Gauhati High Court
WP(C)/7397/2018 on 7 December, 2021
GAHC010140832019
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
1. PIL No. 38/2019
Shri Jitul Deka,
General Secretary, Asomiya Yuva Mancha,
Son of Shri Karuna Deka,
resident of AT Telecom, Kunja Commercial Complex,
Maligaon, Guwahati, Assam, Pin-781012.
......Petitioner.
-Versus-
1. The State of Assam,
represented by Chief Secretary,
Government of Assam, Dispur, Guwahati.
2. The Union of India,
represented by Secretary, Ministry of Environment and Forest,
Paryavaran Bhawan, C.G.O. Complex,
Lodhi Road, New Delhi-110003.
3. The Chief Conservator of Forest,
Regional Office, Ministry of Environment and Forest (NEZ),
Upland Road, Laitmukhrah, Shillong-793003.
4. The Secretary,
Department of Environment,
Government of Assam, Guwahati.
5. The Chief Conservator of Forest (T),
Central Assam Circle, Basistha Forest Complex,
Guwahati-781029.
6. The Deputy Commissioner,
PIL 38/2019
WP(C) 7397/2018 Page - 1 of 17
Kamrup Metropolitan District, Guwahati.
7. The Circle Officer,
Guwahati Revenue Circle, Kamrup, Guwahati.
8. The Guwahati Development Authority,
represented by the Commissioner & Secretary, Janata Bhavan,
'D' Block, 2nd Floor, Dispur, Guwahati-6.
9. The Guwahati Municipal Corporation,
represented by the Commissioner,
Panbazar, Guwahati.
10. The Guwahati Metropolitan Development Authority,
represented by the Commissioner, Bhangagarh, Guwahati.
11. Shrishti Infrastructure Development Corporation Limited,
A company incorporated under the Companies Act, 1956,
having its registered office at Plot No.X-1, 2 & 3, Block-EP,
Salt Lake City, Sector-V, P.O.-Sech Bhawan,
Police Station-Electronic Complex, Kolkata-700091.
......Respondents.
12. The Central Bureau of Investigation,
represented by the Director, Block No.3, CGO Complex,
Lodhi Road, New Delhi-110003.
......Proforma Respondent.
For the Petitioner: Mr. K. Choudhury,
Mr. K.M. Mahanta,
Mr. M. Smith. ......Advocates.
For the Respondents: Mr. R.K. Dev Choudhury, ASGI,
Mr. S. Bora, SC, GMDA & GMC,
Mr. K.P. Pathak, SC, Forest,
Ms. M. Bhattacharjee, GA, Assam,
Mr. S.C. Keyal, SC, CBI. ......Advocates.
PIL 38/2019
WP(C) 7397/2018 Page - 2 of 17
2. WP(C) No. 7397/2018
Shrishti Infrastructure Development Corporation Limited,
A company incorporated under the Companies Act, 1956,
having its registered office at Plot No.X-1, 2 & 3, Block-EP,
Salt Lake, Sector V, PO-Sech Bhawan, Police Station-Electronic Complex,
Kolkata-700091,
represented by Shri Nayan Basu, Project Head.
......Petitioner.
-Versus-
1. The State of Assam,
represented by Addl. Chief Secretary, Government of Assam,
Revenue Department, Dispur, Guwahati.
2. The Commissioner & Secretary,
Government of Assam, Revenue Department,
Dispur, Guwahati.
3. The Deputy Commissioner,
Kamrup Metropolitan District, Guwahati.
4. The Circle Officer,
Guwahati Revenue Circle, Kamrup, Guwahati.
5. The Guwahati Development Department,
represented by the Commissioner & Secretary,
Janata Bhavan, 'D' Block, 2nd Floor,
Dispur, Guwahati-6.
6. The Guwahati Metropolitan Development Authority,
represented by the Chief Executive Officer,
Bhangagarh, Guwahati-5.
......Respondents.
For the Petitioner: Dr. A. Saraf (Sr. Adv.),
Mr. A. Goyal,
Mr. A. Choudhury. ......Advocates.
For the Respondents: Mr. R.K. Borah, GA, Assam,
Mr. S. Bora, SC, GDD,
Mr. R. Borpujari, SC, Revenue. ......Advocates.
PIL 38/2019
WP(C) 7397/2018 Page - 3 of 17
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of Hearing & Judgment : 7th December, 2021
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.]
The matter is taken up in hybrid mode.
2. Heard Mr. K. Choudhury, learned counsel for the petitioner in PIL
No.38/2019 and Dr. A. Saraf, learned Senior counsel for the petitioner in WP(C)
No.7397/2018. Also heard Ms. M. Bhattacharjee as well as Mr. R.K. Borah,
learned Additional Senior Government Advocates, Assam; Mr. R.K. Dev
Choudhury, learned Assistant Solicitor General of India; Mr. R. Borpujari,
learned standing counsel, Revenue Department; Mr. K.P. Pathak, learned
standing counsel, Forest Department; Mr. S.C. Keyal, learned standing counsel,
CBI and Mr. S. Bora, learned standing counsel, GMC/GMDA/GDD appearing for
the respondents.
3. These two petitions, PIL No.38/2019 and WP(C) No.7397/2018 have
been taken up together considering the fact that issues raised in these petitions
are closely related.
PIL 38/2019
WP(C) 7397/2018 Page - 4 of 17
4. It may not be necessary to go in detail to the facts of the petitions. It will
suffice if the following essential facts are mentioned in brief.
5. The petitioner, Shristi Infrastructure Development Corporation Limited, in
WP(C) No.7397/2018, filed the writ petition challenging the orders dated
12.03.2018 and 31.03.2018, issued by the District Magistrate, Kamrup
Metropolitan District, Guwahati, to stop all construction activities in Shristi
Nagar Complex with immediate effect and also to give effect to the order dated
10.08.2018 passed by the Joint Secretary to the Government of Assam,
Guwahati Development Department directing the Deputy Commissioner,
Kamrup(M) to withdraw the 'stop construction' order issued earlier to the
petitioner.
6. The petitioner Shristi Infrastructure Development Corporation Limited,
was given permission to develop a project called "Shristinagar" on a plot of land
lying and situated at Dag No.31, Patta No.1 of village Kharghuli Non-Cadastral
(Rajabari) F.C. Grant, under Mouza-Beltola, District-Kamrup now Kamrup(Metro)
in the State of Assam and Dag No.1(old) 1, 3 and 4(new) of Periodic Patta No.1
of Clearance Grant under Ulubari Mouza, District-Kamrup now Kamrup(Metro) in
the State of Assam. The said project comprises of providing mass housing,
school, hospital, commercial, social infrastructures, etc., which was permitted
vide official letter dated 10.08.2009 issued by the Ministry of Environment &
Forests, Government of India as well as the order dated 07.06.2010 issued by
PIL 38/2019
WP(C) 7397/2018 Page - 5 of 17
the Guwahati Metropolitan Development Authority by approving the master plan
for the said township subject to the conditions mentioned in the said approval
letter dated 07.06.2010.
7. According to the writ petitioner, the Pollution Control Board of Assam
also consented for establishing the said township vide their letter dated
06.09.2013. The petitioner contends that after obtaining necessary permission
from the concerned authorities the petitioner started construction of the
township. It may be pertinent to mention herein that the office of the District
Magistrate, Kamrup Metropolitan District also vide order dated 23.11.2015 had
given clearance for undertaking construction works in the location in issue
provided that there be no hill cutting except for dressing and levelling,
provisions of Assam Hills Land and Ecological Sites (Protection and
Management) Act, 2006 as well as guidelines in respect of hill roads as laid
down by the Indian Road Congress be adhered to, and there shall not be no
fresh earth cutting under any circumstances and also the Circle Officer,
Guwahati Revenue Circle will supervise and monitor the day to day excavation
work to ensure that such work is done properly and he will also submit progress
of the work to the Deputy Commissioner on day to day basis. The DFO, Kamrup
East Division was also directed to supervise and monitor the day to day
excavation work.
8. According to the writ petitioner, the aforesaid work was going on
PIL 38/2019
WP(C) 7397/2018 Page - 6 of 17
smoothly. However, on alleged violation by the petitioner company of the
aforesaid norms laid down by the authorities, based on certain media reports, a
PIL came to be filed before this Court, which was registered as PIL No.38/2019.
In the said PIL, the concern was raised that the area which was located in the
hillside of Kharghuli with tree/forest coverage, could not have been allowed to
be developed in the manner done without adhering to the norms as well as
without proper examination of the environmental issues and also without
ensuring that the forest areas are properly preserved.
9. It was alleged in the PIL that the petitioner company is resorting to
indiscriminate cutting of hills leading to destruction of hills and forest coverage
in contravention of the Assam Hills Land and Ecological Sites (Protection and
Management) Act, 2006. The aforesaid Act provides for, preservation,
protection, regulation, acquisition and maintenance of hill, land and other
ecological sites of the State, more specifically within the jurisdiction of Guwahati
Municipal Corporation. The said Act defines "hill land" as any land covered by
hillocks or hills and includes any local area, which is not reserved forest or a
sanctuary declared under any forest law for the time being. The said Act
prohibits any damage and destruction in the designated area. The Government
on the basis of report of the advisory committee constituted under the Act can
declare any hill or ecological site as a designated area, by notification published
in the official Gazette. It has been also provided under Section 15 of the Act
PIL 38/2019
WP(C) 7397/2018 Page - 7 of 17
that if in the opinion of the Government any particular area within the meaning
of hill land or ecological sites, which are not declared as designated area, is
threatened with destruction by reason of commercial, industrial or other
development activities, the Government may order the stoppage of such
activities involved in the area and direct the advisory committee to submit
reports regarding the declaration of the area as designated area.
10. It has been highlighted in the PIL that the location where the present
project is being undertaken by the petitioner company, is a hill area and even if
it is not declared as a designated area, the Government can certainly issue
necessary directions to preserve the same, which has been done by the office
of the District Magistrate, Kamrup Metropolitan District, on 23.11.2015.
However, contrary to the said directions issued, hill cutting has been going on
destroying the forest coverage as well as the hills. In the PIL, other issues also
have been raised that the competent authorities had not properly applied their
mind while giving permission to the petitioner company to undertake the
aforesaid project and in fact they had been collusive with this company in
allowing to undertake such a project.
11. In this regard, it may be pertinent to refer to a joint meeting held in the
presence of the representatives of the petitioner company and other
functionaries of the State Government presided over by the Principal Secretary,
Guwahati Development Department on 29.09.2018. In the said meeting the
PIL 38/2019
WP(C) 7397/2018 Page - 8 of 17
Chief Conservator of Forest(T), Central Assam Circle, Deputy Commissioner,
Kamrup(M), representatives of the GMDA were also present. In the said joint
meeting, after considering the various issues relating to the said project, certain
decisions were taken.
12. In our view, it may be appropriate to reproduce the minutes of the
meeting, as it would have a bearing on the decision of these two petitions.
Accordingly, the minutes of the meeting held on 29.09.2018 are reproduced
hereinbelow:-
"List of members attended is enclosed as Annexure-I.
The meeting was presided over by the Principal Secretary, GDD. He welcomed
the members present in the meeting. The representative of M/s Shristi Infrastructure
Development Corporation made a brief presentation on the construction of the new
township "Shrishti Nagar" at Chunchali, Guwahati. They stated that the project has been
instrumental in generating employment opportunity besides developing social
infrastructure. However, the project came to a standstill in March, 2018 due to "Stop
construction" notice by the Deputy Commissioner Kamrup(M).
The Chief Conservator of Forest (T), Central Assam Circle stated that as the
concerned area appears to have a good tree cover, it would attract the Forest
Conservation Act, 1980 as per the order of the Hon'ble Supreme Court. Hence, a
scientific survey needs to be conducted to ascertain whether the area of interest may fall
under the category of "Deemed Forest" i.e. a compact block of area with stipulated No.
of trees per hectare.
The Deputy Commissioner, Kamrup(M) stated that Guwahati Metropolitan
Development Authority (GMDA) should thoroughly monitor the project from every
PIL 38/2019
WP(C) 7397/2018 Page - 9 of 17
perspective such as Earth Cutting and adherence to all existing laws.
The representative of GMDA stated that the concept of "Deemed Forest" did not
arise during the preparation of the Technical Committee report referred therein.
The Chief Conservator of Forest (T), Central Assam Circle has opined that the
Ministry of Environment, Forest and Climate Change (MoEF&CC) shall have to accord
permission which subsequently need to be verified by the DFO.
The Principal Secretary, GDD stressed on the immediate need to ascertain
whether the land falls under the "Deemed Forest" category.
The Chief Conservator of Forest (T), Central Assam Circle also informed that
each cutting can be carried out upto a maximum height of 9(nine) feet from the hill-top.
It has to be ascertained whether there has been a violation of any Act while carrying out
the Earth cutting activity.
After threadbare discussion the following resolution were taken:
1. The Chief Conservator of Forest(T), Central Assam will make a survey
and confirm whether the area of interest falls under the category of
"Deemed Forest". This should be done within a month time.
2. Deputy Commissioner, Kamrup(M) has to ascertain whether there has
been a violation of any Act while carrying out the Earth Cutting activity.
3. NOC from Pollution Control Board, Assam shall have to be re-validated
after proper examination.
4. The CCF suggested that the party may like to move for conversion of the
area of interest if it falls under the "Deemed Forest" category.
The meeting ended with a vote of thanks from the Chair.
Sd/- (Ajay Tewari, IAS)
Principal Secretary to the Govt. of Assam
PIL 38/2019
WP(C) 7397/2018 Page - 10 of 17
Guwahati Development Department"
13. From the above, it is clearly evident that the authorities were concerned
about the activities being carried out by the petitioner company and to ensure
preservation of forest land, the aforesaid resolutions were taken, which are also
the issues raised in the PIL.
14. As per the first resolution i.e. requiring the Chief Conservation of Forest
(T), Assam to make a survey and to confirm whether the area of interest falls
under the category of "Deemed Forest", which was required to be done within a
month's time, it has been pointed out that the Chief Conservator of Forest (T)
did make a survey, as can be seen from the communication dated 16.03.2020
from the Divisional Forest Officer, Kamrup East Division, Basistha, to the
Commissioner, Guwahati Municipal Corporation, in which it has been mentioned
that a team of officers constituted from the said Division had conducted the
field survey during the month of February, 2020 and enumerated the entire
standing trees in the plot of land developed by the petitioner company covered
by Dag No.1, 3 & 4 of Patta No.1 under Revenue Village Clearance Garden of
Ulubari Mouza and the team had marked the trees in the entire plot of land and
found 7370 numbers of naturally grown trees and 1543 numbers of planted
trees in the entire plot of land where Shristinagar construction is involved and
there were 73 numbers of naturally grown trees per hectare in the plot.
15. It was also mentioned that as per Hon'ble Supreme Court's order dated
PIL 38/2019
WP(C) 7397/2018 Page - 11 of 17
12.12.1996 and as notified vide Govt. of Assam, Forest Notification
No.FRM.88/2001/77 land is to be treated as deemed forest if continuous patch
of 10 hectares or more having not less than 200 naturally grown trees per
hectare on an average are found and accordingly, the survey team gave the
opinion that the plot of land where Shristinagar construction is going on may
not qualify as forest.
16. Thus, it appears that the aforesaid first resolution was duly examined
and considered on the basis of the report by the competent authority that it
does not fall under the category of "Deemed Forest".
17. As regards the 2nd resolution requiring the Deputy Commissioner,
Kamrup(M), to ascertain as to whether there has been violation of any Act while
carrying out the earth cutting activity, it has been contended by learned Senior
counsel for the petitioner company that nothing has been brought on record by
any of the authorities of carrying out any illegal activity. It has been submitted
on behalf of the petitioner company that in fact, after the order of stoppage of
construction was issued by the District Magistrate, Kamrup Metropolitan District,
which was challenged in the writ petition, the petitioner company had not
undertaken any earth cutting activity and as such, the question of violation of
the Act does not arise, emphasizing that on earlier occasion also, there was no
such occasion of any violation of the Act.
PIL 38/2019
WP(C) 7397/2018 Page - 12 of 17
18. As regards this, in absence of any factual finding by the competent
authority, which would show away such illegal activity, we would not like to
make any further observation.
19. Coming to the 3rd resolution for obtaining NOC from the Pollution Control
Board of Assam, which is required to be re-validated after proper examination,
it has been submitted by Dr. A. Saraf, learned Senior counsel for the petitioner
company that at the relevant time, the No Objection Certificate issued by the
Pollution Control Board was valid upto 06.09.2021 and even if it is expired now,
during the pendency of this petition, the petitioner company will certainly apply
for extension of the same and accordingly, had applied and the petitioner
company will undertake the construction activities only after getting the NOC
from the Pollution Control Board.
20. As regards the last resolution containing the suggestion of the Chief
Conservator of Forest (T) that the party may like to move for conversion of the
area of interest if it falls under "Deemed Forest" category, it has been submitted
on behalf of respondent No.5 that the land in question is covered by periodic
pattas and since it is a revenue land, it cannot be classified as a forest land.
21. Thus, from the above resolutions and the actions taken thereafter, we
are of the view that the concern raised in the PIL had been addressed and
without any contrary material in that regard, which have not been brought to
PIL 38/2019
WP(C) 7397/2018 Page - 13 of 17
our notice, it would not be appropriate for us to intervene.
22. As regards the apprehension raised by the petitioner in PIL that certain
officials had collusively with the petitioner company and without proper
application of mind had issued the various orders and permits, we are of the
view that in absence of any supporting materials in that regard, it may not be
appropriate for us dwell into this aspect, as it is easy to allege malafide but
difficult to prove it.
23. The joint meeting was held on 29.09.2018 in presence of representatives
of various authorities and from the actions taken thereafter, we do not see that
there has been any irregularity in the activities undertaken so far.
24. What we have also noted is that the Assam Hill Land and Ecological Sites
(Protection and Management) Act, 2006 is applicable when a particular hill land
has been designated as a 'designated area', as notified by the Government
under Section 4 of the Act, which can be done on its own motion or on receipt
of a report from the Advisory. Any Hill land or ecological site can be declared as
designated area where the provisions of the aforesaid Act of 2006 will be
applicable. That apart, in respect of any area, which is not declared as a
designated area, if in the opinion of the Government any particular area within
the meaning of hill land or ecological site is threatened with destruction by
reason of commercial, industrial or other development activities, the
PIL 38/2019
WP(C) 7397/2018 Page - 14 of 17
Government may order the stoppage of such activities in whole in that area and
direct the Advisory Committee to submit reports regarding declaration of the
area as 'designated area', as provided under Section 15 of the Act.
25. In the present case, the aforesaid area in which the petitioner is
executing the project, does not come within the 'designated area'. However,
that will not prevent the State Government from issuing appropriate orders
under Section 15 of the Act.
26. Of course, we have noted that the Deputy Commissioner vide order
dated 23.11.2015 had issued certain directions prohibiting hill cutting except
dressing and leveling, ensure following of the provisions of the Assam Hills Land
and Ecological Sites (Protection and Management) Act, 2006 as well as
guidelines issued in respect of hill roads as laid down by the Indian Road
Congress and also prohibiting any fresh earth cutting to be allowed in any
circumstances. We are of the view that even if the said area does not fall under
the designated area, the aforesaid directions can still be issued for preserving
any hill area. The aforesaid directions were issued based on certain report
submitted by the Circle Officer, Guwahati Revenue Circle vide letter dated
21.11.2015 as well as the order of the CEO, GMDA, Bhangagarh, Guwahati,
vide order dated 07.10.2015 and the petition submitted by Nayan Basu, Head,
Shristinagar, Noonmati, Guwahati, dated 07.10.2015.
PIL 38/2019
WP(C) 7397/2018 Page - 15 of 17
27. We have noted that the directions issued by the Joint Secretary to the
Government of Assam, Guwahati Development Department on 10.08.2018 to
the Deputy Commissioner that the Government after having examined the
matter has intimated that the Government has no objection to the execution of
the project provided that the above mentioned real estate developer adheres to
the prescribed Government rules, norms and conditions laid down by technical
committee, which was prior to the joint meeting held on 29.09.2018.
Subsequently, all the concerned authorities held a meeting on 29.09.2018
where the issues relating to the project was discussed and certain actions
taken.
28. Accordingly, we do not find any reason which would warrant interference
of this Court in implementation of the aforesaid project by the petitioner
company. However, it goes without saying that while executing the project, the
petitioner company is to strictly adhere to all the Government rules, norms and
conditions laid down by the authorities or competent authorities including the
Guwahati Metropolitan Development Authority as well as the Pollution Control
Board, Assam and also the State Environment Impact Assessment Authority and
any such deviation should be strictly dealt with in accordance with law.
29. We are also of the view that the State Government can certainly invoke
provisions under Section 15 of the 2006 Act in respect of the project area, even
if it is not declared a designated area. Though the petitioner in the PIL had
PIL 38/2019
WP(C) 7397/2018 Page - 16 of 17
alleged that hill land had been destroyed by way of hill cutting, which has been
denied by the respondents, we are of the view that the State Government can
still examine this issue and pass appropriate orders in spite of closing of the PIL
and the writ petition.
30. For the reasons discussed above and with the above observations, we
close the PIL No.38/2019 and allow the writ petition being WP(C)
No.7397/2018.
Sd/- Malasri Nandi Sd/- N. Kotiswar Singh
JUDGE JUDGE
Comparing Assistant
PIL 38/2019
WP(C) 7397/2018 Page - 17 of 17
