M.C.MEHTA V. UNION OF INDIA

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.

Brief background

“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.”

“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].

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. 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.”

“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 ½ 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 2½ 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.”

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.

[Emphasis supplied by us].

“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.

“………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……”

Further set of orders passed by this Court

“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].

Reports of the CEC

“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.”

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

“35. Protection of forests for special purposes. – (1) The State Government may, by notification in the Official Gazette, regulate or prohibit in any forest or waste-land –

(a) the breaking up or clearing of land for cultivation;

(b) the pasturing of cattle; or

(c) the firing or clearing of the vegetation;

when such regulation or prohibition appears necessary for any of the following purposes: –

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

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

(iii) for the maintenance of a water-supply in springs, rivers and tanks;

(iv) for the protection of roads, bridges, railways and other lines of communica

(v) for the preservation of the public health.

(2) ………

(3) ………”

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

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

“At the outset, we have to refer to the practice of filing review applications in large numbers in undeserving cases without properly examining whether the cases strictly come within the narrow confines of Rule XL of the Supreme Court Rules. In several cases, it has become almost everyday experience that review applications are filed mechanically as a matter of routine and the grounds for review are a mere reproduction of the grounds of special leave and there is no indication as to which ground strictly falls within the narrow limits of Rule XL of the Rules. We seriously deprecate this practice. If parties file review petitions indiscriminately, the time of the Court is unnecessarily wasted, even it be in chambers where the review petitions are listed. Greater care, seriousness and restraint is needed in filing review applications.”

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

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

“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.”

“…..According to the report Surajkund lake impounds water from rain and natural springs. Badkhal Lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types as explained in the report show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large-scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed.”

(i) 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;

(ii) identify areas which were earlier forests but stand degraded, denuded or cleared.

“Section 29 – Declaration of controlled area

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

(2) to (6) ———-

(7) After considering the objections, suggestions and representations, if any, and the recommendations of the Chief Administrator thereon, the State Government shall decide as to the final plans showing the controlled area and signifying therein the nature of restrictions and conditions applicable to the controlled area and publish the same in the Official gazette and in such other manner as may be prescribed.”

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