A

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propose to this Hon’ble Court how best the Bus Stand Complexcan be salvaged from the present mess so that the StateGovernment is able to:

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i) ensure best and most efficient use of the Bus Stand so that themaximum number of buses are able to ply from there. WhileBproviding for commercial, shops, public toilets, restaurants,telephone booths and the like at the Bus Stand the onlyconsideration should be the actual requirements of the travellingpublic; and

ii) ensure maximum parking place for vehicles; C

c) there has been a collective failure and serious lapses on thepart of the officials and others of the State Government connectedwith the unauthorized and illegal construction of the twin projecton the two pieces of forest land and reflects on the pathetic stateof affairs in the matter of governance. In this background theState Government of Himachal Pradesh has to take the blameand may be directed to deposit an amount of Rupees one crore, ina special fund for the conservation and protection of the forestand wildlife; D

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d) the State Government may also be directed to simultaneouslyEidentify and initiate stringent and deterrent action in a time boundmanner against all the concerned persons and officials for completeabdication of their responsibility and accountability in the matterof governance and who are responsible for blatantly allowing theunauthorized and illegal building structures to come up on the twopieces of forest land in flagrant violation of the ForestF(Conservation) Act, 1980, the HP Town and Country PlanningAct, 1977 and other relevant local laws; and E

e) the services of M/S Prashanti Surya Construction Companyshould be dispensed with and M/s Prashanti Surya should beblacklisted and should also be penalized suitably for the graveGillegalities and irregularities knowingly committed to promote hisprivate interests.”

24. The second respondent then filed another application beforethis Court for setting aside the report issued by the CEC. The second H

respondent argued that they had not been provided a fair hearing, andhad the right to file a detailed reply.

25. By an order dated 5 October 2015, this Court transferred theproceedings to the NGT.

F. Proceedings before the NGT

26. In its impugned judgment, the NGT noted that the followingfacts were indisputable:

“A. At no point of time there was any permission, sanction orapproval granted by the Competent Authority in the StateGovernment and/or Central Government under the Act of 1980and even (under) other relevant laws for the hotel and shoppingcomplex.

B. Right from the initial stages, the hotel and shopping complexwere never a part of the project for which the Governmentdepartments and/or the project proponent even submittedapplications for grant of approval/sanction from the CompetentAuthority. MoEF&CC vide its letter dated 12th June, 2007 hadspecifically declined the permission for conversion of the forestland for any other non forest activity. Once such permission forhotel and shopping complex was declined, the project proponentcould not have been taken up and commenced any activity.

C. The project proponent not only started the construction withoutobtaining appropriate approval and sanction from the concernedState and the Central Government, but had also worked in collusionwith some of the authorities who consented [to] thecommencement of construction temporarily which was entirelyuncalled for and in fact was illegal.”

27. The NGT further noted that the approval accorded by theMOEF on 12 November 1997 was only for construction of a ‘parkingplace’ at McLeod Ganj. Further, on 1 March 2001, approval was accordedonly for construction of a ‘bus stand’ at McLeod Ganj. The State ofHimachal Pradesh had no power to authorize the construction of theHotel-cum-Restaurant structure and, therefore, the construction wasentirely illegal. It further endorsed the findings by the CEC and observed:

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A“3. It is clear from the above report of the CEC that there areserious violations of law. It is a project coming up in the forestarea without Forest Clearance, and even the consent to establishand/or operate has not been granted by the concerned Board.Moreover, this project is bound to have an adverse impact onenvironment and ecology. The recommendations of the CECBclearly state that the whole complex should be pulled down andonly a parking place must be constructed as was originallyvisualized, for which the Forest Clearance under the Act of 1980has been granted. The CEC also blames the concerned authoritiesby suggesting that there has been collective failure and seriousClapses on part of the State Government and its officials connectedwith the unauthorized and illegal construction of the project, whichwas constructed on the two pieces of land. The Report alsoobserved that the State Government should be directed to depositRs. 1 Crore in a special fund and the project proponent should beblacklisted and penalized suitably for the grave illegalities andDirregularities committed by him.”

28. The NGT characterized the construction of the Hotel-cum-Restaurant structure as an intentional violation that exhibited “violationof law coupled with serious adverse impacts on environment andecology of the eco sensitive area”[2]. It held that just as seeking anEEnvironmental Clearance under MOEF’s Notification dated 14 September2006 is a precondition to the commencement of the project, which cannotbe derogated from, seeking a Forest Clearance under Section 2 of theForest Act was a necessary precondition in the present case beforeconstruction could have begun. It drew on this Court’s jurisprudence on Fthe precautionary principle, polluter pays principle and the principle ofsustainable development.

G. Report of the District and Sessions Judge, Kangra

29. In furtherance of this Court’s order dated 16 May 2016, theDistrict and Sessions Judge submitted his enquiry report on 9 OctoberG2018. The report is based on documentary evidence and statementsfrom sixteen witnesses.

30. In his report, the District and Sessions Judge has found thatthe Bus Stand Complex:H2 Para 27 of the impugned judgment.

(i) Has been constructed on forest land, in violation of theAprovisions of the Forest Act;

(ii) Has been constructed without requisite permissions beingobtained from the TCP Department;

(iii) Does not conform to the plans prepared by third-partyBconsultants hired by the appellant, which were submittedduring the RFP;

(iv) Has not been properly maintained, and is plagued by issuesof seepage; and

(v) Suffers from architectural defects due to which it isextremely difficult for buses to turn into the bus stand fromthe main road.

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31. The District and Sessions Judge concludes that the secondrespondent could not have engaged in this illegal construction withoutthe connivance of the officials of the following departments: (i) theappellant; (ii) Himachal Pradesh Tourism Department; (iii) TCPDepartment; (iv) Forest Department; (v) Municipal Committee andMunicipal Corporation; (vi) Revenue Department; and (vii) ElectricityDepartment. The report states this in the following terms:

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“28. I have no hesitation to conclude that the officials/officers ofall the departments were hand in gloves with the M/s PrashantiSurya Construction Company, in order to give undue advantageto M/s Prashanti Surya Construction Company including thefinancial benefits. For the same these officers/officials are liable.It is a case of serious lapse and failure on the part of officers/officials of State Government, who were duty bound to take promptand immediate action to stop the un-authorised and illegalconstruction of the structure in dispute. So, it is my humblesubmission that concerned Disciplinary Authority/Authorities ofthe State Government be directed to take deterrent action againstthe defaulting officers/officials. It appears that the CEO and Boardof Directors suo moto assumed the powers to change theconceptual plan and allowed the construction work of illegalstructure on the spot by throwing into the air the statutory provisionsof law. Moreover, the structure of bus stand on the spot has notbeen properly erected. As submitted here in above, due to pillars, E

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Athere was lack of sufficient space for turning the buses and at thesame time there is no separate entry and exit point of the buses.The structure has not been properly maintained and seepage wasfound on the spot. There is no separate place for idle bus parking.So, it appears that the Bus Stand Authority’ has got no controlover the maintenance of the bus stand structure and it is not payingBany heed in this regard. In view of my submissions, it is a case ofopen favoritism of M/s Prashanti Surya Construction Company.All the concerned Authorities were well aware of the legalrequirements, but they preferred to continue with the illegalconstruction without following the legal requirements. It cannotCbe believed that the construction work on the spot continued frommid 2005 to beginning 2009 without connivance [sic of] theaforesaid Government Agencies and these officials/officers.”

H. Submissions of counsel

32. Challenging the impugned judgment of the NGT, the appellantDhas made the following submissions:

(i) The appellant had been legitimately provided the land forthe construction of the Bus Stand Complex, when the forestland was diverted for “non-forest purposes” through ordersdated 12 November 1997 and 1 March 2001 issued by theEMOEF;

(ii) The appellant included the Hotel-cum-Restaurant structurein the Bus Stand Complex to make it more commerciallyviable, for which it then assigned the rights to the secondrespondent without assigning it any interest in the land;F

(iii) While this was in public knowledge from the beginning, thesixth and seventh respondents did not raise any objectionsthen but only did so belatedly when the construction of theBus Stand Complex was already underway;

(iv) In relation to the violations of the Himachal Pradesh TownGand Country Planning Act, 1977 (“TCP Act”):

(a) once the project was handed over to the secondrespondent, it was their responsibility to get appropriatepermissions; H

(b) arguments in relation to violation of the TCP Act wereAnot raised by the sixth and seventh respondents beforethe CEC or the NGT;

(c) the NGT cannot, in any case, consider violations of theTCP Act; and B

(d) the Deputy Commissioner Kangra had recommended,by a letter dated 13 April 2007 addressed to the Directorof the TCP Department for relaxation in respect of theparameters since this was a first of its kind parkingcomplex at a hill station which regularly suffers fromtraffic congestion.

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(v) Section 14(3)(e) of the HP Bus Stands Act empowers theappellant to establish and maintain hotels and restaurantsat or near bus stands. There was no secrecy or wrongdoingin awarding the project to the second respondent, it havingmade the lowest bid. The project was to be constructed ona BOT basis and would be handed back to the State ofHimachal Pradesh at the end of the concession period; D

(vi) Since by the orders dated 12 November 1997 and 1 March2001 permission had already been obtained to divert theland for a “non-forest purpose”, no further consents fromthe MOEF were needed for the construction of the Hotel-cum-Restaurant. Even so, the State of Himachal Pradesh,by way of abundant caution, moved an application to seekits consent for change of land use for the construction of aHotel-cum-Restaurant structure within the Bus StandComplex. On 12 June 2007, the application was notdismissed on merits through a speaking order, but only owingto an “inability to consider the same” since proceedingswere ongoing before the CEC; and E

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(vii) The Explanation attached to Section 2 of the Forest Actexpressly provides that “non forest purpose” means thebreaking up or clearing of any forest land or portion thereoffor any purpose other than re-afforestation. As a result, theincidental and ancillary facilities of the Hotel-cum-Restaurant structure in the Bus Stand Complex weresanctioned by the clearances already granted.

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A33. Supporting the submission of the appellant, the secondrespondent submits that:

(i) It decided to participate in the project because it was notlimited to the bus stand, but also included the managementof the Hotel-cum-Restaurant which made it commerciallyBviable. Under the Concession Agreement, the secondrespondent was to build the bus stand, parking and Hotel-cum-Restaurant which it would retain until the year 2022,following which it would stand transferred to the State ofHimachal Pradesh. According to the second respondent,this was done through a transparent process;C

(ii) The CEC incorrectly decided the application filed by thesixth and seventh respondents without properlyunderstanding the second respondent’s reasons forconstructing the additional floors in the structure, which wasdue to the strength and condition of the soil. The same errorDwas made by the NGT in its impugned judgment;

(iii) The allegation that the appellant acted in a biased mannerare unfounded. The appellant is a nodal independent statutoryauthority for maintenance of modern commercial bus standinfrastructure. The appellant is empowered under SectionE14(3)(e) of the HP Bus Stands Act to establish and maintainhotels and restaurants at or near bus stands. At the relevanttime, the appellant did not have adequate financial resourcesto construct bus stands on its own and so it took a policydecision for their construction by seeking privateFparticipation on a BOT basis;

(iv) ‘Not an inch of forest land’ was encroached upon otherthan what was permitted by the MOEF. Further, on thelower parcel of land, minimum trees were felled by theforest department and on the upper portion of land thereGwere no trees. The felling and removing of the trees wasdone strictly in accordance with the permission granted;

(v) The District and Sessions Judge ignored the public natureof the project and that the land will revert to the State ofHimachal Pradesh after the concession period. There isnothing to suggest that the second respondent constructedH

the project with the objective of obtaining wrongful gain orundue advantage. The second respondent has invested morethan Rs. 19 crores in the public project in question, with amajor chunk of it being sourced through bank borrowings.Under the financial scheme of the project, 70% of therevenue was to be recovered by the second respondentfrom the Hotel-cum-Restaurant and 30% from the operationof the bus stand. Hence, since the Hotel-cum-Restauranthas not been operationalized, the second respondent, aftermaking the investment in the project, has not been able toreceive proportionate returns and has been forced to facea financial crisis, for no fault of its own;

(vi) The second respondent is no longer managing or operatingthe parking space and the bus stand after the DistrictMagistrate, Kangra by an order dated 7 June 2019 underSection 144 of Code of Criminal Procedure, 1973,constituted and authorized an Executive Committee to takecontrol of the parking space and run it free of cost in publicinterest. Further, the District Magistrate, through an orderdated 31 July 2019, notified the space available at McLeodGanj Bus Stand as public parking place under Section 117of the Motor Vehicles Act, 1988, in the interest of theefficient organization of the transport system;

(vii) The NGT erred in not directing the Central Government toconsider the possibility of granting ex-post facto clearanceto the Hotel-cum-Restaurant structure of the Bus StandComplex under Section 2 of the Forest Act, given that theconstruction of the Hotel-cum-Restaurant structure tookplace pursuant to a tender floated by a statutory authority;

(viii) The NGT overlooked the fact that the CEC’s report dated18 September 2008 was prepared without following theprinciples of natural justice. This was because it wasprepared on the basis of the second affidavit dated 18 August2008 filed by the Chief Secretary of the State of HimachalPradesh, which was not served upon the second respondent;and A

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A(ix)The NGT should have considered that the appellant hadmade a representation to the second respondent in theConcession Agreement that all the necessary permissionshave been obtained by it for the execution of the Bus StandComplex.

B34. The State of Himachal Pradesh has made the followingsubmissions:

(i) The Bus Stand Complex had all requisite permissions, andhad been constructed lawfully without the conferment ofundue benefits to the second respondent; C(ii)The report of the District and Sessions Judge dated 9October 2018 is flawed because:

(a) the appellant did not ask for permission from theMOEF, since such permission was already available; (b)the project was constructed in accordance withapproved plans, and keeping in mind the topographyof the area; and D

(c) the maintenance of the project could not be questionedbecause its upkeep had to be abandoned in 2009 afterthe litigation began.E

(iii) As regards the findings in the report of the District andSessions Judge dated 9 October 2018, the reason why noconsent for the construction of the Hotel-cum-Restaurantstructure was separately sought was because the appellantwas under the impression that the consent for diverting forestFland for a “non-forest purpose”, granted by the MOEF byits orders dated 12 November 1997 and 1 March 2001, wassufficient.

35. The State of Himachal Pradesh argues that this is a caseinvolving procedural lapses, as opposed to illegality. The setting up ofGsuch projects in the State is a gigantic task given the peculiar topographyand other conditions existing there. The project, if allowed to be continued/completed, will not only provide facilities of a modular bus stand to thepeople of the town but also, the provision of a commercial complex willcater to economical services to commuters, besides providing opportunitiesHof employment to the local population. However, if the structure is ordered

to be demolished at this stage, it is likely to cause environmental damagesince it will be difficult to dispose of the huge debris emanating from thedemolition as the area is congested and covered with extensivevegetation. Some part of the proceeds received as income from thecommercial complex may be utilized to compensate the loss that mighthave been caused to the environment and ecology of the area due to theconstruction of the Bus Stand Complex.

36. The State of Himachal Pradesh later submitted before thisCourt on 3 November 2020 that it had taken steps for initiatingprosecutions for violations of the provisions of the Forest Act. It placedon record, through an affidavit, the steps taken by it.

37. Opposing these submissions and arguing in support of NGT’simpugned judgment, the CEC submits the following:

(i) The forest land was permitted to be diverted for “non-forestpurposes” only for the construction of a bus stand andparking space. However, the appellant expanded the scopeto include a Hotel-cum-Restaurant without prior permission;

(ii) The second respondent started construction of the Bus StandComplex without approval of the drawings and plans bythe TCP Department, which later pointed out issues withthe plans; and

(iii) On 12 June 2007, MOEF rejected the request of the Stateof Himachal Pradesh for the extension of the use of theforest land for anything other than a bus stand and a parkingspace.

38. Supporting the submissions of the CEC, the sixth and seventhrespondents submit:

(i) The de-reservation of forest land for the construction ofthe Hotel-cum-Restaurant structure in the Bus StandComplex was in violation of: (i) Section 2(i) of the ForestAct; and (ii) the order dated 13 November 2000 issued bythis Court in Centre for Environmental Law, WWF - Ivs Union of India[3], which held that further land shall notbe de-reserved pending further orders from this Court;

(ii) As such, the actions of the appellant and the secondrespondent in deliberately violating the provisions of the 3 Writ Petition (Civil) No. 337 of 1995

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Forest Act constitute a violation of the “environmental ruleof law” enunciated by this Court in Hanuman LaxmanAroskar vs Union of India[4]; and A

(iii) The entire Bus Stand Complex was constructed withoutrequisite permissions under the TCP Act.

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39. The MOEF has accepted the report submitted by the Districtand Sessions Judge in its entirety and stands by its findings.

40. The rival submissions now fall for our consideration.

I. Analysis

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41. The construction of the Hotel-cum-Restaurant structure inthe Bus Stand Complex is illegal and constitutes a brazen violation oflaw. The permission which was granted by MOEF on 12 November1997 was only for construction of a ‘parking place’ at McLeod Ganj.Similarly, the permission granted on 1 March 2001 was granted forDconstructing a ‘bus stand’ in the same area. At no point was anypermission granted for the construction of a hotel or commercial structure.NGT’s finding on this count commends acceptance. The appellant, onbeing granted permission to engage in construction for a specified purpose,unlawfully utilised that permission as the basis to construct a differentstructure which was not authorized. It has done so in disregard of theEprovisions of the Forest Act.

42. Section 2 of the Forest Act reads as follows:

“2. Restriction on the de-reservation of forests or use of forestland for non-forest purpose.— Notwithstanding anything containedin any other law for the time being in force in a State, no StateFGovernment or other authority shall make, except with the priorapproval of the Central Government, any order directing—

(i) that any reserved forest (within the meaning of the expression“reserved forest” in any law for the time being in force in thatState) or any portion thereof, shall cease to be reserved; G

(ii) that any forest land or any portion thereof may be used forany non-forest purpose; 4 (2019) 15 SCC 401

(iii) that any forest land or any portion thereof may be assigned byway of lease or otherwise to any private person or to any authority,corporation, agency or any other organisation not owned, managedor controlled by Government;

(iv) that any forest land or any portion thereof may be cleared oftrees which have grown naturally in that land or portion, for thepurpose of using it for reafforestation.

Explanation.— For the purposes of this section “non-forestpurpose” means the breaking up or clearing of any forest land orportion thereof for—

(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearingplants, horticulture crops or medicinal plants; (b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation,development and management of forests and wild-life, namely,the establishment of check-posts, fire lines, wirelesscommunications and construction of fencing, bridges and culverts,dams, waterholes, trench marks, boundary marks, pipelines orother like purposes.”

The provisions of Section 2 mandate strict and punctiliouscompliance. Mere substantial compliance is not enough. The constructionof the Hotel-cum-Restaurant structure is entirely illegal, having beencarried out in clear breach of this mandatory statutory stipulation. Thatofficials of statutory bodies of the State Government have connived atthe violation of law is a reflection on the nature of governance by thosewho are expected to act within the bounds of law.

43. The report of the CEC is a serious indictment of the actions ofthe appellant. The CEC report indicates that: (i) the construction of theHotel-cum-Restaurant structure in Bus Stand Complex was illegal; (ii)the land was a reserved forest; (iii) there was no valid permission fordiversion for the land for the construction of the Hotel-cum-Restaurantstructure; (iv) Forest Act consent was taken only for the parking facilityand the bus stand; (v) there was no valid approval from the TCPDepartment of the plans of the entire Bus Stand Complex; and (vi) thefinally constructed Bus Stand Complex is not in conformity with theappellant’s own proposed plans in the RFP.

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A44. The findings which were arrived at in NGT’s judgment aresupported by the report submitted by the District and Sessions Judge.The report presents a striking analysis of the manner in which the Hotel-cum-Restaurant structure was constructed in breach of statutoryrequirements and how this was made possible by the connivance ofmultiple state actors. The relevant findings from the report are excerptedBbelow:

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“4. The EPC has prepared the conceptual plan Ex. Cl I4A, butthe bus stand authority went on to flout the aforesaid conceptualplan and on its own and decided to construct bus stand-cum-parkingand hotel complex on two pieces of forest land under BOT basis.CNo sanction or approval was obtained by the Bus Stand Authorityunder the provision of Forest (Conservation) Act, 1980 for diversionof forest land to use the same for non - forest purpose. TheGovernment of India Ministry of Environment and Forest, turneddown the request to use the forest land for non-forest purposeDand change the name of user agency from SDO(C) and H.P.Tourism Department to Bus Stand Authority vide copy of letterEx. Cl03.

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7. The illegal construction of disputed structure was raised withsole motive to give undue advantage to M/s Prashanti SuryaConstruction Company and for the same Bus Stand Authority isprimarily responsible and in addition to that the officers/officialsof other concerned departments are also responsible.

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12. In this case the Bus Stand Authority did not inform in writingthe Director of Town and Country Planning Department, regardingthe construction work in question as discussed here in above inthe aforesaid statutory provisions. Said information should havebeen given by the CEO of the Bus Stand Authority in the year ofG2005 when the construction work started on the spot. So, theCEO of Bus Stand Authority in the year 2005, is responsible forignoring the statutory provisions of Section 28 of the H.P. Townand Country Planning Act.”

45. NGT acted within its mandate in a case of this nature, whereHthe appellant actively allowed the perpetration of a structure in breach of environmental norms. Not looking askance at the construction of theHotel-cum-Restaurant structure, in an area which the NGT rightlydescribes as the “lap of nature”, will put us on the path of judiciallysanctioned environmental destruction.

I.1 Environmental rule of law

46. In a constitutional framework which is intended to create,foster and protect a democracy committed to liberal values, the rule oflaw provides the cornerstone. The rule of law is to be distinguished fromrule by the law. The former comprehends the setting up of a legal regimewith clearly defined rules and principles of even application, a regime oflaw which maintains the fundamental postulates of liberty, equality anddue process. The rule of law postulates a law which is answerable toconstitutional norms. The law in that sense is accountable as much as itis capable of exacting compliance. Rule by the law on the other handcan mean rule by a despotic law. It is to maintain the just quality of thelaw and its observance of reason that rule of law precepts in constitutionaldemocracies rest on constitutional foundations. A rule of law frameworkencompasses rules of law but it does much more than that. It embodiesmatters of substance and process. It dwells on the institutions whichprovide the arc of governance. By focussing on the structural normswhich guide institutional decision making, rule of law frameworksrecognise the vital role played by institutions and the serious consequencesof leaving undefined the norms and processes by which they areconstituted, composed and governed. A modern rule of law frameworkis hence comprehensive in its sweep and ambit. It recognises that libertyand equality are the focal point of a just system of governance andwithout which human dignity can be subverted by administrativediscretion and absolute power. Rule of law then dwells beyond acompendium which sanctifies rules of law. Its elements comprise ofsubstantive principles, processual guarantees and institutional safeguardsthat are designed to ensure responsive, accountable and sensitivegovernance.

47. The environmental rule of law, at a certain level, is a facet ofthe concept of the rule of law. But it includes specific features that areunique 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 onenvironmental protection. It does so to enhance our understanding of A

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Aenvironmental challenges – of how they have been shaped by humanity’sinterface with nature in the past, how they continue to be affected by itsengagement with nature in the present and the prospects for the future,if we were not to radically alter the course of destruction whichhumanity’s actions have charted. The environmental rule of law seeksto facilitate a multi–disciplinary analysis of the nature and consequencesBof carbon footprints and in doing so it brings a shared understandingbetween science, regulatory decisions and policy perspectives in thefield of environmental protection. It recognises that the ‘law’ element inthe environmental rule of law does not make the concept peculiarly thepreserve of lawyers and judges. On the contrary, it seeks to draw withinCthe fold all stakeholders in formulating strategies to deal with currentchallenges posed by environmental degradation, climate change and thedestruction of habitats. The environmental rule of law seeks a unifiedunderstanding of these concepts. There are significant linkages betweenconcepts such as sustainable development, the polluter pays principleand the trust doctrine. The universe of nature is indivisible and integrated.DThe state of the environment in one part of the earth affects and isfundamentally affected by what occurs in another part. Every elementof the environment shares a symbiotic relationship with the others. It isthis inseparable bond and connect which the environmental rule of lawseeks to explore and understand in order to find solutions to the pressingEproblems which threaten the existence of humanity. The environmentalrule of law is founded on the need to understand the consequences ofour actions going beyond local, state and national boundaries. The rise inthe oceans threatens not just maritime communities. The rise intemperatures, dilution of glaciers and growing desertification haveconsequences which go beyond the communities and creatures whoseFhabitats are threatened. They affect the future survival of the entireeco-system. The environmental rule of law attempts to weave anunderstanding of the connections in the natural environment which makethe issue of survival a unified challenge which confronts human societieseverywhere. It seeks to build on experiential learnings of the past toGformulate principles which must become the building pillars ofenvironmental regulation in the present and future. The environmentalrule of law recognises the overlap between and seeks to amalgamatescientific learning, legal principle and policy intervention. Significantly, itbrings attention to the rules, processes and norms followed by institutionswhich provide regulatory governance on the environment. In doing so, itH

fosters a regime of open, accountable and transparent decision makingon concerns of the environment. It fosters the importance of participatorygovernance – of the value in giving a voice to those who are most affectedby environmental policies and public projects. The structural design ofthe environmental rule of law composes of substantive, procedural andinstitutional 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 bountiesof nature against existential threats. For it is founded on the universalrecognition that the future of human existence depends on how weconserve, protect and regenerate the environment today.

48. In its decision in Hanuman Laxman Aroskar vs Union ofIndia (supra), this Court, speaking through one of us (DY Chandrachud,J.) recognized the importance of protecting the environmental rule oflaw. The court observed:

“142. Fundamental to the outcome of this case is a quest forenvironmental governance within a rule of law paradigm.Environmental governance is founded on the need to promoteenvironmental sustainability as a crucial enabling factor whichensures the health of our ecosystem.

143. Since the Stockholm Conference, there has been a dramaticexpansion in environmental laws and institutions across the globe.In many instances, these laws and institutions have helped to slowdown or reverse environmental degradation. However, thisprogress is also accompanied, by a growing understanding thatthere is a considerable implementation gap between therequirements of environmental laws and their implementation andenforcement — both in developed and developing countries alike …

156. The rule of law requires a regime which has effective,accountable and transparent institutions. Responsive, inclusive,participatory and representative decision making are keyingredients to the rule of law. Public access to information is, insimilar terms, fundamental to the preservation of the rule of law.In a domestic context, environmental governance that is foundedon the rule of law emerges from the values of our Constitution.The health of the environment is key to preserving the right to life AB

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Aas a constitutionally recognised value under Article 21 of theConstitution. Proper structures for environmental decision makingfind expression in the guarantee against arbitrary action and theaffirmative duty of fair treatment under Article 14 of theConstitution.”

B49. In its first global report on environmental rule of law in January2019, the United Nations Environment Programme (“UNEP”) haspresciently stated[5]:

“If human society is to stay within the bounds of critical ecologicalthresholds, it is imperative that environmental laws are widelyCunderstood, respected, and enforced and the benefits ofenvironmental protection are enjoyed by people and the planet.Environmental rule of law offers a framework for addressing thegap between environmental laws on the books and in practiceand is key to achieving the Sustainable Development Goals.

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Successful implementation of environmental law depends on theability to quickly and efficiently resolve environmental disputesand punish environmental violations. Providing environmentaladjudicators and enforcers with the tools that allow them toErespond to environmental matters flexibly, transparently, andmeaningfully is a critical building block of environmental rule oflaw.”

50. The need to adjudicate disputes over environmental harm withina rule of law framework is rooted in a principled commitment to ensure Ffidelity to the legal framework regulating environmental protection in amanner that transcends a case-by-case adjudication. Before this modeof analysis gained acceptance, we faced a situation in which, despite theexistence of environmental legislation on the statute books, there was anabsence of a set of overarching judicially recognized principles that couldinform environmental adjudication in a manner that was stable, certainGand predictable. In an article in the Asia-Pacific Journal of EnvironmentalLaw (2014), Bruce Pardy describes this conundrum in the followingterms[6]:5 UNEP, ‘Environmental Rule of Law First Global Report’ (January 2019), pgs viii and223.6 Bruce Pardy, ‘Towards an Environmental Rule of Law’, 17 Asia Pacific Journal ofHEnvironmental Law 163 (2014).

“Environmental regulations and standards typically identify specificlimits or prohibitions on detrimental activities or substances. Theyare created to reflect the principles and prohibitions contained inthe statute under which they are promulgated. However, wherethe contents of the statute are themselves indeterminate, there isno concrete rule or set of criteria to apply to formulate thestandards. Their development can therefore be highly political andpotentially arbitrary.

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Instead of serving to protect citizens’ environmental welfare, anindeterminate environmental law facilitates a utilitarian calculusthat allows diffuse interests to be placed aside when they arejudged to be less valuable than competing considerations.”

51. However, even while using the framework of an environmentalrule of law, the difficulty we face is this – when adjudicating bodies arecalled on to adjudicate on environmental infractions, the precise harmthat has taken place is often not susceptible to concrete quantification.While the framework provides valuable guidance in relation to theprinciples to be kept in mind while adjudicating upon environmentaldisputes, it does not provide clear pathways to determine the harm causedin multifarious factual situations that fall for judicial consideration. Thedetermination of such harm requires access to scientific data which isoften times difficult to come by in individual situations.

52. In an article in the Georgetown Environmental Law Review(2020), Arnold Kreilhuber and Angela Kariuki explain the manner inwhich the environmental rule of law seeks to resolve this imbroglio[7]:

“One of the main distinctions between environmental rule of lawand other areas of law is the need to make decisions to protecthuman health and the environment in the face of uncertainty anddata gaps. Instead of being paralyzed into inaction, carefuldocumentation of the state of knowledge and uncertainties allowsthe regulated community, stakeholders, and other institutions tomore fully understand why certain decisions were made.”

The point, therefore, is simply this – the environmental rule of lawcalls on us, as judges, to marshal the knowledge emerging from the 7 Arnold Kreilhuber and Angela Kariuki, ‘Environmental Rule of Law in the Context ofSustainable Development’, 32 Georgetown Environmental Law Review 591 (2020).

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Arecord, limited though it may sometimes be, to respond in a stern anddecisive fashion to violations of environmental law. We cannot bestupefied into inaction by not having access to complete details aboutthe manner in which an environmental law violation has occurred or itsfull implications. Instead, the framework, acknowledging the imperfectworld that we inhabit, provides a roadmap to deal with environmentalBlaw violations, an absence of clear evidence of consequencesnotwithstanding.

53. In the case before us, it is not possible for us to determine inquantifiable terms the exact effect of the construction of the Hotel-cum-Restaurant structure by the appellant and the second respondent on theCecology of the area. Both of them have tried to argue that the number oftrees felled by them, in the case of the present construction, is what itwould have been, had they only built a bus stand and a parking space.However, what we can record a determination on is the way in which theappellant and second respondent have gone about achieving this object.Specifically, the parties have engaged in the construction without complyingDwith the plans drawn by the appellant’s third-party consultants, whichwere agreed to by them in the RFP. The construction proceeded evenwhen 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 thediverted forest land was not enough to stop the parties. Ultimately, whenEthey were forced to halt the construction by the CEC, they proceededwith it under the guise of an order of this Court which permitted only legalconstruction. A combination of these circumstances highlights not onlyconduct oblivious of the environmental consequences of their actions, butan active disdain for them in favour of commercial benefits. While thesecond respondent was a private entity, they were actively supported inFthese efforts by the appellant. Hence, it is painfully clear that their actionsstand in violation of the environmental rule of law. Whatever else theenvironmental rule of law may mean, it surely means that construction ofthis sort cannot receive our endorsement, no matter what its economicbenefits may be. A lack of scientific certainty is no ground to imperil theenvironment.G

I.2 Role of courts in ensuring environmental protection

54. In a recent decision of this Court in Bengaluru DevelopmentAuthority vs Sudhakar Hegde[8], this Court, speaking through one of us(DY Chandrachud, J.) held:H8 2020 SCC OnLine SC 328

“107. The adversarial system is, by its nature, rights based. In thequest for justice, it is not uncommon to postulate a winning sideand a losing side. In matters of the environment and developmenthowever, there is no trade-off between the two. The protectionof the environment is an inherent component of development andgrowth…

108. Professor Corker draws attention to the idea that theenvironmental protection goes beyond lawsuits. Where the stateand statutory bodies fail in their duty to comply with the regulatoryframework for the protection of the environment, the courts, actingon actions brought by public spirited individuals are called toinvalidate such actions…

109. The protection of the environment is premised not only onthe active role of courts, but also on robust institutional frameworkswithin which every stakeholder complies with its duty to ensuresustainable development. A framework of environmentalgovernance committed to the rule of law requires a regime whichhas effective, accountable and transparent institutions. Equallyimportant is responsive, inclusive, participatory and representativedecision making. Environmental governance is founded on therule of law and emerges from the values of our Constitution. Wherethe health of the environment is key to preserving the right to lifeas a constitutionally recognized value under Article 21 of theConstitution, proper structures for environmental decision makingfind expression in the guarantee against arbitrary action and theaffirmative duty of fair treatment under Article 14 of theConstitution. Sustainable development is premised not merely onthe redressal of the failure of democratic institutions in theprotection of the environment, but ensuring that such failures donot take place.”

55. In Lal Bahadur vs State of Uttar Pradesh[9], this Courtunderscored the principles that are the cornerstone of our environmentaljurisprudence, as emerging from a settled line of precedent: theprecautionary principle, the polluter pays principle and sustainabledevelopment. This Court further noted the importance of judicialintervention for ensuring environmental protection. In a recent decision A

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Ain State of Meghalaya & others vs All Dimasa Students Union[10],this Court reiterated the key principles of environmental jurisprudence inIndia, while awarding costs of Rs. 100 crores on the State of Meghalayafor engaging in illegal coal mining.

56. The UNEP report (supra) also goes on to note[11]:B

“Courts and tribunals must be able to grant meaningful legalremedies in order to resolve disputes and enforce environmentallaws. As shown in Figure 5.12, legal remedies are the actions,such as fines, jail time, and injunctions, that courts and tribunalsare empowered to order. For environmental laws to have theirCdesired effect and for there to be adequate incentives forcompliance with environmental laws, the remedies must bothredress the past environmental harm and deter future harm.”

57. In its Global Judicial Handbook on EnvironmentalConstitutionalism, the UNEP has further noted[12]:D“Courts matter. They are essential to the rule of law. Without courts,laws can be disregarded, executive officials left unchecked, andpeople left without recourse. And the environment and the humanconnection to it can suffer. Judges stand in the breach.”

58. The above discussion puts into perspective our decision in theEpresent appeals, through which we shall confirm the directions given bythe NGT in its impugned judgment. The role of courts and tribunals cannotbe overstated in ensuring that the ‘shield’ of the “rule of law” can be usedas a facilitative instrument in ensuring compliance with environmentalregulations.

FI.3 Illegal activities on forest land

59. We are not traversing unexplored territory. In the past, this Courthas clamped down on illegal activities on reserved forest land specifically,and in violation of environmental laws more generally, and taken to taskthose responsible for it. In a recent three-judge bench decision of this Court in the case of Hospitality Association of Mudumalai vs InGDefence of Environment and Animals[13], this Court was confronted 10 (2019) 8 SCC 177.

11 Supra at note 5, pg 213.

12 UNEP, Global Judicial Handbook on Environmental Constitutionalism (3rd edition,2019), pg 7.13 2020 SCC OnLine SC 838.H

with a situation involving illegal commercial activities taking place in anelephant corridor. Justice S. Abdul Nazeer, speaking for the Court, heldas follows:

“42…the “Precautionary Principle” has been accepted as a partof the law of our land. Articles 21, 47, 48A and 51A(g) of theConstitution of India give a clear mandate to the State to protectand improve the environment and to safeguard the forests andwild life of the country. It is the duty of every citizen of India toprotect and improve the natural environment including forests andwild life and to have compassion for living creatures. ThePrecautionary Principle makes it mandatory for the StateGovernment to anticipate, prevent and attack the causes ofenvironmental degradation.”

60. In Goel Ganga Developers India Pvt. Ltd. vs Union ofIndia[14], this Court dealt with a situation in which the project proponenthad engaged in construction that was contrary to the environmentalclearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows:

“64. Having held so we are definitely of the view that the projectproponent who has violated law with impunity cannot be allowedto go scot-free. This Court has in a number of cases awarded 5%of the project cost as damages. This is the general law. However,in the present case we feel that damages should be higher keepingin view the totally intransigent and unapologetic behaviour of theproject proponent. He has manoeuvred and manipulated officialsand authorities. Instead of 12 buildings, he has constructed 18;from 552 flats the number of flats has gone up to 807 and nowtwo more buildings having 454 flats are proposed. The projectproponent contends that he has made smaller flats and, therefore,the number of flats has increased. He could not have done thiswithout getting fresh EC. With the increase in the number of flatsthe number of persons residing therein is bound to increase. Thiswill impact the amount of water requirement, the amount of parkingspace, the amount of open area, etc. Therefore, in the presentcase, we are clearly of the view that the project proponent shouldbe and is directed to pay damages of Rs 100 crores or 10% of theproject cost, whichever is more.”

14 (2018) 18 SCC 257.

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A61. In M.C. Mehta vs Union of India[15], a two judge Bench ofthis Court held that the land notified under Punjab Land PreservationAct, 1900 in the Kant Enclave was to be treated as “forest land”. As aresult, any construction made on the land or its utilization for “non-forestpurposes” without Central Government approval was violative of theForest Act and therefore illegal. The relevant excerpt of this Court’sBdecision, speaking through Justice Madan B. Lokur, is as follows:

“132... R. Kant & Co. and the Town and Country Department ofthe State of Haryana being fully aware of the statutory Notificationdated 18-8-1992 and the restrictions placed by the notification. R.Kant & Co. and the Town and Country Department of the StateCof Haryana were also fully aware that Kant Enclave is a forest orforest land or treated as a forest or forest land, and therefore anyconstruction made on the land or utilisation of the land for non-forest purposes, without the prior approval of the CentralGovernment, would be illegal and violative of the provisions of theDForest (Conservation) Act, 1980. Notwithstanding this,constructions were made (or allowed to be made) in Kant Enclavewith the support, tacit or otherwise, of R. Kant & Co. and theTown and Country Department of the State of Haryana. Theymust pay for this.”

E62. In the present set of appeals, the forest land was allowed tobe used by the MOEF for the specific purposes of constructing a ‘parkingspace’ and ‘bus stand’ in McLeod Ganj. MOEF made a conscious decisionnot to modify the terms of this permission, even when granted anopportunity to do so. Hence, any construction undertaken by the secondrespondent, even with the tacit approval of the appellant being a statutoryFauthority under the HP Bus Stands Act, will be illegal.

I.4 Jurisdiction of NGT

63. An ancillary issue now remains for our consideration, which iswhether the NGT could have adjudicated upon a violation of the TCPGAct, which is not an Act present in Schedule I of the NGT Act. In arecent two-judge Bench decision of this Court in State of M.P. vs Centrefor Environment Protection Research & Development[16],one ofus speaking for the Court (Justice Indira Banerjee), held as follows:

15 (2018) 18 SCC 397.H16 (2020) 9 SCC 781.

“41. The Tribunal constituted under the NGT Act has jurisdictionunder Section 14 of the said Act to decide all civil cases whereany substantial question relating to environment includingenforcement of any right relating to environment is involved andsuch question arises out of the implementation of the enactmentsspecified in Schedule I to the said Act, which includes the Air(Prevention and Control of Pollution) Act, 1981 and theEnvironment (Protection) Act, 1986.

42. In view of the definition of “substantial question relating toenvironment” in Section 2(1)(m) of the NGT Act, the learnedTribunal can examine and decide the question of violation of anyspecific statutory environmental obligation, which affects or islikely to affect a group of individuals, or the community at large.

43. For exercise of power under Section 14 of the NGT Act, asubstantial question of law should be involved including any legalright to environment and such question should arise out ofimplementation of the specified enactments.

44. Violation of any specific statutory environmental obligationgives rise to a substantial question of law and not just statutoryobligations under the enactments specified in Schedule I.However, the question must arise out of implementation of one ormore of the enactments specified in Schedule I.”

The provisions of the TCP Act required the appellant and secondrespondent to take prior permission from the TCP Department beforechanging the nature of the land through their construction. Non-conformitywith this stipulation led to a violation of their environmental obligations.In any case, this question is academic because the NGT’s impugnedjudgment grounds its decision in the appellant and second respondent’sviolation of Section 2 of the Forest Act, which is an Act present withinSchedule I of the NGT Act.

J. Conclusion

64. Based on our analysis above, we uphold the directions whichhave been issued by the NGT in its judgment. By the earlier ordersdated 16 May 2016 and 9 September 2016, this court only stayed NGT’sdirection in relation to the demolition of the Hotel-cum-Restaurantstructure. The appellant has tried to argue against the demolition of theHotel-cum-Restaurant structure in the Bus Stand Complex, submitting ABC

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Athat it may be allowed to stand for their use. However, we cannot acceptthis submission. Doing so would legalise what is an otherwise entirelyillegal construction, the reasons for which have been adduced by us inthe judgment above.

65. Hence, we direct that the process of demolishing the Hotel-Bcum-Restaurant structure in the Bus Stand Complex be commencedwithin two weeks from the date of the judgment and the structure shallbe demolished by the second respondent within one month thereafter. Inthe event of default, the Chief Conservator of Forest along with theadministration of district Dharamshala shall demolish the structure andrecover the cost and expenses as arrears of land revenue from the secondCrespondent.

66. Further, as directed by the NGT, the State of Himachal Pradeshand the second respondent can utilise the parking space and the busstand in the Bus Stand Complex, after the demolition of the Hotel-cum-Restaurant structure. However, this has to be in accordance with ordersDdated 12 November 1997 and 1 March 2001 issued by the MOEF, i.e., itshall not be used for any purpose other than parking of cars and buses,as the case may be.

67. The appeals are accordingly disposed of.

68. Pending application(s), if any, stand disposed of.

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Devika Gujral

Appeals disposed of.

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