M.C. Mehta Vs. Union of India & Ors. [September 11, 2018]
2018 Latest Caselaw 633 SC

M.C. Mehta Vs. Union of India & Ors.

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

In Re: Kant Enclave matters With I.A. Nos. 2310-2311 IN W.P. (C) No. 202/1995

Madan B. Lokur, J.

1. The principal question that arises in this 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 as forest land. If so, whether construction carried out by the applicant R. Kant & Co. on this land is in contravention of the notification dated 18th 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. We have no doubt that land notified by the State of Haryana under the provisions 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 of Haryana. There is no reason to change or alter the factual or legal position. The construction activity carried out by the applicant R. Kant & Co. is clearly in violation of the notification dated 18th August, 1992 and in blatant defiance of orders passed by this Court from time to time. Unfortunately, the Town & Country Planning Department of the State of Haryana has been supporting the illegalities of the applicant despite strong 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 comes out in very poor light and must be held accountable for its conflicting and self-destructive stand taken in spite of affidavits filed by the Chief Secretary of the State of Haryana from time to time supporting the Forest Department.

3. The unfortunate and distressing consequence of this is that because of a complete lack of any concern for the environmental and ecological degradation carried out in the Aravalli hills by influential colonizers like the applicant and what appears to be a very strong mining lobby 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 for this environmental degradation, but even the present generation is paying a heavy price for the environmental and ecological degradation inasmuch as there is an acute water shortage in the area as prophesied by the Central Ground Water Board. In addition, what was once a popular tourist destination, namely, Badkal Lake has now vanished and the entire water body has become bone dry. What are the more severe consequences that will be felt in the years to come, only time and nature will tell.

Brief background

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

"23. Power to exempt- If the Government is of the opinion that the operation of any of the provisions of this Act causes undue hardship or circumstances exist which render it expedient so to do, it may, subject to such terms and conditions as it may impose, by a general or special order, exempt any class of persons or areas from all or any of the provisions of this Act."

5. The validity of the exemption is not before us and so we need not delve into the reasons for the exemption. Be that as it may, it appears that the applicant did not comply with the terms and conditions imposed upon it and therefore a show cause notice was issued for withdrawal of the exemption. The applicant contested the show cause notice and a hearing was given by the Chief Minister of Haryana being the Minister-in-charge of the Town & Country Planning Department. By an order dated 11th July, 1990 the show cause notice was dropped but some further terms and conditions were imposed on the applicant. It is important to note that one of the issues mentioned by the Chief Minister in his order related to the availability of water. The significance of this will be adverted to a little later. For the present, it may be noted that the order recorded in paragraph 9 is as follows:

"Director, Town & Country Planning Department further inquired as to whether any technical as well as physical studies have been undertaken with regard to the availability of the potable water to meet the requirement of this population for the next 20 to 25 years. In reply to the query of the Director, Town & Country Planning Department with regard to the proposed density of the Complex and the manner in which the requirements of drinking water is proposed to be met with, the representative of the Company explained that they have already got a hydrological survey done for the area from which it has emerged that in 2/3rd of the site, there are aquifers available at the deeper level which would be fully exploited to meet the demand of the water supply for the proposed population of about 30,000.

The Director Town & Country Planning Deptt. observed that as the company is required to maintain the studio-cum-allied complex for a period of five years after its completion, the span of availability of the water from the aquifers is of paramount because ultimately the responsibility for upkeep and maintenance of this particular complex would vest with the Faridabad Complex Administration or any other Local Authority. Hence, the company should keep this particular aspect in view."

[Emphasis supplied by us].

6. It took quite some time for the applicant to accept the terms and conditions imposed by the Chief Minister in his order dated 11th July, 1990. Eventually, the applicant accepted the terms and conditions and entered into an agreement on 27th March, 1992 with the State of Haryana. One of the terms and conditions of the agreement was that the applicant would complete the entire project of a Film Studio and Allied Complex within a period of five years; extensions for the area earmarked for group housing could be considered on merits. It is nobody's case that the entire project was completed within a period of five years and there is nothing on record to suggest that any extension was granted to the applicant for group housing.

Notification under the PLP Act and other developments

7. The issue of environmental degradation in the Aravalli hill areas as well as in the Shivalik hill areas was a matter of concern for the State of Haryana, as it should be. In this regard, meetings were held and decisions taken for closing the area between Surajkund and Badkal Lake under the provisions of the PLP Act. The overall objective of these discussions and the reference to the PLP Act was for preventing environmental and ecological degradation of the area due to mining and quarrying as well as construction activity.

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

9. It appears from a reading of the documents before us (particularly a letter dated 9th June, 1993 sent by the Deputy Conservator of Forests, Faridabad to the Chief Administrator, Faridabad Complex Administration, the Administrator of the Haryana Urban Development Authority and the District Town Planner, Faridabad) that sometime in 1988 the State of Haryana constituted a High-Level Committee for the development of the area between and around Badkal Lake and Surajkund Tourist Complexes. It further appears that the High-Level Committee held several meetings between August 1988 and 1990 and apparently a Report was submitted recommending that the Aravalli hill area between these two complexes should be brought under the provisions of the PLP Act. This seems to have resulted in the issuance of a notification dated 18th August, 1992 under the provisions of Section 4 of the PLP Act. We had requested learned counsel for the State of Haryana to provide us with a copy of the Report and the recommendations but they have not been provided, for whatever reason.

10. The notification prohibited, inter alia, clearing or breaking up of land not ordinarily under cultivation. Permission to break the land for cultivation could be permitted by the Divisional Forest Officer, Faridabad Forest Division. In any event, construction activity could not be permitted even by the Divisional Forest Officer.

11. We may note that one of the reasons that appears to have weighed with the State of Haryana in permitting the breaking up of land for cultivation is because Haryana is a predominantly agricultural State with 83% of the total land area under cultivation. This is to be found in the affidavit dated 25th February, 1997 of Shri S.K. Maheshwari, IAS, Commissioner & Secretary to the Government of Haryana filed in this Court in the case of T.N. Godavarman v. Union of India.1 In any event, as mentioned above, construction activity could not be permitted even by the Divisional Forest Officer.

12. The notification dated 18th August, 1992 (which included the land 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 of Haryana is satisfied after the due enquiry that the prohibitions hereinafter contained are necessary for the purpose of giving effect to the provisions of the Punjab Land Prevention Act, 1900;

Now, therefore in exercise of the powers conferred by section 4 of the said Act, the Governor of Haryana hereby prohibits the following acts for a period of thirty years(30 years) with effect from the date of publication of this order in the official Gazette in the areas specified in the schedule annexed hereto, the said area forming part of the village Anangpur in Ballabhgarh, Tehsil Faridabad District specified in the schedule annexed Haryana Government Forest Department Notification No.S.O.59/P.A. -2/1900/S.3/92, dated 10th April, 1992.

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

2. The quarrying of stones or the burnings of lime at place where such stone or lime had not ordinarily been as quarried or burnt prior to the publication of the said notification except with the permission of the Collector of Faridabad District who will consult the Divisional Forest Officer, Faridabad Forest Division before according such permission.

3. The cutting of trees or timber or the collection or removal or subjection to any manufacturing process of any forest produce other than grass, flower, fruit and honey save for the bona fide domestic or agricultural purpose of right holders in the land provided that owners of the land may sell trees or timber after first obtaining a permit to do so from the Divisional Forest Officer, Faridabad Forest Division. Such permit will prescribe such conditions for sale as may from time to time appear necessary in the interest of forest conservancy.

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

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

13. In a parallel exercise, steps were taken by the State of Haryana for publishing a Development Plan for Faridabad. As a result of this exercise, the State of Haryana notified the Final Development Plan on 11th December, 1991 under Section 29 of the Faridabad Complex (Regulation and Development) Act, 1971. One of the factors mentioned in the notification justifying the necessity for amendment of the Development Plan was the rapid increase and scarcity of urbanizable area in Delhi and the rising population in the National Capital Region.

14. Also, in the meanwhile, it appears that on the basis of the exemption granted to the applicant in 1984, the Town & Country Planning Department encouraged the applicant to go ahead with its activity of colonisation of the land owned by it having an area of about 424.84 acres. The applicant prepared a layout plan for a Film Studio and Allied Complex which appears to have been approved by the Town & Country Planning Department subject to certain terms and conditions on or about 19th December, 1991.

15. Therefore, the position as it stood towards the end of August 1992 was that the applicant had the benefit of an exemption under Section 23 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 land owned by it in village Anangpur; the layout plan prepared by the applicant was approved by the Town & Country Planning Department and was apparently in conformity with the Development Plan for Faridabad and finally, the applicant had entered into an agreement with the State of Haryana to complete its project of a Film Studio and Allied Complex within 5 years.

On the other hand, environmental and ecological degradation in the entire area (which included the land owned by the applicant) was sought to be prevented by the State of Haryana through a statutory notification issued by the Forest Department under the provisions of the PLP Act. There was, therefore, a dichotomy of views and a conflict of interest between two Departments of the Haryana Government - one favouring colonization and the other favouring environmental protection and conservation.

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

17. This concern was voiced, amongst others, by the Principal Chief Conservator of Forests who sent a communication to the Commissioner & Secretary of the Forest Department on 31st August, 1992 inquiring whether permission for setting up a Film Studio and Allied Complex by the applicant could be issued or not. The Principal Chief Conservator of Forests mentioned in his communication that prior permission of the Central Government was compulsory for change of land use.

The reason why the Principal Chief Conservator of Forests mentioned about prior mandatory permission of the Central Government is because he believed that with the issuance of the notification under the provisions of the PLP Act, the subject land was a forest or in any event was required to be treated as a forest and therefore, under the provisions of the Forest (Conservation) Act, 1980 the permission of the Central Government was required for carrying on a non-forest activity in a forest. We will advert to this issue a little later.

18. The Principal Chief Conservator of Forests was given a somewhat casual response to the effect that he could take appropriate action according to norms.

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

20. Eventually on 15th May, 1996 the Conservator of Forests wrote to the applicant that it was allowed to proceed ahead with its activities in accordance with the agreement signed with the State of Haryana on 27th March, 1992. Perhaps this permission was granted keeping in mind that the applicant was required to complete the development works within a period of five years and also submit a bank guarantee for executing such development works in terms of the agreement dated 27th March, 1992. This 'permission' was ex facie contrary to the statutorily notified prohibitions under the PLP Act.

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

Initial set of orders passed by this Court

22. Around this time, a public interest litigation M.C. Mehta v. Union of India2 was pending in this Court regarding issues of deforestation coupled with other environmental issues.

23. On 10th May, 1996 this Court passed a rather significant order relating 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 Pollution Control Board and another by the National Environmental Engineering Research Institute in respect of environmental degradation and pollution in the eco-sensitive zone in the Aravalli hills. By the order dated 10th May, 1996 this Court prohibited mining within a 2 km radius of Badkal Lake and Surajkund and construction activity of any type within a radius of 5 km from Badkal Lake and Surajkund.3 In fact, all open areas were directed to be converted into green belts. As a result of this, the applicant obviously could not carry out any activities in the land owned by it, where it had proposed to establish a Film Studio and Allied Complex. The prohibition imposed by this Court was obviously in addition to the prohibition imposed by the notification issued under the PLP Act. It is quite likely that this Court was not even made aware of the notification under the PLP Act.

24. The order passed by this Court on 10th May, 1996 was sought to be modified/clarified by the Executive in Haryana on the ground that in the prohibited 5 km radius, buildings were under construction, plots had been allotted/sold under various development schemes and the plot holders had even started construction. Consequently, the vested rights of several persons were likely to be affected thereby causing them a huge financial loss.

25. After hearing learned counsel for the parties, this Court took the view, again on the basis of the above reports, that to protect the two lakes from environmental degradation, it would be necessary to limit construction activity in the close vicinity of the lakes. Consequently, by an order dated 11th October, 1996 the earlier order of 10th May, 1996 was clarified, inter alia, to the effect that no construction shall be permitted within the green belt around the two lakes, that is an area having roughly 1 km radius.

As far as the area outside the green belt is concerned, it was directed that no construction would be permitted for a further 1 km. It was, however, clarified that the latter direction would not apply to plots already sold or allotted prior to 10th May, 1996 in the developed areas and that unallotted plots in the said areas may be sold with the prior approval of the concerned authority. All development schemes and plans for constructions in the area from 1 km to 5 km radius of the lakes shall require prior approval from the Central Pollution Control Board and the Haryana Pollution Control Board.4 The clarification given by this Court on 11th October, 1996 reads as follows:

"1. No construction of any type shall be permitted, now onwards, within the green belt area as shown in Ex. A and Ex. B. The environment and ecology of this area shall be protected and preserved 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 the Haryana 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 to be 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 said areas are still available, those may be sold with the prior approval of 'the Authority'. Any person owning land in the area may construct a residential house for his personal use and benefit. The construction of the said plots, however, can only be permitted up to two and a half storeys (ground, first floor and second half floor) subject to the Building Bye-laws/Rules operating in the area. The residents of the villages, if any, within this area may extend/reconstruct their houses for personal use but the said construction shall not be permitted beyond two and a half storeys subject to Building Bye-laws/Rules. Any building/house/commercial premises already 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 2 above shall have the clearance of "the Authority", the Central Pollution Control Board and the Haryana Pollution Control Board before "occupation certificates" are issued in respect of these buildings by the authorities concerned.

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

26. According to the applicant, its land was beyond the 1 km radius but within the 5 km radius and the orders passed by this Court vitally affected it. The applicant's view was that its project was mainly a residential colony having a commercial complex, schools, hospitals and film studios, but no industry of any nature whatsoever. It had expended a huge amount in the project, but could not proceed any further with it in view of the order dated 11th October, 1996 passed by this Court. Given the nature of the project, it was unreasonable to require the applicant to obtain no objection certificates from the Pollution Control Boards. Consequently, a Review Petition being R.P. (C) No. 914 of 1997 was filed by the applicant on or about 26th February, 1997 seeking a review of the order 11th October, 1996. It was submitted in the application that the restrictions imposed by this Court do not pertain to constructions of the applicant and that the requirement of obtaining a no objection certificate from the Pollution Control Boards does not apply to the constructions of the applicant, which fall beyond 1 km but within the 5 km radius of Badkal Lake and Surajkund.

27. The application for review came up for consideration on 17th March, 1997 when this Court noted that it did not have sufficient time to dispose of the matter that day. But by way of an interim order it was directed, inter alia, that a person owning land in the areas above mentioned (in the order dated 11th October, 1996) may construct a residential house up to 2 1/2 floors subject to the building bye laws and rules operating in the area. Those individuals who seek to construct houses in accordance with the decision of this Court and in conformity with the relevant rules may file their plans with the competent authority who may examine and keep the plans ready until further orders. In other words, even in such cases permission for construction was not granted, but permission to prepare plans was of course granted. It was further directed that the authorities should not insist upon the production of a no objection certificate from the State or Central Pollution Control Board. The order passed by this Court on 17th March, 1997 reads as follows:

"The grievance of the petitioner is that when individual's who seek to construct their houses applying the plans of the Faridabad Municipal Corporation, the plans are not being approved on the ground that the clearance certificates are not obtained from the Pollution Control Board. We do not have the sufficient time to dispose of the matter today, we think that,

1) all the individuals who seek to construct their houses within 2 1/2 floors' range as indicated in the judgment of this Court, they are liberty to file plans before the competent Authority. The competent Authority would examine whether the plans are in conformity with the Rules and within 21/2 storeys' range laid down by this Court. If the authority finds the plans in conformity with the above Rules and the directions given by this Court, the same may be examined and kept ready until further orders.

2) For the examination of these matters, the authorities are directed not to insist upon production of no objection certificate from the State or Central Pollution Control Board."

28. On or about 2nd July, 1997 the Municipal Corporation of Faridabad filed a reply to some pending applications and the Review Petition. After detailing the facts, including the impact of the orders passed by this Court, the difficulties faced by the Municipal Corporation in implementing them and other directions, it was prayed that certain schemes in the Haryana Urban Development Authority sectors (schemes mentioned at serial nos. 3, 4 and 5 of the reply) may not be affected by the order passed by this Court on 11th October, 1996. With regard to other projects and development schemes sanctioned in accordance with the Development Plan prior to the order dated 10th May, 1996 it was prayed that they may also not be affected by the order passed by this Court on 11th October, 1996. Similarly, buildings, houses, commercial premises already sanctioned prior to 10th May, 1996 in accordance with the Development Plan may not be affected by the order of 11th October, 1996 and construction may be permitted as per the Development Plan and building by-laws in force.

29. The Review Petition was again taken up for consideration on 13th May, 1998. On that date, a modified plan and some maps were placed before this Court. Upon a perusal of these maps, it transpired that some areas got excluded from the 1 km green belt, as originally proposed. It was directed that these areas could be urbanised in accordance with the applicable laws and rules. With regard to private lands (such as that of the applicant) it was directed that in the areas adjoining the Surajkund complex, the State of Haryana may review the position so that only single-storey "hutments" are permitted to be constructed and "not tall buildings as originally conceived." The order passed by this Court was directed to be in modification or substitution of all earlier orders in that behalf. The order passed on 13th May, 1998 reads as follows:

"A modified plan has been placed on record. The area meant to be left for Surajkund and around has been earmarked on the said plan by a zig-zag line. In the face of these altered boundaries from previous maps, certain areas have come out from the one kilometre belt as originally proposed. Whatever areas have fallen out and whatever are adjacent thereto, urbanization thereof will take place in accordance with the laws, rules and regulations applicable to those areas as provided by the Faridabad Municipal Corporation.

Certain private areas (marked as 'ABCD') in which construction is proposed would have to be viewed again. We have desired of the learned counsel for the State of Haryana to render assistance in that regard so that in the areas adjoining the Surajkund Complex only single storey hutments get permitted to be constructed and not tall buildings as originally conceived.

Small areas as shown red on the plan would require to be acquired for the Complex. This means that the State will have to pay compensation on acquisition. But Mr. Salve, learned Senior Counsel who appears for some of the land owners says that those land owners who are owning those two small red patches which are within the encirclement would surrender the same to the Sate without compensation.

This order shall be in modification or substitution of all earlier orders in that behalf."

[Emphasis supplied by us].

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

30. It seems to us that these orders passed by this Court were not blanket orders which could permit the applicants to ignore the notification dated 18th August, 1992. The requirement, in terms of the orders passed by this Court, continued to be adherence to the laws, rules and regulations which would necessarily include the notification issued under the provisions of the PLP Act.

Issues arising out of the orders passed by this Court

31. In this background and context, it appears that some questions were raised by the Financial Commissioner and Secretary to Government, Haryana Revenue Department in a letter dated first March, 1999 with regard to the status of the land owned by the applicant. The issues raised were to the following effect:

(i) whether the applicant is in unauthorised possession of the land;

(ii) whether the applicant has violated any statutory provision 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 colony in the land for which it had obtained an exemption for setting up a Film Studio and Allied Complex and whether the Town & Country Planning Department had permitted this.

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

"Regarding issue No.1. It is to inform that as per certificates given 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 given by Revenue Authority are enclosed herewith.

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

Regarding issue No. 3, it is to inform that in the revised approved layout plan of Kant Enclave Film Studio and Allied Complex, in addition to Film Studios provision of resident plots, group housing and the required social and commercial infrastructure has been made as per the exemption order of 1984 revocation order of 1990 and an agreement dated 27.3.92 executed by the company with the Government. Therefore the provision of residential plots in Kant Enclave is permissible."

[Emphasis supplied by us].

33. It will be noticed that the Director, Town & Country Planning Department did not make any reference to the notification dated 18th August, 1992 issued under the provisions of the PLP Act. This sequence of events clearly indicates that the Town & Country Planning Department was very much in favour of the applicant colonizing its land and making constructions therein on the basis of select administrative orders.

It was quite prepared to, and did, ignore orders passed by this Court from time to time and also ignore the notification of 18th August, 1992 issued under the provisions of the PLP Act. The understanding of the Town & Country Planning Department seems to be that issues of environmental degradation, pollution and groundwater were not its concern. To say the least, the Town & Country Planning Department was myopic and brazen in pushing its agenda - certainly vis-à-vis the applicant versus the environment and in disregard of a statutory notification.

Another attempt at colonization

34. In proceedings pertaining to the protection and conservation of forests throughout the country, this Court passed an order on 12th December, 1996 which is of considerable significance. The order was passed in Writ Petition No. 202 of 1995 with Writ Petition No. 171 of 1996.5 After hearing the learned Attorney General, learned counsel for the States, the parties and other applicants as well as the learned Amicus Curiae it was held by this Court that the Forest (Conservation) Act, 1980 was enacted with a view to check further deforestation, which would ultimately result in ecological imbalance. It was held that therefore the provisions of the law for conservation of forests and for matters connected therewith, must apply to all forests, irrespective of the nature of ownership or classification thereof. It was held:

".........The word "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof......"

35. It was further directed that in view of the meaning given to the word 'forest' it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any forest. All ongoing activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. Each State Government was also directed to constitute within one month an Expert Committee to identify areas which are forests, irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest and also to identify areas which were earlier forests, but stand degraded, denuded or cleared. In other words, this Court gave a realistic and pragmatic definition to the word 'forest' and 'forest land'.

36. However, even before that, as far as the State of Haryana is concerned, an affidavit was filed by Shri Banarsi Das, IFS, Principal Chief Conservator of Forests, Haryana in Environment Awareness Forum v. State of Jammu & Kashmir.6 The affidavit dated 8th December, 1996 stated that the total forest area in Haryana is 1,54,706 hectares (1995-96), which includes 11,513 hectares of PLP Act areas. It further says that earlier (1985-86) the forest area in Haryana was 1,68,543 hectares, which included 26,499 hectares of PLP Act areas.

The reduction in the forest area was due to the expiry of notifications issued under the PLP Act and Section 38 of the Indian Forest Act, 1927. It was noted that steps were taken for protection of forests, which included the enforcement of regulations under the PLP Act. What is of significance is that even before the order was passed by this Court on 12th December, 1996 the State of Haryana had acknowledged its treatment of PLP Act areas as forest land, and as we shall see later, this was always so.

37. In T.N. Godavarman v. Union of India7 an affidavit was filed by the State of Haryana on 25th February, 1997. The affidavit was sworn by Shri S.K. Maheshwari, IAS, Commissioner & Secretary to the Government of Haryana, Forest Department. In his affidavit, reference was made to the order passed by this Court on 12th December, 1996. It was stated in the affidavit that as far as identification of areas which were forests, but stand degraded or denuded or cleared, it would not be possible to do so without prescribing some cut-off date since land that is closed under the provisions of the PLP Act "creates forests" and the Act is as old as 1900.

Therefore, a cut-off date of 25th October, 1980 was selected as on that date the Forest (Conservation) Act, 1980 came into force. It was further stated that land that is closed under the provisions of the PLP Act is a forest only during the period of closure. After expiry of the closure period, the land is no longer shown as forest in the records of the Forest Department. A little later in the affidavit, it was reiterated that an area closed under the provisions of the PLP Act is "counted as forest" only during the currency of the closure. Taking all such areas into consideration, it was stated that the recorded forest cover in the State of Haryana is now 149,680.49 hectares.

38. Notwithstanding the affidavit, the Director in the Town & Country Planning Department issued a communication dated 16th March, 1999 to the effect that the provision of residential plots in Kant Enclave was permissible. In view of the affidavit of Shri S.K. Maheshwari, there is enough room to suspect the bona fides of the applicant and the Town & Country Planning Department, but we leave it at that.

Further set of orders passed by this Court

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

40. Acting upon the application filed by the Delhi Ridge Management Board, this Court passed an order on 6th May, 2002 as follows:

"IA No. 1785

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

[Emphasis supplied by us].

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

42. EPCA did visit the subject area and also took the opinion of the Central Groundwater Board and in its report of 9th August, 2002 it recommended that the ban on mining activities and pumping of groundwater in and from an area up to 5 km from the Delhi-Haryana border in the Haryana side of the Ridge and also in the Aravalli hills must be maintained.

43. EPCA gave a further report on 21st October, 2002 reaffirming its earlier recommendations. It was further recommended that if mining is allowed to continue in this area, it would have serious implications for the groundwater reserves. EPCA also noticed uncontrolled construction activities that would expand urban habitation considerably in future and therefore recommended that unless immediate measures were taken to conserve and augment water resources in the area, an acute survival crisis could be expected. Interviews with local villagers in the vicinity of the mines confirmed that water shortage was already a serious problem in the region.

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

Reports of the CEC

45. Among the first few reports given by the CEC, one dated 14th December, 2002 deserves mention. It is not clear what led to this report, but in any event, it was considered by this Court on 16th December, 2002 and an order was passed as a result of the report that no mining activity would be permitted in areas where there is a dispute of applicability of the Forest (Conservation) Act, 1980 till such time the dispute is resolved or approval for non-forest activity is accorded under the said Act by the Central Government.9 This Court also directed that no mining would be permitted in areas for which a notification under Sections 4 and 5 of the PLP Act has been issued in regulating the breaking up of the land etc. and such lands are or were recorded as 'forest' in government records even if the notification period had expired, unless there was approval under the provisions of the Forest (Conservation) Act, 1980. These directions are significant and appear, generally, to have been overlooked.

46. Separately and in compliance of orders passed by this Court on 25th November, 2002 the CEC submitted three reports, all of which primarily pertained to mining activities in the subject area. These reports were considered by this Court and dealt with in the judgment and order passed on 18th March, 2004.10 In the report dated 22nd January, 2003 (erroneously recorded as June) it was recommended by the CEC that mining activity may be allowed in the areas closed under the provisions of the PLP Act "which for the purpose of the [Forest (Conservation)] Act are 'forest' even as per the State Government records, only after obtaining prior approval under the said Act from the MoEF (Ministry of Environment and Forests)." In another report, dated 7th February, 2003 it was recommended that the ban on mining activity may continue up to 2 km from Surajkund and Badkal Lakes in terms of the order passed by this Court on 10th May, 1996.

47. While considering the entire issue, this Court also considered the question whether areas covered under the PLP Act are 'forest' of any kind. While dealing with this, it was noted that the Forest Department of the State of Haryana has been treating and showing the closed areas as 'forest' in its records. This Court also adverted to the affidavits filed in this Court from time to time, including by Shri S.K. Maheshwari and Shri Banarsi Das. This Court also drew attention to its earlier order of 12th December, 1996 and the fact that the State of Haryana had been seeking permission of the Central Government to divert such closed land for non-forestry purposes. This Court also referred to letters dated 26th November, 2002 and 17th September, 2001 wherein a view was expressed that land closed under the PLP Act is forest land. This Court, therefore, declined to permit the State of Haryana to take a somersault and contend that land closed under the provisions of the PLP Act is not forest. This is what this Court said in paragraph 82 of the Report:

"In the instant case, it is not necessary to decide the legal effect of 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 forest but affidavits have been filed in this Court stating the area to be "forest". In T.N. Godavarman Thirumulkpad v. Union of India [(1997) 2 SCC 267] this Court held that the term "forest" is to be understood in the dictionary sense and also that any area regarded as a forest in government records, irrespective of ownership, would be a forest. The State of Haryana, besides having filed affidavits in the forest matters treating such areas as forest for the purposes of the FC Act has been seeking prior approval from the Central Government for diversion of such land for non-forestry purpose. Reference in this connection may also be made to the affidavit dated 8-12-1996 filed by Banarsi Das, Principal Chief Conservator of Forests, Chandigarh, Haryana in Environmental Awareness Forum v. State of J&K [Civil Writ No. 171 of 1996].

Our attention has also been drawn to letter dated 26-11-2002 addressed by the Divisional Forest Officer, Faridabad to the Mining Officer, Faridabad forwarding to him a list of blocked forest areas of Faridabad district and requesting him to ensure that the said forest areas are not affected by any mining operations as also to a letter dated 17-9-2001 sent by the Principal Chief Conservator of Forests, Haryana (Panchkula) to the Director of Environment, Haryana stating therein that no mining activity can be permitted in the area. On the facts and circumstances of the case, we cannot permit the State Government to take a complete somersault in these proceedings and contend that the earlier stand that the area is forest was under some erroneous impressions. In the present case, for the purposes of the FC Act, these areas shall be treated as forest and for use of it for non-forestry purpose, it would be necessary to comply with the provisions of the FC Act."

48. Having considered voluminous material on record, this Court concluded in the said judgment of 18th March, 2004 that it would be appropriate to constitute a Monitoring Committee, which it did, "to monitor the overall eco-restoration efforts in the Aravalli hills and to provide technical support to the implementing organisations and also to monitor implementation of recommendations contained in reports referred herein..." This Court also held that the order dated 6th May, 2002 as clarified in the judgment cannot be varied or vacated before consideration of the report of the Monitoring Committee. It was also concluded that on the facts of the case, the mining activity in areas covered under the provisions of the PLP Act cannot be undertaken without approval under the Forest (Conservation) Act, 1980.

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

Further reports of the CEC

50. Notwithstanding the decisions of this Court rendered from time to time and a wealth of material to the effect that the Aravalli hills need to be protected, the issue of colonizing the land owned by the applicant, which was the subject matter of the prohibitory notification under the provisions of the PLP Act, was kept alive. Applications were filed by interested parties in this Court and the CEC was required from time to time to submit reports to this Court.

51. In a report dated 12th September, 2007 which pertained mainly to mining activities in Gurgaon and Faridabad districts of Haryana, one of the recommendations made by the CEC was to the effect that maps of appropriate scales should be prepared of areas notified under the provisions of the PLP Act, including areas for which the notifications have expired. These areas could be cross verified with the help of relevant afforestation maps, satellite imagery of the relevant times, progress reports filed in the Aravalli Afforestation Programme and other details. It was also recommended that these areas may be demarcated and treated as a prohibited zone for mining activity.

52. In a supplementary report dated 5th December, 2007 it was recorded by the CEC that it had come to its notice that areas notified under the provisions of the PLP Act are being used or proposed to be used for colonisation, farm-houses and other construction activities. It was noted that in many cases such user has been permitted by the concerned departments of the State Government on the strength of improper no objection certificates granted in the past by the Forest Department. The CEC stated that the recommendations made in respect of mining in these areas are equally applicable to activities such as colonisation, construction of farm-houses, etc. It was recommended that areas notified under the provisions of the PLP Act, including areas for which notifications have expired, may also be treated as a prohibited zone for colonisation, construction of farm-houses and other construction activities. Such activities in the prohibited zone should be permitted only if 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 28th August, 2008. In the report, it was mentioned that a meeting was held with officers of the State of Haryana and a two-step approach was suggested. The first step was to identify areas where mining, colonisation, etc. is taking place in the Aravalli hills, but such activities are prohibited or regulated in those areas by various enactments and orders of this Court. These would include, amongst others, areas notified under the provisions of the PLP Act. The second step would be to lay down broad principles and guidelines in respect of mining, colonisation and other non-forestry activities in the Aravalli hills which would, inter alia, provide for an independent monitoring mechanism. Broadly, only such non-forestry activities would be permitted, that are absolutely necessary and unavoidable and in public interest.

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

55. Another report was submitted by the CEC on 13th November, 2008 pursuant to directions issued by this Court to file the land-use maps and macro plans in respect of the Aravalli hills in Haryana. While the report is considerably detailed, what is of concern to us is that the revenue map of village Anangpur super-imposed on the satellite imagery revealed that a large number of colonies, farm-houses and mines were located in areas closed under the provisions of the PLP Act. One of the prominent violators was the applicant (Kant Enclave) which had violated the orders of this Court of 14th May, 2008 (the decision of this Court will be discussed a little later). The report also mentioned that there was large-scale illegal use of areas closed under the provisions of the PLP Act for illegal private gains in blatant violation of the environmental laws and the orders of this Court.

It was suggested that this could not have taken place without the active connivance and support of the concerned officials. It was also noted that the groundwater level in the area was rapidly depleting and had already been marked as 'Dark Zone for Ground Water'. In view of the somewhat alarming situation, it was recommended by the CEC that colonies, farm-houses, banquet halls and other buildings illegally constructed in areas closed under the provisions of the PLP Act, such as Kant Enclave should be demolished.

56. Yet another report (the last one that we are concerned with) was submitted by the CEC on 15th January, 2009. In this report, it was stated that the work of super-imposing on all geo-rectified village maps with the corresponding satellite imageries had been completed. In addition, village wise land-use maps had been prepared. These comprised of three components, namely, satellite imagery, scanned village maps and super-imposed village maps on satellite imagery with marking of areas 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 the PLP Act or areas with forest cover. The CEC expressed the view that demolition of the above illegal structures and rehabilitation of such areas (including Kant Enclave) should be taken up by the State of Haryana in a time-bound manner and no sale or purchase of such lands should be permitted. The permission earlier granted, if any, for non-forestry uses in such areas should be immediately revoked. The State of Haryana had suggested that large-scale demolition might create a serious law and order problem, but the CEC did not agree with this. However, the CEC recommended the regularisation of areas notified under the provisions of the PLP Act and other forest areas falling in identified Haryana Urban Development Authority sectors, subject to effective steps being taken for the demolition of buildings and structures in the areas notified under the provisions of the PLP Act and other forest areas and rehabilitation of such areas.

58. In response to the report of the CEC dated 15th January, 2009 the State of Haryana filed an affidavit through Shri Dharam Vir, the Chief Secretary of the State on 15th March, 2009 in M.C. Mehta v. Union of India.11 It was stated in the affidavit that as far as the Municipal Corporation of Faridabad is concerned, in view of the order dated 13th May, 1998 passed by this Court, the erection of buildings, with due permission under the applicable law cannot be said to be illegal. Ex facie, this is incorrect, since this Court permitted, if at all, only the construction of hutments and not buildings. As far as the Town & Country Planning Department is concerned, it was stated that Kant Enclave was granted exemption under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975 on 17th April, 1984 and therefore it would be in the interest of justice if the constructions that had come up pursuant to the above exemption may be allowed to exist. The notification dated 18th August, 1992 and the other orders of this Court were conveniently overlooked.

59. An affidavit dated 25th October, 2010 was filed by the Chief Town Planner in the Department of Town & Country Planning. It was stated in the affidavit that the Development Plan for Faridabad had been prepared in accordance with the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963 and the final Development Plan was published in 1991 in consonance with the NCR Planning 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 that Kant Enclave had been granted exemption under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975. In view of this, the State of Haryana through the Forest Department ought not to have published the notification under Section 4 of the PLP Act, including therein the area already earmarked for urbanisation in the final Development Plan.

It was stated that the Town & Country Planning Department had taken steps to exclude the land of the applicant from the notification issued under the PLP Act and follow-up action was also taken in this regard. The affidavit is, however, silent about the fact that the land owned by the applicant was not de-notified in spite of vigorous efforts of the Town & Country Planning Department. It was stated in the affidavit that pursuant to the order passed by this Court on 13th May, 1998 the Town & Country Planning Department had approved building plans and had also issued part completion certificates on 23rd December, 2004.

In view of all these facts as well as in view of the affidavit filed by the Chief Secretary of the State of Haryana, it would be in the interest of justice that constructions that had come up in pursuance of the exemption granted under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 may be allowed to exist. It was submitted that a final decision may be taken by this Court and the State Government would abide by the directions given by this Court on this issue.

Yet another attempt at colonization is rejected

60. Not content with several letters, reports and decisions of this Court, the applicant opened up yet another front to push ahead with its colonisation and construction activity in the land owned by it being Khasra Nos. 9 to 16 in village Anangpur. The applicant filed I.A. No. 1901 of 2005 in W.P. No. 4677 of 1985 (M.C. Mehta v. Union of India). In this application, it was submitted by the applicant that it was in exclusive possession of Khasra Nos. 9 to 16 in village Anangpur having purchased the same from the rightful owners.

It was stated that the applicant had been granted exemption under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975 for setting up its project named Kant Enclave. The exemption had been granted on 17th April, 1984. It was stated that the applicant had spent over Rs. 50 crores in carrying out and undertaking developmental work on the land. In addition, the applicant had sold or booked or allotted 1500 plots to prospective buyers out of which in about 450-500 cases, conveyance deeds had already been executed and registered with the concerned authorities.

It was submitted that the decisions of this Court were mining-centric and were misconstrued by officers of the Forest Department. Consequently, a communication dated 31st January, 2005 was issued by the Forest Department to the District Town Planner, Faridabad to the effect that the land of the applicant was a closed area under the provisions of the PLP Act, and therefore non-forest use of the land was prohibited. As a result of this communication, the District Town Planner refused to sanction building plans of the plot holders of Kant Enclave or to issue completion certificates in respect of buildings already completed in terms of sanctions or approvals earlier granted.

61. On this basis, it was submitted in the application that this Court may issue appropriate directions to the effect that only mining activities were prohibited in the subject area and that the orders of this Court did not affect the construction activities carried on by the applicant in its project as permitted by the order of this Court dated 13th May, 1998. It was prayed that directions may be issued to the State Government to permit registration of plots and sanction building plans as well as issue completion certificates.

62. By an order dated 24th July, 2006 this Court directed the Chief Secretary of Haryana to file an affidavit in response to the application I.A. No. 1901 of 2005. A detailed affidavit dated 10th September, 2006 was filed by the Chief Secretary Shri Prem Prashant, IAS in which it was stated, inter alia, that the notification dated 18th August, 1992 issued under the provisions of the PLP Act covered Khasra Nos. 9 to 16 in village Anangpur, that is, the land owned by the applicant. It was categorically stated that since then this land was treated as forest and it was also included in the list of forests in the Government record. Reference was also made to the affidavit filed by the Forest Department in W.P. No. 202 of 1995 to the effect that the subject area was shown as a forest and that the provisions of the Forest (Conservation) Act, 1980 would be applicable.

The affidavit also referred to the order passed by this Court on 12th December, 1996 to the effect that the term 'forest' is to be understood in the dictionary sense and also that any area regarded as forest in Government records irrespective of ownership, wo