M.C. MEHTA versus UNION OF INDIA & ORS. on 11 September 2018

SUPREME COURT REPORTS[2018] 11 S.C.R. 384

[2018] 11 S.C.R.

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M.C. MEHTA

v.

UNION OF INDIA & ORS.

(I.A. Nos. 2310/2008, 2378-2379/2009, 2269, B

2270, 2393 and 2381-2384)

In

(W.P. (C) No. 4677 of 1985)

SEPTEMBER 11, 2018

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[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

Environmental Law:

Construction by applicant-company – Pursuant to exemptiongranted u/s. 23 of Haryana Development and Regulation of UrbanDAreas Act, 1975 on 17.04.1984 – By Notification dated 18.08.1992(issued under Punjab Land Preservation Act, 1900) prohibitedconstitution activity on the notified land (including the land of theapplicant) – In a parallel exercise, steps were taken by the Statenotifying development plan under Faridabad Complex (RegulationEand Development) Act, 1971 – On the basis of exemption grantedin 1984, Town and Country Planning Department encouraged theapplicant to go ahead with its construction activity – Principal ChiefConservator of Forests was of the view that the land of the applicantwas a forest or was required to be treated as forest with the issuanceof Notification under PLP Act and hence, under Forest ConservationFAct, 1980, permission of Central Government was required forcarrying on a non-forest activity – In the meantime several orderswere passed by Supreme Court regarding the issue of deforestationcoupled with other environmental issues (in respect of the area inwhich the land in question was situated) – Applications forGclarification or modification or recall of orders – Held: The purposeof issuing the notification under PLP Act is to ensure that in theclosed area non-forest activities are not carried out – TheNotification is a clear indicator that such closed areas must be forestland or treated as forest land – Therefore, the land notified under H

PLP Act must be treated as ‘forest’ and ‘forest land’ and has in factbeen so treated for several decades by the State – Constructionactivity carried out by the applicant was clearly in violation of theNotification dated 18.8.1992 and in blatant defiance of orderspassed by Supreme Court – Town and Country Planning of the Statehad been supporting the illegalities of the applicant despite strongresistance from the Forest Department of the State – Extent ofviolation of the Notification is quite frightening as phenomenalenvironmental and ecological damage has been caused to the areaby the applicants – Construction of the land done prior toNotification date i.e. 18.08.1992 is saved and construction afterthe Notification date being -illegal must be demolished – However,the applicant is directed to compensate for the land, to those whohave made construction after the Notification date – Applicant isdirected to refund the amount with interest to those, to whom it hasconveyed the land – On the principle of ‘Polluter Pays’ applicant isdirected to pay 10% of the amount spent in the development of thearea, for rehabilitation of the damaged areas.

Practice and Procedure:

Applications filed before Supreme Court – Dealing of –Guiding factors – Held: The nomenclature given to an applicationis of no consequence – There is a growing tendency to providedifferent nomenclatures to applications to side-step the rigours oflimitations imposed on an applicant and the Court in dealing with areview petition – What is of importance is the substance of theapplication – If it is found in substance to be an application forreview, it should be dealt with by the Court as such, and bycirculation.

Disposing of the applications, the Court HELD: 1.1 There is nothing in the present applications toremotely suggest that various orders passed by this Court needany clarification or modification or recall. All issues raised by theapplicants have been considered threadbare by several Benchesof this Court and all of them have arrived at a similar conclusionnamely that the environmental and ecological degradation of theAravalli hills must stop and that everybody is bound by the termsof the notification issued under the provisions of the PLP Act and ABCD

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Athat closed land under the notification dated 18[th] August, 1992 isa forest and should be treated as a forest. [Para 82] [428-F-H]

1.2 The view expressed by this Court in *Gurdip SinghUban case cannot be limited only to applications for modification,clarification or recall. There is a growing tendency to provideBdifferent nomenclatures to applications to side-step the rigoursand limitations imposed on an applicant and the Court in dealingwith a review petition. Applications can be and are titled asapplications for directions, rehearing, reconsideration, revisitingetc. etc. One has only to open a thesaurus and find an equivalentword and give an application an appropriate nomenclature so thatCit could be taken up for consideration in open Court and on itsmerits and not as a review petition by circulation. Thenomenclature given to an application is of absolutely noconsequence - what is of importance is the substance of theapplication and if it is found, in substance, to be an application forDreview, it should be dealt with by the Court as such, and bycirculation. [Para 83][429-A-C]

1.3 The present applications are nothing but disguisedreview petitions and they should not have been listed for hearingin open Court without an appropriate order passed by this Court.EThey should have first been circulated and dealt with as reviewpetitions and if the concerned Bench was of the view that theywere required to be heard in open Court, only then should theyhave been listed for hearing in open Court. [Para 84] [429-D]

1.4 However, the court proposes to deal with theseFapplications on merits, treating them as applications forclarification, modification, recall, reconsideration etc. of the orderspassed by this Court from time to time. [Para 84] [429-E]

*Delhi Administration v. Gurdip Singh Uban (2000) 7SCC 296 : [2000] 2 Suppl. SCR 496 – referred to.

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2.1 The land notified by the State of Haryana under theprovisions of the Punjab Land Preservation Act, 1900 (PLP Act)must be treated as ‘forest’ and ‘forest land’ and has in fact beenso treated for several decades by the State of Haryana. There is H

no reason to change or alter the factual or legal position. Theconstruction activity carried out by the applicant is clearly inviolation of the notification dated 18[th] August, 1992 and in blatantdefiance of orders passed by this Court from time to time.[Para 2][396-E-F]

2.2 The Town & Country Planning Department of the Stateof Haryana has been supporting the illegalities of the applicantdespite strong resistance from the Forest Department of the Stateof Haryana. The State of Haryana must be held accountable forits conflicting and self-destructive stand taken in spite of affidavitsfiled by the Chief Secretary of the State of Haryana from time totime supporting the Forest Department. [Para 2] [396-F-G]

2.3 Sequence of events clearly indicates that the Town &Country Planning Department was very much in favour of theapplicant colonizing its land and making constructions therein onthe basis of select administrative orders. It was quite preparedto, and did, ignore orders passed by this Court from time to timeand also ignored the notification of 18[th] August, 1992 issued underthe provisions of the PLP Act. The understanding of the Town &Country Planning Department seems to be that issues ofenvironmental degradation, pollution and groundwater were notits concern. The Town & Country Planning Department wasmyopic and brazen in pushing its agenda - certainly vis-à-vis theapplicant versus the environment and in disregard of a statutorynotification. [Para 33] [410-A-C]

2.4 The purpose of issuing a notification under the PLP Actis to ensure that in the closed area there is no activity such ascultivation, pasturing of sheep and goats, erection of buildings,herding, pasturing or retaining cattle etc. Therefore, thenotification is a clear indication that such closed areas must beforest land or treated as forest land so that such objectionablenon-forest activities are not carried out therein and that activitiesthat are not normally carried out in forests are prohibited in forestland, so as to preserve and protect such forest land. A notificationunder the PLP Act does not convert land into forest land butrecognizes it as such or at least requires it to be treated as such.[Para 75] [426-A-C]

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A2.5 In view of affidavits filed by Officers of State of Haryanain different cases, quite clear and consistent that land notifiedunder the PLP Act is forest land and no construction can be madethereon but if some dilution is to be made, then it should be onlyfor the period between 17[th] April, 1984 and 18[th] August, 1992.The conduct and correspondence of the Town & Country PlanningBDepartment shows that it was very keen on permittingconstruction in closed areas. Thus, it was categorical inrecommending the environmental degradation of the Aravalli hills.In addition to the affidavits of the State of Haryana, the variousorders passed by this Court from time to time in **GodavarmanCcase and in ***M.C. Mehta case make it very clear that closedareas under the PLP Act are forest and forest land and need tobe treated as forest land. [Paras 91, 92 and 93] [431-F-H;432-A-B]

2.6 In spite of all these concerns shown to the environmentDand availability of water, the fact of the matter is that today BadkalLake is bone dry and there is no water in the ‘Lake’. It has beencategoricallytold to the Court that today there is absolutely nowater in Badkal Lake. The damage to the environment has beendone and appears to be irreversible.[Para 98] [433-G-H; 434-A]

2.7 Notwithstanding the concern shown by this Court forEthe environment and ecology of the Aravalli hills, the tacit supportgiven to the applicants by the Town & Country PlanningDepartment of the State of Haryana completely vitiated the effortsof the Forest Department as well as the orders of this Court. Itcame to such a pass that the Delhi Ridge Management BoardFwas compelled to file an application in which it was stated thatthe withdrawal and pumping of ground water in the Ridge was amatter of serious concern. It was, therefore, prayed that theGovernment of Haryana may be directed to stop all mining activityand pumping of ground water in and from the area of 5 km fromthe Delhi-Haryana border in the Haryana side of the Ridge. ThisGapplication resulted in this Court passing an order on 6[th] May,2002 directing the stoppage of all mining activity and pumping ofground water as prayed for. This order was followed by anotherorder passed by this Court on 22[nd] July, 2002 requiring EPCA tofurnish a report, which it did on 9[th] August, 2002 to the effect thatHthe order passed on 6[th] May, 2002 deserved to be confirmed.[Para 101] [434-F-H; 435-A-B]

2.8 Subsequently, EPCA gave another report on 21[st]October, 2002 on the basis of information obtained from theCentral Ground Water Board to the effect that mining activitywas going on and the mines were operating below the groundwater level which was resulting in exploitation and destruction ofground water sources. [Para 102] [435-C]

2.9 The blatant and open flouting of orders passed by thisCourt resulted in the constitution of the Central EmpoweredCommittee (CEC) on 17[th] September, 2002 for monitoring andensuring compliance of the orders passed by this Court. The CECsubmitted reports to this Court from time to time. [Para 103][435-D]

2.10 This Court specifically addressed itself to the questionwhether closed areas under the PLP Act are ‘forest’ of any kind.This Court noted that the Forest Department of the State ofHaryana showed such areas as ‘forest’ in its records and treatedsuch areas as ‘forest’; affidavits had also been filed on behalf ofthe State of Haryana in cases pending in this Court to the sameeffect; the word ‘forest’ and ‘forest land’ had been clearlyexplained by this Court in its order dated 12[th] December, 1996and finally the Government of Haryana itself sought permissionfrom the Central Government to divert land closed bynotifications under the PLP Act for non-forest purposes.Therefore, it was held that the State of Haryana cannot now takea somersault and contend that areas closed under the PLP Actare not forest. This Court held that areas closed under the PLPAct cannot be utilized for non-forest purposes without the priorpermission of the Central Government under the provisions ofthe Forest (Conservation) Act, 1980. [Para 105] [435-E-H;436-A]

2.11 The State of Haryana and the applicants had fullknowledge of the proceedings in this Court, but showed noconcern for the environment and the ecology of the area. It wasextremely important for the applicant to have come out with fullfacts in the review petition filed by it, more particularly the fact ofthe issuance of the notification dated 18[th] August, 1992. The failureto disclose this material fact vitiates the proceedings initiated bythe applicant in this Court. [Paras 109, 110] [436-G-H; 437-A]

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A2.12 It was categorically stated on affidavit by the State ofHaryana that from the date of the notification, dated 18[th] August,1992 the subject land was being treated as forest and it was alsoincluded in the list of forests in the Government records. Thiswas also shown as a forest in the affidavit filed by the State ofHaryana in **Godavarman case. That the subject land was forestBland was also stated by the Principal Chief Conservator of Forestsin a letter dated 27[th] January, 2006 addressed to the Director,Town & Country Planning Department. In fact, the said Directorhad required the applicant to seek the diversion of the forestland for non-forestry purposes by letters dated 27[th] January, 2006Cand 27[th] June, 2006 but the applicant did not do so. It wasspecifically pointed out to the applicant in both the letters thatconstructions made by the applicant were illegal, but obviously,to no effect. [Para 113] [437-F-H]

2.13 In the present case there is a wealth of material toDindicate clearly that closed land under the PLP Act is forest landor in any event, is required to be treated as forest land. Severalnotifications issued under the PLP Act have been brought to thenotice of the Court which prohibit certain activities which oughtnot to be carried out on forest land. The affidavits filed byresponsible officers of the State of Haryana, including affidavitsEfiled by the Chief Secretary unequivocally state that lands closedunder the PLP Act are forest land. Similarly, there are judgmentsand orders passed by this Court to the same effect and the conductof the State of Haryana, including the Forest Department and itsrelationship with the Town & Country Planning Department is aFclear indication that lands closed under the provisions of the PLPAct are nothing but forest or forest land. [Para 117] [438-F-G;439-A]

2.14 No one has challenged the validity or correctness ofthe notification dated 18[th] August, 1992. The correctness orGvalidity of the notification cannot be challenged without any directattack. A collateral attack cannot be permitted more certainly soby relying upon another decision of this Court, which has nothingto do with the facts of the present case. On the other hand, theapplicants have ‘challenged’ every significant order passed bythis Court, either through a Review Petition or throughH

Interlocutory Applications. The applicants have beenunsuccessful in every such adventure. On the other hand, theapplicants have ‘challenged’ every significant order passed bythis Court, either through a Review Petition or throughInterlocutory Applications. The applicants have beenunsuccessful in every such adventure. [Paras 119, 120][439-D-F]

2.15 Taking an overall view of all the facts in the case andthe law on the subject, there is no doubt that Kant Enclave is aforest or is a forest land or is required to be treated as a forest orforest land and absolutely no construction activity could havebeen permitted on it with effect from 18[th] August, 1992. Any andall construction activity in Kant Enclave since that date is illegaland impermissible in law. [Para 121] [439-F-G]

2.16 It is also not correct to say that the inclusion of KhasraNos. 9 to 16 in village Anangpur in the notification dated 18[th]August, 1992 was a mistake and that it was always the intentionof the State of Haryana to keep this land out of the rigours of thePLP Act. If it was in fact the intention of the State of Haryana tokeep Kant Enclave out of the purview of the notification dated18[th] August, 1992 nothing prevented the State from either issuinga corrigendum or issuing a fresh notification or taking somepositive step to delete Khasra Nos. 9 to 16 in village Anangpurfrom the rigours of the notification. [Para 124] [440-E-G]

2.17 It is not correct that the notification dated 18[th] August,1992 was not applicable to controlled areas, in view of provisionu/s. 29(7)(1) of Faridabad complex (Regulation and Development)act, 1971. In terms of Section 2(f) of the said Act, a controlledarea means an area declared under Section 29 of the said Act tobe a controlled area. As per the Statement of Objects and Reasonsof the Act, there was a multiplicity of local authorities in theFaridabad-Ballabhgarh area with the result that integrateddevelopment of this area was not possible. Consequently, it wasessential to devise a set up for administration of this area whichwould meet the objectives of rapid and integrated developmentand eliminate haphazard development. The said Act was intendedto achieve this objective. Quite clearly, this has nothing to dowith the notification dated 18[th] August, 1992. Moreover, AB

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ASection 29(1) of the said Act related to any law for the time beingin force - the notification dated 18[th] August, 1992 came muchlater and was not in force when the said Act was enacted.[Paras 125, 126 and 127] [440-H; 441-A, E-G]

2.18 The provisions of the Haryana Development andBRegulation of Urban Areas Act, 1975 does not exempt theapplicant or Kant Enclave from the prohibitions imposed by thesubsequent notification dated 18[th] August, 1992. The said Acthas no relevance or reference to the provisions of the PLP Act.[Para 128] [441-H; 442-C-D]

C2.19 It is nobody’s case, and indeed it cannot be anybody’scase that no area can be declared as a forest after 25[th] October,1980. If this were the interpretation given, then the entire purposeof the order dated 12[th] December, 1996 passed by this Courtwould be rendered meaningless since it was in terms of this orderthat forest land was directed to be identified, even if that landDwas not so recognised as forest land. Acceptance of suchinterpretation would also emasculate the PLP Act.[Para 129] [442-C-D]

2.20 The order of this Court dated 17[th] March, 1997 asmodified on 13[th] May, 1998 permitted construction only inEaccordance with law and not de hors the notification dated 18[th]August, 1992. It is not the case of any of the applicants that theorders of this Court gave a complete go by to the notification andvirtually quashed it even though it was never under challenge atthat point of time or even today. It appears that very largeFresidential complexes have been constructed despite the ordersof this Court, which did not give any blanket permission to theapplicants to make constructions, according to their whims andfancies. For reasons that are not at all clear, such constructionswere permitted by the concerned authorities despite the ordersof this Court and even though the notification dated 18[th] August,G1992 prohibited breaking up of the land. It is difficult, under thecircumstances, to take the view that the applicants and theconcerned authorities had acted bona fide. [Para 131] [442-F-H;443-A]

2.21 Out of a total of about 1600 plots said to have beenHcarved out by the applicant in Kant Enclave, conveyance deeds have been executed only in respect of 284 residential plots andthree commercial plots. On the residential plots, only 33 houseshave been constructed and it appears that not one of them is asingle-storey hutment. The extent of violation of the notificationdated 18[th] August, 1992 is quite frightening and one can onlyimagine the phenomenal environmental and ecological damagecaused to the area by the applicants. [Paras 132, 133] [443-B-C;444-A]

B.S. Sandhu v. Government of India and others (2014)–12 SCC 172 : [2014] 6 SCR 329 distinguished.

**T.N. Godavarman v. Union of India (2008) 16 SCC401;***M.C. Mehta v. Union of India (1996) 8 SCC462 : [1996] 2 Suppl. SCR 806; **T.N. Godavarmanv. Union of India (1997) 2 SCC 267 : [1996] 9 Suppl.SCR 982 ; Environment Awareness Forum v. State ofJammu & Kashmir [ 2011] 14 SCC 265 ; ***M.C. Mehtav. Union of India (2004) 12 SCC 118 : [2004] 3 SCR128 ; M.C. Mehta v. Union of India and Ors. (2008)17 SCC 294 : [2008] 8 SCR 828 – referred to.

3.1 There are two categories of persons who have beentaken for a ride by the applicant. The first category consists ofthose who have been conveyed land by the applicant and thesecond category consists of those who have been conveyed landand have made constructions. As far as the first category of personsis concerned, the relief that can be awarded to them is a full refundof their investment along with interest at 18% per annum payableentirely by the applicant from the date of the investment. As faras the second category of persons is concerned, the course ofaction is to save or allow to exist constructions made in KantEnclave pursuant to the exemption granted to the applicant on17[th] April, 1984 under Section 23 of the Haryana Developmentand Regulation of Urban Areas Act, 1975 but before 18[th] August,1992 when the notification under the provisions of the PLP Actcame into force. Any construction made after 18[th] August, 1992is clearly illegal and contrary to law and must be demolished asrecommended by the Central Empowered Committee. Theconstructions made between 17[th] April, 1984 and 18[th] August,1992 are not disturbed. [Paras 137-139] [445-C-H]

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A3.2 In the present case, well-meaning citizens have beenvirtually duped into investing huge amounts despite the applicantand the Town & Country Department of the State of Haryanabeing fully aware of the statutory notification dated 18[th] August,1992 and the restrictions placed by the notification. The applicantand the Town & Country Department of the State of HaryanaBwere also fully aware that Kant Enclave is a forest or forest landor treated as a forest or forest land, and therefore any constructionmade on the land or utilisation of the land for non-forest purposes,without the prior approval of the Central Government, would beillegal and violative of the provisions of the Forest (Conservation)CAct, 1980. Notwithstanding this, constructions were made (orallowed to be made) in Kant Enclave with the support, tacit orotherwise, of the applicant and the Town & Country Departmentof the State of Haryana. They must pay for this. This is not tosuggest that those who have made constructions after18[th] August, 1992 are completely innocent. Nevertheless, it isDnecessary to compensate them in view of the role played by theTown & Country Planning Department of the State of Haryana.To compensate them for the land, the applicant is directed togive them a full refund of their investment. [Para 141] [446-C-F]

Godrej & Boyce Manufacturing Company Limited v.EState of Maharashtra (2014) 3 SCC 430 : [2014] 2SCR 203 – relied on.

3.3 As far as the cost of construction is concerned,tentatively it is quantified at Rs. 50 lakhs. This will be paid tothose who constructed after 18[th] August, 1992 and whoseFconstruction is directed to be demolished. The quantified amountwill be paid, in equal proportion, by R. Kant & Co. and the Town& Country Planning Department of the State of Haryana. If anyonewho’s construction is demolished in view of the our orders ofthis Court, is not satisfied with the quantification, that person isGat liberty to proceed against R. Kant & Co. and the Town &Country Planning Department of the State of Haryana by way of acivil suit in accordance with law and with the cause of action arisingas on the date of present judgment. [Para 142] [446-F-H;447-A]

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3.4 The Polluter Pays Principle is a wholesome principlethat has been universally accepted and also adopted and applied.The damage caused to the Aravalli hills, is irreversible. However,perhaps some of the damage could be remedied. Acording to theapplicant, it has expended ` 50 crore in developing Kant Enclave.It would be reasonable to require the applicant to deposit 10%of this amount (that is, ` 5 crore) for rehabilitation of the damagedareas. [Para 143] [447-B-D]

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Indian Council for Enviro-Legal Action v. Union of India(1996) 3 SCC 212 : [1996] 2 SCR 503 ; Vellore Citizens’Welfare Forum v. Union of India (1996) 5 SCC 647 :[1996] 5 Suppl. SCR 241 – relied on C

Case Law Reference

CIVIL ORIGINAL JURISDICTION : I.A. No.2310/2008,I.A. Nos. 2378-2379/2009, I.A. No. 2269, I.A. No. 2270,I.A. No. 2393, I.A. Nos. 2381-2384 in Writ Petition (Civil) No. 4677 of1985

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Under Article 32 of the Constitution of India In Re : Kant Enclave Matters WITH

I. A. Nos. 2310-2311 in Writ Petition (Civil) No. 202 of 1995.

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AAnil Grover, AAG, Sanjay R. Hegde, Kapil Sibal, S. B. Upadhyay,Ranjit Kumar (AC), Sr. Advs., A.D.N. Rao (AC), Rishi Raj Sharma,Sudipto Sircar, Anil Kumar Mishra, Pranjal Kishore, D. C. Pandey,Rajeev Gurum, Ms. Noopur Singhal, Satish Kumar, Sanjay Kumar Visen,Pawan Upadhyay, Ms. Anisha Upadhyay, Sarvjit Pratap Singh, NishantKr., S. Wasim A. Qadri, R. Balasubramanian, Sachin Sharma, Ms.BSubhashini Sen, Pranay Ranjan, D. L. Chidanand, Ritesh Kumar, RajBahadur, Gurmeet Singh Makker, Shivaji M. Jadhav, T. V. George, Ms.Sharmila Upadhyay, Advs. for the appearing parties.

Petitioner-in-person.

CThe Judgment of the Court was delivered by

Petitioner-in-person.

CThe Judgment of the Court was delivered by MADAN B. LOKUR, J. 1. The principal question that arises inthis batch of substantive applications is whether, in the State of Haryana,land notified under the provisions of the Punjab Land Preservation Act,1900 (for short the PLP Act) is forest land or is required to be treated asDforest land. If so, whether construction carried out by the applicant R.Kant & Co. on this land is in contravention of the notification dated18[th]August, 1992 issued under the provisions of the PLP Act, the Forest(Conservation) Act, 1980 and decisions of this Court.

2. Our answer to both the questions is in the affirmative. WeEhave no doubt that land notified by the State of Haryana under theprovisions of the PLP Act must be treated as ‘forest’ and ‘forest land’and has in fact been so treated for several decades by the State ofHaryana. There is no reason to change or alter the factual or legalposition. The construction activity carried out by the applicant R. Kant& Co. is clearly in violation of the notification dated 18[th]August, 1992Fand in blatant defiance of orders passed by this Court from time to time.Unfortunately, the Town & Country Planning Department of the Stateof Haryana has been supporting the illegalities of the applicant despitestrong resistance from the Forest Department of the State of Haryana.There is no doubt that at the end of the day, the State of Haryana comesGout in very poor light and must be held accountable for its conflicting andself-destructive stand taken in spite of affidavits filed by the ChiefSecretary of the State of Haryana from time to time supporting theForest Department.

3. The unfortunate and distressing consequence of this is thatbecause of a complete lack of any concern for the environmental andH

ecological degradation carried out in the Aravalli hills byinfluentialcolonizers like the applicant and what appears to be a very strong mininglobby in Haryana, the damage caused to the Aravalli hills is irreversible.It is not only the future generations that have to pay a heavy price forthis environmental degradation, but even the present generation is payinga heavy price for the environmental and ecological degradation inasmuchas there is an acute water shortage in the area as prophesied by theCentral Ground Water Board. In addition, what was once a populartourist destination, namely, Badkal Lake has now vanished and the entirewater body has become bone dry. What are the more severeconsequences that will be felt in the years to come, only time and naturewill tell.

Brief background

4. By a communication dated 17[th] April, 1984 the Commissioner& Secretary, Town & Country Planning Department of the State ofHaryana granted exemption to the applicant R. Kant & Co. for settingup a Film Studio and Allied Complex in Khasra Nos. 9 to 16 (owned bythe applicant) in village Anangpur in Faridabad district. The exemptionwas granted under Section 23 of the Haryana Development & Regulationof Urban Areas Act, 1975 on certain terms and conditions. Section 23of the Haryana Development and Regulation of Urban Areas Act, 1975reads as follows:

“23. Power to exempt– If the Government is of the opinion thatthe operation of any of the provisions of this Act causes unduehardship or circumstances exist which render it expedient so todo, it may, subject to such terms and conditions as it may impose,by a general or special order, exempt any class of persons orareas from all or any of the provisions of this Act.”

5. The validity of the exemption is not before us and so we neednot delve into the reasons for the exemption. Be that as it may, it appearsthat the applicant did not comply with the terms and conditions imposedupon it and therefore a show cause notice was issued for withdrawal ofthe exemption. The applicant contested the show cause notice and ahearing was given by the Chief Minister of Haryana being the Minister-in-charge of the Town & Country Planning Department. By an orderdated 11[th] July, 1990 the show cause notice was dropped but some furtherterms and conditions were imposed on the applicant. It is important to A

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Anote that one of the issues mentioned by the Chief Minister in his orderrelated to the availability of water. The significance of this will be advertedto a little later. For the present, it may be noted that the order recordedin paragraph 9 is as follows:

“Director, Town & Country Planning Department further inquiredBas to whether any technical as well as physical studies have beenundertaken with regard to the availability of the potable watertomeet the requirement of this population for the next 20 to 25years. In reply to the query of the Director, Town & CountryPlanning Department with regard to the proposed density of theComplex and the manner in which the requirements of drinkingCwater is proposed to be met with, the representative of theCompany explained that they have already got a hydrologicalsurvey done for the area from which it has emerged that in 2/3[rd]of the site, there are aquifers available at the deeper levelwhich would be fully exploited to meet the demand of theDwater supply for the proposed population of about 30,000.The Director Town & Country Planning Deptt. observed that asthe company is required to maintain the studio-cum-allied complexfor a period of five years after its completion, the span of availabilityof the water from the aquifers is of paramount because ultimatelythe responsibility for upkeep and maintenance of this particularEcomplex would vest with the Faridabad Complex Administrationor any other Local Authority. Hence, the company should keepthis particular aspect in view.”[Emphasis supplied by us].

6. It took quite some time for the applicant to accept the termsand conditions imposed by the Chief Minister in his order dated 11[th] July,F1990. Eventually, the applicant accepted the terms and conditions andentered into an agreement on 27[th] March, 1992 with the State ofHaryana. One of the terms and conditions of the agreement was thatthe applicant would complete the entire project of a Film Studio andAllied Complex within a period of five years; extensions for the areaGearmarked for group housing could be considered on merits. It is nobody’scase that the entire project was completed within a period of five yearsand there is nothing on record to suggest that any extension was grantedto the applicant for group housing.

Notification under the PLP Act and other developments

7. The issue of environmental degradation in the Aravalli hill areasas well as in the Shivalik hill areas was a matter of concern for the Stateof Haryana, as it should be. In this regard, meetings were held anddecisions taken for closing the area between Surajkund and Badkal Lakeunder the provisions of the PLP Act. The overall objective of thesediscussions and the reference to the PLP Act was for preventingenvironmental and ecological degradation of the area due to mining andquarrying as well as construction activity.

8. On 12[th] September, 1990 a meeting was held in the context ofclosing some areas for purposes of afforestation, particularly those areaswhere mining activity was going on. It was suggested by the Town &Country Planning Department that areas earmarked for colonisationshould not be closed but no final decision was taken and it was decidedthat the list of such areas should be provided or made available for furtherdirections. The list was eventually prepared and it included the land ofthe applicant, but nothing further happened in this regard.

9. It appears from a reading of the documents before us(particularly a letter dated 9[th] June, 1993 sent by the Deputy Conservatorof Forests, Faridabad to the Chief Administrator, Faridabad ComplexAdministration, the Administrator of the Haryana Urban DevelopmentAuthority and the District Town Planner, Faridabad) that sometime in1988 the State of Haryana constituted a High-Level Committee for thedevelopment of the area between and around Badkal Lake and SurajkundTourist Complexes. It further appears that the High-Level Committeeheld several meetings between August 1988 and 1990 and apparently aReport was submitted recommending that the Aravalli hill area betweenthese two complexes should be brought under the provisions of the PLPAct. This seems to have resulted in the issuance of a notification dated18[th] August, 1992 under the provisions of Section 4 of the PLP Act.Wehad requested learned counsel for the State of Haryana to provide uswith a copy of the Report and the recommendations but they have notbeen provided, for whatever reason.

10. The notification prohibited, inter alia, clearing or breaking upof land not ordinarily under cultivation. Permission to break the land forcultivation could be permitted by the Divisional Forest Officer, Faridabad A

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AForest Division. In any event, construction activity could not be permittedeven by the Divisional Forest Officer.

11. We may note that one of the reasons that appears to haveweighed with the State of Haryana in permitting the breaking up of landfor cultivation is because Haryana is a predominantly agricultural StateBwith 83% of the total land area under cultivation. This is to be found inthe affidavit dated 25[th] February, 1997 of Shri S.K. Maheshwari, IAS,Commissioner & Secretary to the Government of Haryana filed in thisCourt in the case of T.N. Godavarman v. Union of India.[1] In anyevent, as mentioned above, construction activity could not be permittedeven by the Divisional Forest Officer.C

12. The notification dated 18[th] August, 1992 (which included theland of the applicant and there is no dispute about this) reads as follows:

“No. S.O.104/P.A.-2/1900/S.3/92 – Whereas the Governor ofHaryana is satisfied after the due enquiry that the prohibitionsDhereinafter contained are necessary for the purpose of giving effectto the provisions of the Punjab Land Prevention Act, 1900; Now, therefore in exercise of the powers conferred by section 4of the said Act, the Governor of Haryana hereby prohibits thefollowing acts for a period of thirty years(30 years) with effectEfrom the date of publication of this order in the official Gazette inthe areas specified in the schedule annexed hereto, the said areaforming part of the village Anangpur in Ballabhgarh, TehsilFaridabad District specified in the schedule annexed HaryanaGovernment Forest Department Notification No.S.O.59/P.A. -2/1900/S.3/92, dated 10[th] April, 1992.

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1. The clearing or breaking up of the land not ordinarily undercultivation prior to the publication of Haryana GovernmentForest Department Notification No.S.O.59/P.A.-2/1900/S.3/92 dated 10[th] April, 1992 provided that the breaking in the landfor cultivation may be permitted by the Divisional ForestGOfficer, Faridabad Forest Division.

2. The quarrying of stones or the burnings of lime at place wheresuch stone or lime had not ordinarily been as quarried or burntprior to the publication of the said notification except with the 1 W.P. No. 202 of 1995H

permission of the Collector of Faridabad District who willconsult the Divisional Forest Officer, Faridabad Forest Divisionbefore according such permission.

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3. The cutting of trees or timber or the collection or removal orsubjection to any manufacturing process of any forest produceother than grass, flower, fruit and honey save for the bonafidedomestic or agricultural purpose of right holders in the landprovided that owners of the land may sell trees or timber afterfirst obtaining a permit to do so from the Divisional ForestOfficer, Faridabad Forest Division. Such permit will prescribesuch conditions for sale as may from time to time appearnecessary in the interest of forest conservancy.

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4. The setting on fire of trees, timber of forest produce.

5. The admission, herding or pasturing, retention of sheep, goatsor camels provided that in case where sickness necessitatesfor the keeping of goats, for milk, Divisional Forest Officer,DFaridabad Division may issue a permit at his discretion for theretention of a limited number of stall-fed goat, to be specifiedfor a specified period.”

13. In a parallel exercise, steps were taken by the State of Haryanafor publishing a Development Plan for Faridabad. As a result of thisexercise, the State of Haryana notified the Final Development Plan on11[th]December, 1991 under Section 29 of the Faridabad Complex(Regulation and Development) Act, 1971. One of the factors mentionedin the notification justifying the necessity for amendment of theDevelopment Plan was the rapid increase and scarcity of urbanizablearea in Delhi and the rising population in the National Capital Region.

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14. Also, in the meanwhile, it appears that on the basis of theexemption granted to the applicant in 1984, the Town & Country PlanningDepartment encouraged the applicant to go ahead with its activity ofcolonisation of the land owned by it having an area of about 424.84acres. The applicant prepared a layout plan for a Film Studio and AlliedComplex which appears to have been approved by the Town & CountryPlanning Department subject to certain terms and conditions on or about19[th] December, 1991.

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A15. Therefore, the position as it stood towards the end of August1992 was that the applicant had the benefit of an exemption under Section23 of the Haryana Development & Regulation of Urban Areas Act,1975; the applicant was administratively permitted (if not encouraged)by the Town & Country Planning Department to construct upon the landowned by it in village Anangpur; the layout plan prepared by the applicantBwas approved by the Town & Country Planning Department and wasapparently in conformity with the Development Plan for Faridabad andfinally, the applicant had entered into an agreement with the State ofHaryana to complete its project of a Film Studio and Allied Complexwithin 5 years. On the other hand, environmental and ecologicalCdegradation in the entire area (which included the land owned by theapplicant) was sought to be prevented by the State of Haryana througha statutory notification issued by the Forest Department under theprovisions of the PLP Act. There was, therefore, a dichotomy of viewsand a conflict of interest between two Departments of the HaryanaGovernment – one favouring colonization and the other favouringDenvironmental protection and conservation.

16. In this back-drop, a doubt arose whether the applicant couldcarry on its construction activity for setting up a Film Studio and AlliedComplex in the closed area of the notification.

E17. This concern was voiced, amongst others, by the PrincipalChief Conservator of Forests who sent a communication to theCommissioner & Secretary of the Forest Department on 31[st] August,1992 inquiring whether permission for setting up a Film Studio and AlliedComplex by the applicant could be issued or not. The Principal ChiefConservator of Forests mentioned in his communication that priorFpermission of the Central Government was compulsory for change ofland use. The reason why the Principal Chief Conservator of Forestsmentioned about prior mandatory permission of the Central Governmentis because he believed that with the issuance of the notification underthe provisions of the PLP Act, the subject land was a forest or in anyGevent was required to be treated as a forest and therefore, under theprovisions of the Forest (Conservation) Act, 1980 the permission of theCentral Government was required for carrying on a non-forest activityin a forest. We will advert to this issue a little later.

18. The Principal Chief Conservator of Forests was given asomewhat casual response to the effect that he could take appropriateaction according to norms.

19. Apart from the communication dated 31[st] August, 1992 referredto above and the response thereto, there was an exchange of lettersbetween Departments of the State of Haryana with the focal point beingthe Town & Country Planning Department requesting that the landbelonging to the applicant may be de-notified and taken out of the purviewof the notification issued under the provisions of the PLP Act. However,nothing came out of this correspondence and the land of the applicantwas admittedly not de-notified.

20. Eventually on 15[th] May, 1996 the Conservator of Forests wroteto the applicant that it was allowed to proceed ahead with its activities inaccordance with the agreement signed with the State of Haryana on27[th] March, 1992. Perhaps this permission was granted keeping in mindthat the applicant was required to complete the development works withina period of five years and also submit a bank guarantee for executingsuch development works in terms of the agreement dated 27[th] March,1992. This ‘permission’ was ex facie contrary to the statutorily notifiedprohibitions under the PLP Act.

21. Apparently realising this, the above letter was followed upimmediately by another communication sent by the Conservator of Foreststo the Principal Chief Conservator of Forests on 17[th] May, 1996requesting that the land owned by the applicant may be de-notified andthat the Haryana Government is morally bound to allow the applicant todevelop the project as per the sanctioned plans. Nothing came out ofthis and the land was not de-notified and no further event of note tookplace.

Initial set of orders passed by this Court

22. Around this time, a public interest litigation M.C. Mehta v.Union of India[2 ] was pending in this Court regarding issues ofdeforestation coupled with other environmental issues.

23. On 10[th] May, 1996 this Court passed a rather significant orderrelating to the Aravalli hills and the areas adjoining the land of the applicant.This was on the basis of a report prepared by the Haryana PollutionControl Board and another by the National Environmental Engineering2 W.P. No. 4677 of 1985

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AResearch Institute in respect of environmental degradation and pollutionin the eco-sensitive zone in the Aravalli hills. By the order dated 10[th]May, 1996 this Court prohibited mining within a 2 km radius of BadkalLake and Surajkund and construction activity of any type within a radiusof 5 km from Badkal Lake and Surajkund.[3] In fact, all open areas weredirected to be converted into green belts. As a result of this, the applicantBobviously could not carry out any activities in the land owned by it, whereit had proposed to establish a Film Studio and Allied Complex. Theprohibition imposed by this Court was obviously in addition to theprohibition imposed by the notification issued under the PLP Act. It isquite likely that this Court was not even made aware of the notificationCunder the PLP Act.

24. The order passed by this Court on 10[th] May, 1996 was soughtto be modified/clarified by the Executive in Haryana on the ground thatin the prohibited 5 km radius, buildings were under construction, plotshad been allotted/sold under various development schemes and the plotDholders had even started construction. Consequently, the vested rightsof several persons were likely to be affected thereby causing them ahuge financial loss.

25. After hearing learned counsel for the parties, this Court tookthe view, again on the basis of the above reports, that to protect the twoElakes from environmental degradation, it would be necessary to limitconstruction activity in the close vicinity of the lakes. Consequently, byan order dated 11[th] October, 1996 the earlier order of 10[th] May, 1996was clarified, inter alia, to the effect that no construction shall bepermitted within the green belt around the two lakes, that is an areahaving roughly 1 km radius. As far as the area outside the green belt isFconcerned, it was directed that no construction would be permitted for afurther 1 km. It was, however, clarified that the latter direction wouldnot apply to plots already sold or allotted prior to 10[th] May, 1996 in thedeveloped areas and that unallotted plots in the said areas may be soldwith the prior approval of the concerned authority. All development Gschemes and plans for constructions in the area from 1 km to 5 kmradius of the lakes shall require prior approval from the Central PollutionControl Board and the Haryana Pollution Control Board.[4 ]The clarificationgiven by this Court on 11[th] October, 1996 reads as follows:

3M.C. Mehta v. Union of India, (1996) 8 SCC 462

4 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India,H(1997) 3 SCC 715

“1. No construction of any type shall be permitted, now onwards,within the green belt area as shown in Ex. A and Ex. B. Theenvironment and ecology of this area shall be protected andpreserved by all concerned. A very small area may be permitted,if it is of utmost necessity, for recreational and tourism purposes.The said permission shall be granted with the prior approval of“the Authority”, the Central Pollution Control Board and theHaryana Pollution Control Board.

2. No construction of any type shall be permitted, now onwards,in the areas outside the green belt (as shown in Ex. A and Ex. B)up to one km radius of the Badhkal lake and Surajkund (one km tobe measured from the respective lakes). This direction shall,however, not apply to the plots already sold/allotted prior to 10-5-1996 in the developed areas. If any unallotted plots in the saidareas are still available, those may be sold with the prior approvalof ‘the Authority’. Any person owning land in the area mayconstruct a residential house for his personal use and benefit. Theconstruction of the said plots, however, can only be permitted upto two and a half storeys (ground, first floor and second half floor)subject to the Building Bye-laws/Rules operating in the area. Theresidents of the villages, if any, within this area may extend/reconstruct their houses for personal use but the said constructionshall not be permitted beyond two and a half storeys subject toBuilding Bye-laws/Rules. Any building/house/commercial premisesalready under construction on the basis of the sanctioned plan,prior to 10-5-1996 shall not be affected by this direction.

3. All constructions which are permitted under directions 1 and 2above shall have the clearance of “the Authority”, the CentralPollution Control Board and the Haryana Pollution Control Boardbefore “occupation certificates” are issued in respect of thesebuildings by the authorities concerned.

4. All development schemes, and the plans for all types ofconstructions relating to all types of buildings in the area from onekm to 5 km radius of the Badkhal Lake and Surajkund (excludingDelhi areas) shall have prior approval of the Central PollutionControl Board and the Haryana Pollution Control Board.”

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A26. According to the applicant, its land was beyond the 1 kmradius but within the 5 km radius and the orders passed by this Courtvitally affected it. The applicant’s view was that its project was mainly aresidential colony having a commercial complex, schools, hospitals andfilm studios, but no industry of any nature whatsoever. It had expendeda huge amount in the project, but could not proceed any further with it inBview of the order dated 11[th] October, 1996 passed by this Court. Giventhe nature of the project, it was unreasonable to require the applicant toobtain no objection certificates from the Pollution Control Boards.Consequently, a Review Petition being R.P. (C) No. 914 of 1997 wasfiled by the applicant on or about 26[th] February, 1997 seeking a reviewCof the order 11[th] October, 1996. It was submitted in the application thatthe restrictions imposed by this Court do not pertain to constructions ofthe applicant and that the requirement of obtaining a no objection certificatefrom the Pollution Control Boards does not apply to the constructions ofthe applicant, which fall beyond 1 km but within the 5 km radius ofBadkal Lake and Surajkund.D

27. The application for review came up for consideration on17[th] March, 1997 when this Court noted that it did not have sufficienttime to dispose of the matter that day. But by way of an interim order itwas directed, inter alia, that a person owning land in the areas abovementioned (in the order dated 11[th] October, 1996) may construct aEresidential house up to 2 ½ floors subject to the building bye laws andrules operating in the area. Those individuals who seek to constructhouses in accordance with the decision of this Court and in conformitywith the relevant rules may file their plans with the competent authoritywho may examine and keep the plans ready until further orders. In other Fwords, even in such cases permission for construction was not granted,but permission to prepare plans was of course granted. It was furtherdirected that the authorities should not insist upon the production of a noobjection certificate from the State or Central Pollution Control Board.The order passed by this Court on 17[th] March, 1997 reads as follows:

G“The grievance of the petitioner is that when individual’s whoseek to construct their houses applying the plans of the FaridabadMunicipal Corporation, the plans are not being approved on theground that the clearance certificates are not obtained from thePollution Control Board. We do not have the sufficient time todispose of the matter today, we think that, H

1) all the individuals who seek to construct their houses within2 ½ floors’ range as indicated in the judgment of this Court,they are liberty to file plans before the competentAuthority. The competent Authority would examine whetherthe plans are in conformity with the Rules and within 2½storeys’ range laid down by this Court. If the authorityfinds the plans in conformity with the above Rules and thedirections given by this Court, the same may be examinedand kept ready until further orders.

2) For the examination of these matters, the authorities aredirected not to insist upon production of no objectioncertificate from the State or Central Pollution ControlBoard.”

28. On or about 2[nd] July, 1997 the Municipal Corporation ofFaridabad filed a reply to some pending applications and the ReviewPetition. After detailing the facts, including the impact of the orderspassed by this Court, the difficulties faced by the Municipal Corporationin implementing them and other directions, it was prayed that certainschemes in the Haryana Urban Development Authority sectors (schemesmentioned at serial nos. 3, 4 and 5 of the reply) may not be affected bythe order passed by this Court on 11[th] October, 1996. With regard toother projects and development schemes sanctioned in accordance withthe Development Plan prior to the order dated 10[th] May, 1996 it wasprayed that they may also not be affected by the order passed by thisCourt on 11[th] October, 1996. Similarly, buildings, houses, commercialpremises already sanctioned prior to 10[th] May, 1996 in accordance withthe Development Plan may not be affected by the order of 11[th] October,1996 and construction may be permitted as per the Development Planand building by-laws in force.

29. The Review Petition was again taken up for consideration on13[th] May, 1998. On that date, a modified plan and some maps wereplaced before this Court. Upon a perusal of these maps, it transpiredthat some areas got excluded from the 1 km green belt, as originallyproposed. It was directed that these areas could be urbanised inaccordance with the applicable laws and rules. With regard to privatelands (such as that of the applicant) it was directed that in the areasadjoining the Surajkund complex, the State of Haryana may review the A

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Aposition so that only single-storey “hutments” are permitted to beconstructed and “not tall buildings as originally conceived.” The orderpassed by this Court was directed to be in modification or substitution ofall earlier orders in that behalf.The order passed on 13[th] May, 1998 readsas follows:

B“A modified plan has been placed on record. The area meant tobe left for Surajkund and around has been earmarked on the saidplan by a zig-zag line. In the face of these altered boundariesfrom previous maps, certain areas have come out from the onekilometre belt as originally proposed. Whatever areas have fallenout and whatever are adjacent thereto, urbanization thereof willCtake place in accordance with the laws, rules and regulationsapplicable to those areas as provided by the FaridabadMunicipal Corporation.

Certain private areas (marked as ‘ABCD’) in which constructionis proposed would have to be viewed again. We have desired ofDthe learned counsel for the State of Haryana to render assistancein that regard so that in the areas adjoining the SurajkundComplex only single storey hutments get permitted to beconstructed and not tall buildings as originally conceived.

Small areas as shown red on the plan would require to be acquiredEfor the Complex. This means that the State will have to paycompensation on acquisition. But Mr. Salve, learned SeniorCounsel who appears for some of the land owners says that thoseland owners who are owning those two small red patches whichare within the encirclement would surrender the same to the SateFwithout compensation.This order shall be in modification or substitution of all earlierorders in that behalf.” [Emphasis supplied by us].”

No further orders were passed in this regard, except an orderrelating to a hotel complex, with which we are not concerned. The reviewGpetition was then disposed of by this Court on 12[th] October, 1998.

30. It seems to us that these orders passed by this Court were notblanket orders which could permit the applicants to ignore the notificationdated 18[th] August, 1992. The requirement, in terms of the orders passed by this Court, continued to be adherence to the laws, rules and regulationswhich would necessarily include the notification issued under theprovisions of the PLP Act.

Issues arising out of the orders passed by this Court

31. In this background and context, it appears that some questionswere raised by the Financial Commissioner and Secretary to Government,Haryana Revenue Department in a letter dated first March, 1999 withregard to the status of the land owned by the applicant. The issues raisedwere to the following effect: (i) whether the applicant is in unauthorisedpossession of the land; (ii) whether the applicant has violated any statutoryprovision and is using the land in the manner in which it is authorised; (iii)whether it is permissible for the applicant to develop a residential colonyin the land for which it had obtained an exemption for setting up a FilmStudio and Allied Complex and whether the Town & Country PlanningDepartment had permitted this.

32. In response to these issues, the Director in the Town & CountryPlanning Department wrote to the Financial Commissioner & Secretaryto the State of Haryana on 16[th] March, 1999 to the following effect:

“Regarding issue No.1. It is to inform that as per certificatesgiven by Dist. Revenue Authority from time to time, M/s R. Kant& Company is in authorised possession of land in Khasra No. 9-16,vill. Anangpur Distt. Faridabad. Photos of the certificates givenby Revenue Authority are enclosed herewith.

Regarding issue No. 2 it is to inform that the Company is usingthe land according to approved layout plan and service planestimates.

Regarding issue No. 3, it is to inform that in the revised approvedlayout plan of Kant Enclave Film Studio and Allied Complex, inaddition to Film Studios provision of resident plots, group housingand the required social and commercial infrastructure has beenmade as per the exemption order of 1984 revocation order of1990 and an agreement dated 27.3.92 executed by the companywith the Government. Therefore the provision of residentialplots in Kant Enclave is permissible.” [Emphasis suppliedby us].

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A33. It will be noticed that the Director, Town & Country PlanningDepartment did not make any reference to the notification dated 18[th]August, 1992 issued under the provisions of the PLP Act. This sequenceof events clearly indicates that the Town & Country Planning Departmentwas very much in favour of the applicant colonizing its land and makingconstructions therein on the basis of select administrative orders. It wasBquite prepared to, and did, ignore orders passed by this Court from timeto time and also ignore the notification of 18[th] August, 1992 issued underthe provisions of the PLP Act. The understanding of the Town & CountryPlanning Department seems to be that issues of environmentaldegradation, pollution and groundwater were not its concern. To say theCleast, the Town & Country Planning Department was myopic and brazenin pushing its agenda - certainly vis-à-vis the applicant versus theenvironment and in disregard of a statutory notification.

Another attempt at colonization

34. In proceedings pertaining to the protection and conservationDof forests throughout the country, this Court passed an order on12[th] December, 1996 which is of considerable significance. The orderwas passed in Writ Petition No. 202 of 1995 with Writ Petition No. 171of 1996.[5] After hearing the learned Attorney General, learned counselfor the States, the parties and other applicants as well as the learnedEAmicusCuriae it was held by this Court that the Forest (Conservation)Act, 1980 was enacted with a view to check further deforestation, whichwould ultimately result in ecological imbalance. It was held that thereforethe provisions of the law for conservation of forests and for mattersconnected therewith, must apply to all forests, irrespective of the natureof ownership or classification thereof. It was held:F“………The word “forest” must be understood according to itsdictionary meaning. This description covers all statutorilyrecognised forests, whether designated as reserved, protected orotherwise for the purpose of Section 2(i) of the Forest ConservationAct. The term “forest land”, occurring in Section 2, will not onlyGinclude “forest” as understood in the dictionary sense, but alsoany area recorded as forest in the Government record irrespectiveof the ownership. This is how it has to be understood for thepurpose of Section 2 of the Act. The provisions enacted in the H

5 T.N. Godavarman v. Union of India, (1997) 2 SCC 267

Forest Conservation Act, 1980 for the conservation of forestsand the matters connected therewith must apply clearly to allforests so understood irrespective of the ownership or classificationthereof…...”

35. It was further directed that in view of the meaning given tothe word ‘forest’ it is obvious that prior approval of the CentralGovernment is required for any non-forest activity within the area ofany forest. All ongoing activity within any forest in any State throughoutthe country, without the prior approval of the Central Government, mustcease forthwith. Each State Government was also directed to constitutewithin one month an Expert Committee to identify areas which are forests,irrespective of whether they are so notified, recognised or classifiedunder any law, and irrespective of the ownership of the land of suchforest and also to identify areas which were earlier forests, but standdegraded, denuded or cleared. In other words, this Court gave a realisticand pragmatic definition to the word ‘forest’ and ‘forest land’.

36. However, even before that, as far as the State of Haryana isconcerned, an affidavit was filed by Shri Banarsi Das, IFS, PrincipalChief Conservator of Forests, Haryana in Environment AwarenessForum v. State of Jammu & Kashmir.[6] The affidavit dated8[th] December, 1996 stated that the total forest area in Haryana is 1,54,706hectares (1995-96), which includes 11,513 hectares of PLP Act areas.It further says that earlier (1985-86) the forest area in Haryana was1,68,543 hectares, which included 26,499 hectares of PLP Act areas.The reduction in the forest area was due to the expiry of notificationsissued under the PLP Act and Section 38 of the Indian Forest Act, 1927.It was noted that steps were taken for protection of forests, whichincluded the enforcement of regulations under the PLP Act. What is ofsignificance is that even before the order was passed by this Court on12[th] December, 1996 the State of Haryana had acknowledged itstreatment of PLP Act areas as forest land, and as we shall see later, thiswas always so.

37. In T.N. Godavarman v. Union of India[7] an affidavit wasfiled by the State of Haryana on 25[th] February, 1997. The affidavit wassworn by Shri S.K. Maheshwari, IAS, Commissioner & Secretary tothe Government of Haryana, Forest Department. In his affidavit,6 W.P. No. 171 of 19967 W.P. No. 202 of 1995

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412SUPREME COURT REPORTS

Areference was made to the order passed by this Court on 12[th] December,1996. It was stated in the affidavit that as far as identification of areaswhich were forests, but stand degraded or denuded or cleared, it wouldnot be possible to do so without prescribing some cut-off date since landthat is closed under the provisions of the PLP Act “creates forests” andthe Act is as old as 1900. Therefore, a cut-off date of 25[th] October, 1980Bwas selected as on that date the Forest (Conservation) Act, 1980 cameinto force. It was further stated that land that is closed under the provisionsof the PLP Act is a forest only during the period of closure. After expiryof the closure period, the land is no longer shown as forest in the recordsof the Forest Department. A little later in the affidavit, it was reiteratedCthat an area closed under the provisions of the PLP Act is “counted asforest” only during the currency of the closure. Taking all such areasinto consideration, it was stated that the recorded forest cover in theState of Haryana is now 149,680.49 hectares.

38. Notwithstanding the affidavit, the Director in the Town &DCountry Planning Department issued a communication dated 16[th] March,1999 to the effect that the provision of residential plots in Kant Enclavewas permissible. In view of the affidavit of Shri S.K. Maheshwari,there is enough room to suspect the bonafides of the applicant and theTown & Country Planning Department, but we leave it at that.EFurther set of orders passed by this Court

39. In the writ petition filed by M.C. Mehta an application wasfiled by the Delhi Ridge Management Board on 5[th] December, 2001(being IA No. 1785 of 2001) to the effect that large-scale mining activitynear the Delhi-Haryana border was resulting in a large quantity of groundFwater being pumped out from mining pits. As far as Delhi is concerned,the mining and extraction of groundwater had been banned and the Ridgein Delhi was being protected in terms of the orders passed by this Courtfrom time to time. However, it was stated in the application that theRidge in Haryana also needed to be protected as this was an extensionof the same range. It was submitted that mining, withdrawal ofGgroundwater and destruction of flora etc. should also be restricted outsideDelhi or at least up to 5 km from the Delhi-Haryana border towardsHaryana. The significance of this application is that it jogs the memoryand recalls the order passed by the Chief Minister of Haryana on 11[th] July, 1990 relating to the availability of potable drinking water andthe span of availability of water from the aquifers and their application.

40. Acting upon the application filed by the Delhi RidgeManagement Board, this Court passed an order on 6[th] May, 2002 asfollows:

“IA No. 1785

Issue notice. Mr Bharat Singh accepts. Reply be filed within fourweeks. Rejoinder be filed within four weeks thereafter. In themeantime, within 48 hours from today the Chief Secretary,Government of Haryana is directed to stop all mining activitiesand pumping of groundwater in and from an area up to 5kms from the Delhi-Haryana border in the Haryana side ofthe Ridge and also in the Aravalli Hills. [Emphasis suppliedby us].

41. The application appears to have been taken up for considerationon 22[nd] July, 2002. The proceedings of that date have not been reported,but have been mentioned in M.C. Mehta v. Union of India.[8] ThisCourt directed the Environment Pollution Control Authority (EPCA) togive a report with regard to the environment in the area, preferably aftera personal visit. It was noted that EPCA had been constituted by theGovernment of India by a notification dated 29[th] January, 1998 issued inexercise of power conferred by Sections 3(1) and 3(3) of the Environment(Protection) Act, 1986. Generally speaking, EPCA was constituted toprotect and improve the quality of the environment and to prevent, controland abate environmental pollution.

42. EPCA did visit the subject area and also took the opinion ofthe Central Groundwater Board and in its report of 9[th] August, 2002 itrecommended that the ban on mining activities and pumping ofgroundwater in and from an area up to 5 km from the Delhi-Haryanaborder in the Haryana side of the Ridge and also in the Aravalli hillsmust be maintained.

43. EPCA gave a further report on 21[st] October, 2002 reaffirmingits earlier recommendations. It was further recommended that if miningis allowed to continue in this area, it would have serious implications forthe groundwater reserves. EPCA also noticed uncontrolled construction 8(2004) 12 SCC 118

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Aactivities that would expand urban habitation considerably in future andtherefore recommended that unless immediate measures were taken toconserve and augment water resources in the area, an acute survivalcrisis could be expected. Interviews with local villagers in the vicinity ofthe mines confirmed that water shortage was already a serious problemin the region.B

44. This Court also referred to reports by another expert body,namely the Central Empowered Committee (CEC). This expert bodywas constituted by a notification dated 17[th] September, 2002 issued bythe Ministry of Environment and Forests in exercise of power conferredby Section 3(3) of the Environment (Protection) Act, 1986. The CECCwas constituted for monitoring and ensuring compliance of the orderspassed by this Court in relation to forests and wildlife and other relatedissues arising out of the orders. The CEC was also expected to submitreports regarding non-compliance of the orders of this Court, includingin respect of encroachments and removals, working plans, compensatory Dafforestation, plantations and other conservation issues.

Reports of the CEC

45. Among the first few reports given by the CEC, one dated14[th] December, 2002 deserves mention. It is not clear what led to thisreport, but in any event, it was considered by this Court on 16[th] December,E2002 and an order was passed as a result of the report that no miningactivity would be permitted in areas where there is a dispute of applicabilityof the Forest (Conservation) Act, 1980 till such time the dispute is resolvedor approval for non-forest activity is accorded under the said Act by theCentral Government.[9] This Court also directed that no mining would beFpermitted in areas for which a notification under Sections 4 and 5 of thePLP Act has been issued in regulating the breaking up of the land etc.and such lands are or were recorded as ‘forest’ in government recordseven if the notification period had expired, unless there was approvalunder the provisions of the Forest (Conservation) Act, 1980. Thesedirections are significant and appear, generally, to have been overlooked.G

46. Separately and in compliance of orders passed by this Courton 25[th] November, 2002 the CEC submitted three reports, all of whichprimarily pertained to mining activities in the subject area. These reportswere considered by this Court and dealt with in the judgment and order H9T.N. Godavarman v. Union of India, (2008) 16 SCC 401

passed on 18[th] March, 2004.[10] In the report dated 22[nd] January, 2003(erroneously recorded as June) it was recommended by the CEC thatmining activity may be allowed in the areas closed under the provisionsof the PLP Act “which for the purpose of the [Forest (Conservation)]Act are ‘forest’ even as per the State Government records, only afterobtaining prior approval under the said Act from the MoEF (Ministry ofEnvironment and Forests).” In another report, dated 7[th] February, 2003it was recommended that the ban on mining activity may continue up to2 km from Surajkund and Badkal Lakes in terms of the order passed bythis Court on 10[th] May, 1996.

47. While considering the entire issue, this Court also consideredthe question whether areas covered under the PLP Act are ‘forest’ ofany kind. While dealing with this, it was noted that the Forest Departmentof the State of Haryana has been treating and showing the closed areasas ‘forest’ in its records. This Court also adverted to the affidavits filedin this Court from time to time, including by Shri S.K. Maheshwari andShri Banarsi Das. This Court also drew attention to its earlier order of12[th] December, 1996 and the fact that the State of Haryana had beenseeking permission of the Central Government to divert such closedland for non-forestry purposes. This Court also referred to letters dated26[th] November, 2002 and 17[th] September, 2001 wherein a view wasexpressed that land closed under the PLP Act is forest land. This Court,therefore, declined to permit the State of Haryana to take a somersaultand contend that land closed under the provisions of the PLP Act is notforest. This is what this Court said in paragraph 82 of the Report:

“In the instant case, it is not necessary to decide the legal effectof issue of the notification under Sections 4 and/or 5 of the [PLP]Act. Not only in their record has the area been shown as forestbut affidavits have been filed in this Court stating the area to be“forest”. In T.N. GodavarmanThirumulkpad v. Union of India[(1997) 2 SCC 267] this Court held that the term “forest” is to beunderstood in the dictionary sense and also that any area regardedas a forest in government records, irrespective of ownership, wouldbe a forest. The State of Haryana, besides having filed affidavitsin the forest matters treating such areas as forest for the purposesof the FC Act has been seeking prior approval from the CentralGovernment for diversion of such land for non-forestry purpose.

10 M.C. Mehta v. Union of India, (2004) 12 SCC 118

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AReference in this connection may also be made to the affidavitdated 8-12-1996 filed by Banarsi Das, Principal Chief Conservatorof Forests, Chandigarh, Haryana in Environmental AwarenessForum v. State of J&K [ Civil Writ No. 171 of 1996]. Our attentionhas also been drawn to letter dated 26-11-2002 addressed by theDivisional Forest Officer, Faridabad to the Mining Officer,BFaridabad forwarding to him a list of blocked forest areas ofFaridabad district and requesting him to ensure that the said forestareas are not affected by any mining operations as also to a letterdated 17-9-2001 sent by the Principal Chief Conservator of Forests,Haryana (Panchkula) to the Director of Environment, HaryanaCstating therein that no mining activity can be permitted in the area.On the facts and circumstances of the case, we cannot permitthe State Government to take a complete somersault in theseproceedings and contend that the earlier stand that the area isforest was under some erroneous impressions. In the present case,for the purposes of the FC Act, these areas shall be treated asDforest and for use of it for non-forestry purpose, it would benecessary to comply with the provisions of the FC Act.”

48. Having considered voluminous material on record, this Courtconcluded in the said judgment of 18[th]March, 2004 that it would beEappropriate to constitute a Monitoring Committee, which it did, “to monitorthe overall eco-restoration efforts in the Aravalli hills and to providetechnical support to the implementing organisations and also to monitorimplementation of recommendations contained in reports referredherein…” This Court also held that the order dated 6[th] May, 2002 asclarified in the judgment cannot be varied or vacated before considerationFof the report of the Monitoring Committee. It was also concluded thaton the facts of the case, the mining activity in areas covered under theprovisions of the PLP Act cannot be undertaken without approval underthe Forest (Conservation) Act, 1980.

49. Therefore, apart from stopping mining activity, this Court alsoGstopped pumping of groundwater in and from an area upto 5 km fromthe Delhi-Haryana border in the Haryana side of the Ridge and also inthe Aravalli hills.

Further reports of the CEC

50. Notwithstanding the decisions of this Court rendered fromtime to time and a wealth of material to the effect that the Aravalli hillsneed to be protected, the issue of colonizing the land owned by theapplicant, which was the subject matter of the prohibitory notificationunder the provisions of the PLP Act, was kept alive. Applications werefiled by interested parties in this Court and the CEC was required fromtime to time to submit reports to this Court.

51. In a report dated 12[th] September, 2007 which pertained mainlyto mining activities in Gurgaon and Faridabad districts of Haryana, oneof the recommendations made by the CEC was to the effect that mapsof appropriate scales should be prepared of areas notified under theprovisions of the PLP Act, including areas for which the notificationshave expired. These areas could be cross verified with the help of relevantafforestation maps, satellite imagery of the relevant times, progress reportsfiled in the Aravalli Afforestation Programme and other details. It wasalso recommended that these areas may be demarcated and treated asa prohibited zone for mining activity.

52. In a supplementary report dated 5[th] December, 2007 it wasrecorded by the CEC that it had come to its notice that areas notifiedunder the provisions of the PLP Act are being used or proposed to beused for colonisation, farm-houses and other construction activities. Itwas noted that in many cases such user has been permitted by theconcerned departments of the State Government on the strength ofimproper no objection certificates granted in the past by the ForestDepartment. The CEC stated that the recommendations made in respectof mining in these areas are equally applicable to activities such ascolonisation, construction of farm-houses, etc. It was recommended thatareas notified under the provisions of the PLP Act, including areas forwhich notifications have expired, may also be treated as a prohibitedzone for colonisation, construction of farm-houses and other constructionactivities. Such activities in the prohibited zone should be permitted onlyif in public interest and after obtaining permission from this Court.

53. Yet another report was required to be submitted by the CEC,which it did on 28[th] August, 2008. In the report, it was mentioned that ameeting was held with officers of the State of Haryana and a two-step A

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Aapproach was suggested. The first step was to identify areas wheremining, colonisation, etc. is taking place in the Aravalli hills, but suchactivities are prohibited or regulated in those areas by various enactmentsand orders of this Court. These would include, amongst others, areasnotified under the provisions of the PLP Act. The second step would beto lay down broad principles and guidelines in respect of mining,Bcolonisation and other non-forestry activities in the Aravalli hills whichwould, inter alia, provide for an independent monitoring mechanism.Broadly, only such non-forestry activities would be permitted, that areabsolutely necessary and unavoidable and in public interest.

54. A meeting was held, as mentioned above, for detailing theCprocedure and methodology for identification of the prohibited areas,preparation of macro plans, including closed areas under the PLP Actand in other areas where orders of this Court have been violated as wellas the provisions of the Forest (Conservation) Act, 1980 for mining andfor colonisation, etc. It was decided that all this would be placed beforeDthis Court for consideration and approval. It is also proposed that afterthe necessary maps are prepared of the prohibited areas, macro plansand identification being completed, a detailed proposal would be placedbefore this Court for appropriate directions. It was expected that theState Government would ensure immediate cessation of non-forestryactivity going on in any prohibited area and in violation of the orders ofEthis Court and the provisions of law.

55. Another report was submitted by the CEC on 13[th] November,2008 pursuant to directions issued by this Court to file the land-use mapsand macro plans in respect of the Aravalli hills in Haryana. While thereport is considerably detailed, what is of concern to us is that the revenueFmap of village Anangpur super-imposed on the satellite imagery revealedthat a large number of colonies, farm-houses and mines were located inareas closed under the provisions of the PLP Act. One of the prominentviolators was the applicant (Kant Enclave) which had violated the ordersof this Court of 14[th] May, 2008 (the decision of this Court will be discussedGa little later). The report also mentioned that there was large-scale illegaluse of areas closed under the provisions of the PLP Act for illegal privategains in blatant violation of the environmental laws and the orders of thisCourt. It was suggested that this could not have taken place without theactive connivance and support of the concerned officials. It was also noted that the groundwater level in the area was rapidly depleting andhad already been marked as ‘Dark Zone for Ground Water’. In view ofthe somewhat alarming situation, it was recommended by the CEC thatcolonies, farm-houses, banquet halls and other buildings illegallyconstructed in areas closed under the provisions of the PLP Act, such asKant Enclave should be demolished.

56. Yet another report (the last one that we are concerned with)was submitted by the CEC on 15[th] January, 2009. In this report, it wasstated that the work of super-imposing on all geo-rectified village mapswith the corresponding satellite imageries had been completed. Inaddition, village wise land-use maps had been prepared. These comprisedof three components, namely, satellite imagery, scanned village mapsand super-imposed village maps on satellite imagery with marking ofareas notified under the provisions of the PLP Act.

57. It was noted on the above basis that a large number of colonies,buildings, banquet halls, farm-houses, engineering colleges, schools,ashrams, etc. were located in areas notified under the provisions of thePLP Act or areas with forest cover. The CEC expressed the view thatdemolition of the above illegal structures and rehabilitation of such areas(including Kant Enclave) should be taken up by the State of Haryana ina time-bound manner and no sale or purchase of such lands should bepermitted. The permission earlier granted, if any, for non-forestry usesin such areas should be immediately revoked. The State of Haryana hadsuggested that large-scale demolition might create a serious law andorder problem, but the CEC did not agree with this. However, the CECrecommended the regularisation of areas notified under the provisionsof the PLP Act and other forest areas falling in identified Haryana UrbanDevelopment Authority sectors, subject to effective steps being takenfor the demolition of buildings and structures in the areas notified underthe provisions of the PLP Act and other forest areas and rehabilitationof such areas.

58. In response to the report of the CEC dated 15[th] January, 2009the State of Haryana filed an affidavit through Shri Dharam Vir, theChief Secretary of the State on 15[th] March, 2009 in M.C. Mehta v.Union of India[.11.. ]It was stated in the affidavit that as far as the MunicipalCorporation of Faridabad is concerned, in view of the order dated A

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A13[th] May, 1998 passed by this Court, the erection of buildings, with duepermission under the applicable law cannot be said to be illegal. Ex facie,this is incorrect, since this Court permitted, if at all, only the constructionof hutments and not buildings. As far as the Town & Country PlanningDepartment is concerned, it was stated that Kant Enclave was grantedexemption under Section 23 of the Haryana Development and RegulationBof Urban Areas Act, 1975 on 17[th] April, 1984 and therefore it would bein the interest of justice if the constructions that had come up pursuant tothe above exemption may be allowed to exist. The notification dated18[th] August, 1992 and the other orders of this Court were convenientlyoverlooked.

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59. An affidavit dated 25[th] October, 2010 was filed by the ChiefTown Planner in the Department of Town & Country Planning. It wasstated in the affidavit that the Development Plan for Faridabad had beenprepared in accordance with the Punjab Scheduled Roads and ControlledAreas Restrictions of Unregulated Development Act, 1963 and the finalDDevelopment Plan was published in 1991 in consonance with the NCRPlanning Board Act, 1985. The Development Plans provided, inter alia,areas to be used for residential, commercial, industrial, public and semi-public uses, agriculture, open space, etc. In addition, it was stated thatKant Enclave had been granted exemption under Section 23 of theHaryana Development and Regulation of Urban Areas Act, 1975. InEview of this, the State of Haryana through the Forest Department oughtnot to have published the notification under Section 4 of the PLP Act,including therein the area already earmarked for urbanisation in the finalDevelopment Plan. It was stated that the Town & Country PlanningDepartment had taken steps to exclude the land of the applicant fromFthe notification issued under the PLP Act and follow-up action was alsotaken in this regard. The affidavit is, however, silent about the fact thatthe land owned by the applicant was not de-notified in spite of vigorousefforts of the Town & Country Planning Department. It was stated inthe affidavit that pursuant to the order passed by this Court on 13[th] May,1998 the Town & Country Planning Department had approved buildingGplans and had also issued part completion certificates on 23[rd ]December,2004. In view of all these facts as well as in view of the affidavit filed bythe Chief Secretary of the State of Haryana, it would be in the interestof justice that constructions that had come up in pursuance of the exemption granted under the provisions of the Haryana Developmentand Regulation of Urban Areas Act, 1975 may be allowed to exist. Itwas submitted that a final decision may be taken by this Court and theState Government would abide by the directions given by this Court onthis issue.

Yet another attempt at colonization is rejected

60. Not content with several letters, reports and decisions of thisCourt, the applicant opened up yet another front to push ahead with itscolonisation and construction activity in the land owned by it being KhasraNos. 9 to 16 in village Anangpur. The applicant filed I.A. No. 1901 of2005 in W.P. No. 4677 of 1985 (M.C. Mehta v. Union of India). Inthis application, it was submitted by the applicant that it was in exclusivepossession of Khasra Nos. 9 to 16 in village Anangpur having purchasedthe same from the rightful owners. It was stated that the applicant hadbeen granted exemption under Section 23 of the Haryana Developmentand Regulation of Urban Areas Act, 1975 for setting up its project namedKant Enclave. The exemption had been granted on 17[th] April, 1984. Itwas stated that the applicant had spent over 50 crores in carrying outand undertaking developmental work on the land. In addition, the applicanthad sold or booked or allotted 1500 plots to prospective buyers out ofwhich in about 450-500 cases, conveyance deeds had already beenexecuted and registered with the concerned authorities. It was submittedthat the decisions of this Court were mining-centric and weremisconstrued by officers of the Forest Department. Consequently, acommunication dated 31[st] January, 2005 was issued by the ForestDepartment to the District Town Planner, Faridabad to the effect thatthe land of the applicant was a closed area under the provisions of thePLP Act, and therefore non-forest use of the land was prohibited. As aresult of this communication, the District Town Planner refused to sanctionbuilding plans of the plot holders of Kant Enclave or to issue completioncertificates in respect of buildings already completed in terms of sanctionsor approvals earlier granted.

61. On this basis, it was submitted in the application that this Courtmay issue appropriate directions to the effect that only mining activitieswere prohibited in the subject area and that the orders of this Court didnot affect the construction activities carried on by the applicant in itsproject as permitted by the order of this Court dated 13[th] May, 1998.

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AIt was prayed that directions may be issued to the State Government topermit registration of plots and sanction building plans as well as issuecompletion certificates.

62. By an order dated 24[th] July, 2006 this Court directed the ChiefSecretary of Haryana to file an affidavit in response to the applicationBI.A. No. 1901 of 2005. A detailed affidavit dated 10[th] September, 2006was filed by the Chief Secretary Shri Prem Prashant, IAS in which itwas stated, inter alia, that the notification dated 18[th] August, 1992 issuedunder the provisions of the PLP Act covered Khasra Nos. 9 to 16 invillage Anangpur, that is, the land owned by the applicant. It wascategorically stated that since then this land was treated as forest and itCwas also included in the list of forests in the Government record.Reference was also made to the affidavit filed by the Forest Departmentin W.P. No. 202 of 1995 to the effect that the subject area was shown asa forest and that the provisions of the Forest (Conservation) Act, 1980would be applicable. The affidavit also referred to the order passed byDthis Court on 12[th] December, 1996 to the effect that the term ‘forest’ isto be understood in the dictionary sense and also that any area regardedas forest in Government records irrespective of ownership, would be aforest. Reference was also made to the decision of this Court renderedon 18[th] March, 2004 in this regard.E63. The affidavit further stated that the Principal ChiefConservator of Forests, had informed the Director, Town & CountryPlanning Department by a letter dated 27[th] January, 2006 that the landof the applicant being Khasra Nos. 9 to 16 in village Anangpur is notifiedunder Section 4 of the PLP Act. Therefore, the above area was treatedas a forest in view of the orders passed by this Court on 18[th] March,F2004. Since the applicant had never submitted any proposal with theForest Department for diversion of forest land for non-forestry use, theDirector, Town & Country Planning had asked the applicant by letterdated 27[th] June, 2006 to seek the diversion of forest land in Khasra Nos.9 to 16 in village Anangpur for non-forestry use in accordance with theGprovisions of the Forest (Conservation) Act, 1980.

64. The application was taken up for consideration by this Courtand by a judgment and order dated 14[th] May, 2008 the application wasdismissed.[12] A three-judge Bench of this Court noted that the challenge 12M.C. Mehta v. Union of India, (2008) 17 SCC 294H

was really to the communication dated 31[st] January, 2005. While dealingwith the decisions rendered by this Court from time to time, the three-judge Bench noted that developing a plot and making construction thereonwould amount to clearing up or breaking up of an area and that would bein violation of the prohibition contained in the notification of 18[th] August,1992. It was held in paragraph 12 of the Report:

“In view of the notification under Section 4 when the clearing orbreaking up of the land is not permitted that itself is a bar from(sic for) fresh construction because a construction can take placeonly if clearing and breaking of an area/land takes place. Thisprohibition is clearly contained in the notification of 1992. Thereliance placed by the applicants on clause (g) is clearlymisconceived, inasmuch as the permissible activity allowed withinclause (g) is in favour of inhabitants of town and villages withinthe limits or vicinity of any such area. The admitted case is thatthe applicants herein have developed plots in the area in questionand have sold it to persons who are not inhabitants of towns andvillages within such specified living area, but could be anybodyfrom all over the country or outside, and therefore clause (g) ofSection 4 has no application. The factum of developing a plot andthen construction thereon would amount to clearing or breakingup of an area or land.”

65. This Court also noted the view of the Central Ground WaterBoard to the effect that the area in question in village Anangpur hasbeen notified as a very precarious groundwater situation and that anyconstruction activity therein without adequate water reserves will alsohave a negative effect. It was also noted that the groundwater table isalready at a critical stage in Faridabad.

66. The decision of this Court rendered on 14[th] May, 2008 hasattained finality and all the submissions advanced by the applicant wereduly considered and rejected by a Bench of three learned judges of thisCourt. The issue whether the applicant could make any constructionwhatsoever on the notified land that is Khasra Nos. 9 to 16 in villageAnangpur in violation of the notification issued under the provisions ofthe PLP Act was not open to discussion earlier and in any event is nolonger resintegra or open to any further discussion or examination.

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67. The issue of the status of areas closed under the provisions ofthe PLP Act came up for consideration in B. S. Sandhu v. Governmentof India and others.[13 ]In this case, about 3,700 acres of land in villageKaroran in District Ropar in Punjab was notified under the provisions ofBthe PLP Act. Despite this, the Forest Hill Golf and Country Club wasestablished on closed land and was being developed allegedly in blatantviolation of the environment and forest laws as well as orders passed bythis Court on 12[th] December, 1996.

68. Learned counsel for the applicant relied heavily on this decisionCto contend that merely because a notification had been issued under theprovisions of the PLP Act, the closed land does not become ‘forestland’. This very contention had been raised by the Proprietor/ManagingDirector of the Country Club (Sandhu) in the Punjab & Haryana HighCourt. It was submitted that his land was private land and it could not betreated as forest land without a formal notification under Section 35 ofDthe Indian Forest Act, 1927.

69. According to the State of Punjab, an Expert Committee wasconstituted in terms of the orders passed by this Court on 12[th] December,1996 and this Expert Committee included the entire area of village Karoranas forest area in its report. The Punjab and Haryana High Court rejectedEthe contention urged by Sandhu and that gave rise to appeals whichwere decided by this Court.

70. This Court noted that the notification issued under the provisionsof the PLP Act resulted in the land in village Karoran being recorded asland under the control of the Forest Department and therefore forestFland. In other words, the basis of the conclusion that the entire land invillage Karoran is forest land was that the land was closed under theprovisions of the PLP Act and was therefore a forest. Consequently, thefirst question required to be decided by this Court was whether landnotified under the provisions of the PLP Act is forest land or not.

71. This Court took the view that activities prohibited in closedareas under the PLP Act are such that are not normally carried on in aforest. Reference was made to activities such as cultivation, pasturingof sheep and goats, erection of buildings by inhabitants of towns andvillages, herding, pasturing or retaining cattle etc. Therefore, the closed G

H13 (2014) 12 SCC 172

land could not be forest land. This Court observed that land notifiedunder the provisions of PLP Act may or may not necessarily be forestland and the decision of the High Court holding that closed land wasforest land was not at all correct in the law. It was held that the HighCourt failed to correctly appreciate the meaning of ‘forest’ and ‘forestland’ as well as the decision of this Court in Godavarman (decided on12[th] December, 1996).

72. It was also held that since the Forest (Conservation) Act,1980 came into force on 25[th] October, 1980 the High Court had to decidewhether Sandhu’s land was forest land as on that date irrespective of itsclassification or ownership. The High Court ought to have examined theGovernment record as on 25[th] October, 1980 before concluding thatSandhu’s land was forest land and not only the provisions of the PLPAct and the records of the Forest Department which showed the land tobe forest only because of the fact that the land was closed under theprovisions of the PLP Act.

73. This Court also examined the two decisions rendered in M.C.Mehta[14 15]. These decisions were distinguished on the ground that theyrelated to the Aravalli hills in the State of Haryana and further it washeld therein that the State Forest Department has been treating andshowing the closed area as forest in fact and in law. Consequently, non-forest activities could not be allowed in such areas without the priorpermission of the Central Government as mandated by the Forest(Conservation) Act, 1980. It was noted that this Court has not enquiredinto the basis of inclusion of the areas as forest by the State ForestDepartment. This Court also did not consider whether land became forestland by mere inclusion in terms of the notification issued under the PLPAct. On the other hand, in the case under discussion the Government ofPunjab had stated that the basis of inclusion of the entire land of villageKaroran as forest area in the records of the Forest Department wasthat the land was closed under the PLP Act and this basis was notcorrect in law.

74. This Court having distinguished the decisions rendered by thisCourt in M.C. Mehta and by necessary implication the orders passed inGodavarman, we do not see how the decision in Sandhu can be of anyassistance to the applicant. The decision in Sandhu must be confined toits own facts.14 (2004) 12 SCC 11815 (2008) 17 SCC 294

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A75. We may mention, without comment, that the purpose of issuinga notification under the PLP Act is to ensure that in the closed areathere is no activity such as cultivation, pasturing of sheep and goats,erection of buildings, herding, pasturing or retaining cattle etc. Therefore,the notification is a clear indication that such closed areas must be forestland or treated as forest land so that such objectionable non-forest activitiesBare not carried out therein and that activities that are not normally carriedout in forests are prohibited in forest land, so as to preserve and protectsuch forest land. A notification under the PLP Act does not convert landinto forest land but recognizes it as such or at least requires it to betreated as such.C

76. We may also mention, enpassant, the provisions of Section35(1) of the Indian Forest Act, 1927. This refers to breaking up or clearingof land for cultivation, pasturing of cattle etc. and reads as follows:

“35. Protection of forests for special purposes. –(1) The State Government may, by notification in the OfficialDGazette, regulate or prohibit in any forest or waste-land - (a) the breaking up or clearing of land for cultivation; (b) the pasturing of cattle; or

(c) the firing or clearing of the vegetation; Ewhen such regulation or prohibition appears necessary for any ofthe following purposes: -

(i) for protection against storms, winds, rolling stones, floodsand avalanches;

(ii) for the preservation of the soil on the ridges and slopes andFin the valleys of hilly tracts, the prevention of landslips or ofthe formation of ravines, and torrents, or the protection of landagainst erosion, or the deposit thereon of sand, stones or gravel;

(iii) for the maintenance of a water-supply in springs, riversand tanks; G(iv) for the protection of roads, bridges, railways and otherlines of communication;

(v) for the preservation of the public health.

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(3) ………”

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77. We leave it at that because of the distinguishing features inthe M.C. Mehta set of orders as contrasted and recognized with thefacts in Sandhu.

Review in disguise

78. Notwithstanding unambiguous conclusions arrived at by thisCourt from time to time on matters pertaining to the environmentaldegradation of the Aravalli hills and the implications of a notificationissued under the provisions of the PLP Act, the applicant persisted inpressing these applications and sought to contend that it was fully entitled,as of right, to make constructions on the land owned by it and known asKant Enclave. Submissions were made by learned counsel for theapplicant on issues that have conclusively been settled by this Court andin fact, the submissions were only a rehash of submissions made fromtime to time and which have been rejected. It was submitted by learnedcounsel for the applicant, relying on Delhi Administration v. GurdipSingh Uban[16] that the applications filed by it and by the Residents WelfareAssociation were perfectly maintainable. Reference was made to PointNo. 1 discussed in the decision. This Point reads as follows:

“Whether a party who had lost his case in civil appeal could bepermitted to bypass the procedure of circulation in review mattersand adopt the method of filing applications for “clarification”,“modification” or “recall” of the said order in civil appeals so thatthe matters were not listed in circulation but could be listed inCourt straight away? Whether such applications could be filedeven after dismissal of review applications? What is the procedurethat can be followed in such cases?”

79. This Court considered the question in considerable detail anddeprecated the practice of filing review applications in undeserving caseswithout any proper examination of the substance of the applications. Itwas noted that indiscriminate filing of such review petitions wastes thetime of the Court and that there must be some seriousness and restraintin filing review applications. This Court answered the question in thefollowing manner:

“At the outset, we have to refer to the practice of filing reviewapplications in large numbers in undeserving cases without properlyexamining whether the cases strictly come within the narrow A

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C80. It was made clear that what is of important is the substanceof the application and not the title given to it and genuine cases requiringa clarification or modification or a recall would of course be entertained.It was observed by this Court as follows:

“We should not however be understood as saying that in no caseDan application for “clarification”, “modification” or “recall” ismaintainable after the first disposal of the matter. All that we aresaying is that once such an application is listed in Court, the Courtwill examine whether it is, in substance, in the nature of reviewand is to be rejected with or without costs or requires to bewithdrawn with leave to file a review petition to be listed inEchambers by circulation. Point 1 is decided accordingly.”

81. On this basis, it was submitted by learned counsel for theapplicant that there was no bar in the applicant moving or pressingappropriate applications and that is precisely what has been done.

F82. In our opinion, there is nothing in these applications before usto remotely suggest that the various orders passed by this Court needany clarification or modification or recall. All issues raised by theapplicants have been considered threadbare by several Benches of thisCourt and all of them have arrived at a similar conclusion namely thatthe environmental and ecological degradation of the Aravalli hills mustGstop and that everybody is bound by the terms of the notification issuedunder the provisions of the PLP Act and that closed land under thenotification dated 18[th] August, 1992 is a forest and should be treated asa forest.

83. That apart, the view expressed by this Court in Gurdip SinghUban cannot be limited only to applications for modification, clarificationor recall. There is a growing tendency to provide different nomenclaturesto applications to side-step the rigours and limitations imposed on anapplicant and the Court in dealing with a review petition. Applicationscan be and are titled as applications for directions, rehearing,reconsideration, revisiting etc. etc. One has only to open a thesaurusand find an equivalent word and give an application an appropriatenomenclature so that it could be taken up for consideration in open Courtand on its merits and not as a review petition by circulation. In our opinion,the nomenclature given to an application is of absolutely no consequence- what is of importance is the substance of the application and if it isfound, in substance, to be an application for review, it should be dealtwith by the Court as such, and by circulation.

84. Considering the substantive applications filed by the applicant,we are of the clear opinion that these applications are nothing but disguisedreview petitions and they should not have been listed for hearing in openCourt without an appropriate order passed by this Court. They shouldhave first been circulated and dealt with as review petitions and if theconcerned Bench was of the view that they were required to be heardin open Court, only then should they have been listed for hearing in openCourt. However, we are not detaining ourselves any further in this regardsince we propose to deal with these applications on merits, treating themas applications for clarification, modification, recall, reconsideration etc.of the orders passed by this Court from time to time.

85. Learned counsel for the applicants (Kant & Co. as well asthe Residents Welfare Association of Kant Enclave) and the learnedAmicus made detailed submissions over a couple of days on a variety ofissues that they believed arose in these cases. Even though we are ofopinion that in view of several decisions rendered by this Court fromtime to time, such submissions are not open to be made by learned counsel,nevertheless, the submissions having been made, we will deal with eachof them.

Is the notified land a forest or treated as a forest?

86. The principal contention urged by learned counsel for theapplicants is that the land in question Khasra Nos. 9 to 16 in village A

B

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E

F

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AAnangpur notified under the provisions of the PLP Act on 18[th] August,1992 was not forest land. This submission is clearly liable to be rejected.

(i) Affidavits of the State of Haryana

87. In this connection, we may refer to the affidavit of Shri BanarsiDas, IFS, Principal Chief Conservator of Forests, Haryana. The affidavitBdated 8[th] December, 1996 was filed in Environmental Awareness Forumv. State of Jammu & Kashmir.[17] In this affidavit it is stated that thetotal forest area in Haryana in 1985-86 was 1,68,543 hectares. Thisincluded 26,499 hectares of areas closed under the PLP Act. In otherwords, as far back as in 1985-86, if not earlier, the Principal ChiefCConservator of Forests of the Government of Haryana considered andtreated areas closed under the provisions of the PLP Act as forest land.This was well before the present controversy had arisen. The affidavitgoes on to state that in 1995-96 the total forest area in Haryana was1,54,706 hectares and this included 11,513 hectares of area closed underthe PLP Act. It is quite clear to us that as far as the State of Haryana isDconcerned, closed areas under the PLP Act were always treated asforest land and this was well before any controversy arose in the matter.

88. Pursuant to an order passed by this Court an affidavit wasfiled on 25[th] February, 1997 by Shri S.K. Maheshwari, IAS, Commissioner& Secretary in the Forest Department. The affidavit was filed in theEcase of Godavarman. It was stated that since the PLP Act came intoforce in 1900 some cut-off date was required for identification of forestsand forest land. This cut-off date was taken as 25[th] October, 1980 thatis the date on which the Forest (Conservation) Act, 1980 came intoforce. This date was taken only for convenience and for no other reason.This is clear from the affidavit which also states that closure under theFPLP Act “creates forests” during the period of closure, after which theland is no longer shown as forest in government records. The affidavitreiterates that closed areas are “counted as forest” during the currencyof the closure under the PLP Act. Therefore, identification of forestland from 1900 would have been a humungous task and to avoid anGunnecessary exercise, the cut-off date of 25[th] October, 1980 was taken.The affidavit cannot be read or understood to mean that land not recordedas ‘forest’ on 25[th] October, 1980 in the Government records can neverbecome or be recognised or treated as ‘forest’. This would be too far-fetched and would go against the letter and spirit of the PLP Act.

89. The affidavit of Shri Prem Prashant, IAS, Chief Secretary ofHaryana takes us back beyond 1985-86 and 25[th] October, 1980. In theaffidavit dated 10[th] September, 2006 filed in response to I.A.No.1901 of2005 filed by the applicants (in M.C. Mehta) Shri Prem Prashant takesus back to notifications dated 10, 1970 and 10[th] November, 1980 issuedby the State of Haryana through the Forests and Animal HusbandryDepartment and subsequent notifications dated 16[th] November, 1995and 28[th] November, 1997. This was to bring on record that the provisionsof the PLP Act have been made use of through notifications issuedthereunder for several decades for the protection and preservation offorests and forest land, even if such lands are not recorded as ‘forest’ inGovernment records. This would be in consonance with the provisionsand the spirit of the PLP Act.

90. In an affidavit dated 15[th] March, 2009 filed by Shri DharamVir, the Chief Secretary of Haryana with reference to the report of theCEC dated 15[th] January, 2009 in M.C. Mehta it was submitted that allconstructions made post 17[th] April, 1984 (the date on which exemptionwas granted to the applicants under Section 23 of the HaryanaDevelopment and Regulation of Urban Areas Act, 1975) may be allowedto exist. This affidavit must be read in conjunction with the notificationof 18[th] August, 1992 and if soread, it suggests that the Chief Secretarydesired that constructions made between 17[th] April, 1984 and 18[th] August,1992 may be allowed to exist. However, even Shri Dharam Vir did notdoubt or deny that closed areas under the PLP Act are forest or forestland. He only suggested a possible reprieve to the applicants.

91. The view of the Government of Haryana is therefore quiteclear and consistent that land notified under the PLP Act is forest landand no construction can be made thereon but if some dilution is to bemade, then it should be only for the period between 17[th] April, 1984 and18[th]August, 1992.

92. Quite apart from the affidavits filed by the State of Haryanathrough the Chief Secretary or the Principal Chief Conservator of Forestsor the Commissioner & Secretary of the Forest Department, we areaware that through the conduct and correspondence of the Town &Country Planning Department that it was very keen on permittingconstruction in closed areas. We are not sure why the Town & CountryPlanning Department was persistently going out of its way to be of AB

C

D

E

F

G

H

Aassistance to the applicants but whatever the reason, it was categoricalin recommending the environmental degradation of the Aravalli hills.

(ii) Orders of this Court

93. In addition to the affidavits of the State of Haryana, the variousorders passed by this Court from time to time in Godavarman and inBM.C. Mehta make it very clear that closed areas under the PLP Act areforest and forest land and need to be treated as forest land.

94. The decisions of this Court, go back to 10[th] May, 1996[18] whenthis Court proposed to deal with preserving the environment andcontrolling pollution through the stoppage of mining operations within theCradius of 5 km from the tourist resorts of Badkal Lake and Surajkund.This Court considered reports prepared by the Haryana Pollution ControlBoard and the National Environmental Engineering Research Institute.It was noted that the State of Haryana had already prohibited miningoperations within the radius of 5 km from these tourist resorts and on aDconsideration of the reports mentioned above, it was concluded that thereshall be no mining activity within a 2 km radius of the tourist resorts ofBadkal Lake and Surajkund. All the mines, which fall within the saidradius shall not be reopened. It was further directed that no constructionactivity of any type shall be permitted now onwards within the 5 kmradius of Badkal Lake and Surajkund and all open areas shall be convertedEinto green belts. Interestingly, this Court also noted as follows:

“The Badkal lake and Surajkund are monsoon-fed water bodies.The natural drainage pattern of the surrounding hill areas feedthese water bodies during rainy season. The mining activities inthe vicinity of these tourist resorts may disturb the rainwater drainsFwhich in turn may badly affect the water level as well as thewater quality of these water bodies. The mining may also causefractures and cracks in the subsurface, rock layer causingdisturbances to the aquifers which are the source of groundwater.This may disturb the hydrology of the area.”

G95. The order dated 10[th] May, 1996 was subsequently modifiedon 11[th] October, 1996[19] to the effect that now onwards constructionactivity would not be permitted in certain areas, and there was no blanketban. Permission to construct was subject to utmost necessity for 18 M.C. Mehta v. Union of India, (1996) 8 SCC 462

19 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India,H(1997) 3 SCC 715

recreational and tourism purposes and no other. However, exemptionwas granted to plots already sold or allotted prior to 10[th] May, 1996 indeveloped areas (this was varied subsequently). It was further directedas follows:

“All development schemes, and the plans for all types ofconstructions relating to all types of buildings in the area from onekm to 5 km radius of the Badkhal Lake and Surajkund (excluding Delhi areas) shall have prior approval of the Central PollutionControl Board and the Haryana Pollution Control Board.”

96. Further, with regard to the issue of water management, thisCourt referred to the report of the National Environmental EngineeringResearch Institute and noted as follows:

“…..According to the report Surajkund lake impounds water fromrain and natural springs. Badkhal Lake is an impoundment formeddue to the construction of an earthen dam. The catchment areasof these lakes are shown in a figure attached with the report. Theland use and soil types as explained in the report show that theBadkhal Lake and Surajkund are monsoon-fed water bodies. Thenatural drainage pattern of the surrounding hill areas feed thesewater bodies during rainy season. Large-scale construction in thevicinity of these tourist resorts may disturb the rain water drainswhich in turn may badly affect the water level as well as thewater quality of these water bodies. It may also cause disturbanceto the aquifers which are the source of ground water. Thehydrology of the area may also be disturbed.”

97. The reason why we are referring to availability of water, orthe lack of it, is because even the Chief Minister of Haryana in his orderof 11[th] July, 1990 had noted that the availability of water from the aquifersis of paramount importance and that aquifers available at the deeperlevel would be fully exploited to meet the demand of water supply forthe population of Kant Enclave.

98. In spite of all these concerns shown to the environment andavailability of water, the fact of the matter is that today Badkal Lake isbone dry and there is no water in the ‘Lake’. We had specifically askedlearned counsel for the parties as well as learned Amicus about thestatus of Badkal Lake and we were told quite categorically that today A

B

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D

E

F

G

H

Athere is absolutely no water in Badkal Lake. The damage to theenvironment has been done and appears to be irreversible.

99. One of the more significant orders was passed by this Courton 12[th] December, 1996.[20] Through this order, this Court laid down whatcould be described as ‘forest’ and ‘forest land’. The view taken wasBthat the two expressions must be given their dictionary or natural meaningand if so considered, there can be no doubt that degraded forests andclosed lands under the PLP Act are nothing but forest land. Similarly,the orders passed by this Court from time to time in M.C. Mehta makeit loud and clear that the Aravalli hills need protection from environmentaldegradation and the laws must be strictly enforced to ensure that thereCis no damage caused to the ecology of the Aravalli hills. In view of theclear expression of views and conclusions arrived at by this Court fromtime to time and repeated on several occasions we have no doubt thatclosed areas under the PLP Act are nothing but forest land and deserveto be treated as such.

D

D

100. In the decision rendered on 12[th] December, 1996 this Courtdirected the identification of areas which are ‘forests’ irrespective ofwhether they are so notified, recognised or classified under any law, andirrespective of the ownership of the land of such forest. As a result ofthis, each State Government was directed, inter alia, to:

E

(i) Identify areas which are “forests”, irrespective of whetherthey are so notified, recognised or classified under any law, andirrespective of the ownership of the land of such forest;(ii) identify areas which were earlier forests but stand degraded,denuded or cleared.

F

101. Notwithstanding the concern shown by this Court for theenvironment and ecology of the Aravalli hills, the tacit support given tothe applicants by the Town & Country Planning Department of the Stateof Haryana completely vitiated the efforts of the Forest Department aswell as the orders of this Court. It came to such a pass that the DelhiGRidge Management Board was compelled to file an application on 29[th]November, 2001 being I.A. No. 1785 of 2001 in which it was stated thatthe withdrawal and pumping of ground water in the Ridge was a matterof serious concern. It was, therefore, prayed that the Government ofHaryana may be directed to stop all mining activity and pumping of ground water in and from the area of 5 km from the Delhi-Haryanaborder in the Haryana side of the Ridge. This application resulted in thisCourt passing an order on 6[th] May, 2002 directing the stoppage of allmining activity and pumping of ground water as prayed for. This orderwas followed by another order passed by this Court on 22[nd] July, 2002(not reported) requiring EPCA to furnish a report, which it did on9[th] August, 2002 to the effect that the order passed on 6[th] May, 2002deserved to be confirmed.

102. Subsequently, EPCA gave another report on 21[st] October,2002 on the basis of information obtained from the Central Ground WaterBoard to the effect that mining activity was going on and the mineswere operating below the ground water level which was resulting inexploitation and destruction of ground water sources.

103. The blatant and open flouting of orders passed by this Courtresulted in the constitution of the Central Empowered Committee (CEC)on 17[th]September, 2002 for monitoring and ensuring compliance of theorders passed by this Court. The CEC submitted reports to this Courtfrom time to time. These have already been adverted to and need not berepeated.

104. In its decision dated 18[th] March, 2004 this Court consideredall this material and addressed all the issues raised before it includingissues of environmental and ecological degradation.

105. This Court specifically addressed itself to the question whetherclosed areas under the PLP Act are ‘forest’ of any kind. This Courtnoted that the Forest Department of the State of Haryana showed suchareas as ‘forest’ in its records and treated such areas as ‘forest’; affidavitshad also been filed on behalf of the State of Haryana in cases pending inthis Court to the same effect; the word ‘forest’ and ‘forest land’ hadbeen clearly explained by this Court in its order dated 12[th] December,1996 and finally the Government of Haryana itself sought permissionfrom the Central Government to divert land closed by notifications underthe PLP Act for non-forest purposes. Therefore, it was held that theState of Haryana cannot now take a somersault and contend that areasclosed under the PLP Act are not forest. This Court disposed of I.A.No. 1785 of 2001 and confirmed the order passed on 6[th] May, 2002 andheld that areas closed under the PLP Act cannot be utilized for non- AB

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Aforest purposes without the prior permission of the Central Governmentunder the provisions of the Forest (Conservation) Act, 1980.

(iii) Review Petition of Kant Enclave

106. In view of the restrictions imposed by this Court, whichobviously did not suit the applicants, a review petition being R.P. No. 914Bof 1997 was filed by R. Kant & Co. on or about 26[th]February, 1997. Inthe review petition, it was not disclosed that a notification had beenissued under the PLP Act. While concealing this extremely importantfact, a review was sought of the order passed by this Court on11[th] October, 1996 to the effect that no permission is required from theCCentral Pollution Control Board or the Haryana Pollution Control Boardin respect of the constructions made by the applicant beyond the 1 kmbut within the 5 km radius of Badkal Lake and Surajkund.

107. The review petition was taken up for consideration on17[th] March, 1997 when it was made clear that plans for construction ofDhouses could be filed before the Competent Authority who could examinethem in accordance with the applicable rules and if the plans were inorder, they could be “kept ready until further orders.” Since the full factswere not placed before this Court, an order was passed to the effectthat for the purposes of examination, there should be no insistence bythe concerned authorities on the production of No Objection CertificateEfrom the Central or State Pollution Control Board. It was also observedthat 2 ½ storey buildings could be constructed.

108. On 13[th] May, 1998 the Court modified the order passed on17[th] March, 1997 to the effect that in certain private areas whereconstruction is proposed, only single storey hutments could be permittedFto be constructed and not tall buildings as originally conceived. Therefore,it is quite clear from the orders passed by this Court that constructionwas not permitted until further orders but that plans could be preparedand examined.

109. A reference to the above orders clearly indicates that theGState of Haryana and the applicants had full knowledge of the proceedingsin this Court, but showed no concern for the environment and the ecologyof the area.110. In our opinion, it was extremely important for R. Kant & Co.to have come out with full facts in the review petition filed by it, moreH

particularly the fact of the issuance of the notification dated 18[th]August,1992.The failure to disclose this material fact vitiates the proceedingsinitiated by the applicant in this Court.

(iv) Interlocutory Application filed by the applicant

111. Notwithstanding complete clarity on the issue of what is aforest and forest land, the status of closed areas notified under the PLPAct and issues of environmental and ecological degradation of the Aravallihills, the applicants made bold to file I.A. No. 1901 of 2005 (in M.C.Mehta) sometime in October 2005 in which it was prayed that thedecision rendered by this Court on 18[th] March, 2004 is restricted only tomining activities and does not affect the construction activities carriedout by the applicant, which it is entitled to in view of the orders passedby this Court on 13[th] May, 1998.

112. In response to the application, an affidavit dated10[th] September, 2006 was filed by Shri Prem Prashant, IAS, ChiefSecretary of Haryana in which it was categorically stated that theprovisions of the PLP Act have been taken recourse to from time totime for the protection of forests and forest land. In this regard, he annexednotifications issued by the State of Haryana on 12[th] March, 1970 throughthe Forests and Animal Husbandry Department, 10[th] November, 1980through the Forest Department, 16[th] November, 1995 through the ForestDepartment and 28[th] November, 1997 through the Forest Department.

113. The notification dated 18[th] August, 1992 was one of suchnotifications for the protection of forests and forest lands. It wascategorically stated on affidavit that from the date of the notification,that is, 18[th] August, 1992 the subject land was being treated as forestand it was also included in the list of forests in the Government records.This was also shown as a forest in the affidavit filed by the State ofHaryana in Godavarman. That the subject land was forest land wasalso stated by the Principal Chief Conservator of Forests in a letterdated 27[th] January, 2006 addressed to the Director, Town & CountryPlanning Department. In fact, the said Director had required the applicantto seek the diversion of the forest land for non-forestry purposes byletters dated 27[th] January, 2006 and 27[th] June, 2006 but the applicant didnot do so. It was specifically pointed out to the applicant in both theletters that constructions made by the applicant were illegal, but obviously,to no effect.

A

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A

114. The application was taken up for consideration by a Benchof three learned judges who dismissed the application by a judgment andorder dated 14[th] May, 2008.[21] The issue whether land closed by anotification issued under the provisions of the PLP Act was forest landwas once again considered by this Court and the decision rendered on18[th] March, 2004 was specifically and categorically reiterated.

B

115. We would have imagined that the applicant R. Kant & Co.would have learnt a lesson from the dismissal of its review petition, theinterlocutory application as well as the orders passed by this Court fromtime to time and reports given by expert bodies, but it does not appear tohave been so. We say this because, after the decision of this CourtCrendered on 14[th] May, 2008 R. Kant & Co. filed an application beingI.A. No. 2310 of 2008 on 11[th]July, 2008 challenging a communicationdated 23[rd] May, 2008 issued pursuant to the orders passed by this Court.Subsequently, the applicant also filed I.A. Nos. 2377-79 of 2009 objectingto the reports filed by the CEC. These I.A.s were not argued before usDand no submissions were made in respect of these I.As.

(v) Issue again raised in this Court

116. The pendency of the present applications in this Court gaveoccasion to the applicants to once again try and raise the issue of closedareas under the PLP Act being not forest or forest land. Reference wasEmade to the decision of this Court in Sandhu. It was submitted that thisCourt had struck a discordant note in Sandhu. We cannot agree sincethe decision in Sandhu itself distinguished the M.C. Mehta set of ordersboth on facts and in law. The decision rendered in Sandhu cannot, byany stretch of imagination, come to the aid of the applicants.

F

117. We may only note that in so far as the present case isconcerned, there is a wealth of material to indicate clearly that closedland under the PLP Act is forest land or in any event, is required to betreated as forest land. Several notifications issued under the PLP Acthave been brought to our notice which prohibit certain activities whichGought not to be carried out on forest land. The affidavits filed byresponsible officers of the State of Haryana, including affidavits filed bythe Chief Secretary unequivocally state that lands closed under the PLPAct are forest land. Similarly, there are judgments and orders passed bythis Court to the same effect and the conduct of the State of Haryana, H21 M.C. Mehta v. Union of India, (2008) 17 SCC 294

including the Forest Department and its relationship with the Town &Country Planning Department is a clear indication that lands closed underthe provisions of the PLP Act are nothing but forest or forest land.

118. There is absolutely no doubt that Sandhu is distinguishableboth on facts and in law and it has been recognised as such by this Courtin the judgment delivered in Sandhu. It was suggested by learned counselfor the applicants that because this Court did not enquire into the basisof inclusion of closed areas as forest, therefore the notification dated18[th] August, 1992 is vitiated. Reliance placed on an observation in Sandhuwith respect, may not strictly be valid, in the sense that there was enoughmaterial to indicate why, at least since 1970 closed areas have beenincluded as forest and treated as forest by the State of Haryana. Wemay add that there was a report of a Committee that eventually led tothe issuance of the notification dated 18[th] August, 1992 but that wasunfortunately not placed before us in spite of our request to learnedcounsel for the State of Haryana.

119. What is of crucial importance and great significance is thatno one has challenged the validity or correctness of the notification dated18[th] August, 1992. We do not see how the correctness or validity of thenotification can be challenged without any direct attack. A collateralattack cannot be permitted more certainly so by relying upon anotherdecision of this Court, which has nothing to do with the facts of thepresent case.

120. On the other hand, the applicants have ‘challenged’ everysignificant order passed by this Court, either through a Review Petitionor through Interlocutory Applications. The applicants have beenunsuccessful in every such adventure.

121. Taking an overall view of all the facts in the case and the lawon the subject, we have no doubt that Kant Enclave is a forest or is aforest land or is required to be treated as a forest or forest land andabsolutely no construction activity could have been permitted on it witheffect from 18[th] August, 1992. Any and all construction activity in KantEnclave since that date is illegal and impermissible in law.

Mining centric orders

122. The next submission advanced by learned counsel for theapplicants was to the effect that all the orders passed by this Court were A

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Amining centric and did not relate to construction activity in Kant Enclave.This argument is stated only to be rejected. The judgments delivered bythis Court have only to be read and understood and it would be morethan obvious that the concern of this Court was to preserve and protectthe environment in and around the Aravalli hills and generally avoidenvironmental and ecological degradation of the area both through theBstoppage of mining activity and constructions. Unfortunately, this Courtwas unable to enforce its orders in letter and spirit, thanks entirely to theapathy of the State of Haryana and the persistence of the applicantswith the result that Badkal Lake is today, admittedly, absolutely dry.

123. The culpability of some of the State authorities in ensuringCthis tragic situation is quite evident from I.A. No. 2269 of 2007 filed bythe Administrator, Haryana Urban Development Authority, in which thefirst prayer is to the effect that this Court should issue an appropriatedirection that the judgment and order dated 18[th] March, 2004 wasrestricted only to mining activities and did not affect the development orDurbanisation or construction activities carried out as per the laws, rulesand regulations of the Municipal Corporation of Faridabad or the HaryanaUrban Development Authority. Despite the clear judgment and orderpassed by this Court, the attitude of some sections of the StateGovernment obviously did not change and unrestricted developmentthrough mining activity and construction activity was given precedenceEover the environment resulting in, amongst other things a parched BadkalLake.

Notification issued erroneously

124. It was then contended by learned counsel for the applicantsthat the inclusion of Khasra Nos. 9 to 16 in village Anangpur in theFnotification dated 18[th] August, 1992 was a mistake and that it was alwaysthe intention of the State of Haryana to keep this land out of the rigoursof the PLP Act. This submission too is stated only to be rejected. If itwas in fact the intention of the State of Haryana to keep Kant Enclaveout of the purview of the notification dated 18[th] August, 1992 nothingGprevented the State from either issuing a corrigendum or issuing a freshnotification or taking some positive step to deleteKhasra Nos. 9 to 16 invillage Anangpur from the rigours of the notification.

Alleged inapplicability of the notification

125. Reliance was then placed on the provisions of sub-sectionH(1) and sub-section (7) of Section 29 of the Faridabad Complex (Regulation and Development) Act, 1971 to submit that the notificationdated 18[th] August, 1992 was not applicable to controlled areas. Theseprovisions read as follows:

A

“Section 29 - Declaration of controlled area

(1) Notwithstanding any law for the time being in force the ChiefAdministrator may, with the previous approval of the StateBGovernment by notification, declare the whole or any part ofthe area within the Faridabad Complex including an area withina distance of 8 kilometers on the outer sides of the boundariesof Faridabad Complex as a controlled area.

(2) to (6) —————

C(7) After considering the objections, suggestions andrepresentations, if any, and the recommendations of the ChiefAdministrator thereon, the State Government shall decide asto the final plans showing the controlled area and signifyingtherein the nature of restrictions and conditions applicable toDthe controlled area and publish the same in the Official gazetteand in such other manner as may be prescribed.”

126. In terms of Section 2(f) of the said Act, a controlled areameans an area declared under Section 29 of the said Act to be a controlledarea.

E

127. We are unable to appreciate the relevance of this submissionfor the reason that, as per the Statement of Objects and Reasons, therewas a multiplicity of local authorities in the Faridabad-Ballabhgarh areawith the result that integrated development of this area was not possible.Consequently, it was essential to devise a set up for administration ofthis areawhich would meet the objectives of rapid and integrateddevelopment and eliminate haphazard development. The said Act wasintended to achieve this objective. Quite clearly, this has nothing to dowith the notification dated 18[th] August, 1992. Moreover, Section 29(1)of the said Act related to any law for the time being in force - thenotification dated 18[th] August, 1992 came much later and was not inforce when the said Act was enacted.

F

G

Other submissions

128. It was then contended that the exemption granted on17[th] April, 1984 under the provisions of the Haryana Development and H

ARegulation of Urban Areas Act, 1975 exempted the applicant or in anycase Kant Enclave from all the provisions of the said Act. While thismay be so, we do not see how the said Act exempts the applicant orKant Enclave from the prohibitions imposed by the subsequent notificationdated 18[th] August, 1992. The said Act has no relevance or reference tothe provisions of the PLP Act.B

129. Learned counsel for the applicants also contended that inview of the decision rendered by this Court in Sandhu, the subject landought to have been an existing forest as on 25[th] October, 1980 when theForest (Conservation) Act, 1980 came into force. In our opinion, this isnot at all a correct interpretation of the decision rendered by this CourtCin Sandhu. It is nobody’s case, and indeed it cannot be anybody’s casethat no area can be declared as a forest after 25[th] October, 1980. If thiswere the interpretation given, then the entire purpose of the order dated12[th] December, 1996 passed by this Court would be rendered meaninglesssince it was in terms of this order that forest land was directed to beDidentified, even if that land was not so recognised as forest land.Acceptance of the interpretation sought to be given by learned counselwould also emasculate the PLP Act.

130. The final submission of learned counsel for the applicantswas that constructions were made in terms of the orders passed by thisECourt on 17[th] March, 1997 and 13[th] May, 1998 and in fact, building plansand sanction plans were approved by the concerned authorities.Therefore, it must be held by this Court that the members of the KantEnclave Residents Welfare Association had acted bonafide andtherefore their houses or constructions should not be demolished assuggested by the CEC.F

131. In this regard, it must be appreciated that the order dated17[th] March, 1997as modified on 13[th] May, 1998 permitted constructiononly in accordance with law and not de hors the notification dated 18[th]August, 1992. It is not the case of any of the applicants before us, andindeed it cannot be their case, that the orders of this Court gave a completeGgo by to the notification and virtually quashed it even thoughit was neverunder challenge at that point of time or even today. It appears that verylarge residential complexes have been constructed despite the orders ofthis Court, which did not give any blanket permission to the applicants tomake constructions, according to their whims and fancies. For reasonsHthat are not at all clear, such constructions were permitted by the M.C. MEHTA v. UNION OF INDIA & ORS.

[MADAN B. LOKUR, J.]

concerned authorities despite the orders of this Court and even thoughthe notification dated 18[th] August, 1992 prohibited breaking up of theland. It is difficult, under the circumstances, to take the view that theapplicants and the concerned authorities had acted bonafide.

A

132. We had asked learned counsel for the applicants to placebefore us the details of the construction made in Kant Enclave. Thefollowing chart was then placed before us on 24[th] July, 2018. This chartindicates that out of a total of about 1600 plots said to have been carvedout by R. Kant &Co. in Kant Enclave, conveyance deeds have beenexecuted only in respect of 284 residential plots and three commercialplots. On the residential plots, only 33 houses have been constructed andit appears that not one of them is a single-storey hutment.

B

C

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S.No.ParticularsWork Done1. Conveyance Deeds Executed 284 residential plots 2. Conveyance Deeds Executed 3 commercial plots 3.Houses constructed and people living33 housesD4.Film Studio (FS-2) constructed1 no.5. Overhead water tank of 545 KL capacity 3 nos. constructed and functional 6. Underground water tank of 1200 KL 3 nos. capacity constructed and functional 7. Pumping Station (Functional)1 no. 8. Pumping Machine (Submersible pumps) 9 nos. Einstalled and functional 9. Sewage Treatment Plant having cost of 1 no. more than Rs. 70,00,000/- installed 10. Parks (fully developed) 14 nos. 11. Roads completed 136460 Sq. Mtr. (Approx. 20 KM) F12. Street lights poles erected and energised 627 nos. 13. Internal sewage pipe lines completed and 21150 Mtrs. functional 14. Storm water drain completed and 18000 Mtrs. functional15. Water supply pipe lines completed and 22700 Mtrs. functional G16. Trees planted 10000 nos. (Along road side and in green belt) 17. Fire hydrants/Fire tanks having 265 CUM 3 nos. capacity 18. Electric sub-station for 650 KV 2 nos. transformer H

A133. The extent of violation of the notification dated 18[th] August,1992 is quite frightening and one can only imagine the phenomenalenvironmental and ecological damage caused to the area by theapplicants. This could not have happened without the knowledge of theState of Haryana and its officers who permitted blatant disregard of therule of law despite affidavits of the Chief Secretary of the State ofBHaryana. The rule of law seems to have broken down in Haryana andbecome the rule of men only to favour the applicants. At this point, wecannot help but referring to a passage from a judgment of this Courtwith regard to the Aravalli hills and the need for their protection. We hadintended to avoid this reference only because it would be repetitive, butCit is painful to see such a mockery of the law and total lack of concernfor the environment and ecology of the Aravalli hills.134. In the order dated 18[th] March, 2004[22] it was stated inparagraph 58 of the Report as follows:

“The Aravallis, the most distinctive and ancient mountain chain ofDpeninsular India, mark the site of one of the oldest geologicalformations in the world. Heavily eroded and with exposed outcropsof slate rock and granite, it has summits reaching 4950 feet abovesea level. Due to its geological location, the Aravalli range harboursa mix of Saharan, Ethiopian, peninsular, oriental and even MalayanEelements of flora and fauna. In the early part of this century, theAravallis were well wooded. There were dense forests withwaterfalls and one could encounter a large number of wild animals.Today, the changes in the environment at Aravalli are severe.Though one finds a number of tree species in the hills, timber-quality trees have almost disappeared. Despite the increase ofFpopulation resulting in increase of demand from the forest,it cannot be questioned nor has it been questioned that tosave the ecology of the Aravalli mountains, the laws haveto be strictly implemented.” [Emphasis supplied by us].

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135. The question that now remains for consideration is whetherany relief is required to be granted to the applicants and if so what reliefshould be granted.

22 M.C. Mehta v. Union of India, (2004) 12 SCC 118H

136. There is no doubt that irreversible damage has been causedto the environment and ecology of the Aravalli hills. The damage wascaused or allowed to be caused, despite a statutory notification issuedunder the provisions of the PLP Act. The brazenness of the applicants inflouting the law is quite apparent. But what is more unfortunate is thesupport given to the applicants by the Town & Country Department ofthe State of Haryana, despite the reservations of the Forest Department.The Town & Country Department in apparent collusion with R. Kant &Co. effectively led a very large number of people up the garden path.Fortunately, only 33 of them have made some personal constructions –but it is not clear whether their constructions are pre or post 18[th] August,1992.

137. Therefore, we have two categories of persons who havebeen taken for a ride by R. Kant & Co. The first category consists ofthose who have been conveyed land by R. Kant & Co. and the secondcategory consists of those who have been conveyed land and have madeconstructions.

138. As far as the first category of persons is concerned, therelief that can be awarded to them is a full refund of their investmentalong with interest at 18% per annum payable entirely by R. Kant &Co.from the date of the investment.We order accordingly.

139. As far as the second category of persons is concerned, assubmitted by Shri Dharam Vir, Chief Secretary of the State of Haryanain his affidavit of 15[th] March, 2009 there is an available, reasonable andappropriate course of action to adopt. This course of action is to save orallow to exist constructions made in Kant Enclave pursuant to theexemption granted to the applicant (R. Kant & Co.) on 17[th] April, 1984under Section 23 of theHaryana Development and Regulation of UrbanAreas Act, 1975 but before 18[th] August, 1992 when the notification underthe provisions of the PLP Act came into force. Any construction madeafter 18[th] August, 1992 is clearly illegal and contrary to law and must bedemolished as recommended by the Central Empowered Committee.We accept the submission made by Shri Dharam Vir and the CEC anddo not disturb the constructions made between 17[th] April, 1984 and18[th] August, 1992. We direct accordingly.

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A140. However, in respect of constructions made after 18[th] August,1992 there is no option but to direct the State of Haryanato demolish theillegal and unauthorised constructions. The demolition should be completedon or before 31[st] December, 2018. We direct accordingly.

141. In Godrej & Boyce Manufacturing Company Limited v.BState of Maharashtra[23] this Court considered the issue of unauthorisedconstruction from the point of view of a well-meaning citizen who is ledup the garden path by the State, which gives statutory permission forunauthorised constructions. In the present case of Kant Enclave, well-meaning citizens have been virtually duped into investing hugeamountsdespiteR. Kant & Co. and the Town & Country Department ofCthe State of Haryana being fully aware of the statutory notification dated18[th] August, 1992 and the restrictions placed by the notification. R. Kant& Co. and the Town & Country Department of the State of Haryanawere also fully aware that Kant Enclave is a forest or forest land ortreated as a forest or forest land, and therefore any construction madeDon the land or utilisation of the land for non-forest purposes, without theprior approval of the Central Government, would be illegal and violativeof the provisions of the Forest (Conservation) Act, 1980. Notwithstandingthis, constructions were made (or allowed to be made) in Kant Enclavewith the support, tacit or otherwise, of R. Kant & Co. and the Town &Country Department of the State of Haryana. They must pay for this.EThis is not to suggest that those who have made constructions after 18[th]August, 1992 are completely innocent. Nevertheless, it is necessary tocompensate them in view of the role played by the Town & CountryPlanning Department of the State of Haryana. To compensate them forthe land, we direct that R. Kant & Co. to give them a full refund of their Finvestment in the land along with interest at 18% per annum from thedate of the investment. We order accordingly.

142. As far as the cost of construction is concerned, we tentativelyquantify it at 50 lakhs. This will be paid to those who constructed after18[th] August, 1992 and whose construction is directed to be demolished.GThe quantified amount will be paid, in equal proportion, by R. Kant &Co. and the Town & Country Planning Department of the State ofHaryana. The quantified amount is directed to be paid on or before31[st] December, 2018. If anyone who’s construction is demolished inview of our orders, is not satisfied with the quantification, that person is

at liberty to proceed againstR. Kant & Co. and the Town & CountryPlanning Department of the State of Haryana by way of a civil suit inaccordance with law and with the cause of action arising as on today.

143. The Polluter Pays Principle is a wholesome principle thathas been universally accepted and also adopted and applied in our countrythrough several decisions of this Court. In this context, we may drawattention to among two of the earliest decisions rendered by this Court, namely, Indian Council for Enviro-Legal Action v. Union of India[24]and Vellore Citizens’ Welfare Forum v. Union of India.[25] The lawhaving been settled for more than two decades, we are of the view thatit must be applied in a case such as the present. The damage caused tothe Aravalli hills, as already noted, is irreversible. However, perhapssome of the damage could be remedied - at least we hope so. Accordingto R. Kant & Co. it has expended ` 50 crore in developing Kant Enclave.We do not know the exact or accurate figure but proceed on the basis asstated. In our opinion, it would be reasonable to require R. Kant & Co.to deposit 10% of this amount (that is, ` 5 crore) for rehabilitation of thedamaged areas. This amount should be deposited by R. Kant & Co. inthe Aravalli Rehabilitation Fund within one month and in any case on orbefore 31[st] October, 2018. The matter be listed only for compliance ofthis direction in the first half of November 2018.

144. We direct the incumbent Chief Secretary of the State ofHaryana to ensure compliance with our remaining orders, both in letterand spirit on or before 31[st] December, 2018.

145. The substantive applications stand disposed of in the termsmentioned above.

Kalpana K. Tripathy

IAs Disposed of.

24 (1996) 3 SCC 212

25 (1996) 5 SCC 647

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