SooperKanoon Citation | sooperkanoon.com/1227678 |
Court | Supreme Court of India |
Decided On | Jan-12-2021 |
Case Number | C.A. No.-005231-005232 - 2016 |
Judge | HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA |
Appellant | Himachal Pradesh Bus Stand Management And Development Authority (hpbsmda) |
Respondent | The Central Empowered Committee |
Advocates: | __ |
Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 5231-32 of 2016 Himachal Pradesh Bus Stand Management .... Appellant and Development Authority (HPBSM&DA) Versus The Central Empowered Committee Etc. & Ors. .... Respondents With Civil Appeal Nos. 5229-5230 of 2016 1
JUDGMENT
Dr Dhananjaya Y Chandrachud, J This judgment has been divided into sections to facilitate analysis. They are: A The appeal B Previous orders of this Court C The history of the forest land D The construction of the Bus Stand Complex E Proceedings before the first respondent F Proceedings before the NGT G Report of the District and Sessions Judge, Kangra H Submissions of counsel I Analysis I.1 Environmental rule of law I.2 Role of courts in ensuring environmental protection I.3 Illegal activities on forest land I.4 Jurisdiction of NGT J Conclusion 2 PART A A The appeal 1 The civil appeals in the present case arise under Section 22 of the National Green Tribunal Act, 2010 (“NGT Act”). The correctness of a judgment and order dated 4 May 2016 of the National Green Tribunal (“NGT”) is in issue. 2 The NGT dealt with an original application filed by the second respondent, who is also the appellant in companion Civil Appeal Nos. 5229-5230 of 2016, to challenge a report dated 18 September 2008 of the Central Empowered Committee (“CEC”), the first respondent. In its report, the CEC concluded, inter alia, that a part of the Bus Stand Complex constructed by the second respondent and the appellant at McLeod Ganj in Himachal Pradesh violates the provisions of the Forest (Conservation) Act, 1980 (“Forest Act”). The CEC recommended the demolition of the illegal portions. 3 The NGT accepted the findings of the CEC, observing that the Bus Stand Complex seriously disturbs the ecology of the area in which it has been constructed. The NGT directed, inter alia, that: (i) The structure of the Hotel-cum-Restaurant in the Bus Stand Complex be demolished by the second respondent; (ii) The second respondent shall pay a compensation of Rs. 15 lacs in terms of Sections 15 and 17 of the NGT Act; 3 PART B (iii) The appellant shall pay a compensation of Rs. 10 lacs, while the State of Himachal Pradesh and its Department of Tourism shall pay a compensation of Rs. 5 lacs each; and (iv) The Chief Secretary of the State of Himachal Pradesh shall conduct an enquiry against the erring officers of the appellant, in order to fasten the responsibility for the illegal project. B Previous orders of this Court 4 By an order dated 16 May 2016, this Court admitted the present appeals and framed the following substantial questions of law, as provided in Section 22 of the NGT Act: “1. Whether the Tribunal has failed to appreciate that the land which is subject matter of the appeal had already been diverted for non - forest use under Section 2 of the Forest (Conservation) Act, 1980?.
2. Whether the Tribunal failed to consider properly the effect of Section 14 of the Himachal Pradesh Bus Stand Management and Development Authority Act, 1999 which empowers the authority to establish and maintain hotels and restaurants at or near bus stands?.
3. Whether the Tribunal exceeded its jurisdiction in holding that alleged violations of the Himachal Pradesh Town and Country Planning Act, 1977 are made out even though the said enactment is absent in the Schedule I of enactments attached to the National Green Tribunal Act?.” This Court also granted a stay against the operative portion of the NGT’s judgment directing: (i) the demolition of the Hotel-cum-Restaurant structure in the Bus Stand Complex; and (ii) an enquiry to be conducted against the appellant’s officers. 4 PART C5The above order was modified on 9 September 2016, by lifting the stay against the enquiry to be conducted against the appellant’s officers. However, this Court directed that an enquiry shall be conducted by the District and Sessions Judge, Kangra within whose jurisdiction the Bus Stand Complex is located. The District and Sessions Judge was directed to place a report before this Court. Parties to the present appeals were permitted to associate themselves with the enquiry being conducted by the District and Sessions Judge. C The history of the forest land 6 The genesis of the present case originates in an order dated 12 November 1997 of the Union Ministry of Environment and Forests (the fourth respondent, “MOEF”), on a proposal made by the State of Himachal Pradesh, permitting the diversion of 0.093 hectares of forest land for the construction of a parking space at McLeod Ganj, in accordance with Section 2 of the Forest Act. The order is extracted below: “After careful consideration of the proposal of the State Government, the competent authority hereby conveys approval under Section -2 of Forest (Conservation) Act, 1980, for diversion of 0.093 hectares of forest land for the construction of parking place at McLeod Ganj, forest division Dharamsala, District Kangra, HP, subject to following conditions:
1. Legal status of the forest land will remain unchanged. The forest land will be restored to forest Department as and when it is no more required.
2. Compensatory afforestation will be carried out, by planting at least 250 plants of deodar and ornamental species around McLeod Ganj town as proposed, at a cost of Rs.11500/ - which is reported to have been deposited by user agency vide TC No.3 dt. 02.09.97. 5 PART C3 The Forest land will be used only for the purpose as mentioned in the proposal.
4. The user agency will abide by any condition that may be imposed by the State Forest Department in the interest of afforestation and protection of the forest.
5. This approval is subject to the clearance of the proposal under other relevant Acts/ Rules / Court's Ruling /Instructions etc. as applicable to this proposal. State Government will ensure fulfilment of these conditions.” 7 MOEF issued a further order dated 1 March 2001, diverting another 0.48 hectares of forest land for the construction of a bus stand at McLeod Ganj. The contents of the order read thus: “After careful consideration of the proposal of the State Government, the competent authority hereby conveys approval for diversion of 0.48 hectares of forest land for construction' of above mentioned project at Dharmsala, forest division Dharamsala and district Kangra, H.P., subject to following conditions.
1. Legal status of the forest land will remain unchanged.
2. Minimum No.of trees as are unavailable may be felled which should not exceed 17 (seventeen) as proposed.
3. Compensatory afforestation will be carried out, on 0.098 forest land at P46K Dharamsala C.B. Govt. Forest of Dharamsala forest division at a cost of Rs.14,900/- (Rs. Fourteen thousand nine hundred) which is reported to have been deposited by user agency vide cheque No.055710 dated 19.10.2000.
4. Forest Guard hut as proposed in the proposal, will also be constructed at a cost of Rs.2.25 lacs which is reported to have been deposited by user agency.
5. The user agency will abide by any condition that may be imposed by the State Forest Department In the interest of afforestation and protection of the forest.
6. This forest land will not be used for any other purpose than that mentioned in the proposal. 6 PART D7 This approval is subject to the clearance of the proposal under other relevant Acts/Rules /Court's Ruling /Instructions etc. as applicable to this proposal.
8. The Ministry may revoke suspend the clearance if implementation of any of the above conditions is not satisfactory. State Government through state forest department will ensure fulfillment of these conditions.” 8 Of the above land, an area admeasuring 0.093 hectares is above the main Dharamshala-McLeod Ganj road while an area admeasuring 0.48 hectares is below the main road. Both these pieces of land face each other and are a part of Banoi Reserve Forest. The user agencies responsible for the construction of the parking space and the bus stand were the S.D.O. Dharamshala and Himachal Pradesh Tourism Department. The cost of these projects was estimated at Rs. 10 lacs and Rs. 90-95 lacs. 9 In April 2000, the appellant was constituted for the construction of bus stands in the State of Himachal Pradesh following the enactment of the Himachal Pradesh Bus Stands Management and Development Authority Act, 1999 (“HP Bust Stands Act”). In January/February of 2006, the land diverted for non – forest use under the above orders dated 12 November 1997 and 1 March 2001 was transferred on a 99 year lease to the appellant. D The construction of the Bus Stand Complex 10 The land transferred to the appellant was to be utilised for the construction of a parking facility in McLeod Ganj. Given the nature of the costs that would be incurred for the creation of a ‘modern complex’, the Board of Directors of the appellant in their meeting held on 7 November 2003 decided to construct a Bus 7 PART D1Stand-cum-Parking Complex on a Build-Operate-Transfer basis . In furtherance of this, the appellant invited offers on 19 November 2003. The appellant received only one offer, which was considered financially unviable since it envisaged a concession period of 75 years. 11 The appellant decided to alter the nature of the Bus Stand Complex in order to make it financially viable for private entities by issuing a new Request for Proposal on 13 July 2004 for the construction of the modified Bus Stand Complex. Apart from the construction of the bus stand itself on the lower level, the appellant envisaged further construction in the complex of: (i) a multi-level commercial complex with shops at the road level; (ii) a dormitory and a budget hotel at the first, second and third levels; (iii) a dining facility/restaurant/food plaza at the top level; and (iv) a parking provision for fifty cars at the road level. 2 The area of the multi-level commercial complex was to be 2779 M ; of the road 2 2 level parking, 1100 M ; and of the bus stand at the lower level, 2580 M (which 2 included 359 M of area for shops/kiosks). 12 On 13 October 2004, the Board of the appellant approved the lowest bid submitted by the second respondent for the construction of the Bus Stand Complex. The second respondent was awarded construction rights through a ‘notice of award’ dated 18 November 2004. The appellant and the second 1 In a BOT project, the public sector grantor grants to a private company the right to develop and operate a facility or system for a certain period (the "Concession Period"), in what would otherwise be a public sector project. (See, ‘Concessions, Build-Operate-Transfer (BOT) and Design-Build-Operate (DBO) Projects’ available at
23. PART H (i) The Bus Stand Complex had all requisite permissions, and had been constructed lawfully without the conferment of undue benefits to the second respondent; (ii) The report of the District and Sessions Judge dated 9 October 2018 is flawed because: (a) the appellant did not ask for permission from the MOEF, since such permission was already available; (b) the project was constructed in accordance with approved plans, and keeping in mind the topography of the area; and (c) the maintenance of the project could not be questioned because its upkeep had to be abandoned in 2009 after the litigation began. (iii) As regards the findings in the report of the District and Sessions Judge dated 9 October 2018, the reason why no consent for the construction of the Hotel-cum-Restaurant structure was separately sought was because the appellant was under the impression that the consent for diverting forest land for a “non-forest purpose”, granted by the MOEF by its orders dated 12 November 1997 and 1 March 2001, was sufficient. 35 The State of Himachal Pradesh argues that this is a case involving procedural lapses, as opposed to illegality. The setting up of such projects in the State is a gigantic task given the peculiar topography and other conditions existing there. The project, if allowed to be continued/completed, will not only provide facilities of a modular bus stand to the people of the town but also, the provision of a commercial complex will cater to economical services to 24 PART H commuters, besides providing opportunities of employment to the local population. However, if the structure is ordered to be demolished at this stage, it is likely to cause environmental damage since it will be difficult to dispose of the huge debris emanating from the demolition as the area is congested and covered with extensive vegetation. Some part of the proceeds received as income from the commercial complex may be utilized to compensate the loss that might have been caused to the environment and ecology of the area due to the construction of the Bus Stand Complex. 36 The State of Himachal Pradesh later submitted before this Court on 3 November 2020 that it had taken steps for initiating prosecutions for violations of the provisions of the Forest Act. It placed on record, through an affidavit, the steps taken by it. 37 Opposing these submissions and arguing in support of NGT’s impugned judgment, the CEC submits the following: (i) The forest land was permitted to be diverted for “non-forest purposes” only for the construction of a bus stand and parking space. However, the appellant expanded the scope to include a Hotel-cum-Restaurant without prior permission; (ii) The second respondent started construction of the Bus Stand Complex without approval of the drawings and plans by the TCP Department, which later pointed out issues with the plans; and 25 PART H (iii) On 12 June 2007, MOEF rejected the request of the State of Himachal Pradesh for the extension of the use of the forest land for anything other than a bus stand and a parking space. 38 Supporting the submissions of the CEC, the sixth and seventh respondents submit: (i) The de-reservation of forest land for the construction of the Hotel-cum- Restaurant structure in the Bus Stand Complex was in violation of: (i) Section 2(i) of the Forest Act; and (ii) the order dated 13 November 2000 issued by this Court in Centre for Environmental Law, WWF - I vs Union 3 of India , which held that further land shall not be de-reserved pending further orders from this Court; (ii) As such, the actions of the appellant and the second respondent in deliberately violating the provisions of the Forest Act constitute a violation of the “environmental rule of law” enunciated by this Court in Hanuman 4 Laxman Aroskar vs Union of India ; and (iii) The entire Bus Stand Complex was constructed without requisite permissions under the TCP Act. 39 The MOEF has accepted the report submitted by the District and Sessions Judge in its entirety and stands by its findings. 40 The rival submissions now fall for our consideration. 3 Writ Petition (Civil) No.337 of 1995 4 (2019) 15 SCC40126 PART I I Analysis 41 The construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex is illegal and constitutes a brazen violation of law. The permission which was granted by MOEF on 12 November 1997 was only for construction of a ‘parking place’ at McLeod Ganj. Similarly, the permission granted on 1 March 2001 was granted for constructing a ‘bus stand’ in the same area. At no point was any permission granted for the construction of a hotel or commercial structure. NGT’s finding on this count commends acceptance. The appellant, on being granted permission to engage in construction for a specified purpose, unlawfully utilised that permission as the basis to construct a different structure which was not authorized. It has done so in disregard of the provisions of the Forest Act. 42 Section 2 of the Forest Act reads as follows: “2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose.— Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing— (i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation. 27 PART I Explanation.— For the purposes of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for— (a) the cultivation of tea, coffee, spices, rubber, palms, oil- bearing plants, horticulture crops or medicinal plants; (b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.” The provisions of Section 2 mandate strict and punctilious compliance. Mere substantial compliance is not enough. The construction of the Hotel-cum- Restaurant structure is entirely illegal, having been carried out in clear breach of this mandatory statutory stipulation. That officials of statutory bodies of the State Government have connived at the violation of law is a reflection on the nature of governance by those who are expected to act within the bounds of law. 43 The report of the CEC is a serious indictment of the actions of the appellant. The CEC report indicates that: (i) the construction of the Hotel-cum- Restaurant structure in Bus Stand Complex was illegal; (ii) the land was a reserved forest; (iii) there was no valid permission for diversion for the land for the construction of the Hotel-cum-Restaurant structure; (iv) Forest Act consent was taken only for the parking facility and the bus stand; (v) there was no valid approval from the TCP Department of the plans of the entire Bus Stand Complex; and (vi) the finally constructed Bus Stand Complex is not in conformity with the appellant’s own proposed plans in the RFP. 28 PART I44The findings which were arrived at in NGT’s judgment are supported by the report submitted by the District and Sessions Judge. The report presents a striking analysis of the manner in which the Hotel-cum-Restaurant structure was constructed in breach of statutory requirements and how this was made possible by the connivance of multiple state actors. The relevant findings from the report are excerpted below: “4. The EPC has prepared the conceptual plan Ex. Cl I4A, but the bus stand authority went on to flout the aforesaid conceptual plan and on its own and decided to construct bus stand-cum-parking and hotel complex on two pieces of forest land under BOT basis. No sanction or approval was obtained by the Bus Stand Authority under the provision of Forest (Conservation) Act, 1980 for diversion of forest land to use the same for non - forest purpose. The Government of India Ministry of Environment and Forest, turned down the request to use the forest land for non-forest purpose and change the name of user agency from SDO(C) and H.P. Tourism Department to Bus Stand Authority vide copy of letter Ex. Cl03. ...
7. The illegal construction of disputed structure was raised with sole motive to give undue advantage to M/s Prashanti Surya Construction Company and for the same Bus Stand Authority is primarily responsible and in addition to that the officers/officials of other concerned departments are also responsible. ...
12. In this case the Bus Stand Authority did not inform in writing the Director of Town and Country Planning Department, regarding the construction work in question as discussed here in above in the aforesaid statutory provisions. Said information should have been given by the CEO of the Bus Stand Authority in the year of 2005 when the construction work started on the spot. So, the CEO of Bus Stand Authority in the year 2005, is responsible for ignoring the statutory provisions of Section 28 of the H.P. Town and Country Planning Act.” 29 PART I45NGT acted within its mandate in a case of this nature, where the appellant actively allowed the perpetration of a structure in breach of environmental norms. Not looking askance at the construction of the Hotel-cum-Restaurant structure, in an area which the NGT rightly describes as the “lap of nature”, will put us on the path of judicially sanctioned environmental destruction. I.1 Environmental rule of law 46 In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations. A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focussing on the structural norms which guide institutional decision making, rule of law frameworks recognise the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed. A30PART I modern rule of law framework is hence comprehensive in its sweep and ambit. It recognises that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance. 47 The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools – conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges – of how they have been shaped by humanity’s interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity’s actions have charted. The environmental rule of law seeks to facilitate a multi– disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognises that the ‘law’ element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the 31 PART I destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognises the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, 32 PART I accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance – of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today. 48 In its decision in Hanuman Laxman Aroskar vs Union of India (supra), this Court, speaking through one of us (DY Chandrachud, J.) recognized the importance of protecting the environmental rule of law. The court observed: “142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem.
143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement — both in developed and developing countries alike … 156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making 33 PART I are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution.” 49 In its first global report on environmental rule of law in January 2019, the 5 United Nations Environment Programme (“UNEP”) has presciently stated : “If human society is to stay within the bounds of critical ecological thresholds, it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet. Environmental rule of law offers a framework for addressing the gap between environmental laws on the books and in practice and is key to achieving the Sustainable Development Goals. ... Successful implementation of environmental law depends on the ability to quickly and efficiently resolve environmental disputes and punish environmental violations. Providing environmental adjudicators and enforcers with the tools that allow them to respond to environmental matters flexibly, transparently, and meaningfully is a critical building block of environmental rule of law.” 50 The need to adjudicate disputes over environmental harm within a rule of law framework is rooted in a principled commitment to ensure fidelity to the legal framework regulating environmental protection in a manner that transcends a case-by-case adjudication. Before this mode of analysis gained acceptance, we faced a situation in which, despite the existence of environmental legislation on 5 UNEP, ‘Environmental Rule of Law First Global Report’ (January 2019), pgs viii and 223. 34 PART I the statute books, there was an absence of a set of overarching judicially recognized principles that could inform environmental adjudication in a manner that was stable, certain and predictable. In an article in the Asia-Pacific Journal of Environmental Law (2014), Bruce Pardy describes this conundrum in the 6 following terms : “Environmental regulations and standards typically identify specific limits or prohibitions on detrimental activities or substances. They are created to reflect the principles and prohibitions contained in the statute under which they are promulgated. However, where the contents of the statute are themselves indeterminate, there is no concrete rule or set of criteria to apply to formulate the standards. Their development can therefore be highly political and potentially arbitrary. ... Instead of serving to protect citizens' environmental welfare, an indeterminate environmental law facilitates a utilitarian calculus that allows diffuse interests to be placed aside when they are judged to be less valuable than competing considerations.” 51 However, even while using the framework of an environmental rule of law, the difficulty we face is this – when adjudicating bodies are called on to adjudicate on environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating upon environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations that fall for judicial consideration. The determination of such harm requires access to scientific data which is often times difficult to come by in individual situations. 6 Bruce Pardy, ‘Towards an Environmental Rule of Law’, 17 Asia Pacific Journal of Environmental Law 163 (2014). 35 PART I52In an article in the Georgetown Environmental Law Review (2020), Arnold Kreilhuber and Angela Kariuki explain the manner in which the environmental 7 rule of law seeks to resolve this imbroglio : “One of the main distinctions between environmental rule of law and other areas of law is the need to make decisions to protect human health and the environment in the face of uncertainty and data gaps. Instead of being paralyzed into inaction, careful documentation of the state of knowledge and uncertainties allows the regulated community, stakeholders, and other institutions to more fully understand why certain decisions were made.” The point, therefore, is simply this – the environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding. 53 In the case before us, it is not possible for us to determine in quantifiable terms the exact effect of the construction of the Hotel-cum-Restaurant structure by the appellant and the second respondent on the ecology of the area. Both of them have tried to argue that the number of trees felled by them, in the case of the present construction, is what it would have been, had they only built a bus stand and a parking space. However, what we can record a determination on is 7 Arnold Kreilhuber and Angela Kariuki, ‘Environmental Rule of Law in the Context of Sustainable Development’, 32 Georgetown Environmental Law Review 591 (2020). 36 PART I the way in which the appellant and second respondent have gone about achieving this object. Specifically, the parties have engaged in the construction without complying with the plans drawn by the appellant’s third-party consultants, which were agreed to by them in the RFP. The construction proceeded even when the TCP Department tried to halt it, refusing to approve its plans. Even the post facto refusal by the MOEF for changing the nature of the diverted forest land was not enough to stop the parties. Ultimately, when they were forced to halt the construction by the CEC, they proceeded with it under the guise of an order of this Court which permitted only legal construction. A combination of these circumstances highlights not only conduct oblivious of the environmental consequences of their actions, but an active disdain for them in favour of commercial benefits. While the second respondent was a private entity, they were actively supported in these efforts by the appellant. Hence, it is painfully clear that their actions stand in violation of the environmental rule of law. Whatever else the environmental rule of law may mean, it surely means that construction of this sort cannot receive our endorsement, no matter what its economic benefits may be. A lack of scientific certainty is no ground to imperil the environment. I.2 Role of courts in ensuring environmental protection 54 In a recent decision of this Court in Bengaluru Development Authority 8 vs Sudhakar Hegde , this Court, speaking through one of us (DY Chandrachud, J.) held:
8. 2020 SCC OnLine SC32837 PART I “107. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth… 108. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions… 109. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.” 9 55 In Lal Bahadur vs State of Uttar Pradesh , this Court underscored the principles that are the cornerstone of our environmental jurisprudence, as emerging from a settled line of precedent: the precautionary principle, the polluter pays principle and sustainable development. This Court further noted the importance of judicial intervention for ensuring environmental protection. In a recent decision in State of Meghalaya & others vs All Dimasa Students 9 (2018) 15 SCC407 38 PART I10Union , this Court reiterated the key principles of environmental jurisprudence in India, while awarding costs of Rs. 100 crores on the State of Meghalaya for engaging in illegal coal mining. 56 The UNEP report (supra) also goes on to note11 : “Courts and tribunals must be able to grant meaningful legal remedies in order to resolve disputes and enforce environmental laws. As shown in Figure 5.12, legal remedies are the actions, such as fines, jail time, and injunctions, that courts and tribunals are empowered to order. For environmental laws to have their desired effect and for there to be adequate incentives for compliance with environmental laws, the remedies must both redress the past environmental harm and deter future harm.” 57 In its Global Judicial Handbook on Environmental Constitutionalism, the 12 UNEP has further noted : “Courts matter. They are essential to the rule of law. Without courts, laws can be disregarded, executive officials left unchecked, and people left without recourse. And the environment and the human connection to it can suffer. Judges stand in the breach.” 58 The above discussion puts into perspective our decision in the present appeals, through which we shall confirm the directions given by the NGT in its impugned judgment. The role of courts and tribunals cannot be overstated in ensuring that the ‘shield’ of the “rule of law” can be used as a facilitative instrument in ensuring compliance with environmental regulations. 10 (2019) 8 SCC177 11 Supra at note 5, pg 213. 12 UNEP, Global Judicial Handbook on Environmental Constitutionalism (3rd edition, 2019), pg 7. 39 PART I I.3 Illegal activities on forest land 59 We are not traversing unexplored territory. In the past, this Court has clamped down on illegal activities on reserved forest land specifically, and in violation of environmental laws more generally, and taken to task those responsible for it. In a recent three-judge bench decision of this Court in the case of Hospitality Association of Mudumalai vs In Defence of Environment and 13 Animals , this Court was confronted with a situation involving illegal commercial activities taking place in an elephant corridor. Justice S. Abdul Nazeer, speaking for the Court, held as follows: “42… the “Precautionary Principle” has been accepted as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation.” 14 60 In Goel Ganga Developers India Pvt. Ltd. vs Union of India , this Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows: “64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of 13 2020 SCC OnLine SC838 14 (2018) 18 SCC257 40 PART I cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more.” 15 61 In M.C. Mehta vs Union of India , a two judge Bench of this Court held that the land notified under Punjab Land Preservation Act, 1900 in the Kant Enclave was to be treated as “forest land”. As a result, any construction made on the land or its utilization for “non-forest purposes” without Central Government approval was violative of the Forest Act and therefore illegal. The relevant excerpt of this Court’s decision, speaking through Justice Madan B. Lokur, is as follows: “132... R. Kant & Co. and the Town and Country Department of the State of Haryana being fully aware of the statutory Notification dated 18-8-1992 and the restrictions placed by the notification. R. Kant & Co. and the Town and Country Department of the State of Haryana were also fully aware that Kant Enclave is a forest or forest land or treated as a forest or forest land, and therefore any construction made on the land or utilisation of the land for non-forest purposes, without the prior approval of the Central Government, would be illegal and violative of the provisions of the Forest (Conservation) Act, 1980. Notwithstanding this, constructions were made (or allowed to be made) in Kant Enclave with the support, tacit or otherwise, of R. Kant & Co. and the Town and Country Department of the State of Haryana. They must pay for this.” 15 (2018) 18 SCC397 41 PART I62In the present set of appeals, the forest land was allowed to be used by the MOEF for the specific purposes of constructing a ‘parking space’ and ‘bus stand’ in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this permission, even when granted an opportunity to do so. Hence, any construction undertaken by the second respondent, even with the tacit approval of the appellant being a statutory authority under the HP Bus Stands Act, will be illegal. I.4 Jurisdiction of NGT63An ancillary issue now remains for our consideration, which is whether the NGT could have adjudicated upon a violation of the TCP Act, which is not an Act present in Schedule I of the NGT Act. In a recent two-judge Bench decision of this Court in State of M.P. vs Centre for Environment Protection Research & 16 Development , one of us speaking for the Court (Justice Indira Banerjee), held as follows: “41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.
42. In view of the definition of “substantial question relating to environment” in Section 2(1)(m) of the NGT Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large.
43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any 16 (2020) 9 SCC781 42 PART J legal right to environment and such question should arise out of implementation of the specified enactments.
44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I.” The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP Department before changing the nature of the land through their construction. Non-conformity with this stipulation led to a violation of their environmental obligations. In any case, this question is academic because the NGT’s impugned judgment grounds its decision in the appellant and second respondent’s violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act. J Conclusion 64 Based on our analysis above, we uphold the directions which have been issued by the NGT in its judgment. By the earlier orders dated 16 May 2016 and 9 September 2016, this court only stayed NGT’s direction in relation to the demolition of the Hotel-cum-Restaurant structure. The appellant has tried to argue against the demolition of the Hotel-cum-Restaurant structure in the Bus Stand Complex, submitting that it may be allowed to stand for their use. However, we cannot accept this submission. Doing so would legalise what is an otherwise entirely illegal construction, the reasons for which have been adduced by us in the judgment above. 65 Hence, we direct that the process of demolishing the Hotel-cum- Restaurant structure in the Bus Stand Complex be commenced within two weeks 43 PART J from the date of the judgment and the structure shall be demolished by the second respondent within one month thereafter. In the event of default, the Chief Conservator of Forest along with the administration of district Dharamshala shall demolish the structure and recover the cost and expenses as arrears of land revenue from the second respondent. 66 Further, as directed by the NGT, the State of Himachal Pradesh and the second respondent can utilise the parking space and the bus stand in the Bus Stand Complex, after the demolition of the Hotel-cum-Restaurant structure. However, this has to be in accordance with orders dated 12 November 1997 and 1 March 2001 issued by the MOEF, i.e., it shall not be used for any purpose other than parking of cars and buses, as the case may be. 67 The appeals are accordingly disposed of. 68 Pending application(s), if any, stand disposed of. …….………….…………………...........................J.
[Dr Dhananjaya Y Chandrachud]. …….…………………………...............................J.
[Indu Malhotra]. …….…………………………...............................J.
[Indira Banerjee]. New Delhi; January 12, 2021. 44