JITENDRA SINGH versus MINISTRY OF ENVIRONMENT & ORS. on 25 November 2019

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[2019] 14 S.C.R. 220

SUPREME COURT REPORTS

[2019] 14 S.C.R.

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JITENDRA SINGH

v.

MINISTRY OF ENVIRONMENT & ORS.

(Civil Appeal No. 5109 of 2019)

BNOVEMBER 25, 2019

[ARUN MISHRA AND SURYA KANT, JJ.]

Environmental Law:

Environment protection – Allotment of local ponds – To privateCindustrialists – By Industrial Development Authority – Challengedbefore Green Tribunal – Challenge dismissed on the basis of affidavitby the Authority claiming to develop bigger alternative water-bodies– Appeal to Supreme Court – Plea of Authority that Governmentorder dated 3.6.16 permitted destruction of exiting ponds andallotment thereof to third-parties in extra-ordinary circumstancesDand that the land was not a ‘Pokhar’ Pond – Held: Allotment havingbeen made in 2012, order passed in 2016 would not operateretrospectively – Moreover, no extra-ordinary circumstances madeout in favour of the allottee – Revenue records show that the landwas a ‘Pokhar’ – Protection of such village commons is essential toEsafeguard the right u/Art. 21 of the Constitution – It is alsoconstitutional obligation of the respondents to ensure protectionand integrity of the environment as enshrined u/Arts. 48-A and 51-A(g) – The scheme which extinguish local water bodies albeit withalternatives are violative of constitutional principles and henceliable to be struck down – Constitution of India – Arts. 48-A andF51-A(g), Allowing the appeal, the Court HELD : 1. The respondents have not been able todemonstrate how the 2016 Government Order can be madeGapplicable retrospectively, the possession having been given tothe Company in 2012. Notwithstanding this, no case of the presentinstance being an extraordinary circumstance (hence permittingrecourse to the exceptional provisions of the Government Order)has been made before the Court either. Photographs show that H

there is substantial water in the pond, which has not beencontroverted. Further, revenue records maintained by theRevenue Department themselves show that the land was‘pokhar’. It is hence not open for the authorities to contradictand plead against the record without any scientific or empiricalsupport, for such categorisation had been made by them in thepast. Further, it was conceded by respondent-authorities duringarguments that Khasra No. 490 was also recorded as ‘pokhar’ inrevenue records and that it too had been integrated in theindustrial development project. [Para 12] [226-G-H; 227-A-B]

2. Repeal of the UP Zamindari Abolition and Land ReformsAct, 1950 and vesting of such ponds and local areas in the Stateby Section 57 of the UP Revenue Code, 2006 would not by itselfeither change the nature of land contrary to revenue record norwill defeat the long-established rights of the local people oncommons. [Para 13] [227-C-D]

3. Industrial activities without any rationale classification,unlike the narrow class exempted under the Government Orderdated 3.6.16 do not serve a social public purpose or benefit thelocal people, and thus will be hit by the inalienability bar.[Para 17] [229-A]

4. Even otherwise, the action of the respondent-authoritiescontravenes their Constitutional obligations. Article 48-A of theConstitution casts a duty on the State to “endeavour to protectand improve the environment and to safeguard the forests and wildlife of the country”, and Article 51-A(g) expects every citizen toperform his fundamental duty to “protect and improve the naturalenvironment”. A perusal of the Constitutional scheme and judicialdevelopment of environmental law further shows that all personshave a right to a healthy environment. The State is nothing but acollective embodiment of citizens, and hence collective duties ofcitizens can constructively be imposed on the State. Therefore,it is the responsibility of the respondents to ensure the protectionand integrity of the environment, especially one which is a sourcefor livelihood for rural population and life for local flora and fauna.[Paras 18 and 19] [229-B-C; 230-A]

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A5. Protection of such village-commons is essential tosafeguard the fundamental right guaranteed by Article 21 of theConstitution. These common areas are the lifeline of villagecommunities, and often sustain various chores and provideresources necessary for life. Waterbodies, specifically, are animportant source of fishery and much needed potable water. ManyBareas of the country perennially face a water crisis and access todrinking water is woefully inadequate for most Indians. Allowingsuch invaluable community resources to be taken over by a fewis hence grossly illegal. [Para 20] [230-B-C]

6. The respondents’ scheme of allowing destruction ofCexisting water bodies and providing for replacements, exhibits amechanical application of environmental protection. Although itmight be possible to superficially replicate a waterbody elsewhere,however, there is no guarantee that the adverse effect ofdestroying the earlier one would be offset. The respondents’

Dreduction of the complex and cascading effects of extinguishingnatural water-bodies into mere numbers and their attempt tojustify the same through replacement by geographically largerartificial water-bodies, fails to capture the spirit of theConstitutional scheme and is, therefore, impermissible. Hence,it is clear that schemes which extinguish local waterbodies albeitEwith alternatives, as provided in the 2016 Government Order bythe State of UP, are violative of Constitutional principles and areliable to be struck down. [Paras 21 and 22] [230-D-H]

Chigurupati Venkata Subbayya v. Palaguda Anjayya(1972) 1 SCC 521 : [1972] 3 SCR 172 ; Hinch LalFTiwari v. Kamala Devi (2001) 6 SCC 496 : [2001]1 Suppl. SCR 23 ; Jagpal Singh v. State of Punjab(2011) 11 SCC 396 : [2011] 2 SCR 250 ; MC Mehta v.Union of India (1988) 1 SCC 471 : [1988] 2 SCR 530– relied on.

GCase Law Reference

[1972] 3 SCR 172relied onPara 13[2001] 1 Suppl. SCR 23relied onPara 15

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[2011] 2 SCR 250relied onPara 16A[1988] 2 SCR 530relied onPara 18

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5109of 2019.

From the Judgment and Order dated 06.03.2019 of the NationalGreen Tribunal, Principal Bench, New Delhi in O.A. No. 161 of 2017.

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A. N. S. Nadkarni, ASG, V. K. Shukla, Sr. Adv., S. S. Rebello,Bharat Singh, Ms. Arzu Paul, M. P. Gupta, Neeleshwar Pavani,Ms. Shivikka Agarwal, Ms. Riya Soni, G. S. Makker, Sanjeev KumarDubey, Rajmangal Kumar, Hitendra Nath Rath, Sanjay Dubey, VishalKaushik, Shiv Kumar, Vikash Sinha, Shiv Shankar, Rana SudershanBiswas, Jai Singh, Uttam Singh Negi, Avijit Roy, Pradeep Misra, SurajSingh, Ravindra Kumar, Advs. for the appearing parties.

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The Judgment of the Court was delivered by D

SURYA KANT, J.

1. The instant statutory appeal has been preferred under Section22 of the National Green Tribunal Act, 2010 (hereinafter “NGT Act”)against the order dated 06.03.2019 of the Principal Bench of the NationalGreen Tribunal (“NGT”), whereby appellant’s grievance against allotmentof local ponds to private industrialists has been dismissed summarilywithout any adjudication of the lis or merits, but merely on the basis ofan affidavit filed by Respondent No. 5 (Greater Noida IndustrialDevelopment Authority – hereinafter “GNIDA”) claiming that it wasdeveloping bigger alternative water-bodies.

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FACTUAL BACKGROUND

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2. The appellant is a permanent resident of village Saini, tehsilDadri, of district Gautam Budh Nagar, which falls in the National CapitalRegion. He claims to be a socially-active lawyer dedicated to betteringthe lives of his co-villagers and alleges that the Original Application beforethe NGT was triggered when around 18.01.2017 the agents of a privateentity (Respondent No. 6 - M/s Sharp Enterprises Pvt. Ltd. - hereinafter“Sharp”) using excavataors and other heavy machinery attempted toforcibly takeover possession of a ‘common-pond’, which had been inuse by local villagers for a century. This was objected to by the villagers, G

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Aand the appellant subsequently made a complaint on 25.01.2017 to variousauthorities including the District Collector. Pointing out revenue recordswhich elucidate the commons-status of the ponds, he sought directionsto restrain Sharp and its agents. However, there was no action on hisrepresentation for more than 10 days, leading to another attempt bySharp at dispossession, compelling the appellant to seek police help. ABfew days later, he submitted another representation to the Collector, butto no avail. Aggrieved, he was left with no recourse but to approach theNGT by way of an Original Application under Section 14 (read withSections 15 and 18) of the NGT Act for adjudication of theseenvironmental issues.C

3. Before the Tribunal, appellant contended that large tracts of hisvillage (but not the impugned water-bodies) had been acquired underthe Land Acquisition Act, 1894 ostensibly for industrial development byGNIDA. Subsequently, these acquired lands (including some local ponds)had been leased to private industrialists, including Sharp in 2012. UsingDrevenue records obtained under the UP Consolidation of Holdings Act,appellant showed that Khasra Nos. 552 (1140 sq meters) and 490 (8470sq meters) were ‘pokhar’ (pond) and Khasra Nos. 522 (1620 sq meters)and 676 (9804 sq metres) were ‘rajwaha’ (canal). Highlighting that thewater bodies were vested in the Gram Sabhas per Section 117 of the UPZamindari Abolition and Land Reforms Act, 1950, he contended thatEsuch land had neither been acquired, nor resumed and hence there wasno power with GNIDA to transfer the same to Sharp. He further claimedto have discovered other similar illegal allotments of water bodies byGNIDA to other third-parties.

4. The appellant urged that neither the mandatory environmentalFclearances under the Environmental (Protection) Act, 1984 had beenobtained by the industrialists nor the statutory authorities applied theirmind that the project would negatively impact the environment and humanhealth. Laying support on the Ramsar Convention and Rule 4 of theWetland (Conservation and Management) Rules, 2010 which prohibitedGreclamation of wetlands, setting up or expansion of industries, permanentconstruction or any other activity with potentially adverse effects onecosystem, he sought cancellation of such illegal allotments and protectionof water-bodies.

5. During pendency of the proceedings, GNIDA’s representativesHstarted filing up certain ponds and started developing an alternate area (1.25 times bigger) as a new waterbody to save the allotment made infavour of Sharp (as admitted in an additional affidavit filed before theNGT on 15.01.2019 by GNIDA).

6. Over the course of proceedings, the appellant was permitted toamend his prayers in the Original Application to enable challenge to allillegalities concerning village commons. No rejoinder or additional affidavitwas filed by any respondent against the amended Original Application.

7. The NGT vide its brief impugned order dated 06.03.2019 tooknote of this representation of constructing alternate pond and abruptlyconcluded that appellant’s substantial grievance had been redressed. Itaccordingly dismissed his application, without venturing into the meritsor the lis of the dispute.

CONTENTIONS OF PARTIES

8. This summary dismissal by the NGT has been challenged beforeus. Appellant raises grievance against the manner in which the NGT,without even looking at the sweep of his prayers, disposed off the materbefore it, merely on the strength of a proposed affidavit (which wasactually filed only on 12.03.2019, post adjudication of the application bythe NGT and without any advance copy to the appellant). He furtherprotests the haste with which his application was disposed of and howthe reluctance by the NGT to conduct even a proper enquiry has resultedin conferrment of illegal benefits to third-parties, at the cost to theenvironment and local residents.

9. The appellant contends that the disputed pond is situated nearthe Aravali hills which are in an arid zone with a low-water table. Hedemonstrated how the existing sparse flaura and fauna in the regionwas hence unlikely to survive elsewhere. Highlighting the uncheckedurbanisation and construction of concrete jungles in the ecologicallysensitive area, the appellant alleged that Respondent-authorities were inactive connivance with industrialists and real estate companies, werenegligently discharging their duties. This, he contended, violated publictrust and consequently the right to a wholesome environment guaranteedunder Article 21 of the Constitution. Interpreting Article 48A and Article51-A(g) to place a duty on the State to protect the environment, includinglakes and water-bodies, the appellant has sought intervention of this Courtto save and restore the local ponds.

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A10. Per contra, learned Counsel for GNIDA (Respondent No. 5)placed reliance on a Government Order dated 03.06.2016, which heclaimed permitted destruction of existing ponds and allotment of filled-up land to third-parties in certain extraordinary circumstances, with thestipulation that 25%-larger alternate water-bodies be developedelsewhere. Further, he questioned recording of Khasra Nos. 552 andB490 as ‘pokhar’ in revenue record, contending that it was merely ‘slightlylow lying land’ over which some water would get accumulated duringrainy season. There was statedly no water on the pond-land since thepast year, showing that it was merely ordinary in nature. Even if ‘pokhar’,Khasra Nos. 552 was only 1140 sq. meters in size, which constituted aCminiscule portion (only 1.4%) of the total allotted plot of 80,900 sq. meters.It was also explained that no other ‘pokhar’ had been included and KhasraNo. 490 had not been allotted to Sharp. GNIDA also put forth a contraryallegation that the appellant was, in fact, aggrieved by non-disbursementof compensation and had set up the entire dispute as a rouse to stalldevelopment of the area so that he could instead use it for his privateDpurpose of cattle grazing.

11. Sharp (Respondent No. 6) has averred that the disputed landwas no longer vested in the Gram Sabha as the UP Zamindari Abolitionand Land Reforms Act, 1950 had been repealed by the UP RevenueCode, 2006. This new Code specified that title of all lands includingElakes, ponds, tanks, streams and nallas vest in the State Government.Through Section 59 of the Code, the land was merely entrusted to theGram Panchayat, and the State retained power to alter such entrustmentat any time. It claimed to have paid Rs 25 crores as sale considerationfor leasehold rights over acquired areas and is allegedly suffering as aFresult of litigation-induced delays.

ANALYSIS & FINDINGS

12. At the outset, we must note, that the respondents have beenunable to demonstrate how the 2016 Government Order can be madeapplicable retrospectively, the possession having been given to Sharp inG2012. Notwithstanding this, no case of the present instance being anextraordinary circumstance (hence permitting recourse to the exceptionalprovisions of the Government Order) has been made before us either.Further, argument that Khasra No. 552 is a ‘slightly-sloped seasonalrainfall-catchment area’ and not a ‘pond’, is creative but without merit.

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Photographs have been placed on record by the appellant showing thatthere is substantial water in the pond, which has not been controverted.Further, revenue records maintained by the Revenue Departmentthemselves show that the land was ‘pokhar’. It is hence not open for theauthorities to contradict and plead against the record without any scientificor empirical support, for such categorisation had been made by them inthe past. Further, it was conceded by respondent-authorities duringarguments that Khasra No. 490 was also recorded as ‘pokhar’ in revenuerecords and that it too had been integrated in the industrial developmentproject.

13. Additionally, it is clear that repeal of the UP Zamindari Abolitionand Land Reforms Act, 1950 and vesting of such ponds and local areasin the State by Section 57 of the UP Revenue Code, 2006 would not byitself either change the nature of land contrary to revenue record norwill defeat the long-established rights of the local people on commons.Such a proposition had unequivocally been laid down in ChigurupatiVenkata Subbayya v. Palaguda Anjayya[1], where this Court negativeda contention that communal rights in the suit-land stood abolished perSection 3 of the Estates Abolition Act, 1948 for it provided that estates,including communal lands, would stand transferred to the Governmentfree from any encombrance. Further, it was held that even explicitdestruction of all rights and interests created by the principal orlandholders, would not apply to community rights as such rights originatedelsewhere.

14. Given that Section 22 of the NGT Act, 2010 specifies that thenature of the appeal shall be akin to a second appeal as specified underSection 100 of the Code of Civil Procedure, 1908, we would restrict ourdeliberation to a singular substantive question of law. That is, whether itis permissible for the State to alienate common water-bodies for industrialactivities, under the guise of providing alternatives?

15. In Hinch Lal Tiwari v. Kamala Devi[2], this Court settled that‘ponds’ were a public utility meant for common use and held that theycould not be allotted or commercialised. It had refused to give any weightto similar arguments of the pond having become levelled, with merelysome portion getting covered during rainy season by water. Importantly,it emphasised that:

1 (1972) 1 SCC 521.

2 (2001) 6 SCC 496.

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A“13. It is important to notice that the material resources ofthe community like forests, tanks, ponds, hillock, mountainetc. are nature’s bounty. They maintain delicate ecologicalbalance. They need to be protected for a proper and healthyenvironment which enables people to enjoy a quality life whichis the essence of the guaranteed right under Article 21 of theBConstitution. The Government, including the RevenueAuthorities i.e. Respondents 11 to 13, having noticed that apond is falling in disuse, should have bestowed their attentionto develop the same which would, on one hand, haveprevented ecological disaster and on the other provided betterCenvironment for the benefit of the public at large. Such vigilis the best protection against knavish attempts to seekallotment in non-abadi sites.”

16. This Court reiterated in Jagpal Singh v. State of Punjab[3]and noted that since time immemorial, certain common lands had vestedDin village communities for collective benefit. Except in exceptionalcircumstances when used exclusively for the downtrodden, these landswere inalienable. It was observed that such protections, however,remained on paper, and since Independence powerful people and a corruptsystem had appropriated these lands for personal aggrandisement. Pointingout the harms in allowing such misappropriation, the Court noted anEurgent public interest in stopping such misdeeds. Further, various directionswere issued for eviction of illegal occupants and restoration of thecommon land to villagers. It was explicitly specified that “long durationof such illegal occupation or huge expenditure in makingconstructions thereon” cannot be a “justification for condoning thisFillegal act or for regularising the illegal possession”.

17. It is uncontroverted, in the present case, that the GovernmentOrder dated 03.06.2016 was a consequence of the afore-cited judgmentin Jagpal Singh. Curiously, however, Clause 5 of the Government Ordercarves an exception of “huge projects/works” (albeit in extraordinaryGcircumstances) to Jagpal Singh’s strict principle of non-alienation ofcommon water-bodies. It is clear that such ground of exception doesn’tfall under the limited class of grants to “landless labourers or membersof the Scheduled Castes/Scheduled Tribes, or where there is alreadya school, dispensary or other public utility on the land”. Such H3 (2011) 11 SCC 396.

industrial activities without any rationale classification, unlike the narrowclass exempted, do not serve a social public purpose or benefit the localpeople, and thus will be hit by the inalienability bar.

18. Even otherwise, the action of the respondent-authoritiescontravenes their Constitutional obligations. Article 48-A of theConstitution casts a duty on the State to “endeavour to protect andimprove the environment and to safeguard the forests and wild lifeof the country”, and Article 51-A(g) expects every citizen to performhis fundamental duty to “protect and improve the natural environment”.A perusal of our Constitutional scheme and judicial development ofenvironmental law further shows that all persons have a right to a healthyenvironment. It would be gainsaid that the State is nothing but a collectiveembodiment of citizens, and hence collective duties of citizens canconstructively be imposed on the State. Such an interpretation of theConstitution has also been adopted in MC Mehta v. Union of India[4]wherein this Court mandated the State to ensure mandatoryenvironemental education to all school students in pursuance of thefundamental duties ensrined in Article 51-A(g):

“24. Having regard to the grave consequences of the pollutionof water and air and the need for protecting and improvingthe natural environment which is considered to be one of thefundamental duties under the Constitution (vide Clause (g)of Article 51Aof the Constitution) we are of the view that it isthe duty of the Central Government to direct all the educationalinstitutions throughout India to teach atleast for one hour ina week lessons relating to the protection and the improvementof the natural environment including forests, lakes, rivers andwildlife in the first ten classes. The Central Government shallget text books written for the said purpose and distribute themto the educational institutions free of cost. Children shouldbe taught about the need for maintaining cleanlinesscommencing with the cleanliness of the house both inside andoutside, and of the streets in which they live. Cleansurroundings lead to healthy body and healthy mind. Trainingof teachers who teach this subject by the introduction of shortterm courses for such training shall also be considered. Thisshould be done throughout India.”

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A19. There remains therefore no doubt that it is the responsibilityof the respondents to ensure the protection and integrity of theenvironment, especially one which is a source for livelihood for ruralpopulation and life for local flaura and fauna.

20. Protection of such village-commons is essential to safeguardBthe fundamental right guaranteed by Article 21 of our Constitution. Thesecommon areas are the lifeline of village communities, and often sustainvarious chores and provide resources necessary for life. Waterbodies,specifically, are an important source of fishery and much needed potablewater. Many areas of this country perennially face a water crisis andaccess to drinking water is woefully inadequate for most Indians. AllowingCsuch invaluable community resources to be taken over by a few is hence grossly illegal.

grossly illegal.

21. The respondents’ scheme of allowing destruction of existingwater bodies and providing for replacements, exhibits a mechanicalapplication of environmental protection. Although it might be possible toDsuperficially replicate a waterbody elsewhere, however, there is noguarantee that the adverse effect of destroying the earlier one would beoffset. Destroying the lake at Khasra Nos. 552 and 490, for example,would kill the vegetation around it and would prevent seepage ofgroundwater which would affect the already low water-table in the area.EThe people living around the lake would be compelled to travel all theway to the alternative site, in this case allegedly almost 3 kms away.Many animals and marine organisms present in the earlier site wouldperish, and wouldn’t resuscitate by merely filling a hole with waterelsewhere. Further, the soil quality and other factors at the alternate sitemight not be conducive to growth of the same flora, and the localFenvironment would be altered permanently. The respondents’ reductionof the complex and cascading effects of extinguishing natural water-bodies into mere numbers and their attempt to justify the same throughreplacement by geographically larger artificial water-bodies, fails tocapture the spirit of the Constitutional scheme and is, therefore,Gimpermissible.

22. Hence, it is clear that schemes which extinguish localwaterbodies albeit with alternatives, as provided in the 2016 GovernmentOrder by the State of UP, are violative of Constitutional principles andare liable to be struck down.

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23. For the reasons stated above, we allow the appeal and setaside the impugned order passed by the NGT. The allotment of all waterbodies (both ponds and canals), including Khasra Nos. 552 and 490 toRespondent No. 6, or any other similar third party in village Saini, tehsilDadari, district Gautam Budh Nagar is held to be illegal and the same ishereby quashed. Since this Court has on 15.07.2019 already directedthe parties to maintain status quo, Respondent Nos. 1 to 5 shall restore,maintain and protect the subject-water bodies in village Saini. Respondentsare further directed to remove all obstructions from the catchment areathrough which natural water accumulates in the village ponds, all withina period of three months.

Kalpana K. Tripathy

Appeal allowed.

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