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. = Our answer to both the questions is in the affirmative.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 1 of 81

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

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

M.C. Mehta ….Petitioner

versus

Union of India & Ors. …. Respondents

In Re : Kant Enclave matters

WITH

I.A. Nos. 2310-2311 IN W.P. (C) No. 202/1995

J U D G M E N T

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 2 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 3 of 81

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.”

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 4 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 5 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 6 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 7 of 81

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:

1 W.P. No. 202 of 1995

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 8 of 81

“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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 9 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 10 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 11 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 12 of 81

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 worksin 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

2 W.P. No. 4677 of 1985

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 13 of 81

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

3 M.C. Mehta v. Union of India, (1996) 8 SCC 462

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 14 of 81

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 11

th 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

4 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India, (1997) 3 SCC 715

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 15 of 81

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 Byelaws/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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 16 of 81

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 ½ 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

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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 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.”

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,

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 18 of 81

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 singlestorey

“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:

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 19 of 81

“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.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 20 of 81

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.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 21 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 22 of 81

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

5 T.N. Godavarman v. Union of India, (1997) 2 SCC 267

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 23 of 81

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

6 W.P. No. 171 of 1996

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 24 of 81

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

7 W.P. No. 202 of 1995

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 25 of 81

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 5

th December, 2001 (being IA No.

1785 of 2001) to the effect that large-scale mining activity near the DelhiHaryana

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 26 of 81

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

8

(2004) 12 SCC 118

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 27 of 81

(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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 28 of 81

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

9 T.N. Godavarman v. Union of India, (2008) 16 SCC 401

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 29 of 81

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

10 M.C. Mehta v. Union of India, (2004) 12 SCC 118

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 30 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 31 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 32 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 33 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 34 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 35 of 81

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, farmhouses,

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 36 of 81

wise land-use maps had been prepared. These comprised of three

components, namely, satellite imagery, scanned village maps and superimposed

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 37 of 81

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

11 W.P. No. 4677 of 1985

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 38 of 81

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 semipublic

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 39 of 81

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 ₹ 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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 40 of 81

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

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 41 of 81

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, would be a forest. Reference was also made to the decision of

this Court rendered on 18th March, 2004 in this regard.

63. The affidavit further stated that the Principal Chief Conservator of

Forests, had informed the Director, Town & Country Planning Department

by a letter dated 27th January, 2006 that the land of the applicant being

Khasra Nos. 9 to 16 in village Anangpur is notified under Section 4 of the

PLP Act. Therefore, the above area was treated as a forest in view of the

orders passed by this Court on 18th March, 2004. Since the applicant had

never submitted any proposal with the Forest Department for diversion of

forest land for non-forestry use, the Director, Town & Country Planning

had asked the applicant by letter dated 27th June, 2006 to seek the diversion

of forest land in Khasra Nos. 9 to 16 in village Anangpur for non-forestry

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 42 of 81

use in accordance with the provisions of the Forest (Conservation) Act,

1980.

64. The application was taken up for consideration by this Court and by

a judgment and order dated 14th May, 2008 the application was dismissed.12

A three-judge Bench of this Court noted that the challenge was really to

the communication dated 31st January, 2005. While dealing with the

decisions rendered by this Court from time to time, the three-judge Bench

noted that developing a plot and making construction thereon would

amount to clearing up or breaking up of an area and that would be in

violation of the prohibition contained in the notification of 18th August,

1992. It was held in paragraph 12 of the Report:

“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.”

12 M.C. Mehta v. Union of India, (2008) 17 SCC 294

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 43 of 81

65. This Court also noted the view of the Central Ground Water Board

to the effect that the area in question in village Anangpur has been notified

as a very precarious groundwater situation and that any construction

activity therein without adequate water reserves will also have a negative

effect. It was also noted that the groundwater table is already at a critical

stage in Faridabad.

66. The decision of this Court rendered on 14th May, 2008 has attained

finality and all the submissions advanced by the applicant were duly

considered and rejected by a Bench of three learned judges of this Court.

The issue whether the applicant could make any construction whatsoever

on the notified land that is Khasra Nos. 9 to 16 in village Anangpur in

violation of the notification issued under the provisions of the PLP Act was

not open to discussion earlier and in any event is no longer res integra or

open to any further discussion or examination.

An alleged discordant note

67. The issue of the status of areas closed under the provisions of the

PLP Act came up for consideration in B.S. Sandhu v. Government of

India and others.

13 In this case, about 3,700 acres of land in village

Karoran in District Ropar in Punjab was notified under the provisions of

the PLP Act. Despite this, the Forest Hill Golf and Country Club was

13 (2014) 12 SCC 172

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 44 of 81

established on closed land and was being developed allegedly in blatant

violation of the environment and forest laws as well as orders passed by

this Court on 12th December, 1996.

68. Learned counsel for the applicant relied heavily on this decision to

contend that merely because a notification had been issued under the

provisions of the PLP Act, the closed land does not become ‘forest land’.

This very contention had been raised by the Proprietor/Managing Director

of the Country Club (Sandhu) in the Punjab & Haryana High Court. It was

submitted that his land was private land and it could not be treated as forest

land without a formal notification under Section 35 of the Indian Forest

Act, 1927.

69. According to the State of Punjab, an Expert Committee was

constituted in terms of the orders passed by this Court on 12th December,

1996 and this Expert Committee included the entire area of village Karoran

as forest area in its report. The Punjab and Haryana High Court rejected

the contention urged by Sandhu and that gave rise to appeals which were

decided by this Court.

70. This Court noted that the notification issued under the provisions of

the PLP Act resulted in the land in village Karoran being recorded as land

under the control of the Forest Department and therefore forest land. In

other words, the basis of the conclusion that the entire land in village

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 45 of 81

Karoran is forest land was that the land was closed under the provisions of

the PLP Act and was therefore a forest. Consequently, the first question

required to be decided by this Court was whether land notified under the

provisions of the PLP Act is forest land or not.

71. This Court took the view that activities prohibited in closed areas

under the PLP Act are such that are not normally carried on in a forest.

Reference was made to activities such as cultivation, pasturing of sheep

and goats, erection of buildings by inhabitants of towns and villages,

herding, pasturing or retaining cattle etc. Therefore, the closed land could

not be forest land. This Court observed that land notified under the

provisions of PLP Act may or may not necessarily be forest land and the

decision of the High Court holding that closed land was forest land was not

at all correct in the law. It was held that the High Court failed to correctly

appreciate the meaning of ‘forest’ and ‘forest land’ as well as the decision

of this Court in Godavarman (decided on 12th December, 1996).

72. It was also held that since the Forest (Conservation) Act, 1980 came

into force on 25th October, 1980 the High Court had to decide whether

Sandhu’s land was forest land as on that date irrespective of its

classification or ownership. The High Court ought to have examined the

Government record as on 25th October, 1980 before concluding that

Sandhu’s land was forest land and not only the provisions of the PLP Act

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 46 of 81

and the records of the Forest Department which showed the land to be

forest only because of the fact that the land was closed under the provisions

of the PLP Act.

73. This Court also examined the two decisions rendered in M.C.

Mehta14 15. These decisions were distinguished on the ground that they

related to the Aravalli hills in the State of Haryana and further it was held

therein that the State Forest Department has been treating and showing the

closed area as forest in fact and in law. Consequently, non-forest activities

could not be allowed in such areas without the prior permission of the

Central Government as mandated by the Forest (Conservation) Act, 1980.

It was noted that this Court has not enquired into the basis of inclusion of

the areas as forest by the State Forest Department. This Court also did not

consider whether land became forest land by mere inclusion in terms of the

notification issued under the PLP Act. On the other hand, in the case under

discussion the Government of Punjab had stated that the basis of inclusion

of the entire land of village Karoran as forest area in the records of the

Forest Department was that the land was closed under the PLP Act and this

basis was not correct in law.

74. This Court having distinguished the decisions rendered by this Court

in M.C. Mehta and by necessary implication the orders passed in

14 (2004) 12 SCC 118

15 (2008) 17 SCC 294

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 47 of 81

Godavarman, we do not see how the decision in Sandhu can be of any

assistance to the applicant. The decision in Sandhu must be confined to its

own facts.

75. We may mention, without comment, that the purpose of issuing a

notification under the PLP Act is to ensure that in the closed area there is

no activity such as cultivation, pasturing of sheep and goats, erection of

buildings, herding, pasturing or retaining cattle etc. Therefore, the

notification is a clear indication that such closed areas must be forest land

or treated as forest land so that such objectionable non-forest activities are

not carried out therein and that activities that are not normally carried out

in forests are prohibited in forest land, so as to preserve and protect such

forest land. A notification under the PLP Act does not convert land into

forest land but recognizes it as such or at least requires it to be treated as

such.

76. We may also mention, en passant, the provisions of Section 35(1) of

the Indian Forest Act, 1927. This refers to breaking up or clearing of land

for cultivation, pasturing of cattle etc. and reads as follows:

“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;

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 48 of 81

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 communication;

(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.

Review in disguise

78. Notwithstanding unambiguous conclusions arrived at by this Court

from time to time on matters pertaining to the environmental degradation

of the Aravalli hills and the implications of a notification issued under the

provisions of the PLP Act, the applicant persisted in pressing these

applications and sought to contend that it was fully entitled, as of right, to

make constructions on the land owned by it and known as Kant Enclave.

Submissions were made by learned counsel for the applicant on issues that

have conclusively been settled by this Court and in fact, the submissions

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 49 of 81

were only a rehash of submissions made from time to time and which have

been rejected. It was submitted by learned counsel for the applicant, relying

on Delhi Administration v. Gurdip Singh Uban16 that the applications

filed by it and by the Residents Welfare Association were perfectly

maintainable. Reference was made to Point No. 1 discussed in the decision.

This Point reads as follows:

“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?”

79. This Court considered the question in considerable detail and

deprecated the practice of filing review applications in undeserving cases

without any proper examination of the substance of the applications. It was

noted that indiscriminate filing of such review petitions wastes the time of

the Court and that there must be some seriousness and restraint in filing

review applications. This Court answered the question in the following

manner:

“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

16 (2000) 7 SCC 296

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 50 of 81

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.”

80. It was made clear that what is of important is the substance of the

application and not the title given to it and genuine cases requiring a

clarification or modification or a recall would of course be entertained. It

was observed by this Court as follows:

“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.”

81. On this basis, it was submitted by learned counsel for the applicant

that there was no bar in the applicant moving or pressing appropriate

applications and that is precisely what has been done.

82. In our opinion, there is nothing in these applications before us to

remotely suggest that the various orders passed by this Court need any

clarification or modification or recall. All issues raised by the applicants

have been considered threadbare by several Benches of this Court and all

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 51 of 81

of them have arrived at a similar conclusion namely that the environmental

and ecological degradation of the Aravalli hills must stop and that

everybody is bound by the terms of the notification issued under the

provisions of the PLP Act and that closed land under the notification dated

18th August, 1992 is a forest and should be treated as a forest.

83. That apart, the view expressed by this Court in Gurdip Singh Uban

cannot be limited only to applications for modification, clarification or

recall. There is a growing tendency to provide different nomenclatures to

applications to side-step the rigours and limitations imposed on an

applicant and the Court in dealing with a review petition. Applications can

be and are titled as applications for directions, rehearing, reconsideration,

revisiting etc. etc. One has only to open a thesaurus and find an equivalent

word and give an application an appropriate nomenclature so that it could

be taken up for consideration in open Court and on its merits and not as a

review petition by circulation. In our opinion, the nomenclature given to

an application is of absolutely no consequence – what is of importance is

the substance of the application and if it is found, in substance, to be an

application for review, it should be dealt with by the Court as such, and by

circulation.

84. Considering the substantive applications filed by the applicant, we

are of the clear opinion that these applications are nothing but disguised

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 52 of 81

review petitions and they should not have been listed for hearing in open

Court without an appropriate order passed by this Court. They should have

first been circulated and dealt with as review petitions and if the concerned

Bench was of the view that they were required to be heard in open Court,

only then should they have been listed for hearing in open Court. However,

we are not detaining ourselves any further in this regard since we propose

to deal with these applications on merits, treating them as applications for

clarification, modification, recall, reconsideration etc. of the orders passed

by this Court from time to time.

85. Learned counsel for the applicants (Kant & Co. as well as the

Residents Welfare Association of Kant Enclave) and the learned Amicus

made detailed submissions over a couple of days on a variety of issues that

they believed arose in these cases. Even though we are of opinion that in

view of several decisions rendered by this Court from time to time, such

submissions are not open to be made by learned counsel, nevertheless, the

submissions having been made, we will deal with each of them.

Is the notified land a forest or treated as a forest?

86. The principal contention urged by learned counsel for the applicants

is that the land in question Khasra Nos. 9 to 16 in village Anangpur notified

under the provisions of the PLP Act on 18th August, 1992 was not forest

land. This submission is clearly liable to be rejected.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 53 of 81

(i) Affidavits of the State of Haryana

87. In this connection, we may refer to the affidavit of Shri Banarsi Das,

IFS, Principal Chief Conservator of Forests, Haryana. The affidavit dated

8

th December, 1996 was filed in Environmental Awareness Forum v.

State of Jammu & Kashmir.

17

In this affidavit it is stated that the total

forest area in Haryana in 1985-86 was 1,68,543 hectares. This included

26,499 hectares of areas closed under the PLP Act. In other words, as far

back as in 1985-86, if not earlier, the Principal Chief Conservator of

Forests of the Government of Haryana considered and treated areas closed

under the provisions of the PLP Act as forest land. This was well before

the present controversy had arisen. The affidavit goes on to state that in

1995-96 the total forest area in Haryana was 1,54,706 hectares and this

included 11,513 hectares of area closed under the PLP Act. It is quite clear

to us that as far as the State of Haryana is concerned, closed areas under

the PLP Act were always treated as forest land and this was well before

any controversy arose in the matter.

88. Pursuant to an order passed by this Court an affidavit was filed on

25th February, 1997 by Shri S.K. Maheshwari, IAS, Commissioner &

Secretary in the Forest Department. The affidavit was filed in the case of

Godavarman. It was stated that since the PLP Act came into force in 1900

17 W.P. No.171 of 1996

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 54 of 81

some cut-off date was required for identification of forests and forest land.

This cut-off date was taken as 25th October, 1980 that is the date on which

the Forest (Conservation) Act, 1980 came into force. This date was taken

only for convenience and for no other reason. This is clear from the

affidavit which also states that closure under the PLP Act “creates forests”

during the period of closure, after which the land is no longer shown as

forest in government records. The affidavit reiterates that closed areas are

“counted as forest” during the currency of the closure under the PLP Act.

Therefore, identification of forest land from 1900 would have been a

humungous task and to avoid an unnecessary exercise, the cut-off date of

25th October, 1980 was taken. The affidavit cannot be read or understood

to mean that land not recorded as ‘forest’ on 25th October, 1980 in the

Government records can never become or be recognised or treated as

‘forest’. This would be too far-fetched and would go against the letter and

spirit of the PLP Act.

89. The affidavit of Shri Prem Prashant, IAS, Chief Secretary of

Haryana takes us back beyond 1985-86 and 25th October, 1980. In the

affidavit dated 10th September, 2006 filed in response to I.A. No. 1901 of

2005 filed by the applicants (in M.C. Mehta) Shri Prem Prashant takes us

back to notifications dated 10, 1970 and 10th November, 1980 issued by

the State of Haryana through the Forests and Animal Husbandry

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 55 of 81

Department and subsequent notifications dated 16th November, 1995 and

28th November, 1997. This was to bring on record that the provisions of

the PLP Act have been made use of through notifications issued thereunder

for several decades for the protection and preservation of forests and forest

land, even if such lands are not recorded as ‘forest’ in Government records.

This would be in consonance with the provisions and the spirit of the PLP

Act.

90. In an affidavit dated 15th March, 2009 filed by Shri Dharam Vir, the

Chief Secretary of Haryana with reference to the report of the CEC dated

15th January, 2009 in M.C. Mehta it was submitted that all constructions

made post 17th April, 1984 (the date on which exemption was granted to

the applicants under Section 23 of the Haryana Development and

Regulation of Urban Areas Act, 1975) may be allowed to exist. This

affidavit must be read in conjunction with the notification of 18th August,

1992 and if so read, it suggests that the Chief Secretary desired that

constructions made between 17th April, 1984 and 18th August, 1992 may

be allowed to exist. However, even Shri Dharam Vir did not doubt or deny

that closed areas under the PLP Act are forest or forest land. He only

suggested a possible reprieve to the applicants.

91. The view of the Government of Haryana is therefore quite clear and

consistent that land notified under the PLP Act is forest land and no

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 56 of 81

construction can be made thereon but if some dilution is to be made, then

it should be only for the period between 17th April, 1984 and 18th August,

1992.

92. Quite apart from the affidavits filed by the State of Haryana through

the Chief Secretary or the Principal Chief Conservator of Forests or the

Commissioner & Secretary of the Forest Department, we are aware that

through the conduct and correspondence of the Town & Country Planning

Department that it was very keen on permitting construction in closed

areas. We are not sure why the Town & Country Planning Department was

persistently going out of its way to be of assistance to the applicants but

whatever the reason, it was categorical in recommending the

environmental degradation of the Aravalli hills.

(ii) Orders of this Court

93. In addition to the affidavits of the State of Haryana, the various

orders passed by this Court from time to time in Godavarman and in M.C.

Mehta make it very clear that closed areas under the PLP Act are forest

and forest land and need to be treated as forest land.

94. The decisions of this Court, go back to 10th May, 199618 when this

Court proposed to deal with preserving the environment and controlling

18 M.C. Mehta v. Union of India, (1996) 8 SCC 462

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pollution through the stoppage of mining operations within the radius of 5

km from the tourist resorts of Badkal Lake and Surajkund. This Court

considered reports prepared by the Haryana Pollution Control Board and

the National Environmental Engineering Research Institute. It was noted

that the State of Haryana had already prohibited mining operations within

the radius of 5 km from these tourist resorts and on a consideration of the

reports mentioned above, it was concluded that there shall be no mining

activity within a 2 km radius of the tourist resorts of Badkal Lake and

Surajkund. All the mines, which fall within the said radius shall not be

reopened. It was further directed that no construction activity of any type

shall be permitted now onwards within the 5 km radius of Badkal Lake and

Surajkund and all open areas shall be converted into green belts.

Interestingly, this Court also noted as follows:

“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.”

95. The order dated 10th May, 1996 was subsequently modified on 11th

October, 199619 to the effect that now onwards construction activity would

19 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India, (1997) 3 SCC 715

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 58 of 81

not be permitted in certain areas, and there was no blanket ban. Permission

to construct was subject to utmost necessity for recreational and tourism

purposes and no other. However, exemption was granted to plots already

sold or allotted prior to 10th May, 1996 in developed areas (this was varied

subsequently). It was further directed as follows:

“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.”

96. Further, with regard to the issue of water management, this Court

referred to the report of the National Environmental Engineering Research

Institute and noted as follows:

“…..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.”

97. The reason why we are referring to availability of water, or the lack

of it, is because even the Chief Minister of Haryana in his order of 11th

July, 1990 had noted that the availability of water from the aquifers is of

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 59 of 81

paramount importance and that aquifers available at the deeper level would

be fully exploited to meet the demand of water supply for the population

of Kant Enclave.

98. In spite of all these concerns shown to the environment and

availability of water, the fact of the matter is that today Badkal Lake is

bone dry and there is no water in the ‘Lake’. We had specifically asked

learned counsel for the parties as well as learned Amicus about the status

of Badkal Lake and we were told quite categorically that today there is

absolutely no water in Badkal Lake. The damage to the environment has

been done and appears to be irreversible.

99. One of the more significant orders was passed by this Court on 12th

December, 1996.

20 Through this order, this Court laid down what could be

described as ‘forest’ and ‘forest land’. The view taken was that the two

expressions must be given their dictionary or natural meaning and if so

considered, there can be no doubt that degraded forests and closed lands

under the PLP Act are nothing but forest land. Similarly, the orders passed

by this Court from time to time in M.C. Mehta make it loud and clear that

the Aravalli hills need protection from environmental degradation and the

laws must be strictly enforced to ensure that there is no damage caused to

the ecology of the Aravalli hills. In view of the clear expression of views

20 T.N. Godavarman v. Union of India, (1997) 2 SCC 267

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and conclusions arrived at by this Court from time to time and repeated on

several occasions we have no doubt that closed areas under the PLP Act

are nothing but forest land and deserve to be treated as such.

100. In the decision rendered on 12th December, 1996 this Court directed

the identification of 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. As a result of this, each State

Government was directed, inter alia, to:

(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.

101. Notwithstanding the concern shown by this Court for the

environment and ecology of the Aravalli hills, the tacit support given to the

applicants by the Town & Country Planning Department of the State of

Haryana completely vitiated the efforts of the Forest Department as well

as the orders of this Court. It came to such a pass that the Delhi Ridge

Management Board was compelled to file an application on 29th

November, 2001 being I.A. No. 1785 of 2001 in which it was stated that

the withdrawal and pumping of ground water in the Ridge was a matter of

serious concern. It was, therefore, prayed that the Government of Haryana

may be directed to stop all mining activity and pumping of ground water

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 61 of 81

in and from the area of 5 km from the Delhi-Haryana border in the Haryana

side of the Ridge. This application resulted in this Court passing an order

on 6th May, 2002 directing the stoppage of all mining activity and pumping

of ground water as prayed for. This order was followed by another order

passed by this Court on 22nd July, 2002 (not reported) requiring EPCA to

furnish a report, which it did on 9th August, 2002 to the effect that the order

passed on 6th May, 2002 deserved to be confirmed.

102. Subsequently, EPCA gave another report on 21st October, 2002 on

the basis of information obtained from the Central Ground Water Board to

the effect that mining activity was going on and the mines were operating

below the ground water level which was resulting in exploitation and

destruction of ground water sources.

103. The blatant and open flouting of orders passed by this Court resulted

in the constitution of the Central Empowered Committee (CEC) on 17th

September, 2002 for monitoring and ensuring compliance of the orders

passed by this Court. The CEC submitted reports to this Court from time

to time. These have already been adverted to and need not be repeated.

104. In its decision dated 18th March, 2004 this Court considered all this

material and addressed all the issues raised before it including issues of

environmental and ecological degradation.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 62 of 81

105. This Court specifically addressed itself to the question whether

closed areas under the PLP Act are ‘forest’ of any kind. This Court noted

that the Forest Department of the State of Haryana showed such areas as

‘forest’ in its records and treated such areas as ‘forest’; affidavits had also

been filed on behalf of the State of Haryana in cases pending in this Court

to the same effect; the word ‘forest’ and ‘forest land’ had been clearly

explained by this Court in its order dated 12th December, 1996 and finally

the Government of Haryana itself sought permission from the Central

Government to divert land closed by notifications under the PLP Act for

non-forest purposes. Therefore, it was held that the State of Haryana

cannot now take a somersault and contend that areas closed under the PLP

Act are not forest. This Court disposed of I.A. No. 1785 of 2001 and

confirmed the order passed on 6th May, 2002 and held that areas closed

under the PLP Act cannot be utilized for non-forest purposes without the

prior permission of the Central Government under the provisions of the

Forest (Conservation) Act, 1980.

(iii) Review Petition of Kant Enclave

106. In view of the restrictions imposed by this Court, which obviously

did not suit the applicants, a review petition being R.P. No. 914 of 1997

was filed by R. Kant & Co. on or about 26th February, 1997. In the review

petition, it was not disclosed that a notification had been issued under the

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 63 of 81

PLP Act. While concealing this extremely important fact, a review was

sought of the order passed by this Court on 11th October, 1996 to the effect

that no permission is required from the Central Pollution Control Board or

the Haryana Pollution Control Board in respect of the constructions made

by the applicant beyond the 1 km but within the 5 km radius of Badkal

Lake and Surajkund.

107. The review petition was taken up for consideration on 17th March,

1997 when it was made clear that plans for construction of houses could be

filed before the Competent Authority who could examine them in

accordance with the applicable rules and if the plans were in order, they

could be “kept ready until further orders.” Since the full facts were not

placed before this Court, an order was passed to the effect that for the

purposes of examination, there should be no insistence by the concerned

authorities on the production of No Objection Certificate from the Central

or State Pollution Control Board. It was also observed that 2 ½ storey

buildings could be constructed.

108. On 13th May, 1998 the Court modified the order passed on 17th

March, 1997 to the effect that in certain private areas where construction

is proposed, only single storey hutments could be permitted to be

constructed and not tall buildings as originally conceived. Therefore, it is

quite clear from the orders passed by this Court that construction was not

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 64 of 81

permitted until further orders but that plans could be prepared and

examined.

109. A reference to the above orders clearly indicates that the State of

Haryana and the applicants had full knowledge of the proceedings in this

Court, but showed no concern for the environment and the ecology of the

area.

110. In our opinion, it was extremely important for R. Kant & Co. to have

come out with full facts in the review petition filed by it, more particularly

the fact of the issuance of the notification dated 18th August, 1992. The

failure to disclose this material fact vitiates the proceedings initiated by the

applicant in this Court.

(iv) Interlocutory Application filed by the applicant

111. Notwithstanding complete clarity on the issue of what is a forest and

forest land, the status of closed areas notified under the PLP Act and issues

of environmental and ecological degradation of the Aravalli hills, the

applicants made bold to file I.A. No. 1901 of 2005 (in M.C. Mehta)

sometime in October 2005 in which it was prayed that the decision

rendered by this Court on 18th March, 2004 is restricted only to mining

activities and does not affect the construction activities carried out by the

applicant, which it is entitled to in view of the orders passed by this Court

on 13th May, 1998.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 65 of 81

112. In response to the application, an affidavit dated 10th September,

2006 was filed by Shri Prem Prashant, IAS, Chief Secretary of Haryana in

which it was categorically stated that the provisions of the PLP Act have

been taken recourse to from time to time for the protection of forests and

forest land. In this regard, he annexed notifications issued by the State of

Haryana on 12th March, 1970 through the Forests and Animal Husbandry

Department, 10th November, 1980 through the Forest Department, 16th

November, 1995 through the Forest Department and 28th November, 1997

through the Forest Department.

113. The notification dated 18th August, 1992 was one of such

notifications for the protection of forests and forest lands. It was

categorically stated on affidavit that from the date of the notification, that

is, 18th August, 1992 the subject land was being treated as forest and it was

also included in the list of forests in the Government records. This was also

shown as a forest in the affidavit filed by the State of Haryana in

Godavarman. That the subject land was forest land was also stated by the

Principal Chief Conservator of Forests in a letter dated 27th January, 2006

addressed to the Director, Town & Country Planning Department. In fact,

the said Director had required the applicant to seek the diversion of the

forest land for non-forestry purposes by letters dated 27th January, 2006

and 27th June, 2006 but the applicant did not do so. It was specifically

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 66 of 81

pointed out to the applicant in both the letters that constructions made by

the applicant were illegal, but obviously, to no effect.

114. The application was taken up for consideration by a Bench of three

learned judges who dismissed the application by a judgment and order

dated 14th May, 2008.21 The issue whether land closed by a notification

issued under the provisions of the PLP Act was forest land was once again

considered by this Court and the decision rendered on 18th March, 2004

was specifically and categorically reiterated.

115. We would have imagined that the applicant R. Kant & Co. would

have learnt a lesson from the dismissal of its review petition, the

interlocutory application as well as the orders passed by this Court from

time to time and reports given by expert bodies, but it does not appear to

have been so. We say this because, after the decision of this Court rendered

on 14th May, 2008 R. Kant & Co. filed an application being I.A. No. 2310

of 2008 on 11th July, 2008 challenging a communication dated 23rd May,

2008 issued pursuant to the orders passed by this Court. Subsequently, the

applicant also filed I.A. Nos. 2377-79 of 2009 objecting to the reports filed

by the CEC. These I.A.s were not argued before us and no submissions

were made in respect of these I.As.

21 M.C. Mehta v. Union of India, (2008) 17 SCC 294

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 67 of 81

(v) Issue again raised in this Court

116. The pendency of the present applications in this Court gave occasion

to the applicants to once again try and raise the issue of closed areas under

the PLP Act being not forest or forest land. Reference was made to the

decision of this Court in Sandhu. It was submitted that this Court had

struck a discordant note in Sandhu. We cannot agree since the decision in

Sandhu itself distinguished the M.C. Mehta set of orders both on facts and

in law. The decision rendered in Sandhu cannot, by any stretch of

imagination, come to the aid of the applicants.

117. We may only note that in so far as the present case is concerned,

there is a wealth of material to indicate clearly that closed land under the

PLP Act is forest land or in any event, is required to be treated as forest

land. Several notifications issued under the PLP Act have been brought to

our notice which prohibit certain activities which ought not to be carried

out on forest land. The affidavits filed by responsible officers of the State

of Haryana, including affidavits filed by the Chief Secretary unequivocally

state that lands closed under the PLP Act are forest land. Similarly, there

are judgments and orders passed by this Court to the same effect and the

conduct of the State of Haryana, including the Forest Department and its

relationship with the Town & Country Planning Department is a clear

indication that lands closed under the provisions of the PLP Act are nothing

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 68 of 81

but forest or forest land.

118. There is absolutely no doubt that Sandhu is distinguishable both on

facts and in law and it has been recognised as such by this Court in the

judgment delivered in Sandhu. It was suggested by learned counsel for

the applicants that because this Court did not enquire into the basis of

inclusion of closed areas as forest, therefore the notification dated

18th August, 1992 is vitiated. Reliance placed on an observation in Sandhu

with respect, may not strictly be valid, in the sense that there was enough

material to indicate why, at least since 1970 closed areas have been

included as forest and treated as forest by the State of Haryana. We may

add that there was a report of a Committee that eventually led to the

issuance of the notification dated 18th August, 1992 but that was

unfortunately not placed before us in spite of our request to learned counsel

for the State of Haryana.

119. What is of crucial importance and great significance is that no one

has challenged the validity or correctness of the notification dated 18th

August, 1992. We do not see how the correctness or validity of the

notification can be challenged without any direct attack. A collateral attack

cannot be permitted more certainly so by relying upon another decision of

this Court, which has nothing to do with the facts of the present case.

120. On the other hand, the applicants have ‘challenged’ every significant

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 69 of 81

order passed by this Court, either through a Review Petition or through

Interlocutory Applications. The applicants have been unsuccessful in every

such adventure.

121. Taking an overall view of all the facts in the case and the law on the

subject, we have no doubt that Kant Enclave is a forest or is a forest land

or is required to be treated as a forest or forest land and absolutely no

construction activity could have been permitted on it with effect from 18th

August, 1992. Any and all construction activity in Kant Enclave since that

date is illegal and impermissible in law.

Mining centric orders

122. The next submission advanced by learned counsel for the applicants

was to the effect that all the orders passed by this Court were mining centric

and did not relate to construction activity in Kant Enclave. This argument

is stated only to be rejected. The judgments delivered by this Court have

only to be read and understood and it would be more than obvious that the

concern of this Court was to preserve and protect the environment in and

around the Aravalli hills and generally avoid environmental and ecological

degradation of the area both through the stoppage of mining activity and

constructions. Unfortunately, this Court was unable to enforce its orders in

letter and spirit, thanks entirely to the apathy of the State of Haryana and

the persistence of the applicants with the result that Badkal Lake is today,

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 70 of 81

admittedly, absolutely dry.

123. The culpability of some of the State authorities in ensuring this tragic

situation is quite evident from I.A. No. 2269 of 2007 filed by the

Administrator, Haryana Urban Development Authority, in which the first

prayer is to the effect that this Court should issue an appropriate direction

that the judgment and order dated 18th March, 2004 was restricted only to

mining activities and did not affect the development or urbanisation or

construction activities carried out as per the laws, rules and regulations of

the Municipal Corporation of Faridabad or the Haryana Urban

Development Authority. Despite the clear judgment and order passed by

this Court, the attitude of some sections of the State Government obviously

did not change and unrestricted development through mining activity and

construction activity was given precedence over the environment resulting

in, amongst other things a parched Badkal Lake.

Notification issued erroneously

124. It was then contended by learned counsel for the applicants that the

inclusion of Khasra Nos. 9 to 16 in village Anangpur in the notification

dated 18th August, 1992 was a mistake and that it was always the intention

of the State of Haryana to keep this land out of the rigours of the PLP Act.

This submission too is stated only to be rejected. If it was in fact the

intention of the State of Haryana to keep Kant Enclave out of the purview

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 71 of 81

of the notification dated 18th August, 1992 nothing prevented the State

from either issuing a corrigendum or issuing a fresh notification or taking

some positive step to delete Khasra Nos. 9 to 16 in village Anangpur from

the rigours of the notification.

Alleged inapplicability of the notification

125. Reliance was then placed on the provisions of sub-section (1) and

sub-section (7) of Section 29 of the Faridabad Complex (Regulation and

Development) Act, 1971 to submit that the notification dated 18th August,

1992 was not applicable to controlled areas. These provisions read as

follows:

“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.”

126. In terms of Section 2(f) of the said Act, a controlled area means an

area declared under Section 29 of the said Act to be a controlled area.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 72 of 81

127. We are unable to appreciate the relevance of this submission for the

reason that, as per the Statement of Objects and Reasons, there was a

multiplicity of local authorities in the Faridabad-Ballabhgarh area with the

result that integrated development of this area was not possible.

Consequently, it was essential to devise a set up for administration of this

area which would meet the objectives of rapid and integrated development

and eliminate haphazard development. The said Act was intended to

achieve this objective. Quite clearly, this has nothing to do with the

notification dated 18th August, 1992. Moreover, Section 29(1) of the said

Act related to any law for the time being in force – the notification dated

18th August, 1992 came much later and was not in force when the said Act

was enacted.

Other submissions

128. It was then contended that the exemption granted on 17th April, 1984

under the provisions of the Haryana Development and Regulation of Urban

Areas Act, 1975 exempted the applicant or in any case Kant Enclave from

all the provisions of the said Act. While this may be so, we do not see how

the said Act exempts the applicant or Kant Enclave from the prohibitions

imposed by the subsequent notification dated 18th August, 1992. The said

Act has no relevance or reference to the provisions of the PLP Act.

129. Learned counsel for the applicants also contended that in view of the

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 73 of 81

decision rendered by this Court in Sandhu, the subject land ought to have

been an existing forest as on 25th October, 1980 when the Forest

(Conservation) Act, 1980 came into force. In our opinion, this is not at all

a correct interpretation of the decision rendered by this Court in Sandhu.

It is nobody’s case, and indeed it cannot be anybody’s case that no area can

be declared as a forest after 25th October, 1980. If this were the

interpretation given, then the entire purpose of the order dated 12th

December, 1996 passed by this Court would be rendered meaningless since

it was in terms of this order that forest land was directed to be identified,

even if that land was not so recognised as forest land. Acceptance of the

interpretation sought to be given by learned counsel would also emasculate

the PLP Act.

130. The final submission of learned counsel for the applicants was that

constructions were made in terms of the orders passed by this Court on 17th

March, 1997 and 13th May, 1998 and in fact, building plans and sanction

plans were approved by the concerned authorities. Therefore, it must be

held by this Court that the members of the Kant Enclave Residents Welfare

Association had acted bona fide and therefore their houses or constructions

should not be demolished as suggested by the CEC.

131. In this regard, it must be appreciated that the order dated 17th March,

1997 as modified on 13th May, 1998 permitted construction only in

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 74 of 81

accordance with law and not de hors the notification dated 18th August,

1992. It is not the case of any of the applicants before us, and indeed it

cannot be their case, that the orders of this Court gave a complete go by to

the notification and virtually quashed it even though it was never under

challenge at that point of time or even today. It appears that very large

residential complexes have been constructed despite the orders of this

Court, which did not give any blanket permission to the applicants to make

constructions, according to their whims and fancies. For reasons that are

not at all clear, such constructions were permitted by the concerned

authorities despite the orders of this Court and even though the notification

dated 18th August, 1992 prohibited breaking up of the land. It is difficult,

under the circumstances, to take the view that the applicants and the

concerned authorities had acted bona fide.

132. We had asked learned counsel for the applicants to place before us

the details of the construction made in Kant Enclave. The following chart

was then placed before us on 24th July, 2018. This chart indicates that out

of a total of about 1600 plots said to have been carved out by R. Kant &

Co. in Kant Enclave, conveyance deeds have been executed only in respect

of 284 residential plots and three commercial plots. On the residential

plots, only 33 houses have been constructed and it appears that not one of

them is a single-storey hutment.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 75 of 81

S.No. Particulars Work Done

1. Conveyance Deeds Executed 284 residential plots

2. Conveyance Deeds Executed 3 commercial plots

3. Houses constructed and people living 33 houses

4. Film Studio (FS-2) constructed 1 no.

5. Overhead water tank of 545 KL capacity

constructed and functional

3 nos.

6. Underground water tank of 1200 KL capacity

constructed and functional

3 nos.

7. Pumping Station (Functional) 1 no.

8. Pumping Machine (Submersible pumps)

installed and functional

9 nos.

9. Sewage Treatment Plant having cost of more

than Rs. 70,00,000/- installed

1 no.

10. Parks (fully developed) 14 nos.

11. Roads completed 136460 Sq. Mtr.

(Approx. 20 KM)

12. Street lights poles erected and energised 627 nos.

13. Internal sewage pipe lines completed and

functional

21150 Mtrs.

14. Storm water drain completed and functional 18000 Mtrs.

15. Water supply pipe lines completed and

functional

22700 Mtrs.

16. Trees planted 10000 nos. (Along

road side and in green

belt)

17. Fire hydrants/Fire tanks having 265 CUM

capacity

3 nos.

18. Electric sub-station for 650 KV transformer 2 nos.

133. The extent of violation of the notification dated 18th August, 1992 is

quite frightening and one can only imagine the phenomenal environmental

and ecological damage caused to the area by the applicants. This could not

have happened without the knowledge of the State of Haryana and its

officers who permitted blatant disregard of the rule of law despite affidavits

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 76 of 81

of the Chief Secretary of the State of Haryana. The rule of law seems to

have broken down in Haryana and become the rule of men only to favour

the applicants. At this point, we cannot help but referring to a passage from

a judgment of this Court with regard to the Aravalli hills and the need for

their protection. We had intended to avoid this reference only because it

would be repetitive, but it is painful to see such a mockery of the law and

total lack of concern for the environment and ecology of the Aravalli hills.

134. In the order dated 18th March, 200422 it was stated in paragraph 58

of the Report as follows:

“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].

Relief

135. The question that now remains for consideration is whether any

relief is required to be granted to the applicants and if so what relief should

22 M.C. Mehta v. Union of India, (2004) 12 SCC 118

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 77 of 81

be granted.

136. There is no doubt that irreversible damage has been caused to the

environment and ecology of the Aravalli hills. The damage was caused or

allowed to be caused, despite a statutory notification issued under the

provisions of the PLP Act. The brazenness of the applicants in flouting the

law is quite apparent. But what is more unfortunate is the support given to

the applicants by the Town & Country Department of the State of Haryana,

despite the reservations of the Forest Department. The Town & Country

Department in apparent collusion with R. Kant & Co. effectively led a very

large number of people up the garden path. Fortunately, only 33 of them

have made some personal constructions – but it is not clear whether their

constructions are pre or post 18th August, 1992.

137. Therefore, we have two categories of persons who have been taken

for a ride by R. Kant & Co. The first category consists of those who have

been conveyed land by R. Kant & Co. and the second category consists of

those who have been conveyed land and have made constructions.

138. As far as the first category of persons is concerned, the relief that

can be awarded to them is a full refund of their investment along with

interest at 18% per annum payable entirely by R. Kant & Co. from the date

of the investment. We order accordingly.

139. As far as the second category of persons is concerned, as submitted

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 78 of 81

by Shri Dharam Vir, Chief Secretary of the State of Haryana in his affidavit

of 15th March, 2009 there is an available, reasonable and appropriate course

of action to adopt. This course of action is to save or allow to exist

constructions made in Kant Enclave pursuant to the exemption granted to

the applicant (R. Kant & Co.) on 17th April, 1984 under Section 23 of the

Haryana Development and Regulation of Urban Areas Act, 1975 but

before 18th August, 1992 when the notification under the provisions of the

PLP Act came into force. Any construction made after 18th August, 1992

is clearly illegal and contrary to law and must be demolished as

recommended by the Central Empowered Committee. We accept the

submission made by Shri Dharam Vir and the CEC and do not disturb the

constructions made between 17th April, 1984 and 18th August, 1992. We

direct accordingly.

140. However, in respect of constructions made after 18th August, 1992

there is no option but to direct the State of Haryana to demolish the illegal

and unauthorised constructions. The demolition should be completed on or

before 31st December, 2018. We direct accordingly.

141. In Godrej & Boyce Manufacturing Company Limited v. State of

Maharashtra23 this Court considered the issue of unauthorised

construction from the point of view of a well-meaning citizen who is led

23 (2014) 3 SCC 430

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 79 of 81

up the garden path by the State, which gives statutory permission for

unauthorised constructions. In the present case of Kant Enclave, wellmeaning

citizens have been virtually duped into investing huge amounts

despite R. Kant & Co. and the Town & Country Department of the State

of Haryana being fully aware of the statutory notification dated 18th

August, 1992 and the restrictions placed by the notification. R. Kant & Co.

and the Town & 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 & Country

Department of the State of Haryana. They must pay for this. This is not to

suggest that those who have made constructions after 18th August, 1992 are

completely innocent. Nevertheless, it is necessary to compensate them in

view of the role played by the Town & Country Planning Department of

the State of Haryana. To compensate them for the land, we direct that R.

Kant & Co. to give them a full refund of their investment in the land along

with interest at 18% per annum from the date of the investment. We order

accordingly.

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 80 of 81

142. As far as the cost of construction is concerned, we tentatively

quantify it at ₹ 50 lakhs. This will be paid to those who constructed after

18th August, 1992 and whose construction is directed to be demolished.

The quantified amount will be paid, in equal proportion, by R. Kant & Co.

and the Town & Country Planning Department of the State of Haryana.

The quantified amount is directed to be paid on or before 31st December,

2018. If anyone who’s construction is demolished in view of our orders, is

not satisfied with the quantification, that person is at liberty to proceed

against R. Kant & Co. and the Town & Country Planning Department of

the State of Haryana by way of a civil suit in accordance with law and with

the cause of action arising as on today.

143. The Polluter Pays Principle is a wholesome principle that has been

universally accepted and also adopted and applied in our country through

several decisions of this Court. In this context, we may draw attention to

among two of the earliest decisions rendered by this Court, namely, Indian

Council for Enviro-Legal Action v. Union of India24 and Vellore Citizens’

Welfare Forum v. Union of India.

25 The law having been settled for more

than two decades, we are of the view that it must be applied in a case such

as the present. The damage caused to the Aravalli hills, as already noted,

is irreversible. However, perhaps some of the damage could be remedied –

24 (1996) 3 SCC 212

25 (1996) 5 SCC 647

IAs. 2310/2008 etc. in W.P. (C) NO. 4677 of 1985 etc. Page 81 of 81

at least we hope so. According to R. Kant & Co. it has expended ₹ 50 crore

in developing Kant Enclave. We do not know the exact or accurate figure

but proceed on the basis as stated. In our opinion, it would be reasonable

to require R. Kant & Co. to deposit 10% of this amount (that is, ₹ 5 crore)

for rehabilitation of the damaged areas. This amount should be deposited

by R. Kant & Co. in the Aravalli Rehabilitation Fund within one month

and in any case on or before 31st October, 2018. The matter be listed only

for compliance of this direction in the first half of November 2018.

144. We direct the incumbent Chief Secretary of the State of Haryana to

ensure compliance with our remaining orders, both in letter and spirit on

or before 31st December, 2018.

145. The substantive applications stand disposed of in the terms

mentioned above.

………………………J.

(Madan B. Lokur)

New Delhi; .……………………..J.

September 11, 2018 (Deepak Gupta)