GREEN DECISION UPDATES 2006

Appellants: Hetalben Jitendrakumar Vyas Vs. Respondent: Police Inspector AIR2006Guj97: Decided On: 27.01.2006

Appellants: Bhuneshwar Patel Vs. Respondent: State of Jharkhand and Ors. [2006(2)JCR238(Jhr)] Decided On: 06.02.2006

Appellants: Mulibash Hastasilpa Samabay Samity Ltd. and Ors.
Vs.Respondent: State of Assam and Ors.: AIR2006Gau113, Decided On: 01.02.2006

8. Mullaperiyar Environmental Protection Forum vs. Union of India (UOI) and Ors. 27.02.2006

9. Intellectuals Forum, Tirupathi vs. State of A.P. and Ors. 23.02.2006

Appellants: The Managing Trustee Vs. Respondent: State of Kerala and Ors. Decided On:31.03.2006 AIR2006Ker300

Akhil Bharat Gosewa Sangh vs. State of A.P. and Ors. Decided on 29.03.2006

State of Tamil Nadu and Anr. vs. P. Krishnamurthy and Ors. 24.03.2006

Bombay Dyeing and Mfg. Co. Ltd. vs. Bombay Environmental Action Group and Ors. 07.03.2006

M.C. Mehta vs. Union of India (UOI) and Ors.Decided on 13.04.2006

T.N. Godavarman Thirumalpad vs. Union of India (UOI) and Ors. Decided on 10.04.2006

T.N. Godavarman Thirumulpad vs. Union of India (UOI) and Ors. : Decided on 10.04.2006

Karnataka Industrial Areas Development Board vs. Sri. C. Kenchappa and Ors.Decided on 12.05.2006

Appellants: M. Prabhakar Reddy Vs. Respondent: State of A.P. and Anr. AIR2006AP386, 2006(5)ALD161 :Decided On: 14.06.2006

Appellants: Bhanuprakash A S/o Ananda Rao and B. Murugesha Rao, S/o B. Kamalaksha Vs. Respondent: State by the A.C.F., represented by The State Public Prosecutor: Decided On: 14.07.2006,  Citation: 2006CriLJ4292, ILR2006KAR3216, 2006(5)KarLJ64

Appellants: Annai Indira Women Self Help Group represented by its Co-ordinator Mrs. Palliammal :Decided On: 08.08.2006 Vs.
Respondent: The District Forest Officer, Sathyamangalam Division, The Member Secretary cum Forest Ranger Bejalletti Village Forest Council, Bhavani Sagar Forest Range and The President Bejalletti Village Forest Council

Appellants: J. Mohana Vs. Respondent: The Commissioner of Police and Ors. : Decided On: 24.08.2006, (2006)4MLJ525

Appellants: Mrs. Susetha Vs. Respondent: State of Tamil Nadu and Ors. : Decided On: 08.08.2006,

Appellants: The Union of India (UOI) rep. by its Secretary to Government, Ministry of Environment and Forests Vs.
Respondent: Member Secretary, Chennai Metropolitan Development Authority and Shri T.R. Balu, Honourable Minister for Environment and Forests, Ministry of Environment,2006(4)CTC460, (2006)4MysLJ: Decided On: 08.09.2006

Appellants: Gunavathi Proprietrix of Decorticating Unit Vs. Respondent: The Chairman Tamil Nadu Pollution Control Board and The Joint Chief Environmental Engineer Tamil Nadu Pollution Control Board: Decided On: 26.09.2006

Appellants: Tamil Nadu Vivasayigal Sangam, Reg. No. 1018 rep. by its Secretary T. Balakrishnan  Vs. Respondent: The District Forest Officer and The Assistant Settlement Officer :Decided On: 19.10.2006

Appellants: Bombay Environment Action Group and Sameer Mehta
Vs. Respondent: State of Maharashtra (through Secretary, Urban Development Dept. and Secretary, Revenue and Forest Dept.) and Ors.
[Along with Civil Application No. 2244 of 2004] : Decided On: 19.10.2006

Appellants: Sadanand Varde and Ors. Vs. Respondent: State of Maharashtra, through its Secretary, Urban Development Ministry and Ors. :Decided On: 21.11.2006

Appellants: C. Sankareswaran and R. Arunagiri Vs.
Respondent: The Commissioner, Land Ceiling and Land Reforms and Ors.

Appellants: T.N. Godavarman Thirumulpad Vs. Respondent: Union of India (UOI)and Ors.: Decided On: 15.12.2006

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Special Civil Application No. 13751 of 2003

Appellants: Hetalben Jitendrakumar Vyas Vs. Respondent: Police Inspector AIR2006Guj97: Decided On: 27.01.2006

Hon'ble Judges:


Anil R. Dave and P.B. Majmudar, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Hina Desai, Adv. for Petitioner 1

For Respondents/Defendant: Kamal Trivedi, Addl. A.G., Sangeeta Vishen, Adv. for Respondent 1 - 2 and JJ Yajnik, Adv. for Respondent 3

Subject: Environment

Acts/Rules/Orders:
Bombay Police Act - Section 33; Environment (Protection) Rules, 1989

JUDGMENT

Anil R. Dave, J.

1. The petitioner has mainly approached this court with a grievance that there is no policy restraining the citizens from bursting crackers on public streets and, therefore, it has been prayed in the petition that the respondents should be directed to frame some policy restraining or regulating bursting of crackers on public streets/roads.

2. The circumstances in which the petitioner has approached this court, in a nutshell, are as under:

2.1 On 10.2.2003, when the petitioner was passing through a road in Sabarmati area of Ahmedabad with her son Aryan, aged about 2 1/2 years, a marriage procession of son of respondent No. 5 was passing through the said road and the members of the procession were also bursting fire crackers on the road as a part of celebration. All of a sudden, one of the fire crackers bursted in such a way that it hit and damaged one of the eyes of the petitioner's son, named, Aryan. The child started bleeding from his right eye and he had to be rushed to a hospital. In spite of all possible efforts of the doctors, Aryan lost sight of his right eye. The doctors treating the child have opined that the child will never have vision in the eye which has been lost due to the damage caused by the cracker. It has been stated by the petitioner that she had spent substantial amount of money for treatment of the child, but all her efforts were in vain as the child is unable to see through the damaged eye even today.

2.2 In the aforesaid circumstances the petitioner has approached this court with a prayer that the government authorities should be directed to frame a policy or enact some rules and regulations banning bursting of crackers on public streets/roads and Respondents Nos. 4 and 5 should be directed to pay compensation to the petitioner.

3. Looking to the nature of litigation, the learned single Judge before whom the petition was notified for hearing directed that the petition should be treated as a public interest litigation and, therefore, this petition has been placed before this court.

4. We have heard the learned advocate for the petitioner and learned Addl. Advocate General Shri Kamal Trivedi appearing with AGP Ms Sangita Vishen for the government authorities. In spite of service of notice of this court upon respondents Nos. 4 and 5, the parents of the bride and the bridegroom, they have preferred not to appear before this court.

5. Upon perusal of the averments made in the petition, which have been supported by medical certificates issued by medical officers of a government as well as a private hospital, correctness of the averment made in the petition regarding permanent damage caused to the right eye of the child cannot be doubted. In absence of any denial to the averments regarding the damage caused to the child's eye, we come to the conclusion that the child has lost his right eye as a result of the afore stated mishap.

6. In pursuance of notice issued by this court, an affidavit-in-reply has been filed by respondent No. 1 denying that there is no policy banning or regulating bursting of crackers on public streets. It has been stated that, in pursuance of powers given to the Commissioner of Police, Ahmedabad City, under the provisions of Section 33 of the Bombay Police Act, an order dated 13.11.1997 had been issued by him, whereby it has been ordered that crackers should not be bursted on public streets in the city of Ahmedabad during marriage processions or religious, social or political meetings. The Police Inspector, Sabarmati Police Station, in his affidavit-in-reply, has also submitted that an FIR had been filed by the petitioner on 11.2.2003 and in pursuance of the said FIR, investigation had been initiated by him.

7. Alongwith an affidavit dated 25.3.2004, the Dy. Commissioner of Police, Traffic Branch, Ahmedabad City, has annexed a copy of the order issued by the Police Commissioner, Ahmedabad City, dated 13.11.1997, whereby bursting of crackers on footpaths and public streets during marriage processions, religious and social meetings has been banned. In the said affidavit, he has further stated that no permission for bursting of crackers on public streets is being granted by the authorities.

8. In the course of hearing of the petition, it was felt that the aforestated order issued by the Commissioner of Police was not given due publicity and therefore the respondent authorities were directed to give due publicity to the said order. Accordingly due publicity was given to the said order dated 13.11.1997 and an affidavit stating the said fact was filed on 17.4.2004 by the Dy. Commissioner of police, Traffic Branch, Ahmedabad City, It has been stated in the said affidavit that the contents of the said order had been published practically in all leading newspapers and even contents of the said order had been telecast through Doordarshan. Moreover, banners stating that bursting of crackers is banned had been also displayed at several prominent places in Ahmedabad City. Thus, all possible efforts were made by the respondent government authorities to see that people are informed about the order dated 13.11.1997, whereby bursting of crackers has been banned on public streets. It has been further stated that people were also informed that bursting of crackers on public streets is an offence. Copies of the press notes released by the government authorities have been annexed to the said reply. At the time of hearing of the petition, the learned Addl. Advocate General has further submitted that the people residing in other parts of the State shall also be informed that bursting of crackers on public streets has been banned as stated hereinabove so that people may not burst crackers on public streets for the purpose of celebrating such events.

9. In view of the statements made by responsible police officers in the affidavits filed before this Court as well as upon recording statement of the learned Addl. Advocate General, we are satisfied that due efforts are being made to see that bursting of crackers at public streets has not only been banned, but sufficient efforts are also being made to see that people are being about the said restriction.

10. Moreover, The Environment (Protection) Rules, 1989 (hereinafter referred to as 'the Rules) are very much in existence which also deal with control and regulation of noise pollution. Bursting of crackers also pollute the environment and, therefore, item No. 89 in Schedule I to the said Rules provide as under:

89. Noise Standard for Fire-crackers

A. (i) The manufacture, sale or use of fire-crackers generating noise level exceeding 125dB(AI) or 145dB(C) at 4 meters distance from the point of bursting shall be prohibited.

(ii) For individual firecrackers constituting the series (joined fire-crackers), the above mentioned limit be reduced by 5 log 10 (N)dB, where N=Number of crackers joined together.

11. In addition to the above-stated Rules governing noise level of the fire-crackers, the Hon'ble Supreme Court had an occasion to deal with the noise pollution created by the fire-crackers In Re. Noise Pollution. While giving final directions in relation to fire-crackers, the Hon'ble Supreme Court has observed in para 168 as under:

xxx          xxx              xxx

4. There shall be a complete ban on bursting sound emitting firecrackers between 10 pm and 6 am. It is not necessary to impose restrictions as to time on bursting of colour/light emitting firecrackers.

5. Every manufacturer shall on the box of each firecracker mention details of its chemical contents and that it satisfies the requirement as laid down by DOE, In case of a failure on the part of the manufacturer to mention the details or in cases where the contents of the box do not match the chemical formulae as stated on the box, the manufacturer may be held liable.

6. Firecrackers for the purpose of export may be manufactured bearing higher noise levels subject to the following conditions: (i) The manufacturer should be permitted to do so only when he has an export order with him and not otherwise; (ii) The noise levels for these firecrackers should conform to the nose standards prescribed in the country to which they are intended to be exported as per the export order; (iii) These firecrackers should have a different colour packing, from those intended to be sold in India; (iv) They must carry a declaration printed thereon something like 'not for sale in India' or 'only for export to country AB' and so on.

12. The above facts denote that there are sufficient legal provisions regulating manufacturing and bursting of fire-crackers and, therefore, there is no need to give any direction to the respondent government authorities for framing any policy with regard thereto as prayed for in the petition. It has been however submitted by the learned advocate appearing for the petitioner that the aforesaid provisions are not much known to people at large and, therefore, the said provisions are often violated. We find substance in what has been submitted by the learned advocate and, therefore, we direct the Secretary, Home Department, that he should give directions to the concerned officers, who are concerned with issuance of licences for manufacturing or dealing in firecrackers that the firecrackers manufactured or sold by them should not be such which would make noise above the level prescribed in the aforesaid Rules. In the licence, which might be issued, the aforesaid condition should be incorporated and the officers concerned with implementation as well as supervision should see that the firecrackers are not sold in violation of any of the provisions of the aforesaid Rules and the final directions given by the Hon'ble Supreme Court. He is further directed to see that an overall restriction with regard to bursting of firecrackers on pubic streets is imposed in the entire state and due publicity to the said restriction is given.

13. The aforesaid direction shall be given by the Secretary, Home Department, to the concerned officers as soon as possible and preferably within four weeks from the date of receipt of the writ of this order by him.

14. Looking to the uncontroverted facts of the case, it is clear that a small child Aryan has lost his right eye only on account of bursting of crackers by the members of the marriage procession. Respondents nos. 4 and 5, the parents of the bride and the bridegroom, though served with the notice of this court, have not preferred to appear before this court and that also denotes that they do not dispute the said fact.

15. Looking to the peculiar facts of the case, and more particularly in view of the fact that a young child, who is now about 5 years old, has lost his right eye permanently, and as the averments made in the petition supported by medical certificates have not been controverted by respondents nos. 4 and 5, as a special case, we award a sum of Rs. 15,000/- as costs/damages to the petitioner. The said sum shall be paid by respondents Nos. 4 and 5 jointly and severally within one month from the date of receipt of the writ of this court by them. Be it recorded that the said sum of Rs. 15,000/- is not awarded by way of total damages. It would be open to the petitioner or any of the guardians of Aryan to take appropriate legal recourse for recovery of amount of damages from the said respondents or from any other concerned person because, as per averments made in the petition, approximately Rs. 40,000/- have already been spent by the petitioner for treatment of Aryan.

16. A copy of this judgment shall be forwarded to the Secretary, Home Department of the State of Gujarat as well as to the Director General of Police, Gujarat State so as to enable them to do the needful.

In view of the above order, the petition is partly allowed. Rule is made absolute to the above extent with costs as quantified hereinabove.

IN THE HIGH COURT OF JHARKHAND

W.P. (C) No. 4798 of 2004

Appellants: Bhuneshwar Patel Vs. Respondent: State of Jharkhand and Ors. [2006(2)JCR238(Jhr)] Decided On: 06.02.2006

Hon'ble Judges:
R.K. Merathia, J.

1. Heard the parties.

2. Petitioner prays for an order, similar to the order passed by this Court in W.P. (C) 4080 of 2003 in the case of Mithu Ram on 16.8.2004.

3. Mr. Atanu Banerjee, learned Counsel appearing on behalf of the petitioner submitted that several trucks were seized and the Divisional Forest Officer-cum-Authorized Officer, Hazaribagh was directed to dispose of the interim applications for relief, by order dated 10.7.2002, passed in W.P. (C) No. 186 of 2002, but he passed final order confiscating the trucks in question. He further submitted that one of the truck owners, Mithu Ram moved this Court and the matter was remanded back for taking afresh decision on merits.

4. However, Mr. Banerjee agreed that the petitioner's application for interim relief need not be decided separately, as the main confiscation case itself is to be decided on merits now.

5. Mr. Pradip Modi, learned Counsel for the State submitted that apart from the petition for interim relief, the petitioner also filed his show cause on 21.5.2002 in the main confiscation case and after allowing several opportunities, the said final order was passed after taking into consideration the relevant aspects of the matter and nothing further is required to be decided.

6. However, in view of the said order passed in W.P. No. 4080 of 2003 on 16.8.2004 (Annexure-8), order passed by the Divisional Forest Officer-cum-Authorized Officer, Hazaribagh in Confiscation Case No. 18 of 2002 as contained in Annexure-3 and also the order passed by. the Deputy Commissioner-cum-Competent Appellate Authority as contained in Annexure-7 are hereby quashed. The matter is remitted back to the Divisional Forest Officer, Hazaribagh to dispose of the Confiscation Case No. 18 of 2002 on merit after giving sufficient opportunity of hearing to the parties.

7. It is expected that, as the matter is old, the Divisional Forest Officer, Hazaribagh will dispose of the confiscation case of the petitioner in accordance with law, within a period of three months from the date of receipt/production of a copy of this order, if the petitioner and other concerned parties co-operate.

8. With these observations and directions, this application is disposed of.

 

IN THE HIGH COURT OF GAUHATI

Writ Appeal No. 529 of 2001

Appellants: Mulibash Hastasilpa Samabay Samity Ltd. and Ors.
Vs.Respondent: State of
Assam and Ors.: AIR2006Gau113, Decided On: 01.02.2006

Hon'ble Judges:
B. Sudershan Reddy, C.J. and H.N. Sarma, J.

Acts/Rules/Orders:
Indian Forest Act, 1927; Assam Forest Regulation, 1891 - Section 3(3)

Cases Referred:
Suresh Lohiya v. State of Maharashtra and Anr. (1996) 10 SCC 397 : 1996 AIR SCW 4111

Disposition:
Appeal allowed

JUDGMENT

B. Sudershan Reddy, C.J.

1. The petitioners in CR No. 3627/98 are the appellants in this Writ Appeal. This Writ Appeal is directed against the judgment and order dated 27-9-2001 whereby and where under the learned Single Judge dismissed the writ petition filed by the appellants.

2. The writ petition has been filed by the appellants herein with a prayer to declare that the finished products made of the bamboo and canes including the mats, chati, beti etc. are not 'forest produce' within the meaning of that expression as provided for under Section 3(3) of the Assam Forest Regulation, 1891, as amended from time to time.

3. The sum and substance of the case set up by the appellants in this writ appeal is that they are not required to obtain transit pass/permit for transportation of the said finished products. Learned Counsel for the appellants in support of the contention relied upon the Notification issued by the State Govt. on 4-5-1992, which is to the following effect:

GOVERNMENT OF ASSAM
FOREST DEPARTMENT, SECTT.
BRANCH,
DISPUR.

No. ERS.160/91/13 Dated Dispur, 4th May, 1992

From : Shri S. B. Roy Choudhury, ACS Deputy Secretary to the Govt. of Assam.

To : The General Secretary,

Malibash Hasin Slipa Samabay Samiti Ltd., Banamali Road, Karimganj, Cachar.

Subject : Transit Pass of bamboo products (Beti & Chati) under Khadi Cottage Industries.

Ref: Your Letter dated 13-12-91.

Sir,

With reference to your letter quoted above, I am directed to inform you that for transportation of finished products including Beti & Chati No T.P. is required.

This cancels this Office letter No. FRS 160/91/12 dated 24th March, 1992.

Yours faithfully,
Deputy Secretary to the Govt. of Assam,
Forest Department, Dispur.

4. The appellants herein sought for appropriate relief virtually seeking enforcement of the Notification dated 4-5-1992 under which, admittedly, no transit pass/permit as such required for transportation of finished products including Beti & Chati. The Notification dated 4-5-1992 issued by the Govt. still continues to be in operation. The validity of the Notification dated 4-5-1992 is not the subject matter of the writ petition.

5. The learned Judge even after noticing the said Notification, framed the question requiring adjudication by the Court in the following manner:

(i) Whether the finished products like Beti & Chati can be treated as 'forest produce' for the purpose of transit pass?

In our considered opinion, framing of the issue itself was not required since nobody challenged the Notification dated 4-5-1992 issued by the Govt. clarifying that for transportation of finished products including Beti & Chati: no transit pass/Permit as such is required to be obtained. It is nobody's case that the Notification dated 4-5-1992 issued by the Govt. suffers from any infirmities or illegalities.

6. However, the question that falls for consideration is not res integra but squarely covered by the authoritative pronouncement of the Supreme Court in Suresh Lohiya v. State of Maharashtra and Anr. wherein the Supreme Court while construing analogous provisions in Indian Forest Act, 1927 and having framed the question whether bamboo mate is a 'forest produce' as is this expression known to the Indian Forest Act, 1927, held that "... though bamboo as a whole is forest-produce, if a product, commercially new and distinct, known to the business community as totally different is brought into existence by human labour, such an article and product would cease to be a forest-produce. The definition of this expression leaves nothing to doubt that it would not take within its fold an article or thing which is totally different from forest-produce having a distinct character..."

That Court accordingly held that bamboo mate is not a forest produce.

7. In view of the aforesaid authoritative pronouncement of the Supreme Court, there is nothing left as such for adjudication.

8. The learned Judge, however, took the view that Beti & Chati are nothing but split form of bamboo, which is capable of being transformed without any skill and, therefore, cannot be treated as finished products. The view taken by the learned Judge is a contrary to the view expressed by the Supreme Court. Whether Beti & Chati are the finished products is not an issue either in the writ petition or before us in this Writ Appeal. In the circumstance, the conclusion drawn in the Notification that Beti & Chati are the finished products and totally distinct from bamboo as understood in the commercial world cannot be interfered with. In the circumstances, we find it difficult to sustain the view taken by the learned Judge for dismissing the writ petition.

9. As noted (supra), it was a simple case where the writ petitioner sought for appropriate direction enforcing the Notification dated 4-5-1992 issued by the Govt., which is binding on all its subordinates. The authorities are required to implement and follow the Notification dated 4-5-1992 issued by the Government as long as it is in operation.

10. For the aforesaid reasons, the judgment under appeal is set aside. Accordingly, this writ appeal is allowed without any order as to costs.

11. This order, however, shall not preclude the State Govt. to take appropriate steps, if it so desires, to make necessary amendment to the Notification dated 4-5-1992.

 

IN THE HIGH COURT OF KERALA

 

O.P. No. 16323 of 1998(R)

 

Appellants: The Managing Trustee Vs. Respondent: State of Kerala and Ors. Decided On:31.03.2006 AIR2006Ker300

 

Hon'ble Judges:

 

K.S. Radhakrishnan and K.M. Joseph, JJ.

 

Subject: Environment

 

Acts/Rules/Orders:

Kerala Preservation of Trees Act, 1986 - Section 5 and 5(1); Madras Preservation of Private Forest Act, 1949; Kerala Private Forest (Vesting and Assignment) Act, 1971 - Sections 2 and 8; Kerala Private Forests (Vesting and Assignment) Act, 1978 - Section 8(C); State Reorganisation Act, 1956 - Section 5(2); Kerala Land Reforms Act, 1963

 

Petition allowed

 

JUDGMENT

 

K.S. Radhakrishnan, J.

 

1. This original petition has been preferred seeking a writ of certiorari to quash Exts. P7 and P8 notifications issued by the Government of Kerala in exercise of the powers conferred by Sub-section (1) of Section 5 of the Kerala Preservation of Trees Act, 1986 directing the petitioner not to cut trees mentioned in the areas specified in the Schedule thereto except on the ground that the tree constitutes a danger to life or property or the tree is dead, diseased or wind fallen. Explanatory Note attached to

 

Ext. P8 Notification reads as follows:

 

Explanatory Note

 

(This does not form part of the notification, but is intended to indicate its general purport.)

 

As per the sketch prepared by the Assistant Director of Survey, Forest Mini Survey, the area computed is 44.1342 hectares in survey No. 2050 in Agali Village. The area shown as 11.7950 hectares on the sketch prepared by the Division Surveyor is only an error while computing the area and out of this 0.5422 hectares relinquished by Arya Vaidya Sala to Irumbakachola Road. Thus the total area restored to Arya Vaidya Sala is 41.1342 hectares. In this sketch a small bit on the Southern side comprising an extent of above 0.57 hectare is marked as Vested Forest which is within the compound wall of Arya Vaidya Sala. Government decided to restore this area also to the Arya Vaidya Sala. So the total area restored to Arya Vaidya Sala comes to 44.7042 hectares.

 

This notification is intended to achieve the above object.

 

Petitioner submits that the above mentioned notification is illegal and the petitioner's properties would not fall within the scope of Section 5(1) of the Kerala Preservation of Trees Act, 1986.

 

2. Detailed counter-affidavit has been filed on behalf of the respondents stating that the area in question is a portion of Anakkaranam Malavaram in Pottassery village and supports large number of trees of spontaneous growth and it is felt that the petitioner may fell trees on restoration of the area and that would lead to wanton destruction of forest tree growth in the area resulting in the ecological imbalance and soil erosion. It is with a view to regulate the felling of trees available in the area the notification was issued for regulating the felling of trees as per Section 5 of the Act. It is also stated that Section 5 of the Act empowers the Government to restrict felling of trees with a view to preserve tree growth in private forests or in the cardamom hill reserve or in any other areas cultivated with cardamom by notification in the gazette. It is stated that the land is covered by the erstwhile M.P.P.F. Act and is a private forest within the definition of the Act and consequently Government is justified in issuing the notification under Section 5 of the Act.

 

3. Properties mentioned in the abovementioned notification was the subject-matter of O.A. No. 123 of 1977 before the Forest Tribunal, Manjeri. That was an application preferred by the petitioner herein under Section 8 of the Kerala Private Forest (Vesting & Assignment) Act, 1971 for a declaration that the properties mentioned therein is not private forest liable to be vested in the Government under the Vesting Act. Matter was elaborately considered by the Tribunal and the Tribunal held as follows:

 

The title of the petitioner to his property is not disputed by the respondents. Exts. A1 to A4 and A6 will prove the title of the petitioner and I find that the petitioner is the owner of the property...

 

There is every reason to hold that all these had been cultivated even prior to 10-5-1971. The medicinal plants and herbs cultivated in this property are agricultural crops. In the circumstances, I find that the property concerned in this petition is not a private forest as defined in Act 26 of 1971. As such it is not liable to be vested in the Government.

 

In the result, this petition is allowed finding that the entire extent of 130.90 acres of property concerned in this petition is not a private forest and that it is not liable to be vested in the Government under Act 26 of 1971.

 

The above order was appealed against by the State by filing M.F.A. No. 456 of 1978 and the same was dismissed by this Court by judgment dated 9-10-1984. Review petition, R.P. No. 64 of 1987 was preferred by the State under Section 8(C) of the Kerala Private Forests (Vesting and Assignment) Act, 1978 before this Court and the same was dismissed on 2-9-1992. Though matter has become final, lands were not restored to the petitioner and consequently filed O.P. No. 8139 of 1994 which was disposed of on 29-6-1994 directing the Government to consider and dispose of the representation dated 24-2-1993 and to restore formal possession to the petitioner.

 

4. Area of 41.2528 hectares was restored to the petitioner on 6-11-1995. Area of 44.7042 hectares was also restored to the petitioner as per the order in O.A. 123/77 of the Forest tribunal, Manjeri, vide Government letter dated 3-4-1998. Later Government issued two notifications, Exts. P7 and P8, restraining the petitioner from cutting and removing the trees from the area in question on the ground that the properties covered by those notifications are private forests. Notifications, as we have already indicated, were issued under Section 5(1) of the Kerala Preservation of Trees Act 1986. The said provision is extracted below for easy reference.

 

5. Prohibition of cutting of tree in notified areas: (1) Notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any Court, tribunal or other authority, or in any agreement or other arrangement, the Government may, with a view to preserving the tree growth in private forests, or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom, by notification in the Gazette, direct that no tree standing in any such area specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that-

 

(a) the tree constitutes a danger to life or property; or

 

(b) the tree is dead, diseased or windfallen:

 

Provided that the provisions of this sub-section shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices.

 

(2) No person shall, without the previous permission in writing of the authorised officer, cut, uproot, burn or otherwise destroy or cause to be cut, uprooted, burnt or otherwise destroyed any tree in any area specified in the notification under Sub-section (1) on any of the grounds specified therein.

 

Explanation I : For the purposes of this section, the term "tree" shall not include any species of tree.

 

Explanation II. For the purposes of Sub-section (1), the expression "private forest" means any land which immediately before the 10th day of May, 1971 was a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971.

Explanation II to Section 5(1) states that "private forest" means any land which immediately before the 10th day of May 1971 was a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971. Therefore only those lands which falls within the definition of the Vesting Act, 1971 would fall within Sub-section (1) of Section 5. But under Sub-section (1) of Section 5, Government has got the power to issue notification to preserve tree growth in private forests, or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom which in the opinion of the State is that it is a private forest. Private forest under the Kerala Private Forests (Vesting and Assignment) Act has been defined in Section 2(f), which is extracted below for easy reference.

 

(f) "private forest" means-

 

(1) In relation to the Malabar district referred to in Sub-section (2) of Section 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956)

 

(i) any land which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-

 

(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, (1963 (1 of 1964).

 

(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.

 

Explanation: Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;

 

(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop; and

 

(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings.

 

(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forest Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.

 

(2) In relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas.

 

Explanation: For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;

 

Forest Tribunal as we have already indicated has specifically found that the land in question is not a private forest within the meaning of the Kerala Private Forests (Vesting and Assignment) Act and the same is not liable to be vested in the Government. Since the land is not a private forest within the meaning of the aforesaid Act and not a Cardamom Hill Reserve and that the area in question is not cultivated with cardamom, in our view, Sub-section (1) of Section 5 of the Kerala Preservation of Trees Act would not apply to the land in question. Reference may also be made to the judgment of the learned single Judge in Kottal Avishumma v. State of Kerala with which we fully concur. In such circumstances, we allow this original petition and quash Exts. P7 and P8 notifications since the lands in question are not private forests within the meaning of the Vesting Act, 1971.

 

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

SA No. 625 of 1994

Appellants: M. Prabhakar Reddy Vs. Respondent: State of A.P. and Anr. AIR2006AP386, 2006(5)ALD161 :Decided On: 14.06.2006

Hon'ble Judges:

V.V.S. Rao, J.

Subject: Environment

Acts/Rules/Orders:
Andhra Pradesh Forest Produce Transit Rules, 1970 - Rules 3, 4 and 5; Andhra Pradesh Forest Act, 1967 - Sections 2, 20, 29 and 68

Disposition:
Appeal dismissed

JUDGMENT

V.V.S. Rao, J.

1. The appellant (hereinafter called, the plaintiff) filed suit being O.S. No. 72 of 1988 on the file of the Court of the II Additional Subordinate Judge, Warangal, for recovery of an amount of Rs. 20,295/- (Rupees twenty thousand two hundred and ninety five only) with interest by declaring that the search, seizure and collection of compounding fee of Rs. 20,000/- (Rupees twenty thousand only) is illegal. In his plaint, he alleged that he purchased teak wood in two lots, got it sawn into sizes at two different saw mills and as he could not get permit, kept the cut teak wood at Ladella village with his cousin till 10-2-1988. When he was transporting the teak, the forest officials stopped the bullock carts, registered a case being P.O.R.No. 79/B/87-88 W/N, dated 20-2-1988, and imposed compounding fee. As he was threatened with arrest, he paid the compounding fee. He alleged that the seizure and collection of compounding fee is illegal and therefore, he is entitled to such declaration and refund.

2. The respondents (hereinafter called, the defendants) denied the allegations and asserted that unless and until a transit permit is obtained under Andhra Pradesh Forest Produce Transit Rules, 1970 (Transit Rules, for brevity), the timber cannot be transported and that the plaintiff paid the compounding fee on his own volition.

3. Based on the rival pleadings, the trial Court framed four issues. The plaintiff examined P.Ws. 1 to 3 and marked Exs. A1 to A6, whereas defendants examined D.W.I and marked Exs. B1 to B7. After considering the evidence and the relevant provisions of Transit Rules, the trial Court came to the conclusion that when a person transports sawn teak wood, no transit permit is required and therefore, the seizure and collection of compounding fee is illegal. Therefore, the trial Court decreed the suit. The appellate Court reversed the judgment of the trial Court, aggrieved by which, the present second appeal is filed,

4. The learned Counsel for the appellant submits that when sawn teak wood is transported within the State, no transit permit is required and therefore, even if the petitioner was transporting the teak wood without permit, the second respondent could not have seized the teak and could not have collected the compounding fee. According to the learned Counsel, the action of the second respondent in imposing compounding fee is ex facie illegal and therefore, the plaintiff is entitled to declaration of title and refund of the amount, which he paid under coercion. Per contra, the learned Government Pleader relies upon Rules 3 and 4 of the Transit Rules and submits that whether or not the timber is sawn into sizes, as and when the same is moved within the State or into the State, the same has to be accompanied by a permit issued under Rule 5 of the Transit Rules and therefore, the seizure of the wood is not illegal. Secondly, he submits that imposition of Rs. 20,000/- as compounding fee is legal and there is no frivolous attitude on the part of the second respondent.

5. The plaintiff admitted that he has been transporting the timber sawn into sizes without a permit. Indeed in the plaint itself, it was averred that as he could not get transit permit, he stored the sawn teak wood at the house of his cousin at Ladella village. The question, therefore, is whether a permit is required for moving the timber from one place to another ?

6. The term 'forest produce' is defined in Section 2(g) of the Andhra Pradesh Forest Act, 1967 (Forest Act, for brevity) as under.

(g) 'forest produce' includes—

(1) The following whether found in, or brought from a forest or not, that is to say timber, bamboos, charcoal, rubber, cacutchour, catechu, wood-oil, resin, natural varnish bark, lac, mahua flowers, mahua seeds, myrobalans, tumki leaves, rousa grass, rauwolfia serpentina, adda leaves;

(2) The following when found in, or brought from a forest, that is to say—

(i) tress, such leaves, flowers and fruits as may be prescribed and all other parts or produce not herein before mentioned of trees;

(ii) plants not being trees (including grass, creepers, reeds and moss) and all parts or produce or such plants;

(iii) wild animals, wild birds, skins, tusks, horns, bones, silk, cocoons, honey, wax, and all other parts or produce of animal and birds;

(iv) peat, surface soil, rock and minerals (including lime stone and laterite) mineral oil and all products of mines or quarries; and

(3) Such other produce as may be prescribed;

7. Section 2(q) of the Forest Act defines 'timber' to include trees fallen or fell, and all wood, cut up or sawn. Section 20 of the Forest Act prohibits any person from moving any forest produce. Section 29 of the Forest Act empowers the State Government to make Rules to regulate the transit and possession of timber and other forest produce. In exercise of this power as well as power conferred under Section 68 of the Forest Act, the Government has promulgated the Transit Rules. Rule 5 of the Transit Rules empowers the Divisional Forest Officer or an Officer duly authorized by him to issue a permit in respect of forest produce to be removed from the forest area or Government timber depots. Rules 3 and 4 of the Transit Rules require permit for transporting forest produce or timber. Those Rules reads as under.

3. No forest produce shall be moved into or from or within the State by land or water, unless such produce is accompanied by a permit therefor issued under Rule 5 and produced for check immediately only demand :

Provided that where the forest produce is imported into the State from any other State it is enough if such produce is accompanied by a permit issued by the Government of the State from where such produce is imported and the said permit shall be valid only for the transport of such produce and such quantity to the destination specified therein.

4. Timber exceeding 25 cms in girth at its thickest part and one meter in length, except timber sawn into sizes shall not be moved into or from or within the State of Andhra Pradesh, unless such timber bears a distinguishable Government transit mark of such description as mentioned in the permit authorizing the transit thereof accompanying the said timber.

8. Rule 3 of the Transit Rules prohibits movement of forest produce within the State, unless such produce is accompanied by a permit, whereas Rule 4 of the Transit Rules requires the timber exceeding 25 cms in girth to bear a distinguishable transit mark as mentioned in the permit before it is moved. This, however, excludes timbers sawn into sizes from bearing the distinguishable number. As seen from the definitions of the terms 'forest produce' and 'timber', forest produce includes trees and all other parts of the trees, whereas the timber means the trees fallen or fell. Therefore, timber is also forest produce and is a necessary corollary when Rule 3 of the Transit Rules prohibits movement of the forest produce within the State, it is not possible to accept any submission that the Rule 3 of the Transit Rules excludes the sawn timber. On a true interpretation of Rule 4 of the Transit Rules, it becomes clear that the limited exemption given to sawn timber is that while in movement, sawn timber need not contain distinguishable mark as described in the permit.

9. The learned trial Judge fell in error while interpreting Rule 4 of the Transit Rules in coming to the conclusion that the sawn timber does not require a permit. The appellate Court correctly interpreted and came to the conclusion that even sawn timber requires a permit. Insofar as compounding fee of Rs. 20,000/- is concerned, the appellate Court came to a correct conclusion. The allegations of coercion and threat were disbelieved by the trial Court and the plaintiff did not file any appeal.

10. For the above reasons, the second appeal fails and is accordingly dismissed with costs.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Criminal Revision Petition No. 605/2004

Appellants: Bhanuprakash A S/o Ananda Rao and B. Murugesha Rao, S/o B. Kamalaksha Vs. Respondent: State by the A.C.F., represented by The State Public Prosecutor: Decided On: 14.07.2006, Citation: 2006CriLJ4292, ILR2006KAR3216, 2006(5)KarLJ64

Hon'ble Judges:


B.S. Patil, J.

Subject: Environment

Acts/Rules/Orders:
Karnataka Forest Act - Sections 62(1), 62(3), 63, 71A, 86 and 87

Cases Referred:


Ningappa Bhimappa Gundammanavar and Anr. v. State of Mysore ILR 1973 XXIII Kar 897

Disposition:
Petition allowed

Citing Reference:

**              Relied On

 
Ningappa Bhimappa Gundammanavar and Anr. v. State of Mysore            **
 

ORDER

B.S. Patil, J.

Page 0792

1. The revision petitioners are convicted for the offence punishable Under Section 87 of the Karnataka Forest Act (for short ‘The Act'). Challenging the judgment of conviction and the order sentencing the accused for rigorous imprisonment for a period of three years and also imposing fine of Rs. 5,000/-, both the accused are before this Court in this revision petition.

Page 0793

2. It was alleged against the accused that on 15.06.1993. accused Nos. l and 2 cut and uprooted sandal wood tree in the Government land and made 71 sandal wood billets worth about Rs. 14,000/- thus committing an offence Under Section 86 of the Forest Act. It was further alleged that they were found transporting the said 71 sandal wood billets in a Maruthi Van near Saragodu without valid license and committed an offence Under Section 87 of the Karnataka Forest Act. Both the Courts have held that the offence alleged against the accused Under Section 86 was not proved whereas the offence alleged Under Section 87 of the Act stood proved.

3. Among several points urged by the learned Counsel for the petitioner, the important legal point raised is regarding violation of the mandatory requirement contained Under Section 62(3) of the Act which allegedly vitiates the conviction recorded against the accused. It is his submission that as required Under Section 62(3) of the Act, the Officer seizing the sandal wood is required to report the seizure and forward the seized material to the designated authorised authority under the provisions contained Under Section 71A of the Act. Neither in the evidence nor in the materials produced before the Court, there is anything to suggest that this procedure is complied with, is the submission. In this regard, learned Counsel has placed reliance on a decision rendered by this Court in the case of Ningappa Bhimappa Gundammanavar and Anr. v. State of Mysore (ILR 1973 (VOL.XXIII) KAR 897). It is further contended by the learned Counsel that the seizure is also not proved in accordance with law as none of the panch witnesses to the seizure are examined. He submits that seizure is also not attested by independent panchas but has been attested by the officials of the Forest Department His next contention is that there is delay in submitting the FIR before the Magistrate. He has lastly contended that admittedly, the investigation is conducted by two officials out of whom only PW-2 who conducted the major part of the investigation is examined but the higher Officer to whom the investigation was later on entrusted has not been examined.

4. Sri. Maqbool Ahmed, learned Government Pleader supports the findings recorded and the judgments passed.

5. Having heard the learned Counsel appearing for the parties and on careful perusal of the judgments under challenge, the only point that arises for consideration in this revision petition is:

Whether the judgments under challenge recording conviction of the accused-revision petitioners for the offence punishable Under Section 87 of the Act suffer from any manifest illegality warranting interference in the revisional jurisdiction?

6. As major emphasis is laid by the learned Counsel for the petitioner on the violation of the requirements spelt out under Sub section (3) of Section 62 of the Act, it is necessary to refer to the relevant provisions. Section 62(1) Page 0794 deals with seizure of properly liable to confiscation. It provides that if there is reason to believe that a forest offence has been committed in respect of any forest produce, the said forest produce along with all tools, boats, vehicles etc., used in committal of the said offence, may be seized by any Forest Officer or Police Officer. Sub-section (3) of Section 62, which is relevant to the present case, states as under:

(3) Every officer seizing any property under this section shall place on such property or the receptacle or vehicle (if any) in which it is contained a mark indicating that the same has been so seized, and shall, as soon as may be, (make a report of such seizure,-

(a) where the offence on account of which the seizure has been made is in respect of timber, ivory, firewood or charcoal which is the property of the State Government or in respect of sandalwood, to the concerned authorised Officer under Section 71A; and

(b) in other cases, to the magistrate having Jurisdiction to try the offence on account of which the seizure has been made:

Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.

7. A reading of the above provision makes it clear that every officer seizing any property under the provisions of the Section is required to make a report of such seizure either to the concerned Forest Officer Under Section 71A or to the jurisdictional Magistrate, depending on the nature of the produce, Sub-clause (a) to Sub-section (3) of Section 62 mandates that where the seizure is in respect of an offence pertaining to timber, ivory, firewood or charcoal which is the property of the State Government or in respect of sandalwood, the report of seizure is required to be made to the Authorised Officer as per Section 71A. Perusal of Section 71A makes it clear that in respect of any forest offence committed involving sandalwood, the Officer seizing the property shall without any unreasonable delay produce the seized material together with tools, ropes, chains, boats etc., before the Officer authorised by the State Government not being below the rank of an Assistant Conservator of Forests.

8. The question in this revision petition is whether this requirement in the present case is complied with or not and if not what is its effect There is nothing on record to show that the Officer who seized these sandalwood billets submitted the seizure report to the Authorised Officer and forwarded the seized articles without any unreasonable delay as provided under the provisions of the Act namely Sub-section (3) of Section 62 read with Section 71A. In fact, the evidence of PWs-1 and 2 does not make any reference to the compliance of the aforesaid requirement Ex. P.1 is the seizure panchanama and Ex.P.6 is the enquiry report prepared in a format. A perusal of Ex.P.6 does not disclose that the report was forwarded to the Authorised Officer in compliance with the mandatory requirement of Page 0795 Section 63. There is no endorsement of any superior officers on this report endorsing the receipt of the same from the Officer who seized the articles. Therefore, in view of the absence of any material whatsoever either in the form of evidence of PWs-1 and 2 or in the form of documentary evidence placed before the Court below showing that the seizure was reported to the Authorised Officer or that the seized articles were forwarded to the Forest Officer as mandated under the provisions of the Act, it has to be held that there is violation of the requirements contained in Section 62(3) and Section 71A of the Act.

9. The next question is what is the effect of this violation and whether the conviction recorded against the accused gets vitiated. In the case of Ningappa Bhimappa Gundammanavar and Anr. v. State of Mysore ILR 1973 (VOL.XXIII) Kar 897 which is apposite to the case on hand, this Court placing reliance on two unreported judgments rendered earlier in Cr.R.P. No. 435/71 and Cr.R.P. 180/72 has held that the requirement spelt under Sub-section (3) of Section 62 is mandatory and violation of the same would vitiate the trial and the resultant conviction. It has to be noticed here that the provisions contained in Section 62(3) and Section 71A are designed to serve twin purposes of imposing safeguards, firstly, with a view to ensure that the seizure is resorted to in a responsible and accountable manner and secondly, the higher officials in the department are immediately apprised forwarding the seized produce. This requirement is mandatory. Failure to follow this mandatory requirement vitiates the seizure and consequently, the trial based on the said seizure also gets vitiated.

10. In view of the above, I have no hesitation to hold that the conviction recorded against the accused cannot be sustained. Hence, I pass the following:

ORDER

This revision petition is allowed. The judgments under challenge are set aside. The accused/Revision Petitioners are acquitted of the offence. The bait bonds executed by the accused shall stand cancelled. The accused are entitled for refund of the fine amount if any deposited by them.

IN THE HIGH COURT OF MADRAS

W.P. Nos. 22962/2006 and M.P. No. 1/2006

Appellants: Annai Indira Women Self Help Group represented by its Co-ordinator Mrs. Palliammal :Decided On: 08.08.2006

Vs.
Respondent: The District Forest Officer, Sathyamangalam Division, The Member Secretary cum Forest Ranger Bejalletti Village Forest Council, Bhavani Sagar Forest Range and The President Bejalletti Village Forest Council

Hon'ble Judges:


Prabha Sridevan, J.

Subject: Constitution,  Environment

ORDER

Prabha Sridevan, J.

1. On the last hearing, the learned Counsel for the petitioner had made his submissions and had also requested that an order may be passed similar to the order passed in W.P. No. 27741/2005 which arose out of a similar issue. The petitioner is a Women Self Help Group comprising of Scheduled Tribe women who solely depend upon the minor forest products. The State Government in order to help the Scheduled Tribe women, created the Village Forest Council and gave the right to sell and control the minor forest products to such councils in G.O.Ms. No. 79 Environment and Forest Department dated 29.4.2003. The lease was granted in favour of the petitioner to sell the minor forest products at the fair price fixed by the respondents. The petitioner sought for extension of the permit. Accordingly, the lease was extended by the 3 rd respondent but the 2nd respondent has not permitted the petitioner to carry and transport the minor forest products and therefore, this writ petition has been filed.

2. In G.O.Ms. No. 79 Environment and Forest Department dated 29.4.2003, the public auction was abolished and it was decided that the right to collect minor forest produce free of cost to the women Self Help Group and other Swarna Jayanthi Grama Sarojdhar Yojana at a reasonable price through the Forest Council. However, the Forest Councils were formed and the respective Forest Rangers were appointed as Member Secretaries to the above Councils. The minor forest products which the petitioner collect, include grass, amla, kadukkai etc. According to them, the payment fixed by the respondents has been duly paid by the petitioner and inspite the extension of the lease period in their favour, the 2nd respondent is not granting permit.

3. Mr. Titus Jesudoss, learned Special Government Pleader, has produced the relevant Government Orders and guidelines. In G.O.Ms. No. 343 Environment and Forests (FR.VI) Department dated 8.8.97, the Principal Chief Conservator of Forests is directed to take action to constitute Village Forest Council in every programme village as per the approved Memorandum of Understanding. The Memorandum of Understanding is entered into between the Forest Department and the Village Forest Council. The objectives inter-alia are:

...

iii) To involve local people through Village Forest Council (VFC) in planning, planting, protection, harvesting, managing and benefit sharing in management unit with focus on degraded forests.

...

vii) To ensure flow of employment generation and benefits to local people living in the management unit.

4. The responsibility and role of Forest Department as per this Government Order are:

i) To utilize the co-operation of Non-Governmental Organisation ( NGOs) and the local community to the best advantage in involving an effective Joint Forest Management (JFM) technique in the management unit (programme village/villages).

5. The 2nd respondent will prepare the Micro plan with the advice of the 3rd respondent Council and get the approval from the first respondent and the required funds will be released accordingly. It is the 1st respondent who has the power to exercise disciplinary control over the 2nd respondent and the 1st respondent will frequently inspect the work executed by the 2nd respondent. The responsibilities and role of the various Councils is also spelt out in this Government order.

6. The Government has also issued G.O.Ms. No. 342 Environment and Forests (FR.VI) Department dated 8.8.97 laying down the guidelines for implementation of the Joint Forest Management in Tamil Nadu. It is seen from this that the 3rd respondent has been formed for fully involving the local people in the planning and execution of works, protection, harvesting and benefits sharing in the management unit. In fact, the Council can, for a such members, one male member and one female member from each household if they are willing. This shows that the purpose of the scheme is to involve fully the local citizens in various management. The role of the Member Secretary as spelt out in Clauses 4.6, 4.7 and 4.8 appears more to be focussed on the economic and financial aspect of the Council. There does not seem to be anything mentioned in these two Government orders delineating the power of the 2nd respondent. If the 2nd respondent has some reason to decline the issuance of permit, he shall give reasons for the same and pass an order otherwise it appears that being subordinate to the 1st respondent he cannot act contrary to the decisions of the 1st respondent or frustrate the benefit which the petitioner is entitled to by granting extension of lease by the 1st respondent by refusing to issue permits.

7. It is clear from the objectives of the implementation of the scheme that the Government intends the women of a deprived group of the local population to get the benefit by harvesting minor forest produce. This special provision have been made only to benefit the women of the Scheduled Tribe. This aspect of the matter shall also be borne in mind by the respondents. The scheme has as its goal the total participation of the local citizens so that the natural wealth of the forest is not depleted or destroyed in any manner. All that the women are allowed to harvest by the lease is dry grass, kadukkai etc. If the petitioner act contrary to the terms for which the lease is granted or if under the guise of obtaining permit in favour of the petitioner others are misusing the permit, it is always open to the 1st respondent to take action. But once, the 1st respondent has granted lease, the 2nd respondent, unless it is for a valid reason given, cannot deny permit to transfer and move the minor forest products that they have harvested.

8. In these circumstances, the writ petition is disposed of as follows:

The respondents 1 and 2 are directed to strictly implement the G.O.Ms. No. 79, Environment Forest (Forest 14) Department dated 29.4.2003 and in case, in contravention of the said GO, any produces of the forest are sold or there is any proposal to sell the same, the same can be stopped forthwith. Respondents 1 and 2 shall also bear in mind the object and purpose for which these guidelines have been issued and the scheme has been framed. The 2nd respondent shall issue the permit to the petitioner so that they can derive the benefits of the lease granted by the 1st respondent to the petitioner, unless he can make out reasons for denying it.

No costs. Consequently, connected miscellaneous petition is closed.

IN THE HIGH COURT OF MADRAS

Writ Petition No. 3422 of 2006 and W.V.M.P. No. 1331 of 2006

Appellants: J. Mohana Vs. Respondent: The Commissioner of Police and Ors. : Decided On: 24.08.2006, (2006)4MLJ525

Hon'ble Judges:
P. Sathasivam and S. Manikumar, JJ.

Subject: Environment

Acts/Rules/Orders:
Noise Pollution (Regulation and Control) Rules, 2000 - Rules 2, 7(1) and 7(2)

ORDER

P. Sathasivam, J.

1. The petitioner by name J.Mohana, a resident of Rajaji Nagar 4th Street, Red Hills Road, Villivakkam, Chennai-49, has filed this Public Interest Litigation, seeking for the issuance of a writ of mandamus, directing respondents-1 to 4 to take appropriate and immediate action in the matter against 5th and 6th respondents as per law to control the menace of noise pollution emanating from the Evangelical Church of India at Door No. 27/152, Red Hills Road, Rajaji Nagar, Villivakkam, Chennai-49.

2. In the affidavit filed in support of the above Petition, it is stated that the house of the petitioner comes within Zone No. 4 and Division/Ward No. 62 of the Corporation of Chennai and adjoining her house on the northern and eastern sides, situates the Church run by the 5th and 6th respondents. For the past one year, the sound emanating from the said Church during the time of prayer and other services has reached and surpassed unbearable proportions with the decibel levels of multiple times than the audible level. Further, High Watt Loudspeakers are positioned towards south facing her house. The cacophony of high decibel sounds and the torrential hand claps while rendering the hymns from the said Church literally paralyses every activity of the petitioner and her family members due to the fact that the sound speakers are kept at just 8 feet away from the compound wall of her house. The church also periodically organizes special prayer meetings apart from regular meetings. The church is also conducting marriages, receptions, birthday and other ceremonial functions of its members with the facilities available for cooking and dining. Since the church is situated in the midst of a cluster of residential houses, the noise pollution created in the church premises poses a serious health hazard to the public in general and the family members of the petitioner in particular. The respondents are aware that use of cone speakers has been completely banned and, in spite of the same, the Church still makes use of the cone speakers. She made a representation, dated 12.01.2006, to respondents-1 to 4 herein, praying to take appropriate and immediate action in the matter as per law to control the menace of noise pollution emanating from the church of the 5th and 6th respondents. Though respondents-1 to 3 received the same on 18.01.2006 and respondents-5 and 6 on 25.01.2006 and 23.01.2006 respectively, there was no proper action. In such circumstances, she filed the present Writ Petition.

3. On behalf of the Tamil Nadu Pollution Control Board/R-2 herein, its Additional Chief Environmental Engineer, has filed a counter affidavit, highlighting their stand. It is stated that Ambient Noise Level Survey has been conducted by the Board officials in the premises of the petitioner on 17.2.2006 and 19.02.2006, both Friday and Sunday respectively, during which period, activities like singing songs/prayers/sermons were carried out in the Evangelical Church of India, located adjacent to the petitioner's premises. The time taken for singing songs varied between 2 to 3 minutes and for the prayer/sermons between 3 to 7 minutes. The report of analysis of Ambient Noise Level Standards is enclosed along with the counter affidavit. There has been no cone speakers placed in the church and the box speakers are placed inside the Church. During the time of noise level survey, two box speakers have been placed inside the church near the window facing the petitioner's premises on the northern and eastern sides. The distance of the petitioner's building to Church building is about 13 feet. The open area distance between the Church building and the compound wall is about 10 feet. The open area distance between the petitioner's building and the compound wall is about 3 feet. In the counter, the details regarding results of the Ambient Noise Level Survey conducted on 17.2.2006 and 19.2.2006, which are compared with the background noise level and the Ambient Noise Level prescribed in the Noise Pollution (Regulation and Control) Rules, 2000, have been mentioned in a tabular form.

After narrating the same and after referring to the relevant Rule, viz., Rule 7(1) of the Noise Pollution (Regulation & Control) Rules, 2000, it is stated that the activities of the Church, ie, singing songs/sermons/prayers using song drums and other musical instruments with box speakers had resulted in the increase of the noise level more than 10 dB(A) Leq of the back ground noise level and also the ambient noise level standards, which is a clear violation of the provisions of the Noise Pollution (Regulation & Control) Rules, 2000.

4. In the light of the above pleadings, we heard learned Counsel for the petitioner as well as the respondents. The counter affidavit filed by the Additional Chief Environmental Engineer, Tamil Nadu Pollution Control Board, amply shows that the noise arising from the activities of the Church, ie., singing songs/sermons/prayers using song drums and other musical interments with box speakers, exceeded the prescribed noise level.

5. Rule 7(1) of the Noise Pollution (Regulation & Control) Rules, 2000 reads as follows:

A person may, if the noise level exceeds the ambient noise standards by 10 dB(A) or more given in the corresponding columns against any area/zone make a complaint to the authority.

Rule-7(2) of the said Rules provides as follows:

The authority shall act on the complaint and take action against the violator in accordance with the provision of these rules and any other law in force.

6. The information collected by the Board on two days, viz., 17.02.2006 (Friday) and 19.02.2006 (Sunday) show that the noise level was above the prescribed standards. This is, undoubtedly, in violation of the the provisions of Noise Pollution (Regulation and Control) Rules, 2000.

7. It is seen that as per Rule 2 of the Noise Pollution (Regulation and Control) Rules, 2000, the District Magistrate / Police Commissioners are empowered to take appropriate action for violation of the said Rules.

8. When the report and the information furnished by the Pollution Control Board was brought to the notice of the 5th and 6th respondents, learned Counsel appearing for them informed this Court that, in future, the noise level will be controlled and it will not exceed the prescribed standard. The above statement made on behalf of respondents-5 and 6 is hereby recorded. We are of the view that no further direction is required, however, it is made clear that, in future, if there is any violation of the Noise Pollution (Regulation and Control) Rules, 2000, and the noise level exceeds the prescribed standard, the Pollution Control Board or the prescribed authority/authorities shall take appropriate action to reduce the noise level by enforcing the Rules. In case of violation, the petitioner is also free to make representation to the authorities concerned including the Commissioner of Police, Chennai, and on such representation/complaint being made, it is needless to mention that the same has to be verified and appropriate action be taken to reduce the noise level.

9. With the above observation/direction, the Writ Petition is disposed of. No costs. Connected Miscellaneous Petition is closed.

Equivalent Citation:

IN THE HIGH COURT OF MADRAS

Writ Appeal No. 2079 of 2003 and Writ Petition Nos. 10937, 11076 and 15518 of 2003

Appellants: The Union of India (UOI) rep. by its Secretary to Government, Ministry of Environment and Forests Vs.
Respondent: Member Secretary, Chennai Metropolitan Development Authority and Shri T.R. Balu, Honourable Minister for Environment and Forests, Ministry of Environment,2006(4)CTC460, (2006)4MysLJ: Decided On: 08.09.2006

 

AND

Appellants: Consumer and Civic Action Group (CAG) rep. by its Trustee, Mrs. Tara Murali, Indian National Trust for Art and Cultural Heritage (TNTACH) rep. by its Convenor Mr. P.T. Krishnan

Vs.
Respondent: The Government of Tamil Nadu rep. by its Chief Secretary and

Ors.

AND

Appellants: Member Secretary, Chennai Metropolitan Development Authority
Vs.
Respondent: The Union of India (UOI) rep. by its Secretary to Government, Ministry of Environment and Forests, Shri T.R. Balu, Honourable Minister for Environment and Forests, Ministry of Environment and Forests, Citizen, Consumer and Civic Action Group (CAG) rep. by its Trustee Mrs. Tara Murali and Bombay Environmental Action Group

Hon'ble Judges:


P.K. Misra, K. Mohan Ram and M. Jaichandren, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: V.T. Gopalan, Additional Solicitor General of India assisted by P. Wilson, ACGSC in W.A. No. 2079 of 2003, T. Mohan, Adv. in W.P. Nos. 10937 and 11076 of 2003 and K.A. Kandasamy, Adv. in W.P. No. 15518 of 2003

For Respondents/Defendant: V.T. Gopalan, Additional Solicitor General of India assisted by P. Wilson, ACGSC for Respondents 2 and 3 in W.P. Nos. 10937, 11076 and 15518 of 2003, P.S. Raman, Addl. Adv. General assisted by V. Srikanth, A.G.P. and B.K. Girish Neelakandan, Govt. Adv. for Respondent No. 1 in W.P. No. 11076 of 2003 and W.A. No. 2079 of 2003

Subject: Environment

Acts/Rules/Orders:
Environmental (Protection) Act, 1986 - Sections 3, 3(2), 5, 5(1), 5(2), 5(3), 5(4), 6 and 25; Tamil Nadu Town and Country Planning Act, 1971 - Section 9; Environment (Protection) Rules, 1986 - Rule 5; Constitution of India - Article 131

JUDGMENT

P.K. Misra, J.

1. W.P. No. 10937/2003 and W.P. No. 11076 of 2003 have been filed for issuing writ of mandamus directing the first respondent to undertake an immediate and wholesome review of the present Coastal Regulatory Zone Classification relating to Chennai City and to declare ecologically and architecturally significant areas including the stretch on the Marina from the Santhome Church to the High Court, Madras as Coastal regulation Zone-I (CRZ-I).

2. During pendency of such writ petitions, the Government took a decision not to demolish the college building and to construct the secretariat at a different place.

3. While the writ petitions were pending, the Central Government amended the earlier notification relating to Coastal Regulatory Zone. Such amendment was challenged in W.P. No. 15518/2003, which was filed by the Member-Secretary, Chennai Metropolitan Development Authority. Such writ petition was entertained by a learned Single Judge and an order of interim stay of such notification till 25.06.2003 was passed by the learned single Judge by order, dated 27.05.2003. The learned Single Judge also directed that such writ petition No. 15518/2003 should be listed along with the other pending writ petitions, namely, W.P. Nos. 10937/2003 and W.P. No. 11076/2003. Thereafter such W.P. No. 15518/2003 was placed before the Division Bench and the Division Bench extended such interim order from time to time. The question of maintainability of W.P. No. 15518/2003 was raised by the respondents in view of Article 131 of the Constitution of India. In the meantime, the Union of India had filed Writ Appeal No. 2079/2003 against the Interlocutory order, dated 27.05.2003, in W.P. No. 15518/2003 and all the matters were placed before the Division Bench.

4. In the above background, the Division Bench has referred the matters to the Full Bench by observing as follows:

4. The main point which is raised is the applicability of the impugned notification for construction activities, which is not related to industries. The contention of the learned Advocate General is that the impugned notification which is issued under a rule, which has been framed in exercise of the rule making power under Environmental Protection Act, 1986, cannot be invoked for any activity, which is not concerned with the industrial activity. The rival contention is Environmental Protection Act is applicable to all kinds of construction and developmental activities and is all pervasive. Incidentally a question is also raised as to whether the CMDA can file the writ petition in view of Article 131 of the Constitution of India. Several other points including the validity of dispensing with the requirement of issuing the draft notification and providing opportunity of raising objections have also been raised.

5. A co-ordinate Bench of two judges by judgment dated 14.12.1995 in W.A. No. 1287 of 1995 and W.P. No. 5971 of 1995 held that CRZ Regulations are applicable only to particular kind of construction activity and not for all activities. The learned Advocate General very much relies upon Paragraph 14 of the above judgment. Against the said judgment, SLP (Civil) No. 13463 & 13464 of 1996 was filed. But the said petition was dismissed by the Supreme Court by order dated 12.2.1998 with an observation that the questions of law decided by the High Court are left open to be decided in an appropriate case by the Supreme Court, thus giving a finality to the verdict of the High Court only on the facts of that case. As the findings on law by the Division Bench referred to above, and which is relied upon by the learned Advocate General has not attained finality in the Supreme Court, the said legal point is very much alive for adjudication. In view of this, we are of the considered view that the matter should be adjudicated by a Full Bench of three judges. All other points raised are also kept alive to be dealt with by the Full Bench.

5. A perusal of the order of reference makes it clear that the following questions arise for determination:

(a) Whether provisions of the Environmental Protection Act, 1986 and the Rules made thereunder can be invoked for regulating any activity which is not concerned with industrial activity?

(b) Whether CMDA can file writ petition in High Court challenging the validity of a statutory notification issued by Central Government in view of Article 131 of the Constitution of India.

(c) Validity of such notification;

(d) All other connected questions.

6. At the outset, the learned Additional Solicitor General appearing on behalf of the Union of India in the Writ Appeal submitted that subsequently the State Government changed its mind and abandoned the idea of demolishing the Queen Mary's College and constructing the secretariat building on such land. It is further submitted that the interim order passed by the learned single Judge was for a limited period till 26.6.2003 and though the appeal was filed on 2.6.2003, such appeal has practically become infructuous and therefore it may not be necessary to deal with the question raised in W.A. No. 2079 of 2003. In view of the aforesaid submission, it is not necessary to deal with the question as to whether the learned single Judge was justified in passing the order of stay, which at any rate was tilt 26.6.2003.

7. W.P. No. 15518 of 2003 has been filed by the Member Secretary, Chennai Metropolitan Development Authority against the Union of India challenging the Notification dated 22.4.2003 issued by the Secretary to Government in the Ministry of Environment and Forests. In the affidavit filed in support of such writ petition, it has been asserted that the writ has been filed as per the instruction of the State Government and as permitted by the State Government.

8. The learned Additional Advocate General now appearing for such writ petition has produced before us a D.O. Letter No. 20938/EC.3/2006-3, dated 21.8.2006 written by the Secretary to Government (State Government), Environment and Forests Department addressed to the Member Secretary of Chennai Metropolitan Development Authority. The letter is to the following effect:

D.O. Letter No. 20938/EC.3/2006-3, Dated 21.8.2006

Dear Thiru Md. Nasimuddin,

Sub: Environment-Amendment to Coastal Regulation Zone Notification, 1991 vide Notification S.O.460(E), dated 22.4.2003-W.P. No. 15518/2003 filed by the Chennai Metropolitan
Development Authority-Withdrawal of the case - Requested.

Ref : 1. Govt. D.O.Lr. No. 9956/EC.3/2003, Environment and Forests Department, dated 21.5.2003.

2. Your D.O.Lr. No. LD3/13193/2003, dated 14.8.2006.

I am to invite a reference to your D.O. Letter second cited and to request you to withdraw the W.P.15518/2003 filed by the Chennai Metropolitan Development Authority challenging the Notification, dated 22.4.2003 issued by the Government of India, Ministry of Environment and Forests, New Delhi, in view of the changed circumstances including the dropping of the proposal to put up the Secretariat at the Queen Marys College Complex.

With Regards,

Yours faithfully,

To
Thiru.
Md. Nasimuddin, I.A.S.,

Member Secretary


Chennai Metropolitan Development

Authority, Egmore, Chennai-8.

9. In view of such instruction, the learned Additional Advocate General submitted that W.P. No. 15518/2003 may be permitted to be withdrawn. He has therefore submitted that in view of the instruction of the petitioner to withdraw the writ petition, the question as to whether the writ can be filed in the High Court in view of Article 131 of the Constitution of India need not be decided.

10. The learned Additional Solicitor General appearing for the Union of India submitted that if the writ petition is withdrawn, the question referred to by the Division Bench, particularly relating to the right of the Secretary, Chennai Metropolitan Development Authority to file writ petition in the High Court and applicability of Article 131, need not be decided. In view of such submission made by the counsel for both parties, the writ petition can be dismissed as withdrawn.

11. However, before closing the writ petition as withdrawn, we feel constrained to express our strong doubt regarding the maintainability of such writ petition. Since the petitioner has expressed intention to withdraw the writ petition, it may not be necessary to consider as to whether the writ petition is maintainable in the High Court in view of Article 131 of the Constitution. Counsels have also submitted that even though the writ petition purports to be filed on behalf of the State, the nomenclature shows that such writ petition has been filed by the Member-Secretary, Chennai Metropolitan Development Authority and the cause title does not indicate that the State is represented through the Secretary, CMDA Therefore, prima facie, Article 131 may not have any application and at any rate there is no necessity to go into such question. However, we have our strong doubt regarding the maintainability of such writ petition at the instance of the Member-Secretary, Chennai Metropolitan Development Authority.

12. In this context, it is noticed that under Section 9(b) of the Tamil Nadu Town and Country Planning Act, 1971, the Metropolitan Development Authority, a body corporate, shall have perpetual succession and a common seal and subject to such restriction or qualification as may be imposed by or under this Act or any other law, may sue or be sued in its corporate name.

13. In such writ petition filed by the Member Secretary for and on behalf of the CMDA or even on behalf the State Government, grave doubt arises as to whether such a writ petition challenging the validity of the Notification issued by the Central Government can be filed by such statutory authority, which is supposed to implement the Notification issued by the Central Government pertaining to matters relating to protection of environment. Prima facie, filing of the writ petition appears to be on ill-advise and untenable. However, since the writ petition has been now withdrawn, it is not necessary to delve further in such matter. Accordingly, the W.P. No. 15518 of 2003 is dismissed as withdrawn and Writ Appeal No. 2079 of 2003 arising out of an interlocutory order is dismissed as infructuous.

14. In the two other writ petitions, apart from the question of reviewing Coastal Zone classification, the decision of CMDA to demolish the college and the decision of the State Government to construct the Secretariat on such land are indirectly in question.

15. So far as the question of demolition is concerned, it is now apparent that the authorities have subsequently decided not to demolish the college and therefore the question has become academic. However, the question which remains for determination is regarding the permissibility of making construction on lands coming within the Coastal Regulation Zones. For the aforesaid purpose, it is necessary to notice the relevant provisions as well as various decisions.

16. Relevant provisions of the Environment (Protection) Act, 1986 (herein after referred to as the "Act") are required to be noticed. The relevant definition clauses are extracted hereunder:

2. Definitions.

(a) "environment" includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, microorganism and property'

(b) "environment pollutant" means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment;

(c) "environmental pollution" means the presence in the environment of any environmental pollutant;

17. Section 3 of the Act empowers the Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.

18. Section 3(2) of the Act lays down that without prejudice to the generality of the provisions of Sub-section (1), such measures may include measures with respect to all or any of the matters indicated.

19. Section 3(2)(ii) of the Act refers to planning and execution of a nation wide programme for the prevention, control and abatement of environmental pollution.

20. Section 3(2)(v) of the Act relates to restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.

21. Section 3(2)(xiv) of the Act relates to such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.

22. Section 5 of the Act empowers the Central Government, in the exercise of its powers and performance of its functions under this Act, to issue directions in writing to any person, officer or any authority and further prescribes that such person, officer or authority shall be bound to comply with such directions.

23. Section 6 of the Act empowers the Central Government to make rules in respect of all or any of the matters referred to in Section 3.

24. Section 25 of the Act also contains the rule making powers of the Central Government and in some respects appear to be extension of rule making powers and envisaged under Section 6 of the Act. In exercise of such powers under Sections 6 and 25 of the Environment (Protection) Rules, 1986 have been framed.

25. Under Rule 5 of the Rules, it is envisaged that the Central Government may take into consideration the factors indicated under such rule, while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas. Among other things, the Central Government may take into consideration the topographic and climatic features of an area (see 5(1)(iv)), environmentally compatible land use (see 5(1)(vi), net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted (see 5(1)(vii), proximity to human settlements (see 5(1)ix), any other factors as may be considered by the Central Government to be relevant to the protection of the environment in an area (see 5(1)(x).

26. Under Section 5(2) of the Act while prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure laid down. However, under Section 5(4) of the Act, notwithstanding the above, the Central Government may dispense with the requirement of notice under Section 5(3)(a) of the Act, if it appears to the Central Government that it is a public interest to do so.

27. It is not disputed that in accordance with the provisions contained in the Act, the Notification dated 19.2.1991 had been issued.

28. Under such Notification, the entire coastal line has been declared as Coastal Regulation Zone (CRZ). Such Coastal Regulation Zone have been classified as CRZ(1) (2) (3) and (4).

29. As per para 2 of such Notification, the activities indicated in such clause had been declared as prohibited within the Coastal Regulation Zone. Clause (i) relates to setting up of new industries and expansion of existing industries, except those directly related to water front or directly needing foreshore facilities. Clause (vi) prohibits dumping of city or town waste for the purpose of landfilling or otherwise. Clause (ix) prohibits mining of sands, rocks and other substrata materials, except those rare minerals not available outside the CRZ areas. Clause (xi) prohibits construction activities in CRZ in ecologically sensitive areas as specified in Annexure-I of the Notification. Clause (xii) prohibits any construction activity between the Low Tide Line and High Tide Line except facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this Notification. Para 3 enumerates the permissible activities and provides that all other activities except those prohibited in para-2 would be regulated as per para-3. This permissible activities lay down inter alia that the activities indicated in Clause 3(2) will require environmental clearance from the Ministry of Environment and Forests, Government of India.

30. Clause 3(2)(i), 3(2)(ii) and 3(2)(iv) are extracted hereunder.

Clause 3(2)(i): Construction activities related to projects of Department of Atomic Energy or Defence requirements for which foreshore facilities are essential such as, slipways, jetties, wharves, quays; except for classified operational component of defence projects for which a separate procedure shall be followed. (Residential buildings, office buildings, hospital complexes, workshops shall not come within the definition of operational requirements except in very special cases and hence shall not normally be permitted in the CRZ).

Clause 3(2)(ii), Operational constructions for ports and harbours and light houses and constructions for activities such as jetties, wharves, quays and slipways, pipelines, conveying systems including transmission lines. Clause 3(2)(iv), All other activities with investment exceeding rupees five crores except those activities which are to be regulated by the concerned authorities at the State/Union Territory level in accordance with the provisions of paragraph-6, sub-paragraph (2) of Annexure 1 of the Notification.

(Emphasis added)

31. This requirement under Clause 3(2)(iv) relating to obtaining approval from the Ministry of Environment and Forests in respect of activities with investment exceeding rupees five crores had been subsequently amended. But again under the Notification impugned in the connected Writ Petition No. 15518 of 2003, the original provision has been restored as 3(2)(v). In other words, as per the present requirement, the sanction of the Ministry of Environment and Forests is required, if the costs of the project is more than five crores. According to the learned Counsel appearing for the petitioner, even though the provisions contained in the Environment (Protection) Act, 1986, the rules made thereunder and the different Notifications and directions issued contemplate prohibition of regulation of various activities including activities relating to construction of buildings and structures etc, the provisions are being erroneously interpreted to mean that the activities must be connected with any industrial activity and not for construction of buildings for dwelling purpose.

32. The learned Counsel for the petitioner submitted that such misinterpretation has arisen because of observation made by a Division Bench judgment dated 14.12.1995 in W.P. Nos. 5971 and W.A. No. 1287 of 1995. The learned Counsel for the petitioner submitted that even though the discussion made in the said decision should not be relied upon as a precedent in view of the fact that such discussion was purely obiter and at any rate had been specifically left open by the Supreme Court in SLP No. 13463-64/98 arising out of such decision, such observation is being erroneously considered as laying down the principle of law to be followed in subsequent decisions.

33. The learned Addl. Solicitor General has also submitted that at any rate, as apparent from the provisions contained in the Act, Rules and the Notifications , activities sought to be controlled under the Act are not necessarily confined to industrial activities.

34. It is first necessary to notice the relevant observation made in W.P. No. 5971 of 1995 and W.A. No. 1287 of 1995. After noticing the various provisions in the CRZ Notification dated 19.2.1991, such observation was made in paragraph-14 of the judgment, which is extracted hereunder:

14. According to the learned Advocate General who has appeared for the second respondent, Clause (iv) of sub-paragraph (2) must be understood in the context to refer only to such activities as would fall within the same category of the activities referred to in Clauses (i)(ii) and (iii). In other words, the contention is that the principle of ejusdem generis should be applied in this case. A perusal of the entire sub-paragraph shows that the contention is well-founded. Clauses (i), (ii) and (iii) refer to activities which cannot be clubbed by their own nature with construction of residential buildings. Though the expression "all other activities" is very wide, we cannot in the context Interpret the said expression as to include construction of residential buildings. The expression can only refer to activities similar to and of the same kind as set out in Clauses (i), (ii) and (iii).

35. The above judgment of the Madras High Court was challenged in S.L.P. Nos. 13463 and 13464 of 1998. The Supreme Court while dismissing the SLP filed against the aforesaid judgment observed:

...After hearing Counsel on both sides and after carefully going through the judgments under challenge, we find that no case for interference is made out on findings, based on facts. However, we make it clear that the questions of law argued and decided by the High Court are left open to be decided in an appropriate case by this Court. Findings of the High Court on facts are restricted to the special facts of these cases. ...

36. Apart from the fact that the question was expressly left open by the Supreme Court, it is apparent that the observation made in paragraph-14 was wholly unnecessary for the purpose of deciding W.P. No. 5971/1995 and W.A. No. 1287/1995. As a matter of fact, in paragraphs 7 and 8 of the judgment, the Division Bench had observed as follows:

7. ...The 6th respondent raised a contention that the provisions of Environment (Protection) Act, 1986, the rule made thereunder and the Notification of the Central Government dated 19.2.1991 relate only to industries, operations or processes and they will not apply to construction of residential buildings.

8. Prima facie, there is some force in the argument of learned Counsel for the 6th respondent, but we decided not to take up that contention for determination in this case for two reasons: (1) It is not necessary for the disposal of the present writ petition. (2) The Standing Counsel for the Central Government represented that the fourth respondent had not received notice in the writ petition and he had not received instructions from the Government. Hence, we are leaving open the question of the applicability of the Act, the Rules and the Notification to residential buildings.

(Emphasis supplied)

37. From the aforesaid observations made by the Division Bench, it is apparent that the question as to whether the provisions of the Environment (Protection) Act and the Rules made thereunder and the Notification of the Central Government dated 19.2.1991 will not apply to construction of residential buildings had been specifically left open even by the Division Bench as apparent from the concluding remarks in paragraph-8. Unfortunately, however, in spite of such discussion in paragraphs 7 and 8, the Division Bench proceeded to observe in paragraph-14 that the expression contained in the Notification particularly in Clause (iv) paragraph-2 would not include construction of residential buildings and such expression can only refer to activities similar to one of the same kind in Clauses 1, 2 and 3 had been made, which was totally unnecessary.

38. As already pointed out, even the Supreme Court had also subsequently observed that the question of law decided by the Division Bench was left open. It is therefore obvious that the observations made in paragraph 14 of the judgment in W.P. No. 5975/1995 cannot be considered to be a binding precedent.

39. However, such observations have been, subsequently interpreted to be laying down the principle of law to be followed, as apparent from the observations made in the judgment dated 4.9.1997 in W.P. No. 1569 of 1997 and WMP. Nos. 2593, 7817 and 7958 of 1997. Similarly such decision was also understood to have laid down the principle in a subsequent decision dated 2.11.2001 in W.A. Nos. 1291 and 1663 of 1997 and W.P. No. 8030 of 2000 and CMP. Nos. 15015, 15016 of 1997 and 10381 of 2001 and WMP. Nos. 11746, 12162/2000 and 25836 of 2001. In our opinion, it cannot be laid down as a general principle of law that various provisions contained in the Environment (Protection) Act, the Rules and the Notifications thereunder are applicable only to the industrial activities or other similar activities. Keeping in view the purpose for which such Act was enacted, the expressions contained in the Act should be given the widest possible meaning so as to prevent the possibility of any environmental degradation. The expressions are wide enough to include any activity including the construction of building even for residential purpose. For example, if the zone is coming with CRZ-1, all activities are prohibited within the particular area specified and it does not matter whether such activities are industry related or otherwise. Similarly, in CRZ-2, activities like construction of residential building can be prohibited if the provisions contained in the Act, the Rules or the CRZ Notifications are contravened. It is also clear that it is immaterial as to whether the proposed construction activity is by any individual or Government or public sector undertaking. In our opinion, the Division Bench decision, which has been subsequently followed did not lay down the law correctly when it was stated that the activities prohibited/regulated did not relate to construction activity for residential purpose and only related to industrial activities.

40. Now coming to the specific prayers made in W.P. No. 10937 of 2003 and W.P. No. 11076 of 2003, the immediate apprehension of the petitioners regarding demolition of Queen Mary's College had abated in view of the subsequent events. In the notification dated 22.4.2003, issued by the Ministry of Environment and Forests, relating to Coastal Regulatory Zone, provisions have been made numbered as paragraph 3(2)(iv) relating to demolition and reconstruction of buildings of archaeological and historical importance, heritage buildings and buildings under public use. In view of such changed scenario, it is not necessary to issue any particular writ or direction in the matter.

41. Subject to aforesaid observations, the W.P. Nos. 10937 and 11076 of 2003 are disposed of. W.P. No. 15518 of 2003 is dismissed as withdrawn and W.A. No. 2079 of 2003 is dismissed as infructuous. No costs.

 

IN THE HIGH COURT OF MADRAS

W.P. No. 35485 of 2006

Appellants: Gunavathi Proprietrix of Decorticating Unit Vs. Respondent: The Chairman Tamil Nadu Pollution Control Board and The Joint Chief Environmental Engineer Tamil Nadu Pollution Control Board: Decided On: 26.09.2006

Hon'ble Judges:

A.P. Shah, C.J. and K. Chandru, J.

Counsels:
For Appellant/Petitioner/Plaintiff: M. Ravikumar, Adv.

For Respondents/Defendant: Ramanlal, Adv.

Subject: Environment

Acts/Rules/Orders:
Air (Prevention and Control of Pollution) Act, 1981 - Sections 21 and 31A; Water (Prevention and Control of Pollution) Act, 1974 - Sections 25 and 26

Disposition:
Petition allowed

ORDER

K. Chandru, J.

1. The petitioner is the Proprietrix of Decorticating Unit situated at No. 34 and 36 Maninagaram Cross Street, Aruppukottai Town. In this writ petition, the petitioner challenges the order of the first respondent / Chairman of the Tamil Nadu Pollution Control Board dated 02.8.2006 wherein and by which the first respondent, by exercising his power under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981, issued direction to the closure of the petitioner's unit and also stoppage of electricity with immediate effect and this order is impugned in this writ petition.

2. It is found from the impugned order that inspection of the petitioner's unit was conducted on 23.3.2006 and that the petitioner had not provided proper Air Pollution Control measures and the consent of the Board was also not obtained and also there are frequent complaints from the public against the dust pollution caused by the unit. It is admitted that the report of the inspection conducted on 23.3.2006 was not given to the petitioner and no show cause notice was issued before taking any action.

3. We have heard Mr. M. Ravikumar, the learned Counsel for the writ petitioner, Mr. Ramanlal for the respondents Tamil Nadu Pollution Control Board and have gone through the records.

4. Mr. Ramanlal, the learned Counsel for the respondents, submits that as against the said order, an appeal will lie with the appellate authority.

5. We are unable to agree with the said submission. The petitioner is legally entitled to carry on business, which she has been doing for the last 21 years. It is high-handed on the part of the respondents to order closure of the petitioner's unit without even observing the elementary norms. It can be seen from the affidavit filed in support of the petition that the petitioner has employed her family members and three persons are working in the said unit and they are not creating any pollution. It is also seen from the records that the petitioner's unit has been registered as a Small Scale Industry and the Government of Tamil Nadu vide order dated 30.11.1989 issued a Permanent Registration Certificate for the purpose of manufacturing Groundnut Kernels and also processing of raw rice flour for "Murukku". The petitioner has also produced proceedings issued by the Board vide B.P.Ms. No. 381 dated 06.4.1990 in terms of Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. In these proceedings, the small industries employing less than 20, which are listed out in the annexure to the order, have been exempted from the purview of the Pollution Act. Item Nos. 53 and 54 in the annexure squarely apply to the petitioner's establishment.

6. Under the above circumstances, it is highly doubtful as to whether any consent is required from the petitioner to run the industry. Even in the exemption order, it is stated that only if there is any objection from the surrounding Community and after verification, the facility given to the industry can be withdrawn. That is not the case in the present circumstances. On the other hand, it is seen from the affidavit that a neighbour of the petitioner, by name, one Rathinam had filed a suit in O.S. No. 359 of 1990 on the file of the District Munsif, Arupukkotai, on his behalf and on behalf of the public and the same was dismissed on 19.7.1995. The appeal, as against the said order, filed in A.S. No. 349 of 1996 was also dismissed on 13.10.1998 by the Sub-Court, Virudhunagar. Therefore, it is not open to the respondents to receive complaints from the neighbours, who might have given the same on personal grudge.

7. In the light of the above, the impugned order No. T16/TNPCBd/F-20215/VRD/OS/2006-1 dated 02.8.2006 is hereby set aside. The respondents are directed to inform the Tamil Nadu Electricity Board to restore the power connection to the petitioner's unit forthwith, if not already done. It is open to the first respondent to issue show cause notice to the petitioner in terms of law after taking into account the exemption granted to the industries in one of which the petitioner is carrying on business and after getting explanation from the petitioner and after affording opportunity to the petitioner, an order may be passed by the first respondent Board and the same may be communicated to the petitioner. If the order is adverse to the petitioner, the same shall not be given effect to, for a period of two weeks from the date of order.

8. The writ petition is allowed to the extent indicated above. However, there will be no order as to costs. Consequently, M.P. No. 1 of 2006 shall stand closed.

IN THE HIGH COURT OF MADRAS

Writ Appeal No. 191 of 2001 and WAMP No. 1218 of 2001

Appellants: Tamil Nadu Vivasayigal Sangam, Reg. No. 1018 rep. by its Secretary T. Balakrishnan  Vs. Respondent: The District Forest Officer and The Assistant Settlement Officer :Decided On: 19.10.2006

Hon'ble Judges:
P. Sathasivam and S. Tamilvanan, JJ.

Subject: Environment

Acts/Rules/Orders:
Gudalur Janmam Estates Act, 1969 - Section 9; Tamil Nadu Forest Act - Section 68A

JUDGMENT

P. Sathasivam, J.

1. The writ appeal is directed against the order of the learned single Judge dated 07.06.2000 made in W.P. No. 6586 of 1999, in and by which, the learned single Judge, after finding that the petitioners are not entitled to the relief sought for in the writ petition, has dismissed the same.

2. Heard Mr.R.N.Kothandaraman, learned Counsel appearing for the appellant sangam, Mr.Titus Jesudas for the first respondent and Mr.P.Subramanian, for the second respondent.

3. It is the case of the petitioner/appellant that in view of the order dated 23.12.1998 made in S.R. No. 7/80, the second respondent, the Assistant Settlement Officer, Dharapuram has granted Ryotwari Pattas in favour of the 10 tenants, including in favour of Balagangadharan Nair in respect of the land in possession of the members of the appellant. It is also stated that consequently, the rights of entitlements conferred on them under Section 9 of the Gudalur Janmam Estates Act, 1969 and consequential ownership over the said lands have been confirmed and made absolute in their favour. In view of the fact, according to them, as on date, the Government has no manner of right and interest over the same. It is also their claim that the dispute regarding possession of the said lands would be only between its owners viz., Ryotwari pattadars and the members of the appellant and the Government. It is also brought to our notice that the Ryotwari pattadar Balagangadaran Nair has filed civil suit in O.S. No. 154 of 1990 on the file of District Munsif Court, Gudalur, against some of the members of the appellant praying for permanent injunction. In view of the fact that the members of the appellant sangam were in the actual possession and enjoyment of the lands in question, interim injunction was granted in his favour, however, the suit is still pending. It is also argued that the learned single Judge has not considered the question whether the land comes within "Reserve Forest" or "the land at the disposal of the Government" as defined under Section 68-A of the Tamil Nadu Forest Act or within the meaning of "the Forest" or "the Private Forest" as defined in the TNPPF Act.

4. The learned Special Government Pleader appearing for the first respondent submitted that the lands in question are Forest lands, hence patta cannot be granted in favour of the members of the appellant sangam.

5. We have considered the claim made by the appellants sangam and the stand of the respondents. First of all, whether the lands in question are Forest lands or not cannot be gone into by this Court in these proceedings. Even though, the stand was taken by the respondents, the same was not substantiated by placing acceptable materials. It is also the claim of the counsel for the appellant that the members of the sangam are not the refugees as observed by the learned single Judge. On the other hand, they were re-patriates and settled at Gudalur, pursuant to the agreement between two countries viz., India and Sri Lanka. It is also brought to our notice that all the members are settled and cultivating the land all along without any interruption. It is also the claim of the appellant that they have no other avocation and their livelihood must be protected.

6. Taking note of the grievance and also of the assertion of the appellant that the members of the sangam were in possession of the lands from 1980 onwards without any interruption, we are of the view that ends of justice would be met by directing the sangam, their members, to make a representation to the District Collector, Nilgiris highlighting their grievance either for grant of patta in respect of the lands in question or for suitable alternate lands for continuing their livelihood. The said representation is to be made within a period of four weeks from the date of receipt of a copy of this order. If any such representation is made, the District Collector, Nilgiris, is directed to consider and dispose of the same in accordance with law within a period of 12 weeks thereafter. It is made clear that if any clarification is required, the District Collector, Nilgiris, is directed to get the required details from the applicants viz., sangam before passing any order. In view of the claim of the members of the sangam that they were in possession of the land in question from the year 1980, it is made clear that till the final decision being taken by the Collector, Nilgiris, on the proposed representation, their possession shall not be disturbed.

7. With the above directions, the writ appeal is disposed of. No costs. WAMP No.1218 of 2001 is closed.

IN THE HIGH COURT OF BOMBAY

P.I.L. No. 39 of 2003 (Writ Petition No. 7308 of 2002) and Civil Application Nos. 11 and 14 of 2006

Appellants: Bombay Environment Action Group and Sameer Mehta
Vs. Respondent: State of Maharashtra (through Secretary, Urban Development Dept. and Secretary, Revenue and Forest Dept.) and Ors.
[Along with Civil Application No. 2244 of 2004] : Decided On: 19.10.2006

 

AND

Appellants: Hotel Pratap Heritage and Anr.

Vs.
Respondent:
Bombay Environmental Action Group and Ors.

[Alongwith Civil Application Nos. 62, 68, 73 and 3185 of 2005 and 12, 16, 17 and 64 of 2006]

AND

Appellants: Panorama Resort Pvt. Ltd. and Ors.

Vs.
Respondent: State of
Maharashtra and Ors.


[Alongwith Civil Application Nos. 3, 15, 19, 29, 39, 56, 67 and 72 of 2006]

Hon'ble Judges:


H.L. Gokhale and J.P. Devadhar, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff:

For Respondents/Defendant:

Subject: Environment

Acts/Rules/Orders:
Societies Registration Act; Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965 - Sections 49(3), 195, 313 and 323(1); Water (Prevention and Control of Pollution) Act, 1974 - Sections 4, 17, 17(1), 24, 25 and 33A; Environment (Protection) Act, 1986 - Sections 3(1), 3(2), 3(3), 5, 19 and 23; Indian Forest Act, 1927; Forest Conservation Act, 1980; Wild Life (Protection) Act, 1972; Mahabaleshwar Municipal Council Act; Building Bye-laws and Development Control Rules; Municipal Solid Waste (Management and Handling Rules, 2000; Environment Protection Rules, 1986 - Rules 3(3A) and 5(3); Development Control Regulations - Regulations 3 and 64B; Constitution of India - Article 142

Cases Referred:

T.N. Godavarman v. Union of India AIR 1997 SC 1228; Live Oak Resort P. Ltd. v. Panchgani Hill Station Municipal Council AIR 2001 SC 3478; R.B.I. v. Peerless General Finance & Investment Co. Ltd. AIR 1987 SC 1023; Kruse v. Johnson 1898 2 QB 91; Trustees of the Port of Madras v. Amichand Pyarelal (1976) 3 SCC 167; S.N. Rao v. Municipal Corporation (1988) 1 SCC 586; M.I. Builders v. Radhey Shyam Sahu AIR 1999 SC 2468; Rajendra Thacker v. Municipal Corporation (2004) 4 BCR 1; Apex Court in ANZ Grindlays Bank v. Municipal Corporation of Delhi; M.C. Mehta v. Union of India (2006) 3 SCC 399; DLF Utap Enclave Complex Educational Trust v. State of Haryana AIR 2003 SC 1468; Commissioner of Income Tax v. East West Import and Export AIR 1989 SC 36; State of H.P. v. Nupur Private Bus Operators (1999) 9 SCC 559

Case Note:

Environment — Protection of environment — Illegal construction activities — Environment (Protection) Act, 1986 — Petitioner society was an environmental protection agency interested in protection of environment in Mahabaleshwar and Panchgani twin hill stations — Petitioners had filed an earlier writ petition alleging large scale illegal construction activities and deforestation going on in Mahabaleshwar-Panchgani area thereby resulting in widespread environment and ecological problems — High Court disposed of writ petition by issuing certain instructions to be complied with by authorities so as preserve environment of said two hill stations and also initiated measures in said direction — However, Petitioners alleged that in spite of directions and measures initiated under orders of High Court, no appropriate actions were being taken by concerned authorities — Hence, present petition filed as a public interest litigation — Held, all must appreciate that they are going to suffer if environment is not protected by them — Hence, it was in interest of all that steps suggested to protect environment ought to be implemented — Restoration of a property would have to be to extent possible nearer to earlier external façade — It would be for Municipal Council to take necessary steps in that behalf — Regarding some disputed structure, Civil Judge was directed to hear and decide pending suit at earliest — Petition and Civil Application disposed of

JUDGMENT

H.L. Gokhale, J.

Page 3311

1. The 1st Petitioner herein is a Society registered under the Societies Registration Act and is interested in the protection of environment in various parts of the country and particularly in the State of Maharashtra.

It has taken steps from time to time for that purpose including filing proceedings in this High Court as well as in the Supreme Court. The 2nd Petitioner is a member of the 1st Petitioner. The present petition is concerning the protection of environment in the Mahabaleshwar and Panchgani twin hill stations.

2. (i) The 1st Respondent to this petition is the State of Maharashtra through the Secretary, Urban Development Department as well as the Secretary, Revenue & Forests Department. Respondent No.10 is the Town Planning and Valuation Department of the State Government through its various officers. The 2nd and the 3rd Respondents are Mahabaleshwar and Panchgani Municipal Council respectively, both governed under the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965 (also referred as Maharashtra Municipalities Act). The 4th Respondent is the Collector of Satara. The 5th Respondent is Union of India through the Secretary, Ministry of Environment and Forests.

(ii) Certain private parties are also joined as respondents. The 6th Respondent is a company by name M/s Desai Brothers Limited. The 7th Respondent is one Mr.J.S. Billimoria. The 6th and 7th Respondents are the owners of plots of land in Mahabaleshwar known as "The Oaks" and "The Malcolm Cottage" bearing City Survey Nos.193 and 194 respectively. The 8th Respondent is one Mr.Avinash Bhosale, who is supposed to be the owner of another property known as "Four Oaks". The 8th Respondent claims that it is the 9th Respondent, a development company, which is the owner of that property which is situated at Survey No.14 on Mahabaleshwar-Satara Road. Respondent No.9A is a representative body of the hoteliers in Mahabaleshwar. The 11th Respondent is a property known as Hotel Arya and the 12th Respondent is another property known as Hotel Rajesh. The Respondents No.6 to 9 and 11 and 12 are stated to have effected certain constructions in violation of the bye-laws regulating the development in these Hill Stations. Respondent No.13 is an Association of traders carrying on their activities at the table land at Panchgani.

(iii) The Petitioners have taken out a substantive Civil Application bearing No.2244 of 2004 in this writ petition seeking certain additional prayers. Page 3312 Apart from the Respondents to the main writ petition, Maharashtra Pollution Control Board (MPCB) and the Maharashtra Jeevan Pradhikaran (Maharashtra Water Supply Board) are also joined as Respondents therein. The MPCB is a body corporate constituted under Section 4 of the Water Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as "the Water Act").

(iv) Some of the individual parties affected or likely to be affected by the prayers in this writ petition and Civil Application No.2244 of 2004 have taken out separate civil applications to protect their interests.

(v) We will deal with the main writ petition and Civil Application No.2244 of 2004 together. The civil applications by the private parties will be dealt with separately.

3. The 1st Petitioner herein had filed one writ petition earlier bearing Writ Petition No.2754 of 1997, which came to be disposed of by a judgment and order dated 18th November 1998 passed by a Division Bench presided over by the then Chief Justice M.B. Shah and Radhakrishnan J. Various directions for protection of the environmental in Mahabaleshwar and Panchgani were issued while disposing of that writ petition. The grievance in that petition was that large scale illegal construction activities and deforestation was going on in Mahabaleshwar-Panchgani area resulting in widespread environment and ecological problems. The Regional Plan for that area for the years 1984-2001 was already in vogue and their provisions were claimed to have been violated as also those of the Building Bye-laws and the Development Control Rules.

4. A Committee came to be appointed during the course of that petition under one Shri Arun Bhatia, the then Commissioner of Pune Revenue Division, to find out as to whether any such illegal construction and deforestation and violations of various provisions, as stated above, were going on. The Committee submitted its report on 17th November 1997. The Committee identified more than 1000 buildings and other violations in that region and suggested some remedial measures. The Division Bench by an interim order pressed into service Sections 24 and 25 of the Water Act and directed the Maharashtra Pollution Control Board to take immediate steps to stop the discharge of all polluted water into Venna Lake in Mahabaleshwar. The Court directed the Mahabaleshwar Municipal Council to take action against those who were carrying on the activities in violation of sanctioned plans and various legal provisions. A statement was made by the learned Advocate General on behalf of various authorities of the State of Maharashtra that on the basis of the report of this Court appointed Committee, show cause notices will be issued to the concerned persons who had committed various breaches of bye-laws and action will be taken against them.

5. While disposing of the petition, the Division Bench appointed a Monitoring Committee comprising of 5 persons, viz. (1) Deputy Conservator of Satara, (2) Sub-Divisional Officer, Satara, and three environmentalists, i.e. (3) Dr.Farrokh Wadia, (4) Col. Mohite, and (5) Sujeet Patwardhan. On 19th September 2005, one Mr. V.D. Kulkarni, Retired Deputy Director of Town Planning was added as a member. The role of the Committee was to monitor the developments within Mahabaleshwar-Panchgani region so as to ensure that all development and/or construction within the region is carried out in accordance with law. Page 3313 The Committee was empowered to bring to the notice of the statutory authorities any such irregularities or illegalities either on its own or on receipt of complaints from the citizens. The statutory authorities were directed to adopt necessary proceedings or measures on receiving the complaints from the Monitoring Committee. The petition was thereafter disposed of with further appropriate directions.

6. It is the case of the Petitioners that in spite of these measures initiated under the orders of the High Court, no appropriate actions were being taken. This writ petition was therefore filed in October 2002 and has been treated as a Public Interest Litigation. It has been amended from time to time and some of the Respondents have been added thereto. There have been two reports of the Monitoring Committee in the meanwhile; one was an interim report of 15th January 2001 and then the subsequent final report of 16th February 2004. Civil Application No.2244 of 2004 is taken out on 10th September 2004 for enforcing the recommendations of the Monitoring Committee though it has various other prayers also.

7. (i) Before we deal with the prayers in the writ petition as well as Civil Application No.2244 of 2004, we may note that during the pendency of this Petition as well as the Civil Application, various orders have been passed in furtherance of these prayers. Reference will be made to them as and when the occasion arises.

(ii) As far as the main petition is concerned, prayer (a) is to seek a direction to constitute a Heritage Conservation Committee. This Committee has already been appointed and, therefore, this prayer no longer survives.

(iii) Prayer (b) of this petition is to seek a direction to demolish forthwith the unauthorised constructions in the Mahabaleshwar-Panchgani area, and particularly those in violation of the building bye-laws, some of which have been enumerated in the Bhatia Committee Report. As far as this prayer is concerned, it makes a specific mention of the illegal construction in the properties known as The Oaks and Malcolm Cottage, which are owned by Respondents No.6 and 7 This prayer clause refers to another property "Four Oaks" which is owned by Respondents No.8 and 9. Prayers (f) to (k) of Civil Application No.2244 of 2004 are also about the illegal constructions and prayer (k)(i) and (ii) thereof are directed against the Arya Hotel and prayer (k)(iii) is directed against Hotel Rajesh. These prayers will have to be gone into specifically.

(iv) Prayers (c)(iii) to (c)(xi) of the writ petition are also concerned with the prayer of demolition of illegal constructions. Prayer (c)(iii) prays that the building bye-laws be followed strictly. Prayer (c)(iv) is that the illegal constructions be removed. Prayers (c)(v) to (xi) are about various particulars with respect to these illegal constructions. Prayer (c)(xi) seeks more powers to this Monitoring Committee in this behalf.

(v) Prayer (c) of the main petition is to seek an order that all the proceedings relating to these developments, that have been or under the investigation by the Monitoring Committee, be heard only by the High Court.

8. Prayer (c)(i) of the writ petition is to publish the Final Heritage List of the heritage buildings as per Regulation 3 of the Draft Heritage Resolution. Page 3314 Prayer (c)(ii) is to cancel the deletions from the Heritage List which was made by a Committee earlier known as Shri Surve Committee.

9. (i) As far as Civil Application No.2244 of 2004 is concerned, some of the prayers have been mentioned while referring to the prayers of the main petition. The other prayers of this Civil Application are somewhat repetitive.

(ii) Prayers (a) and (a)(i) are to implement the recommendations of the High Court Monitoring Committee with respect to forests.

(iii) Prayer (d) is to direct the Mahabaleshwar and Panchgani Municipal Council to implement the Municipal Solid Waste (Management and Handling Rules, 2000. Prayer (d)(i) is a prayer directed against Respondent No.10 to the Civil Application, i.e. Maharashtra Pollution Control Board to forthwith take steps in law, including under the Environment (Protection) Act, 1986, Water (Prevention & Control of Pollution) Act, 1974 and the Municipal Solid Waste (Management and Handling) Rules, 2000 to ensure that all discharge of untreated effluent and solid waste in Mahabaleshwar and Panchgani is forthwith stopped. The prayers upto prayer (d)(vi) are concerning the sewage treatment plant which these bodies are supposed to set up. Orders have been passed by this Court during the pendency of this writ petition on 15th June 2006 read with earlier order of 19th September 2005 and some steps are already initiated though effective supervision in that behalf is necessary.

10. Prayer (e) of this Civil Application is concerning the protection of the Panchgani Table Land. With respect to this prayer appropriate directions have already been given during the pendency of this petition on 1st March 2006, 4th May 2006 and 15th June 2006. The shopkeepers and the traders association were heard and they were directed to be removed out of it and vehicles are not to be permitted thereon. A barricade is also directed to be put up to separate the table land from the area where the shops are to be relocated. The Panchgani Municipal Council has initiated the necessary steps in this behalf.

11. Prayer (l) of Civil Application No. 2244 of 2004 is to take action against the illegal constructions in areas known as Jijamata and Munawwar Cooperative Housing Societies and to implement the orders passed by the High Court on 8th November 1998. It may be noted at this stage that as far as these societies are concerned, they are societies formed by members from weaker sections of the community. The breaches in their constructions have also to be attended, but the Petitioners have very fairly stated that they are not so much after those breaches. Last, but not the least, prayers (m) to (t) of the Civil Application are regarding the work of the Monitoring Committee and appropriate remuneration being given to the members of the Monitoring Committee.

ECO-SENSITIVE NOTIFICATION:

12. Before we deal with the prayers, we must mention that this Mahabaleshwar-Panchgani area has come to be notified as an eco-sensitive region by a notification dated 19th January 2001 issued by the Central Government. That has been so done after inviting objections or suggestions and by issuing a notification Section 3(1) read with Section 3(2)(v) of the Environment (Protection) Act, 1986 and by exercising the powers under Rule 5(3)(d) of the Environment Protection Rules, 1986. It has therefore been directed that all activities in the Page 3315 forests, both within and outside the municipal areas, shall be governed by the provisions of the Indian Forest Act, 1927 and Forest Conservation Act, 1980. All activities in the sanctuaries and national parks will be governed by the Wild Life (Protection) Act, 1972. Thereafter, the notification has laid down in para 2 thereof that the activities as mentioned therein will be regulated in the eco-sensitive zone in the manner specified. They are:

(a) A zonal master plan will be created and it will demarcate all existing forests, green areas, etc. There will be a sub-zonal master plan for the areas within and outside Mahabaleshwar-Panchgani Municipal areas and which is to be prepared by the State Government as a component of the zonal master plan. The State Government has to prepare a plan for the entire zone which will be a master plan for the area. It has to be approved by the Ministry of Environment and Forests of the Government of India.

(b) Industrial units will be only in the designated industrial area as per the guidelines laid down by the Government of Maharashtra and Ministry of Environment. Only non-polluting, non-hazardous service industries as are mentioned therein and other industries such as units making footwear from leather, horticulture, floriculture and agro-based industries will be permitted.

(c) Quarrying and mining in these areas shall remain banned.

(d) There will be no felling of trees, whether on forest, government, revenue or private land, without the prior permission of the State Government.

(e) Tourism activities will be as per the tourism master plan.

(f) Natural heritage sites particularly of rock formation, water fall, etc. will be preserved.

(g) Man-made heritage -building structures, artefacts of historical, architectural, aesthetical value will be identified.

(h) Development or construction activities at or around heritage site shall be regulated in accordance with the Draft Model Resolution for conservation of natural and man-made heritage.

(i) Extraction of ground water will be permitted only for bonafide agricultural consumption.

(j) Use of plastics in the zone will be regulated by the Monitoring Committee.

(k) The master plan will indicate areas on hill slopes where construction will not be permitted.

(l) Discharge of any untreated effluent in the eco-sensitive zone will be prohibited.

(m) The local authorities will draw up plan for the segregation of solid waste in the biodegradable, non-biodegradable plants and they will be appropriately treated.

13. (i) Para 3 of this notification declared that the Government of India will constitute a High Level Monitoring Committee to ensure compliance with the provisions of this notification. The said Committee will also have the power to regulate and control noise pollution, regulate the traffic and some such other powers. This Committee will have the power to file complaints under Section 19 of the Environment (Protection) Act, 1986.

Page 3316

(ii) Para 4 of this notification further laid down that in exercise of power under Section 3(3) of the Environment (Protection) Act read with Section 23 thereof, the Ministry of Environment and Forests, Government of India had empowered the Urban Land Department, Government of Maharashtra and High Level Monitoring Committee to discharge the functions specifically enumerated in the notification except those which are required to be performed by the Central Government under the provisions of Environment Impact Assessment Notification.

(iii) It is material to note in this connection that Section 5 of the Environment (Protection) Act grants power to the Central Government to issue directions in writing to any person, officer or any authority, and such person, officer or authority are bound to comply with those directions. The section further states in the explanation that the power to direct includes (a) the power to direct closure, prohibition or regulation of a industry, operation or process, (b) stoppage or regulation of the supply of electricity or water or any service.

(iv) The Central Government did appoint a Committee by exercising its powers, as pointed out above. The Committee was appointed on 29th October 2001, but its life expired on 29th January 2005. This Committee had the power with respect to ground water, namely that no ground water will be sold except with the prior permission of this Monitoring Committee. Under clause 3(a), as we have seen above, the Committee had some power with respect to noise pollution and traffic. It has however not been placed before us as to what control this Committee has exercised throughout its life. The Committee has become extinct after its life getting expired.

14. Though we have enumerated the prayers in the petition, the same can be grouped into certain sub-groups such -(a) protection of the heritage structures, (b) protection of the forests, (c) management of the solid waste and treatment of the sewage, and (d) violation of the building bye-laws and illegal constructions.

15. Protection of heritage structures: As far as heritage structures are concerned, deletion from the original list has subsequently been corrected and now the Petitioners have no particular grievance on that count. The only thing required to be directed is that the heritage structures, as notified by the Surve Committee, ought to be protected and necessary steps in accordance with law ought to be taken concerning therewith. We hope and direct that the authorities of the municipal bodies as well as the State Government to see to it that the heritage structures are retained with their aesthetic value.

16. Protection of the forests: As far as the forests conservation is concerned, directions have already been given and the mapping of the forests has already started. A survey of the forest was directed under the judgment and order dated 18th November 1998. Thereafter there was an order passed on 11th March 2004 in the present petition also. The marking has to be done on the ground level as well as on the charts. The orders passed in this matter earlier have recorded that the process has started and the authorities of the State Government have assured that the mapping will be completed by end of October 2006. We hope and expect that these guidelines will be maintained so that we get the picture of the forest in this eco-sensitive zone at the earliest. This is necessary from the point of view of forest conservation and all authorities Page 3317 must complete the task with all seriousness. A submission was raised with respect to the Maharashtra Private Forest (Acquisition) Act, 1975 and it was stated that some of the forests are in some private properties. This difficulty need not detain us any longer inasmuch as in para 4 of the judgment in the case of T.N. Godavarman v. Union of India, it has already been held that Forest Conservation Act, 1980 applies to all forests irrespective of the nature of ownership or classification thereof. The Act has been passed to check further deforestation and one of the steps required is the mapping of the forests. The mapping of all such forests will also have to be done and there should be no hindrance from the owners of the private properties in that behalf. This is only to create a record of the forests which exists in this region so that it is ultimately protected and conserved. We direct that the mapping be completed by end of October 2006 as assured and the certified copies will be supplied by the District Inspector of Land Records when sought by the Petitioners or other citizens. The demarcation of the forests on ground also will have to be completed and we direct the authorities of the State Government to complete it by end of December 2006.

17. Management of the solid waste and treatment of the sewage: The two hill stations of Mahabaleshwar and Panchgani are situated on a plateau and the stable population of the two hill station is quite substantial. As per the Regional Plan Report, the population of the two hill stations in 2001 was 56,699 (page 73 of the report). In Panchgani, a large number of boarding schools are situated. We are told that during the summer and each of the other seasons, about a lakh of people visit these two hill stations since they are the major hill stations to nearby metropolitan cities of Mumbai and Pune. Consequently substantial quantity of garbage of variety of types is generated which includes plastic bottles, tins and even bio-medical waste. All these have got to be properly treated, managed and destroyed. Similarly, the sewage generated has also got to be treated. The Maharashtra Pollution Control Board has filed two affidavits in Civil Application No.2244 of 2005. The first one was filed by one Shri J.B. Sangewar, Sub-Regional Officer for Satara affirmed on 13th January 2005 and the second one by Shri P.P. Nanduskar, Principal Scientific Officer of M.P.C.B. affirmed on 10th July 2006. In the first affidavit affirmed by Shri Sangewar, it is stated that the Panchgani and Mahabaleshwar Municipal Councils are discharging 1300 and 2660 totalling to 3960 cubic meters per day of untreated sewage and that goes into open valley. It enters directly or indirectly into nearby lakes or rivers and Koyna backwaters.

18. In view of this state of affairs, it has been felt necessary that both these Municipal Councils ought to have appropriate treatment plants and, in any case, until these plants come up, the hoteliers ought to have their own treatment facility. As far as the treatment plants by the Municipal Councils are concerned, the facilities are extremely abysmal. They have assured the courts from time to time and different deadlines have been set up as per their assurances, but the treatment plants have not come up. It is their duty as the Municipal Bodies under Section 49(3)(j) and (l) of the Maharashtra Municipal Councils Act (supra) to see to it that the environment does not get Page 3318 polluted and the sewage is treated. This is all the more distressing since there is no serious problem of funds. This is because both these Municipal Bodies are collecting what is known as the pollution cess or tax and we are told that the amounts collected are over Rs.5 crores. The Maharashtra Pollution Control Board (MPCB) has impressed upon both these Bodies in that behalf from time to time. That also had no effect. There is a responsibility on the Pollution Control Board as well as the Municipal Bodies and the State and the Central Government also in this behalf. Under clause (l) of the Eco-sensitive Notification dated 17th January 2001, it has been specifically provided as follows with respect to discharge of effluents:

The discharge of any untreated effluent is prohibited within the eco-sensitive zone. No effluent either treated or untreated shall be permitted to be discharged into water bodies and water sources within the zone.

In para 1 of Shri Sangewar’s affidavit, he has in clear terms stated that 3960 cubic meters per day of untreated sewage is being discharged in open valley and that it gets directly or indirectly entered into the nearby lakes or rivers. It is relevant to note that by its order dated 14th January 1998 and later on on 18th November 1998 in the earlier Writ Petition No.2754 of 1998, this Court had noticed this fact and directed the Pollution Control Board to take immediate action under Water (Prevention and Control of Pollution) Act, 1974. Similar directions were given to the Collector of Satara and Mahabaleshwar Municipal Council.

19. It appears that first action taken in this behalf was a survey conducted by MPCB. and inspection through its Sub-Regional Office in October 2004. The survey showed that both the Municipal Councils have inadequate and partial connection of sewage lines and do not have any sewage treatment plant and, as stated above, some 3960 cubic meters per day of sewage was being discharged into the valley without any treatment. This was followed by notices issued by MPCB to 211 institutions including hoteliers in Mahabaleshwar and Panchgani pointing out to them that they were not having any treatment facilities and their domestic effluents and solid wastes were being disposed off in an unscientific and unhygienic manner. By the notice dated 1st January 2005, they were called upon to obtain consent of MPCB to operate appropriate facility on or before 31st April 2005. They were expected to provide STP and waste processing facility either individually or along with other hotels to achieve the standards laid down under the Environment (Protection) Act and the Rules by 30th June 2005. The relevant parameters are laid down under Schedule II of the Environment (Protection) Rules read with Rule 3(3A) thereof and the authority of the Pollution Control Board to inspect the sewage effluents and to insist on regulatory treatment is under Section 17(f) of the Water Act. This Rule 3(3A) reads as follows:-

3. Standards for emission or discharge of environmental pollutants.-

(1) ...

(2) ...

(3) ...

(3A) (i) Notwithstanding anything contained in sub-rules (1) and (2), on and from the 1st day of January, 1994, emission or discharge of environmental pollutants from the industries, operations or processes other than those industries, operations or processes for which standards Page 3319 have been specified in Schedule I shall not exceed the relevant parameters and standards specified in Schedule VI. Provided that the State Boards may specify more stringent standards for the relevant parameters with respect to specific industry or locations after recording reasons thereof in writing;

(ii) The State Board shall while enforcing the standards specified in Schedule VI follow the guidelines specified in Annexures I and II of that Schedule.

Section 17(1)(f) of the Water Act on the function of the MPCB reads as follows:

17. Functions of State Board.- (1) Subject to the provisions of this Act, the functions of a State Board shall be (f) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required by this Act.

Similar notices were issued to the two Municipal Councils also, but that too had no effect. MPCB was therefore of the view that unless coercive measures were resorted to and legal actions were taken, the situation will not improve. In fact, it can direct the stoppage of water and power supply of the polluting industries under Section 33A of the Water Act and there can be no dispute that hotels are industries. This section reads as follows:

33A. Power to give directions- Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.

Explanation: For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service.

20. M.P.C.B. noted as per its affidavit dated 10th June 2005 that the number of defaulting hotels were 114 in Mahabaleshwar and 46 in Panchgani. Notices were also issued to non-complying educational institutions to comply by 20th June 2005. By 1st July 2005, some 109 hotels applied for consent, whereas 76 did not. By 10th August 2005, further 37 hotels applied for consent though 39 did not. Some of the hoteliers filed an affidavit saying that they had connected themselves to the sewage pipelines of the Municipal Council. That is of no use inasmuch as there is no treatment plant at the end of the pipeline. The primary responsibility is of the hotelier or the educational institution or any other institution to see to it that its effluent is as per the Page 3320 norms. If in spite of these notices, effluents continue to be not up to the mark, the eco-sensitive zone will continue to be in danger. This is in spite of various orders and notifications of the Central Government and of this High Court from time to time.

21. There is a power vested in the Central Government also under Section 5 of the Environment (Protection) Act to disconnect water and electricity supply to such erring institutions. We are told that this power is to be exercised by the High Level Monitoring Committee of the Central Government. As noted by us earlier, the Monitoring Committee was once constituted, but its life has expired and no new committee has been appointed. Mr.Desai, learned Additional Solicitor General, has assured that the new committee will be set up within one month. We expect it to be set up in any case by end of December 2006 by issuing the necessary notification. MPCB conducts its survey from time to time and we are told that the next survey will be in the first half of January 2007. The MPCB will submit its report to the committee to be appointed by the Central Government and the High Court appointed Monitoring Committee, and if the effluents are not up to the mark, even at that time, the Monitoring Committee under Section 5 of the Environment (Protection) Act will be expected to disconnect the water supply to such commercial institutions (though excluding hospitals and educational institutions as observed in its order by earlier Division Bench). It is no use for the Central Government merely to issue a eco-sensitive notification. It has got the power and the teeth to implement it. It is meaningless to issue any such notification if they are not to be enforced. In view of the statement made by the learned Additional Solicitor General, we expect and direct such committee, when set up, to forthwith act on the report being submitted by MPCB. In any case, the MPCB itself has this power and it has the duty to direct the erring industries to close down and it must proceed in exercise of its own powers without waiting for the Central Government to act. This direction will apply to all the hotels and industries. However, when it comes to restaurants (without any residential facility) and shops, the MPCB may not rush to disconnect power and water supply till they are connected with the municipal sewage lines. This is only because they are small units and it may not be possible for them to have their own treatment facility though they will certainly have appropriate septic tanks.

22. Then there is the problem of setting up of the treatment plant. In this behalf, there has been no progress whatsoever though assurances have been given from time to time. As far as Panchgani is concerned, Mrs.Mahashabde, learned Counsel appearing for the MPCB, pointed out that there is one plant existing in Panchgani, but it is not upto the mark and is not adequate to cover and treat the entire sewage. We are told that against an estimated sewage of 1300 cubic meters per day in Panchgani, its treatment capacity is hardly 600 cubic meters and it does not function properly.

It is the responsibility of the Municipal Body to have the appropriate treatment plant for the entire capacity. Just as the hoteliers and the institutions must suffer, if they do not have the treatment facility or their effluents do not meet the norms, similarly the Municipal Council must also suffer. We grant a period of 6 months to the Municipal Council of Panchgani, i.e. until end of May 2007, Page 3321 to see to it that its treatment plant works to its full capacity and it works efficiently, failing which it will be open to the State Government to take appropriate action, including, if necessary, to supersede the Municipal Council and get the work done through an Administrator.

23. The position is worse as far as Mahabaleshwar is concerned, since there is no treatment plant at all. With a view to facilitate the setting up of the treatment plant, the Court tried to find out the difficulties and to coordinate the activities of various agencies involved. At an earlier point of time, the Division Bench of the then Chief Justice Mr. Justice Dalveer Bhandari and Vazifdar, J. were assured and they directed that the treatment plants will be set up and the Bench directed them to become operational by 31st January 2006. This is recorded in its order dated 19th September 2005. In fact, in para 7 the Court recorded that Mr.Anturkar, learned Counsel for Mahabaleshwar Municipal Council, submitted on instructions that on the next date he will submit entire phasewise plan and the work will be initiated within four weeks from the date of that order. Nothing of the kind has happened though more than one year has gone by now. This Bench was finally told that a plot of land bearing Compartment No. 41 belonging to one Madhusagar Cooperative Society and another on Compartment No.79 were selected for setting up the plants, but steps are not yet finalised to take possession thereof. As far as the plot belonging to Madhusagar Cooperative Society is concerned, we are told that discussions are going on with the said Society and the Mahabaleshwar Municipal Council will acquire it by negotiations though after the permission of the State Government. As far as Compartment No.79 is concerned, it belongs to the State Government. Appropriate correspondence has been entered into with the Chief Conservator of Forests at Nagpur, who is an officer of the Central Government, and Mr. Nargolkar, learned A.G.P. has shown us the documents evidencing that the State Government’s proposal with all particulars has reached the Chief Conservator’s office in Nagpur on 7th September 2006 seeking the release of the concerned plots. Thus one of these plots belongs to a cooperative society and the other to the State Government. Third one belonging to the State Government bearing Compartment No.90 on Survey Nos.94 and 95 is sought for solid waste dumping and treatment. Chief Conservator of Forests is required to look into the proposal and give its approval at the earliest. Mr.Khambata, learned Senior Counsel appearing for the Petitioners, submitted that there are hardly any trees on these parcels of land, which submission was supported by Mr. Anturkar for the Mahabaleshwar Municipal Council and Mr. Nargolkar, A.G.P. on instructions. Mr. Anturkar and Mr. Nargolkar submitted that no other suitable and convenient plots owned by the Municipal Council were avilable. Mr. Desai, learned Additional Solicitor General, stated that the Chief Conservator of Forests will have to ascertain this position and that no other plot is available and then only he may recommend release of the plots for the purpose of setting up of these treatment plants.

24. Having noted the developments as stated above, we must observe that the attitude of the Municipal Council has been extremely lethargic and casual to say the least. Similarly, as far as the Chief Conservator of Forests is concerned, we expect him not to act in a bureaucratic manner. If required, Page 3322 he may send a Competent Officer to the concerned plot of land and seek a report. These plots have been selected after good deliberations and also a discussion in the Court and it appears that Madhusagar Cooperative Society and the State Government have no particular objection. What is more important is that the effluents and the sewage ought to be treated and should not be allowed to flow into the valley which is causing serious damage to the eco-sensitive zone clearly in conflict with the Central Government’s own notification dated 17th January 2001.

The Central Government created an authority under Section 5 of the Environment (Protection) Act. Nothing has been pointed out as to what steps have been taken by this authority, whose life has now expired. In view of the present petition, we are now being told that the particular High Level Committee will be again set up within a month and we expect it to be set up in any case by end of December 2006. If Central Government is serious enough about protection of environment, we expect the Chief Conservator of Forests to give his approval to the release of these plots at the earliest after examining all necessary aspects and in any case by end of November 2006. Mr. Anturkar appearing for the Mahabaleshwar Municipal Council has placed before us a decision of the Municipal Council signed by its Chief Officer recording that the STP will be set up within 6 months after the possession is obtained. Accordingly, we direct the Mahabaleshwar Municipal Council to set up the STP and make these plants functional by end of 6 months, failing which it will be expected of the State Government to take appropriate steps, as stated earlier even to the extent of supersession and appointment of an Administrator, and then get the plants set up and make them operational. The State Government has this power under Section 313 of the Maharashtra Municipal Councils Act. It is the duty of the Municipal Body under Section 49(3)(j) & (l) of the said Act to have proper sewage lines and to maintain an appropriate facility for treatment and disposal of sewage, and failure to act can invite action of supersession from the State Government under Section 313 of the said Act after following the necessary due procedure.

25. As we have seen from the discussions above, all the authorities concerned are merely talking about protecting the environment and the eco-sensitive zone, but hardly any effective and coordinated steps are being taken. It is only because of the efforts taken by the Petitioners that perhaps the treatment plants will come up by end of 6 months and the effluents of the hoteliers and other institutions will be upto the mark even earlier by end of January 2006. All of them, including hoteliers, must appreciate that they are going to suffer if the environment is not protected by them and it is in their own interest that these steps, as directed, ought to be implemented.

26. This order takes care of the Civil Application moved by the hoteliers such as Hotel Pratap and others, which have taken out Civil Application Nos.11, 12, 14, 15, 16 and 17 of 2006. We have heard their counsel. They fear that MPCB may seal their hotels. Mrs. Mahashabde informs us that these hoteliers can put up sceptic tanks which can be operational in one month. We give them longer time till end of December 2006 when they must do the needful and their effluents when checked in January 2007 must conform to the norms, failing which MPCB will take necessary steps in January 2007.

Page 3323

GRIEVANCES AGAINST THE PROPERTY OWNERS ON VIOLATION OF BUILDING BYE-LAWS AND ILLEGAL CONSTRUCTIONS:

27. (i) The Petitioners are relying upon the report of the High Court appointed Monitoring Committee and are submitting that it covers only a few of the illegal constructions and there is a general lack of demolitions from 1998 onwards. Their second submission is that a permission for renovation or repairs is misused for putting up a new construction. Their third grievance is that whereas in residential areas only one main structure is permitted, in certain plots more than one structures are put up. The submissions of the Petitioners are principally based on interpretation of Bye- law Nos.15, 19.4.1(a), 19.4.2(c) and 20.3.1(a) & (b).

(ii) Thus, Bye-law 19.4.1(a) provides that except in Sector No.1 Survey No.52 (which is for low income, economically weaker section housing), minimum size of the plot on Mahabaleshwar Plateau shall be 0.4 hectare which is equal to 1 acre. Clause 19.4.2(c) provides that for other types of buildings like educational, business, mercantile and industrial, assembly hall etc., the minimum plot size shall also be 0.4 hectare. However, it provides that regulation in respect of minimum plot size may be released for special type of buildings with special approval in Urban Development Department. Thus, when it comes to educational, business, mercantile and industrial user, assembly hall, though the minimum size of the plot is 0.4 hectare, the regulation can be relaxed and the plot can be a smaller one. Otherwise, except for the economically weaker section, which is to be housed in Sector No.52, all other plots have to be of 0.4 hectare. This is the provision in Bye-law 19.4 which is concerning Layout of plots.

28. Part I of these Bye-laws and Development Control Rules is on Administration and it gives the definitions and provisions regarding building permit, completion certificate and occupancy certificate. This part includes Bye-law 15 which is on unsafe building, which reads as follows:

15. Unsafe Building:

15.1 The provision of Section 195 of Maharashtra Municipalities Act, 1965 shall apply for all unsafe buildings, which shall be considered to constitute danger to public safety and for restoration by repairs or demolition or other sanctions as directed by the Authority.

29. Part II of the Bye-laws is on General Building Requirements. This part provides for requirements such as the building site, distance of electricity lines, means of access, rules for sub-division and layout, open spaces and then about layout of plots in Bye-law 19.4, which has been mentioned above, namely that the minimum plot size for residential purposes will be 0.4 hectare. Then Bye-law 20.3.1, which is on residential building, provides as follows in clauses (A) and (B) thereof.

20.3.1 Residential Building:

(A) In 0.4 Ha. plot zone (a) Maximum built up area shall not be more than 12.5% (b) Maximum vertical expansion permissible shall be not more than ground plus one storey and maximum floor space index shall be .15, (c) Minimum open space all around the building between walls of the building and the building and the periphery of the plot shall Page 3324 not be less than 6 m (d) the minimum clear distance between the main building and any subsidiary out-house, garage, constructed in the same plot shall not be less than 6 m. The main subsidiary building may be permitted to be connected by a covered corridor.

(B) Only one main building together with such out-house, garages, etc. as are reasonably required for the domestic use and enjoyment of the occupants of such main building and their domestic servants and which shall not be separately let out, shall be permitted to be created in any plot. Such subsidiary structures shall be of ground floor constructions with height restriction of 4.5 m.

30. It is therefore submitted by the Petitioners that when a residential building is to be constructed, which is in a 0.4 hectare plot zone, the bye-law provides that the maximum vertical expanse shall be not more than ground plus one floor and the F.S.I. will be 0.15 only. In sub-clause (B), it is provided that on such a plot, there will be only one main building, and another out-house, garage, etc. may be permitted as reasonably required for domestic use and enjoyment of the occupants of the main building and their domestic services, but they are not to be separately let out. It is further stated that these subsidiary structures will be of ground floor level only. The Petitioners therefore submits that whenever any new construction is to come up, it has got to abide by this Bye-law 20.3.1. In their submission, the only exception to this are the unsafe buildings, for which the earlier mentioned Bye-law 15 applies. This bye-law provides that where a building is unsafe, the provisions of Section 195 of the Maharashtra Municipalities Act, 1965 will apply, i.e. where they are dangerous to public safety and then their restoration will be permitted by repairs or demolition or other sanctions as directed by the authorities. The term "authority" has been defined under Bye-law 2.2. to mean an authority which is created by a statute and which for the purposes of administering the bye-law may authorise a committee or an official to act on its behalf. Now, Section 195 of the Maharashtra Municipalities Act reads as follows:

195. Removal of buildings, structures etc. which are in ruins or likely to fall.- (1) If it shall at any time appear to the Chief Officer that any building or other structure or anything affixed to such building or structure is in a ruinous condition or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such building or structure or any other structure or place in the neighbourhood thereof, the Chief Officer may, by written notice, require the owner or occupier of such building, structure or thing or do one or more such things and to prevent all causes of danger therefrom.

(2) The Chief Officer may also, if he thinks fit, require the said owner or occupier, by the said notice either forthwith or before proceeding to put down, secure, remove or repair the said building, structure or thing, to set up a proper and sufficient board or fence for the protection of passers by and other persons.

(3) If it appears to the Chief Officer that the danger from a building, structure or thing which is ruinous or about to fall is of hourly imminence, he shall, before giving notice as aforesaid or before the period of notice expires, fence of, take down, secure or repair the said structure Page 3325 or take such steps or cause such work to be executed as may be required to arrest the danger.

(4) Any expenses incurred by the Chief Officer under sub-section (3) shall be paid by the owner or occupier of the structure and shall be recoverable in the same manner as an amount due on account of a property tax.

31. As is seen from this section, it speaks of a building which has become dangerous either for a resident or a passerby or to the one who is having a resort thereto, i.e. a visitor. The mechanism under that section is for the Municipal Authority to call upon the owner of the building to repair it if it has become ruinous. The Petitioners therefore submit that when one talks about a restoration of an unsafe building under Bye-law 15, it is implied that those who were occupying it earlier ought to be able to occupy it after the repairs or after its demolition and reconstruction as contemplated thereunder. This will mean that the FSI available earlier ought to be available after the restoration. The Petitioners however emphasise that what is contemplated under Bye-law 15 is only a "restoration" though by means of either repair or demolition or other sanction as directed by the authorities. They therefore submit that although it will mean permission to put up a construction to consume the full FSI, it will have to be essentially a restoration. If it is not a case of restoration, then Bye-law 20.3.1 will apply where the restrictions thereunder will apply, namely

(i) New construction will have to be only ground plus one.

(ii) FSI utilisation will have to be only 0.15.

(iii) There will have to be only one main building with one out-house or a garage as contemplated thereunder.

32. The contention of the Petitioners is that as far as Hotel Rajesh is concerned, what it has done is not a restoration, but it is a new construction and has consumed more FSI than what it had consumed earlier. In Hotel Arya, what is constructed is a ground plus 3 storey building. In The Oaks and Malcolm Cottage, some new structures are constructed when only one structure is permissible as stated above and in Four Oaks also, 3 new structures are stated to have been constructed and earlier building is tried to be explained as an out-house.

33. The question therefore comes up as to what should be the interpretation of the above referred relevant Bye-laws and as to whether there is any such illegal construction in the above referred four properties and, if so, what should be the direction in that behalf.

RELEVANT DEFINITIONS UNDER THE BYE-LAWS:

34. The answer to all these questions will depend upon the interpretation of the relevant bye-laws. The Building Bye-laws and the Development Control Rules for the Mahabaleshwar Municipal Council have come into force on 1st August 1985 and they are framed under Section 323(1) of the Maharashtra Municipal Councils Act in supersession of the earlier bye-laws. Bye-law No.2 contains the definitions. Bye-law 2.9 is on the definition of "development", bye-law 2.27 on "plinth", bye-law 2.28 on "plot", bye-law 2.34 on "storey", bye-law 2.35 on "to erect" and bye-law 2.36 on "unsafe building". These are some important definitions. Clause 3 lays down that the building permit is required for any such construction. Clause 4.1 lays down that anybody intending to carry out development work has to give a notice in advance. Page 3326 Clause 5 lays down the information to be enclosed along with the notice.

Bye-laws 3.1 and 4.1 read as follows:

3. Building permit required 1) No person shall carry out development work or erect, re-erect or make material alteration or demolish any building or cause the same to be done without first obtaining a separate building permit, for such each building / development work from the Authority. 4.4.4. Notice to be givenNotice to be givenNotice to be given -

1) Every person who intends to carry out development work or erect, re-erect or make material alteration or demolish any building shall give notice as required in writing to the Authority of such intention in the Form given in Appendix A and the notice shall be accompanied by plans and statement in triplicate drawn or prepared in accordance with Bye-law 5. The plans may be on ordinary drawing paper or prints on ferro paper; ammonia paper, blue print or on tracing cloth. One set of such plans shall be retained in the Municipal local body office for record after issue of permit or refusal." Bye-law 15 on "Unsafe building" states that the provisions of Section 195 of the Maharashtra Municipalities Act will apply to the unsafe buildings. Bye-law 20 is on land use, classification, open spaces area and height limitation. Bye-law 20.3.1 thereof is on construction of residential buildings. It is submitted on behalf the Petitioners that bye-law 20.3.1 lays down general parameters for construction of residential buildings. In Mahabaleshwar, there are either the very small plots which are situated in Survey No.52 and where the lower income or economically weaker sections housing is provided. All other plots are of the size of 0.4 hectare which is equivalent to 1 acre. Bye-law 20.3.1 lays down that in such a plot there can be FSI utilisation of 0.15 only and the construction has to be ground + 1 and not more. As against that, when Bye-law 15 speaks about unsafe building, and where a restoration is provided either by repairs or demolition, whatever was FSI consumed earlier will be available.

35. (i) As far as the factual aspect is concerned, in Hotel Rajesh, the proprietors very much contend that it is only reconstruction of the old hotel, and, according to them, it is essentially a restoration. It is submitted on their behalf that in fact the FSI utilised is slightly lesser than what it was utilised earlier, and whereas there were 3 buildings earlier, they are now inter-connected and there is only one building. According to them, there is no violation of the relevant bye-laws. They further submit that whereas eco-sensitive zone notification was issued on 17th January 2001, the permission for repairs, which has been granted to them, was prior and it is after obtaining the opinion of the Assistant Director of Town Planning (ADT).

(ii) As far as Hotel Arya is concerned, it very much disputes that it has put up any such structure of ground plus 3 floors. It is submitted on its behalf that the hotel itself is situated at a height and thereafter that it is having is only ground plus one storey structure though height of each of the floor is almost like two storeys. Photographs are tendered by Mr. Samdani, learned Counsel appearing for Hotel Arya, to point out that slabs are placed only above the toilet portion, and that the entire structure is only ground plus one. That apart, this hotel has filed a suit bearing No.69 of 2002 in the Court of Civil Judge at Wai, District Satara, which initially Page 3327 granted an ad-interim injunction, but it was vacated subsequently although the injunction has been restored in Appeal No.230 of 2003 by the District Court. The suit is pending disposal. The proprietors of the hotel have no objection to the suit being heard early though they are not agreeable to the suit being transferred to the High Court. Their submission is that there is no violation of any of the bye-laws. Both the hoteliers have filed their replies. We may however note that according to the Municipal Council, Bye-law 28 required Hotel Arya to maintain its external facade as it existed earlier and it has failed to maintain the same.

36. As far as "Malcolm Cottage and The Oaks" are concerned, Dr. Tulzapurkar appearing for their owners pointed out that these properties are separately owned and there has been a separation of these properties by resorting to appropriate legal proceedings. He pointed out that in The Oaks, there is only one structure and in Malcolm Cottage also, there is only one structure. One more structure was sought to be put up in the Malcolm Cottage, but presently that construction is halted and is no longer going on. Similarly, with respect to Four Oaks property, he submitted that there is only one main structure though there are some small old 9 structures. According to him, the FSI consumed on all the structures as also the proposed structure do not exceed 0.15% of the area.

37. As far as the reconstruction of Hotel Rajesh and Hotel Arya is concerned, the Assistant Director of Town Planning has filed an affidavit affirmed on 17th February 2006 in Civil Application No.2244 of 2004. As far as the repairs of Hotel Arya are concerned, the affidavit has stated that though the earlier structures had 10 rooms, the plan submitted for repairs showed 12 rooms though on the same plinth area. Thereafter this affidavit states "

As there is no provision for repairs, maintenance, reconstruction in Development Control Regulations of Mahabaleshwar Municipal Council, and considering all opinions, decision was taken that permission may be granted." He further stated that the application was made for repair of the old Hotel Arya by providing R.C.C. construction. Similarly, with respect to Hotel Rajesh, he has stated that their application was based on a report of the Mahabaleshwar Municipal Council. Their representation for repair and reconstruction was allowed. It is stated in this affidavit that to avoid any hazard to the public, it was decided to allow repairs and reconstruction.

38. Reliance is placed in this behalf on the judgment of the Apex Court in the case of Live Oak Resort P. Ltd. v. Panchgani Hill Station Municipal Council, which is on Bye-law 28.2 of the Panchgani Municipal Council. Bye-law 28.2 of the Panchgani Municipal Council reads as follows:

28.2 The Director of Town Planning may permit special relaxation to any of the Bye-laws, provided the relaxation sought does not violate the health safety, fire safety, structural safety, public safety of the inhabitants and the building and neighbour.

The Apex Court held that power conferred on the Director under this Bye-law is a superior power and the Municipal Council is under statutory obligation to abide by its direction. As far as the rule with respect to having only one main structure in all properties above 0.4 hectare is concerned, Dr. Page 3328 Tulzapurkar submitted that this was an unreasonable expectation. He submitted that thus Four Oaks was a property of 3 hectares and 35 ares which is equal to 7.5 acres, whereas The Oaks and Malcolm Cottage were properties of 3 hectares and 39 ares which is equivalent to 8 acres. He submitted that the relevant bye-law must be interpreted reasonably and some play in the joints ought to be permitted. This will particularly have to be when it is a delegated legislation, since bye-laws contain regulations which are at best temporary. He relied upon a judgment in the case of R.B.I. v. Peerless General Finance & Investment Co. Ltd. AIR 1987 SC 1023, wherein in para 33 it is observed that interpretation must depend on the text and the context.

39. It was submitted by him that the interpretation to the bye-law given by the Planning Authority must be accepted since they are the people best suited to understand their own requirement. He relied upon the observations on these lines in Kruse v. Johnson 1898 2 QB 91, which are quoted with approval by the Apex Court in Trustees of the Port of Madras v. Amichand Pyarelal. He disputed the intentions of the Petitioners and criticised their petition for delay. Worse comes to worse, he submitted that whatever interpretation is given by this Court, it should be ordered to have prospective application since it is a fit case for applying the principle of prospective over-ruling. He relied upon the observations of Sir William Wade on Administrative Law, Eighth Edition, page 691 in this behalf.

40. Mr. Nargolkar, A.G.P. appearing for the State Government, pointed out that Bye-law 28.2 of the Mahabaleshwar Municipal Council Act was same as in Panchgani and as held by the Apex Court in Live Oak Resorts’ case (supra), approval of the Director of Town Planning ought to be treated as the decisive factor. Alternatively, he submitted that the bye-laws were expected to undergo a change in very near future. He submitted that the Regional Plan was nearing finalisation and the building bye-laws and Development Control Rules of the Mahabaleshwar Municipal Council were expected to undergo a change. He submitted that new bye-laws have been drafted. On a direction from the Court, he handed over a copy of the proposed Bye-laws to the Court as well as to the Petitioner though they are pending approval. As far as the restriction of one building for 0.4 hectare plot and above is concerned, he pointed out that in Bye-law 20.3.1B, a proviso was proposed to be added that this restriction will not prevent the erection of two or more buildings/bungalows on the same plot if the plot admeasures at least twice or more times as the case may be. Reliance was placed on the judgment of the Apex Court in the case of S.N. Rao v. Municipal Corporation, to the effect that the draft revised plan, even though not published, may be considered as other relevant material when any decision is to be taken by the Municipal Authorities.

41. Mr. Anturkar, learned Counsel appearing for the Mahabaleshwar Municipal Council, submitted that after the receipt of the Bhatia Committee Page 3329 Report, the Mahabaleshwar Municipal Council has taken various steps to demolish the disputed structures. He however submitted that if there are any structures in the societies of the weaker sections or in the gaothan areas and particularly those which existed prior to the bye-laws coming into force, they should be permitted to seek a relaxation. Mr. Khambata also did not object to this suggestion to the extent such additions or alterations were made in the weaker section houses which are situated in Survey No.52 of the societies like Munawwar or Jijamata Societies and the gaothan areas. He however submitted that there are constructions which are in the nature of farm houses and they cannot be permitted to take advantage of any such lenient attitude. Mr. Anturkar supported the submission of Mr. Khambata that when one speaks of restoration, the external facade of the property ought to be retained as it is. He submitted that this was particularly necessary considering that these constructions were on a hill station.

42. Mr. Khambata, learned Counsel for the Petitioners, submitted that what one has to keep in mind is that these are bye-laws concerning the construction of buildings on a hill station. They have got to be looked into and interpreted from that point of view. If the bye-law provided that the FSI will be only 0.15 or that for all plots of sizes above 0.4 hectare, the main structure will be only one, such a bye-law ought to be read as it is. Otherwise, it will mean unjustifiable relaxation. Besides, as far as Bye-law 28.2 is concerned, he submitted that though there is a power of relaxation, it cannot be invoked as an over-riding power in each and every case. He firstly submitted that there is an element of public trust when some responsibility is cast on the municipal or government officers and if anything is permitted contrary thereto, it will amount to a violation of the public trust doctrine as held by the Apex Court in the context of the municipal laws in U.P. in the case of M.I. Builders v. Radhey Shyam Sahu. This was to submit that Bye-law 28 on relaxation cannot be read as an answer to all problems. He referred to and relied upon a judgment of this Court in Rajendra Thacker v. Municipal Corporation (2004) 4 BCR 1, and particularly para 13 thereof which states that the power of the Municipal Commissioner under Regulation 64B of the Development Control Regulations to grant concession in cases of hardship can be used only in specific case where a clearly demonstrable hardship is caused. However, it cannot be a self-created hardship and while exercising this power, the Municipal Commissioner was expected to take into account all relevant facts. Mr. Khambata also pressed into service the judgment of the Apex Court in ANZ Grindlays Bank v. Municipal Corporation of Delhi, which is quoted with approval in M.C. Mehta v. Union of India, to the effect that while interpreting municipal legislation framed in public interest, a strict constitutional approach must be adopted.

43. Mr. Khambata drew our attention to the fact that a provision permitting only one main structure in large plots of land, as in the case of Mahabaleshwar, existed elsewhere also. He drew our attention to bye-laws concerning the Page 3330 Matheran Municipal Council where also there is a similar provision to permit only one structure and the minimum plot size is 0.2 hectare (approx. half acre) as seen in Matheran’s Bye-law No.9(I). He pointed out that in the bye-laws of Mahabaleshwar, only ground plus one construction was permitted under Bye-law 20.3.1, whereas in Panchgani, which is an adjoining Municipal Council, there is a specific departure in Bye-law No.5, which permits two storeys. Mr. Khambata therefore submitted that when a specific provision has been made with a clear intention, that must be honoured. He submitted that where statutes use different expression, it must be presumed that the framers had done that consciously with a view to convey different meaning. He relied upon the judgment in the case of DLF Utap Enclave Complex Educational Trust v. State of Haryana AIR 2003 SC 1468 (para 40) and Commissioner of Income Tax v. East West Import and Export AIR 1989 SC 36 (para 7) in support. With respect to the submission on prospective over-ruling, he pointed out that the remedy is available only to the Apex Court under Article 142 of the Constitution as held in State of H.P. v. Nupur Private Bus Operators (para 12). With respect to the term "restoration", he referred to various dictionary meaning on the term "restore", which define it to bring to the original condition, and submitted that in the instant case, full FSI could be available only when it is restoration of an unsafe building.

44. Mr. Desai, learned Additional Solicitor General, submitted that the Central Government having declared Mahabaleshwar and Panchgani has eco-sensitive zone, it was for the Central Government to appoint an appropriate committee to monitor and to take necessary effective action under Section 5 of the Environment (Protection) Act. He submitted that the Chief Conservator of Forests has recently received the proposal of the State Government to release the plots for sewage treatment and solid waste management. He will examine it and thereafter decide whether the clearance ought to be granted to the concerned plots. He however submitted that pending finalisation of the Zonal / Sub-zonal Master Plan and the new Bye-laws, which were expected, this Court should not permit any construction or repairs which are contrary to the statutory law and the eco-sensitive notification. He stated that the committee under Section 5 of the above Act will be appointed within one month and that this Court may expect the committee to take necessary steps.

45. Mr. Khambata, on the other hand, submitted that the committee appointed by this Court should be furnished copies of the applications for building constructions to be made hereafter. As far as the committee to be appointed under Section 5 of the Environment Protection Act is concerned, he had a few suggestions to make and he submitted a few names for consideration, which included the names of a few environmentalists and a former Judge of the Apex Court, who has offered to make such a commitment. We expect the Central Government to consider these names in all seriousness.

CONCLUDING OBSERVATIONS ON THE DISPUTED CONSTRUCTIONS:

46. We have considered the submissions of all the parties and their counsel on this aspect. As far as the four allegedly disputed constructions are Page 3331 concerned, the disputed construction of Hotel Arya is already under consideration by the Court of Civil Judge at Wai. Although Mr. Khambata has made a request that all such proceedings be transferred to this Court, in our view, it may not be fair to the litigants situated in Mahabaleshwar. There could be many small parties who will be put to difficulties if they are required to come to the High Court for their litigation at the original stage. As far as the particular suit in the Court at Wai is concerned, Mr. Samdani has made a statement on instructions of the proprietors of Hotel Arya that they have no objection to the suit being heard early. In view of this statement made by Mr. Samdani on behalf of his clients, the plaintiffs in that suit, we request the learned Judge of the Court of Civil Judge at Wai to hear and decide the pending suit at the earliest and preferably by end of March 2007. The Mahabaleshwar Municipal Council can apply to the Trial Court for early hearing on the basis of this order. As far as the alleged violations of Hotel Arya are concerned, though the Petitioners have many things to say, the Defendants have also shown that the construction is of ground plus one storey. There are also many grievances of the Petitioners. It will be open to the Petitioners to apply to the Court of Civil Judge, Junior Division at Wai to join in support of the Municipal Council in that proceeding as intervenors to point out as to how the grievances of the Plaintiffs are not correct and the municipal action was justified.

47. As far as the disputed construction of Hotel Rajesh is concerned, there is a disputed question of fact inasmuch as whereas the Petitioners contend that the work, which has been done, does not fit in the concept of restoration, the owners of the building very much maintain it. Now, undoubtedly when a building becomes old and is to be reconstructed, it is bound to use new material and new technology. Considering that it is a restoration on a hill station, however, we are inclined to accept the submission of the Petitioners and the Municipal Council that external facade of such a restored structure ought to be as similar to the old one as possible. People visit the hill stations because of the climate over there and the kind of feeling one gets when one is removed from the heavily congested cities which have a highly dense population, heavy traffic and high rise buildings. A part of the intention in visiting a hill station is to go back to the nature. In that, it is the perceived ideas of the visitors with respect to the buildings on hill stations, which dominate. They do not visit the hill station to once again see the same kind of high-rise buildings, traffic jam and the congestion and the polluted atmosphere. It is therefore necessary to maintain the external facade of the structures to the extent possible as they were earlier. However, one cannot extend this idea to any absurdity. At the same time, when one talks about restoration, one cannot ignore the element of going back to the original position implied therein. It will be for the Municipal Council to take necessary steps in that behalf and we do not propose to arrive at any decision on facts merely on the affidavits and photographs which are tendered to us. This will be best decided in an appropriate civil proceedings if initiated and after an opportunity of leading evidence and cross examination.

48. As far as the applications for restoration hereafter are concerned, we direct that Municipal Council will ask the parties to specifically give applications making a specific statement in that behalf. The Municipal Council will also ask the parties to give the photographs of the external facade of the existing structures. Page 3332 That will enable it to decide as to whether new construction is in accordance therewith or not. Similarly, even with respect to the new constructions, the Municipal Council must insist on the external facade to be in tune with the natural environment on a hill station. However, we can not go into the details thereof and it will be for the authorities to make appropriate provision.

49. As far as the constructions in Malcolm Cottage and The Oaks are concerned, prima facie we do not find anything illegal being done by them today since there is only one structure in either of the properties and no new construction is going on. Similarly, as far as the property Four Oaks is concerned, if there is any such violation, it will be for the Municipal Council to take necessary steps. It is however not possible to accept the submission of Dr. Tulzapurkar to read anything more in the relevant Bye-law 20.3.1(b). If the properties with 0.4 hectare and above have to have only one main structure, as provided in the Bye-laws of the Mahabaleshwar Municipal Council, we cannot dilute that by saying that more structures will be permitted in larger property. The provisions in the bye-laws of other hill stations are also similar and hence the intention of the rule makers is clear and it will not be proper to deviate therefrom. We however take note of the fact that an amendment of the relevant bye-law is proposed, as pointed out by Mr. Nargolkar, A.G.P. It will be for the Municipal Council to consider it as relevant material (though the plan is not published). Similarly, it is not possible for us to accept the submission of the hoteliers that by restoration, one can do anything. We have to note that it is restoration of a property on a hill station. As stated earlier, the restoration will have to be to the extent possible nearer to the earlier external facade and in that case only, the full FSI will be available and not otherwise.

50. As far as the Table Land at Panchgani is concerned, appropriate orders are already passed and the Municipal Council must implement them in true spirit.

51. In the circumstances, we pass the following order:

(a) As far as the heritage structures are concerned, we direct implementation of the recommendation of the Heritage Committee.

(b) As far as the forest mapping is concerned, we direct that mapping be completed by end of October 2006 and copies be supplied to the parties by the D.I.L.R. as and when they apply. We further direct that the marking of the forest on the land be completed by end of December 2006.

(c) With respect to plots of land sought by the Municipal Council of Mahabaleshwar for setting up of its treatment plant for effluents, we direct the Municipal Council and the State Government to complete all formalities and further direct the Chief Conservator of Forests, Nagpur to take a decision on the applications at the earliest and, in any case, by end of November 2006. We see no reason as to why the applications should not be granted and the plots being released. The Municipal Council of Mahabaleshwar and the State Government have both stated that no other plots are available and there are hardly any trees on these plots. We expect and direct the State Government to hand over the possession of the concerned plots forthwith after the decision of the Chief Conservator of Forests. We direct the Municipal Council of Mahabaleshwar to set up the two sewage treatment plants and the solid waste management facility within six months of getting possession as Page 3333 promised by the Municipal Council, i.e. by end of May 2007. In the event the plants and facility are not set up, it will be expected of the State Government to take appropriate action including to supersede the Mahabaleshwar Municipal Council for failure to fulfill its essential obligations under the Maharashtra Municipal Councils Act.

(d) Similarly, Panchgani Municipal Council is directed to upgrade its existing sewage treatment plant and make it functional by end of May 2007, failing which it will be expected of the State Government to take appropriate action including to supersede the Panchgani Municipal Council for failure to fulfill its essential obligations under the Maharashtra Municipal Councils Act.

(e) (i) In the event of any such steps not being taken by the Municipal Councils or leaving them incomplete, the State Government is directed to take all necessary actions to set up the treatment plant / to complete it within 3 months thereafter.

(ii) Apart from what is stated above, we expect the Sub-Regional Officer, MPCB, Satara and Principal Scientific Officer, MPCB to insist on the compliance of these orders. Similarly, we expect the Chief Officer of Panchgani and Mahabaleshwar Municipal Councils and the Chief Conservator of Forests to act as per the time schedule provided, failing which their conduct could be considered as in breach of these orders inviting appropriate consequences.

(f) As far as the hoteliers and the commercial institutions in Mahabaleshwar and Panchgani are concerned, they are directed to have their own treatment facility by end of December 2006. Maharashtra Pollution Control Board is directed to check their effluents in January 2007 and if they do not meet the required standards, it will be expected of MPCB to direct closure of their activities.

(g) We note the statement of the learned Additional Solicitor General that the Monitoring Committee under Section 5 of the Environment (Protection) Act will be set up within one month. We expect the Central Government to set up the committee by end of November 2006. The Central Government may as well consider the names which are suggested by the Petitioners and we strongly recommend the consideration of those names.

(h) The Monitoring Committee appointed by the High Court has done good amount of work and we record our deep appreciation for the efforts taken by the Committee members. The members have spent their own valuable time, energy and money for these visits on transport and stay. The Municipal Council of Mahabaleshwar and Panchgani have collected pollution cess all these years. It is only because of the efforts of such persons that the Environment (Protection) Act and various measures can become meaningful. An amount of Rs.1,00,000/- each is deposited in this Court by the Mahabaleshwar Municipal Council, the Panchgani Municipal Council and the State Government. We direct the Registrar General of this Court to pay Rs.3,000/- to each of the members for each of the visits that they have made to the hill stations and for the meetings that they have taken and attended. The particulars of their attendance and visits will be certified by the Deputy Conservator of Forests, Satara and accordingly the payments will be cleared within 4 weeks thereafter. The Registrar General will release Page 3334 the amounts to these members on such certificate being produced before him. He will prepare a statement about the amounts released and the remaining in hand and place it on record. Copies thereof will be given to the two Municipal Councils and the Government Pleader for the State. The Committee has made an interim and final report. It will be additionally paid Rs.25,000/-for these reports together.

(i) We do not want to continue the High Court appointed Committee for all the time. However, the setting up of effluent sewage treatment plants and solid waste management facility in both these Municipal Council is absolutely necessary. We therefore request the Committee to continue its work until the time the orders in that behalf are fulfilled and the sewage pipeline in the two towns are connected thereto. For the time being, it will continue until end of December 2007 with liberty to the Petitioners to apply for extension, if necessary. It will be open to the Committee to make its report from time to time in that behalf.

(j) The Committee will also make a report on the MPCB action regarding the hoteliers. We however add that the expectation to meet these parameters will not be strictly insisted from small Restaurants (which are non-residential) and shopkeepers.

(k) The Committee will be at liberty to visit the Municipal Councils once in a fortnight and on their application, the officer of the Municipal Council will make available the necessary information on applications for constructions whether new or for restoration. It will be open to the Committee to make its reports. The Committee will be reimbursed for these visits and reports at the end of June 2007 and December 2007 in the same manner as above. Registrar General will do the needful in this behalf.

(l) Orders are passed on 1st March 2006, 4th May 2006 and 15th June 2006 to preserve the table land at Panchgani. The Panchgani Municipal Council will implement them scrupulously.

(m) As far as the prayers for demolition of structures on specific properties, i.e. Hotel Arya, Hotel Rajesh, Malcolm Cottage, The Oaks and Four Oaks are concerned, the Mahabaleshwar Municipal Council is expected to act in accordance with the concluding observations contained hereinabove.

(n) Petition and Civil Application No.2244 of 2004 and Civil Application Nos.11, 12, 14, 15, 16 and 17 of 2006 stand disposed of with the above order.

CIVIL APPLICATION NO. 68 OF 2005 . Mr. S.B. Deshmukh has appeared for the Applicants.

This Civil Application is filed by one Musafirkhana for protection of its property. It will be open to the parties to apply for regularisation and for the Municipal Body to take appropriate decision.

Civil Application stands disposed of.

CIVIL APPLICATION NO. 73 OF 2005

Mr. Jagdish Reddy has appeared for the Applicant.

This Civil Application is taken out for regularisation of the construction on a school building. The Applicant himself is a Municipal Councillor. In utter violation of the bye-laws, he is running a school by putting up a ground plus two storey building. Page 3335 He is directed to close the activities on the second floor of the school by end of the present academic session. The Municipal Council will demolish the second floor at the end thereof and the cost will be recovered from the Applicant.

Civil Application stands disposed of. CIVIL APPLICATION NO.3 OF 2006

Mr. Bodake has appeared for the Applicant. . The Applicant is having her bungalow known as "Hill View Cottage" which is a kind of farm house and construction is alleged to be contravening the law. All that we can say is that the Authority will examine the papers of the Applicant and if there is any violation of the bye-laws, action will be taken in accordance with law.

Civil Application stands disposed of with the above order. CIVIL APPLICATION NO. 62 OF 2005

Mr. R.G. Ketkar has appeared for the Applicant.

The Applicant is alleged to have carried out unauthorised construction on the terrace of the property. Here also the Authority will examine the papers of the Applicant and will take steps in accordance with law.

Civil Application stands disposed of. CIVIL APPLICATION NOS.67 OF 2005

Mr. Warunjikar has appeared for the Applicants.

The dispute is whether there is a structure under the basement. The High Court Monitoring Committee was to make a report about it. The Municipal Council will consider the report and act in accordance with law.

Civil Application stands disposed of. CIVIL APPLICATION NO. 19 OF 2006

Mr. N.B. Patil has appeared for the Applicant.

The Applicant is an occupant of some 100 years old structures. He has also filed Suit No.29 of 2004 in the Court of Civil Judge at Wai. Any action against him will depend on the decision in that suit.

Civil Application stands disposed of. CIVIL APPLICATION NO.29 & 39 OF 2006 AND 56, 64, 72 & 3185 OF 2005 . These Civil Applications are taken out by some of the private parties since they fear action against them. Thus, there are Civil Applications by some of the residents in Jijamata and Munawwar and other weaker group housing societies. Some of the applications are by the villagers from the adjoining villages such as Jaoli. Mr. Dhakephalkar, Senior Advocate, and Mr. Dilip Bodake, Mr. Sugandh Deshmukh and Mr. Tanaji Mahatugde, Advocates have appeared for them. The order which we have passed in the main petition P.I.L. No.39 of 2003, namely permitting them to apply to the Director of Town Planning for relaxation for the structures prior to 1985, will serve their purpose. This will be only in the individual cases of acute hardship, humanitarian ground and for the persons belonging to the economically and socially backward class which will be also on a case to case basis. This benefit however will not apply to the farm houses on the hill stations and the villages around which the Bhatia Committee has objected.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 283 of 2005

Appellants: Sadanand Varde and Ors. Vs. Respondent: State of Maharashtra, through its Secretary, Urban Development Ministry and Ors. :Decided On: 21.11.2006

 

Hon'ble Judges:


F.I. Rebello and V.K. Tahilramani, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: G.G. Kaleskar, Sr. Counsel and A.C. Mahimkar, Adv.

For Respondents/Defendant: Ravi Kadam, Adv-General and Niranjan Pandit, AGP for Respondent No. 1, K.K. Singhvi, Sr. Counsel and A. Kamat and P.A. Purandare, Adv. for Respondent Nos. 2 to 4, R.M. Sawant, Govt. Pleader for Respondent No. 5 and J. Reis, Sr. Counsel and Y.M. Choudhari, Adv. for Respondent No. 6

Subject: Environment

Acts/Rules/Orders:
Maharashtra Regional Town Planning Development Act, 1994 - Sections 2(13A), 22, 22A, 28, 29, 31, 37, 37(1) and 37(2); Maharashtra Housing and Area Development Act, 1976; Slum Act, 1971; Constitution of India - Articles 14, 21, 221 and 243ZF; Development Control Regulations for Greater Bombay, 1991 - Regulations 29, 31, 33(7), 33(8), 33(9), 34, 59, 64 and 67

Cases Referred:


Joseph Bain D’Souza and Ors. v. State of Maharashtra and Ors. 2005 107(4) Bom. L.R. 565; Jayant Achut Sathe v. Joseph Bain D’Souza and Ors. (2006) 6 Supreme Court Cases 11; Nathwani v. State of Maharashtra 78 BLR (1); Niwara Hakka Suraksha Samiti and Anr. v. State of Maharashtra and Ors. Writ Petition No. 963 of 1991; M.A. Panshikar v. State of Maharashtra through its Urban Development and Anr. 2002 (5) Bom.C.R. 318; Bombay Dyeing and Manufacturing Co. Ltd v. Environmental Action Group (2006) SCC 434; Forward Construction Co. and Ors. v. Prabhat Mandal (Regd), Andheri and Ors. 1986 (1) SCC 100; Legg and Ors. v. Ilea 1972 (3) All ER 177; Puran Lal v. President of India (1962) 1 SCR 688; D.C. Wadhwa and Ors. v. State of Bihar and Ors. (1987) 1 Supreme Court Cases 378; Rajendra Thakkar v. Municipal Corporation of Greater Bombay 2004 106 (4) Bom. L.R. 598; Janhit Manch and Anr. v. State of Maharashtra and Anr. Writ Petition 637 of 2003

Case Note:


Environment — Reconstruction of building — Increasing FSI — Development Control Regulations for Greater Bombay, 1991 — Impugned Notification made various modification to Development Control Regulations — Regulation 33 (8) and 33 (9) were replaced increasing FSI for reconstruction of building for housing dishoused in island city with additional FSI, which was not available, when owner undertook development — So also additional FSI was provided for repairs and, reconstruction of cessed building under Urban Renewal Scheme — Petitioners filed the instant petition seeking quashing of Notification — Held, Amendment of Development Control Regulation provided for demolition or reconstruction of cessed buildings in same area by granting additional FSI to house those who were staying in old buildings — That could not be said to change character of plan — MRTP Act permits modification of Final Development Plan by procedure laid down — Procedure to be adopted is a consultative process — Amendments themselves were based on recommendations of a Study Group — It could not be said that exercise of powers amounted fraud on statute and /or on Constitution



Constitution — Writ Petition — Delay and laches — Held, delay and laches in a challenge to a Development Plan and DC Regulations, are relevant considering that it is of a limited period and as in mean time various third party rights are created

Ratio Decidendi:


"Where amendments of Development Control Regulation for Greater Bombay, 1991 without changing character of plan provides for demolition or reconstruction of cessed buildings in same area by granting additional FSI to house those who are staying in old and such amendments are based on recommendations of a Study Group, it cannot be said that exercise of powers amounts fraud on statute and /or on Constitution."

JUDGMENT

Page 3680

1. The Petitioners are tax payers of the of Maharashtra and rate-payers of Respondent No. 2. All of them are nationals and citizens of India, and have been active in agitating various social issues. By the present petition, they have sought quashing of notification dated 25th January 1999, whereby modifications have been made to the Development Control Regulations for Greater Bombay, 1991. Regulation 31 was modified by adding a proviso making non applicable height restrictions for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9) and which are not affected by the Costal Regulation Zone Notification dated 19th February 1991, issued by the Ministry of Environment and Forest, Government of India, and orders issued from time to time. Similarly, Regulation 59 was modified, pursuant to which restrictions on height were not to be made applicable for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9) of the Regulations, which are not affected by the Costal Regulation Zone, dated 19th February, 1991. Similarly, modification was made to Regulation 67, making applicable the provisions of the Regulation only to Grade and grade II category of Heritage Buildings for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9). There is a provision also made for redevelopment of cessed buildings from Grade III and precincts. Regulation 33(7) was replaced by new regulation for reconstruction and redevelopment of cessed buildings. Similarly, Regulation 33(8) and 33(9) were replaced Page 3681 increasing the FSI for reconstruction of buildings for Housing the Dishoused in the island city with additional FSI, which is not available, when owner undertakes development. So also additional FSI was provided for repairs and, reconstruction of cessed buildings under Urban Renewal Scheme. It is not necessary to refer to Appendix thereof. The Regulations have been made in exercise of the powers conferred on the State of Maharashtra by Sub-section (2) of Section 37 of the Maharashtra Regional Town Planning Development Act, which hereinafter shall be referred to as the MRTP Act.

2. The validity of these Regulations have been challenged, contending that these are not minor modifications. The Petitioners have also sought to challenge the practice of indiscriminate user of TDR on residential plots, which are not eligible as also the Circular under the Caption "Fees for Revalidation of Building Proposals", which is based on the Corporation Resolution No. 563, dated 14-9-1995. Prayer Clause (i) seeks quashing the notification of 25th January 1999 and also the 1994 amendment of the definition of FSI, by insertion of Section 2(13-A) by Maharashtra Act No. 39 of 1994. We may also note at this stage itself that an amendment has also been made to the marginal notes under Section 37 and for the words "minor modification." the word modification has been substituted." Prayer Clause (ii) seeks to quash Regulation 34, which enables incentive FSI obtained by way of TDR from the Island City to be used in the Suburbs on plots, which do not have marginal side spaces in proportion to the height and length of the building, as required as per original Regulation 29 of DC Regulations ’91. Prayer Clause (iii) is for quashing the building permission, which is consequential, if prayer Clause (ii) is allowed. Prayer Clause (iv) is to quash Regulation 34 and to direct Respondent Nos. 1, 2 and 3 to amend the same as per the norms internationally accepted, particularly from the US from where this concept is borrowed. We are afraid a Court exercising its extra jurisdiction under Article 226 of the Constitution of India or for that matter a civil court exercising powers of judicial review cannot issue a Mandamus or direction to the legislature or its delegate to make any law. That relief therefore, cannot be considered by this Court. Prayer Clause (b) is for quashing Resolution No. 563 of 14-9-1995 of Respondent No. 2, which permits the Commissioner to charge a fee. We may at once note here, that the exercise of power under Regulation 64(b) in those cases where discretion can be exercised for relaxation of dimensions. Municipal Resolution lays down the manner in which premium shall be charged. Prayer (c) is consequential to the other reliefs.

3. In support of the petition, the Petitioners have referred to material in the matter of use of FSI in island city, the enactment of MRTP Act and other Acts, and also Development Plans & DC Regulations. It is the case of the Petitioners that use of additional FSI alongwith removal of height restrictions and shrinking of marginal side open spaces has been done in contravention of all Town Planning norms, endangering the health, and safety of the public and also fire safety and causing undue strain , almost to the point of break down of essential services like water and power supply, drainage and sewerage system which was, designed several decades ago, for a much smaller population and also damaging the ecology. Instances are given of various Page 3682 constructions put up which are in contravention of the DC Regulations. In para 6(d) of the Petition, Petitioner No. 6 points out to complaints made of illegal construction by H(W) Ward Citizens’ Trust. Further instances are set out in paragraph 7. It is the submission of the Petitioners that the various amendments denies them the right to clean environment, recognized as part of right to life, under Article 21 of the Constitution. It is submitted that the modifications made are changing the nature and character of the Development Plan and consequently are ultra vires Section 37 of the MRTP Act. It is submitted that allowing the change in definition of FSI and allowing increase in FSI and height of the buildings by leaps and bounds, without augmenting the essential services like water & power supply, drainage, sewerage and transport facilities and shrinking side & rear open spaces, which are meant for light and ventilation and open recreation grounds, which are the lungs of the city, amounts to practicing fraud on the statute and is therefore, without the authority of the law, illegal, null and void. It is next submitted that the amendments to the DC Regulations are unreasonable, discriminatory and capricious. It discloses non application of mind as the increased FSI has caused severe strain on infrastructural facilities. For similar reasons, the impugned amendments are productive of public mischief and are destructive of the very concept of FSI which was conceived to prevent congestion of buildings and population density. The amendments are defeating the very policy and purpose of the Development Plan. The aim of D.P. Plan is to provide facilities for housing, commerce and industry, provisions of schools and play grounds, medical and transport facilities and clean environment which aims for providing a better quality of life. It is submitted that subordinatate legislation cannot subvert the purpose and policy of the legislative enactment. To that extent they are ultra vires the statute and therefore void. Though the concept of TDR in DC Regulation 34 is borrowed from the American Town Planning Scheme and is an excellent concept in so far as acquiring properties for public purpose like recreation or those mentioned in Section 22 of the MRTP Act like play ground, road widening and of making new road without paying monetary compensation, by giving FSI advantage to be used elsewhere, the consequential amendments providing for additional 20% FSI from Slum Schemes and unlimited FSI from island city on receiving plots in the suburbs, without taking into consideration whether receiving plot has capacity like marginal side spaces and other infrastructural facilities defeats that object. It is also pointed out that discretionary powers conferred on Municipal Corporation under Regulation 64(b) can only be exercised in specific case of clearly demonstrable hardship for reasons to be recorded in writing. The Municipal Resolution which permits the Municipal Commissioner to grant concessions, otherwise than in accordance with the Resolution 64(2) for a premium, is clearly arbitrary and violates the guarantee of protection of equal laws under Article 14 of the Constitution. The delay in filing the petition it is explained, is because the ill effects of the impugned Regulations have now started being felt, when multi storeyed structures started mushrooming and choking the infrastructural facilities.

4. On behalf of the State of Maharashtra Ramanand Tiwari, the Principal Secretary, Urban Development has filed an affidavit in reply. The affidavit first deals with the maintainability of the petition challenging the vires of Page 3683 Regulation 33(7). It is pointed out that these are part of the Development Control Resolutions, 1991 which have come into force on 25th March 1991. The Regulations have been framed after following the procedure laid down under the MRTP Act. The Development Control Regulations, were challenged in a group of Petitions, being Writ Petition No. 963 of 1991 and Writ Petition No. 996 of 1991. The Regulations though in the original stage at that time, the Scheme of the said Regulations and the Amended Regulations, is the same, except the increase in FSI on account of incentive FSI, now available under Regulation 33(7). Those petitions were dismissed and as such the challenge under the said Regulations would be barred by the principles of constructive "Res judicata". The DC Regulation contains the policy of the State, which has been converted into law. The policy decisions can only be challenged on they being arbitrary, capricious or unreasonable. It is next set out that the Petitioners have raised multi furious issues in the petition, which has no nexus with each other. This involves misjoinder of causes of action. The background in the enactment of the Maharashtra Housing and Area Development Act 1976 (hereinafter referred to as the MHAD Act) is then set out. In allowing incentive FSI under the amendment under the Regulation was to give incentive to landlords to undertake reconstruction of old cessed buildings, so that inhabitants of the said buildings are rehabilitated, in the reconstructed building. By this a twin objective is achieved. The area gets a face-lift and the tenants are saved from living in perpetual danger and misery. Dealing with the pressure of infrastructure, it is pointed out that due to reconstruction, there is no large density of population in so far as infrastructure is concerned, the construction of new building results in set-back area, which is available for the Corporation for widening and broadening of roads. The sewerage and water requires only marginal spaces. The State is making its best endeavour to see that there is a constant upgradation of augmentation in the infrastructure in the city of Mumbai. Various schemes like MRTP, MUTP are being taken up by the State Government. Dealing with the concept of TDR, It is pointed out that the Corporation by using the concept of TDR has successfully implemented various proposals of the Development Plan and has also increased the basic infrastructural facilities of the city. Affidavits also deal with the concept of heritage Regulation and slum TDR.

5. An affidavit in reply has been filed on behalf of Respondent No. 5. Before the amendment of Regulation 33(7) in term of the 1991 Regulations, 350 slums were undertaken for redevelopment of cessed properties. After the amendment of Regulation 33(7) between 25-1-1999 and 31-8-2004, the NOC’s given have been set out. A total of 482 NOC’s were issued, 6500 tenants were rehabilitated in the redeveloped cessed property. About 6000 tenant in nearly 300 buildings which are on the verge of completion, will be rehabilitated. In Paragraph 9 the complaints in respect of various constructions have been dealt with. Reply has also been filed on behalf of Respondent No. 2 It is submitted that there is gross, inordinate and unexplained delay in filing the present petition. Before making the amendments, due procedure set out in the MRTP was complied with and only thereafter D.C.Regulations were amended. Petitioners did not raise any objections at the time of public notice and public hearing. The Petitioners have given no explanation for the delay and on this ground alone the Petition ought to be dismissed. It is pointed out that there is Page 3684 a presumption as to the constitutionality of the DCRs. There cannot be challenge on account of non application of mind and the burden is on the Petitioners to show that there is a clear transgression of Constitutional principles and there is a presumption that the legislature has correctly appreciated the needs of the people and based on its experience has correctly amended the Regulation as per the needs of the people. It is then explained as to why the challenge to DCR 33(7) must fail. Dealing with the contention that FSI and planning policies have been changed from time to time, it is submitted that the planning is not a static but a dynamic process entrusted by the legislature to expert planning authorities. The planning process changes from time to time as per the needs and requirements of the city at the people. The planning authorities from time to time, make changes or amend the Development Control Regulation, as may be required by the city, and that is a matter of policy. In so far as infrastructure is concerned, it is pointed out that no material has been placed, nor particulars are given. The exercise of power under DCR 64(b) is then explained.

6. As noted from the discussion, considering the plea raised and as understood , one of the main challenge is to DCR Regulation 33(7). We may point out that challenge to DCR 33(7) was made before a learned Bench of this Court, in the case of Joseph Bain D’Souza and Ors. v. State of Maharashtra and Ors. 2005 107(4) Bom. L.R.565 . That petition was disposed off by issuing various directions. The matter was taken up in appeal before the Supreme Court in Jayant Achut Sathe v. Joseph Bain D’Souza and Ors. (2006) 6 Supreme Court Cases 11. The Supreme Court has remitted the matter to this Court to examine the various issues set out in paragraph 7 of the judgment including the challenge to Regulation 33(7) as amended in 1999. The appeals have been fixed for hearing before the Supreme Court in December 2006. In our opinion, therefore, as the issue of challenging DC Regulation 33(7) being an issue before the Supreme Court, it would not be appropriate for this Court to deal with the said issue.

7. There is yet another challenge namely to DC Regulation 34. That issue has been considered in Writ Petition No. 637 of 2003. It has been disposed off by a reasoned judgment today. The main challenge which were considered in that petition were -

i) whether the DC Regulation 34 and Appendix VII-B are ultra vires Article 14 and 21 of the Constitution of India in as much as they are manifestly arbitrary, unreasonable and discriminatory.

ii) Whether DC Regulation in as much as it permits or provides for the doubling of construction area (F.S.I.) to occupants in the suburbs as also the amendment deduced in the form of Appendix VII-B permitting the use of slum TDR in the three railway corridor is violative of Article 14 of the Constitution of India and other issues. We have disposed of those petitions and certain directions have also been issued. Those issues therefore, will be covered by a judgment in Writ Petition No. 637 of 2003.

8. It is also submitted that Section 37(1) authorises the Planning Authority or the State Government to carry out modification in a sanctioned Development Plan, which does not change the nature or character of the Page 3685 sanctioned Development Plan. Though the expression, character of the Development Plan is not defined in Section 37, the same can be understood, with reference to the essential features or contents of the Development Plan, which are mentioned in Section 22 and more particularly in Section 22(m) and Section 22-A of the MRTP Act. It is therefore, submitted that since the impugned notification has increased the FSI by permitting increase in height of the building by leaps and bounds, at the same time has shrunk the open spaces, not only on the public reccreation ground but also the mandatory side setbacks, of the buildings, which are open lungs of the city. The entire notification dated 25-1-1999 is beyond the scope of Section 37 of the MRTP Act and is therefore ultra vires, void and amounts to fraud on the Constitution and ought to be thrown out lock, stock and barrel. For that purpose, reliance is placed in the judgment of Nathwani v. State of Maharashtra 78 BLR(1).

9. The MRTP Act in Chapter III, provides the scheme for preparation, submission and sanction of Development Plan. Section 22-A of MRTP Act explains that the expression "of a substantial nature" in Sections 29 or 31 are in relation to the modifications made by the Planning Authority or the officer appointed by the State Government, as set out therein. A perusal of Section 22-A of MRTP Act would make it clear that the expression of a substantial nature are in relation to Section 29, which are modifications by the Planning Authority or the officer in the Draft Development Plan and to Section 31 which pertains to the sanctioning of the draft Development Plan. The said expression is not referrable to Section 37 of the Act, which only uses the expression modification of any part of or any proposal made in, a final Development Plan is of such a nature that it will not change the character of such Development Plan. The expression therefore, used is the character of such plan. We may consider some of the judgments, dealing with the aspect of the Development Plan. In Niwara Hakka Suraksha Samiti and Anr. v. State of Maharashtra and Ors in Writ Petition No. 963 of 1991 alongwith other petitions, decided on April 16, 1991 which was a challenge to the Development Control Regulations for Greater Bombay 1991, one of the expressions considered, was the word "modification". This was in the context of finalisation of the Development Plan under Section 28. In that context, the learned Bench of this Court noted that the word "modifications" has to be considered in contradistinction to substitute something which may be totally new or different. The process involved in modification is one of alteration and it must be considered how radical that alteration is. The alteration may consist of additions or subtractions or other changes in what is already there, or, no doubt, any combination of these. But throughout, there must be continued existence of what, in substance, is the original entity. Once one reaches a stage of wholesale rejection and replacement, the process must cease to be one of the modification. It is in that context the Court posed a question whether a stage has been reached of wholesale rejection or replacement. Under Section 31, it was open to the State Government to make substantial modifications in the draft Development Plan by following the procedure set out therein. The expression before Section 22-A, was introduced by Maharashtra 39 Act of 1994, was understood in the context of substituting something which may be totally new or different. The Act has subsequently been amended to explain Page 3686 as to what will be the change of a substantial nature in a draft development plan, as in those cases the procedure for inviting objections is different, then in a case of minor modification. The terms once again came up for consideration in M.A. Panshikar v. State of Maharashtra through its Urban Development and Anr., which was case a of challenging notification issued by the State Government in the matter of sanction to the draft Development Plan, submitted by the Thane Municipal Corporation. The second notification was to the draft Development Control Regulations and the third notification to the modification of the final Development Plan. The learned Division Bench noted that the concept of modification of substantial nature in Section 22-A is not relevant while considering modification of the final Development Plan, under Section 37 of the MRTP Act. The learned Bench noted that the words minor modifications in the marginal notes were substituted by the word modifications and the reference is to modifications which will not change the character of such Development Plan. The Court on the facts of that case which had permitted increase of FSI of 3, for dilapidated buildings destroyed by fire, collapse or demolished, noted that the benefit of increase in FSI was available to a few structures. The Courts held that grant of additional FSI limited to such structures cannot alter the character of the plan. The matter was again in issue before the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd v. Environmental Action Group (2006) SCC 434. The Supreme Court was considering a case arising from DCR 58 and whether the modification would alter the character of the plan. The Supreme Court noted the expression ’change’ which had come up for consideration in Forward Construction Co. and Ors. v. Prabhat Mandal (Regd), Andheri and Ors. 1986 (1) SCC 100 and after noting the dictionary meaning, observed "so, the general meaning of the word "change", in the two dictionaries is "to make or to become different, to transform or convert." If the user was to be completely or substantial changed, only then the prior modification of the Development Plan was necessary." The question of modification of plan had come up for consideration in Legg and Ors. v. Ilea 1972(3) All ER 177 wherein it is stated as under-"The process involved in modification is thus, one of alteration and it must be considered how radical that alteration is. Alteration may consist of additions or subtractions or other changes in what is already there, or, no doubt, any combination of these. But, throughout, there must, I think, be continued existence of what in substance is the original entity. Once one reaches a state of wholesale rejection and replacement, the process must cease to be one of modification." In Puran Lal v. President of India, it was stated "the word modification means the action of making changes in an object without altering its essential nature or character."

The question therefore, which is required to be answered is -whether notification dated 25th January 1999 can be said to alter the character of the plan. The notification dated 25th January 1999 was issued with reference to the need for repairs and reconstruction of old and dilapidated, cessed buildings. As noted in the affidavit of Tiwari, the object was two fold to give new look to the area by replacing old dilapidated building and to rehouse the tenants in the Page 3687 newly reconstructed building In return, the developer was allowed FSI which could be used by the developer on the plot or elsewhere, to enable the scheme to succeed, considering the additional FSI which was sanctioned. There was a need to provide for increased height for the newly constructed buildings. Development Control Regulation 59 was in the matter of area covered by the Costal Regulation Zones, in respect of which the height Regulations would not be affected, as they will be covered by the Costal Regulation Zone notification. Regulation 33(7) was again permitting additional floor index in respect of reconstruction development of such property, located in island city. Similarly additional FSI was for the purpose of construction of houses to dishoused, who are displaced by the project undertaken by the Corporation, and also for repairs or reconstruction of cessed buildings and urban renewal scheme. It would be clear therefore, that in the Planning area itself, there were structures. The Amendment of Development Control Regulation provides for demolition or reconstruction of the cessed buildings in the same area by granting additional FSI to house those who were staying in the old buildings. In our opinion, this cannot be said to change the character of the plan. It is not that every building has been permitted additional FSI. It is only in those cessed buildings and others as contained in notification, which have been permitted additional FSI to meet the objective of Development Control Regulations. It also cannot be said that exercise of powers amounts fraud on the statute and or on the Constitution. The MRTP Act permits modification of Final Development Plan by the procedure laid down. The procedure includes inviting objections and hearing the objections. In other words, a consultative process. The amendments themselves were based on recommendations of a Study Group under the Chairmanship of Mr. D. M. Sukhtankar. The amendments were made to carry out and give effect to the recommendations of the Study Group, in order to repair / reconstruct old and dilapidated buildings. In our opinion, it cannot be said that this amounts to a fraud on the statute or Constitution. The learned Counsel has relied on the judgment in case of Dr. D. C. Wadhwa and Ors. v. State of Bihar and Ors. In that case it was noted by the Supreme Court that the State of Bihar was issuing number of ordinances without enacting them into law and it is in these circumstances, the Supreme Court noted that the Constitutional Authority cannot do indirectly what it is not permitted to do directly. If there be a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision. That contention must also be rejected.

10. It may be noted that another challenge which has been raised by the Petitioner is to contend that Town Planning, Regulation of Land Use and Construction of Buildings and slum improvement and upgradation are within the exclusive jurisdiction of the municipalities. This has been made with reference to the 74th Constitutional Amendment, which introduced part IX-A into the Constitution. Relying upon Article 243 ZF, it has been submitted that all laws which are inconsistent thereafter and in derogation Page 3688 authority of the municipalities shall cease to be in force within one year of the coming into force of the 74th constitutional amendment. It is therefore, submitted that various acts including the Slum Act 1971 would be null and void. We may point out that the Petitioner has not amended his petition to raise such a plea. This contention is sought to be urged, based on affidavit dated 7th April 2006 of Mr. Achintya Mukharji of Petitioner No. 2. In the absence of pleadings, we informed the learned Counsel that we do not propose to decide that issue in the present petition, assuming that such a plea can arise, but have granted liberty to him, considering that cause of action is distinct from what has been set out in the petition, if advised to file a fresh petition, wherein that challenge can be taken and the decision in this case will not operate as res-judicata or prevent him from filing a petition on that cause of action.

11. Yet another challenge raised in this petition is to the misuse of the discretionary powers conferred on Municipal Commissioner for granting concession for deficiency in open spaces by DC Regulations 64(b). That issue had come up for consideration before another Division Bench of this Court in Rajendra Thakkar v. Municipal Corporation of Greater Bombay 2004 106 (4) Bom. L.R.598. The learned Division Bench has laid down various guide-lines for exercise of that discretionary powers. That issue has already been considered by us, while disposing of Writ Petition No. 637 of 2003. In other words, that issue covered by the judgment in Rajendra Thakar (supra) will be covered in Writ Petition 637 of 2003 and in the case of Janhit Manch and Anr. v. State of Maharashtra and Anr.

An ancilliary argument which has been raised is about Resolution No. 563/1995. By that Resolution certain fees have been fixed, as can be noted to Exh.C to the petition. In other words, those fees can only be charged in respect of powers referred by DC Regulation 64(b), when the discretion is exercised by the Commissioner. We are not concerned with the some other fees, which are chargeable therein. At any rate, there are no specific challenges to fixing the quantum of fees. That contention, therefore, has also to be rejected.

12. The challenge by the Petitioners on the ground of Article 21 of the Constitution of India, is based on the lack of infrastructural facilities. We have considered the same in the background to challenge to DC Regulation 34 in Janhit Manch (supra). It is therefore, not necessary for us to once again consider the same argument in the present case. The decision in Janhit Manch in the matter of Article 21, and the infrastructure will also govern the same issue in the present case.

13. It may be mentioned that delay and laches in a challenge to a Development Plan and DC Regulations, are relevant considering that it is of a limited period and as in the mean time various third party rights are created. In the circumstances, we really find it difficult to entertain a petition after a lapse of nearly five years. We have, however, considered the fact that Petition was treated as PIL, and has been heard on merits. We therefore, do not propose to dismiss the same on the ground of delay and laches. The Respondents Page 3689 have no doubt have argued that in view of the judgment in Niwara Hakka Suraksha Samiti (supra), the petition is barred by the principles of res-judicata. We have examined that contention in Janhit Mancha (supra), and for the reasons set out therein, we have rejected the said contention.

14. The directions issued in Writ Petition No. 637 of 2003 to the extent they cover issues in this petition, will also apply to this petition. Except and to that extent otherwise, for all the aforesaid reasons, rule is discharged. There shall be no orders as to costs.

 

 

 

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

W.P.(MD) Nos. 3536 of 2005 and 943 of 2006

Appellants: C. Sankareswaran and R. Arunagiri Vs.
Respondent: The Commissioner, Land Ceiling and Land Reforms and Ors. Decided On: 05.12.2006

Hon'ble Judges:

D. Murugesan and P. Murgesen, JJ.

Subject: Environment

Acts/Rules/Orders:
Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 - Sections 2A, 4 and 18(1); Tamil Nadu Forest Act, 1882 - Section 16; Forest (Conservation) Act, 1980; Wild Life (Protection) Act, 1972; Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 - Section 3; Constitution of India - Article 21

Disposition:
Petition allowed

ORDER

D. Murugesan, J.

1. The petitioner in W.P.No.3536 of 2005 is the former Chairman and the petitioner in W.P.No.943 of 2006 is the present Chairman of Bodinaickkanur Municipality. They have approached this Court with the above writ petitions as pro bono publico seeking for a direction forbearing the respondents from granting the pattas in respect of the lands in Survey Nos.1079/1B, 1110/2, 1113/1B, 1185/1B, 1195, 1197, 1186 and in Survey Nos.1079, 1185, 1186, 1195, 1197 in Kottagudi village, Bodinayakkanoor Taluk, Theni District acquired under Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 to any person.

2. The writ petitions have been filed basically with the following averments:

Bodinaickkanur is a municipal town in Theni District and there are about one lakh people residing within the limits of Bodinaickkanur Municipality. The source of drinking water for the Bodinaickkanur town is Kottagudi river situate in the hills of top station panchayat 6000 feet above the Western Ghat in the border of Kerala State. The catchment area is the vast extent of forest land. The water gathered in Kottagudi river is stored at Kurangini and channelised through the pipeline for supply of drinking water to the town. As the respondents are contemplating to issue pattas in the lands in question to various individuals, the petitioners are constrained to approach this Court with the writ petitions.

3. Counter affidavits of the District Forest Officer, Theni District and the Commissioner of Land Reforms and the Assistant Commissioner of Land Reforms are filed.

4. We have heard Mr. M. Ajmal Khan, learned Counsel appearing for the petitioner in W.P. No. 3536 of 2005 and Mr. A. Rahul, learned Counsel appearing for the petitioner in W.P.No.943 of 2006, Mr. R. Janakiramulu, the learned Special Government Pleader for the State, Mr. P.T.S. Narendravasan, the learned Counsel appearing for the Municipality and Mr. R. Vijayakumar, the learned Counsel appearing for the impleaded respondents.

5. An extent of 624.32 acres of land in Kottagudi village, Bodinaickkanur taluk owned by M/s Tata Tea Private Limited, Kerala State was declared surplus and the said lands were acquired by the Government of Tamil Nadu by issuance of notification in G.O.Ms.No.584, Revenue (L.R1.2) dated 1.12.2003 under Section 18(1) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961. Though the said company owned the said lands, it did not use the lands for tea plantation or for any agricultural or other purposes considering the fact that the lands are situate at a height of 6000 feet in the Western Ghat surrounded by thick forest. Though a major extent of the land is covered by forest trees, a small extent of land is lying vacant. It appears that the adjoining lands in Survey Nos.118-B were also notified as reserve forest under the Tamil Nadu Forest Act. In order to preserve the ecology and environment of the area, even the Government had not put the land into use for any other agricultural purpose.

6. In the counter affidavit of the Assistant Commissioner of Land Reforms, Madras it is stated that immediately after the acquisition, the Government decided to assign the said land to eligible persons and the notices were issued in Form-B inviting applications in Form-C of the Act on 9.2.2004. About 269 applications were received, out of which 185 applications were found to be eligible and the orders of assignment were issued on 18.2.2005 assigning 2.5 acres of land to each of the eligible persons. It is the contention of the Assistant Commissioner of Land Reforms, who inspected the lands along with the field staff, that the lands are lying vacant and even though the entire area is located in the hill track, there are no valuable trees in the surplus area, except in some area in Shola forest.

7. In the counter affidavit of the District Forest Officer, Theni Division, it is stated that the land in question lies in Kottagudi hills and there are many brooks and streams from which drinking water flows to the main river namely, the Kottagudi river. The status of the land is that of a forest, as it has good vegetation including spontaneous growth and it is the natural habitation for the wild animals. He has also stated that permission for any such alteration in the area will lead to serve disruption of the habitat leading to the migration of the wild animals to other States like Kerala, besides the water courses would be severely affected. He has further stated that the supply of drinking water to Bodinaickkanur Municipality will suffer, if the land is allotted for non-forestry purpose. He has stressed that, above all, the land should be preserved to maintain ecological balance in the region since the land is located in the fragile Kottagudi water shed area. He has also stated that the land is classified as AWD and the land is under the control of Revenue Department. Hence necessary proposals have already been sent to the Government for declaration of Kottagudi hills as reserve forest under Section 16 of the Tamil Nadu Forest Act, 1882 and the proposals are under the active consideration of the Government.

8. In view of the above stand taken in the counter affidavits, it has to be now considered whether the land in question can be assigned and patta could be granted to put in use for agricultural purpose. The consciousness for environmental protection came up for consideration before the Supreme Court in the judgment in Rural Litigation and Entitlement Kendra and Ors. v. Devaki Nandan Pandey 1986 (Supp) SCC 517. In that judgment, the Supreme Court was considering a case of quarrying operation of limestone in the Mussoorie Hills. The grant of licence to quarry was questioned on the ground that such grant would adversely affect the ecology of the area and will lead to environmental disturbances. The quarry is just at the bottom of the Himalayan range on the northern boundary of India. Considering the fact that the Himalayas are the source for perennial rivers like the Ganges, Yamuna and Brahmaputra as also several other tributaries which have joined the main rivers and the Himalayas has been the storehouse of herbs, shrubs and plants, the Supreme Court has observed in paragraph 19 as follows:

Consciousness for environmental protection is of recent origin. The United Nations Conference on World Environment held in Stockholm in June 1972 and the follow-up action thereafter is spreading the awareness. Over thousands of years men had been successfully exploiting the ecological system for his sustenance but with the growth of population the demand for land has increased and forest growth has been and is being cut down and man has started encroaching upon Nature at its assets. Scientific developments have made it possible and convenient for man to approach the places which were hitherto beyond his ken. The consequences of such interference with ecology and environment have now come to be realised. It is necessary that the Himalayas and the forest growth on the mountain range should be left uninterfered with so that there may be sufficient quantity of rain. The top soil may be preserved without being eroded and the natural setting of the area may remain intact....

We are not oblivious of the fact that natural resources has got to be tapped for the purposes of social development but one cannot forget at the same time that tapping of resources have to be done with requisite attention and care so that ecology and environment may not be affected in any serious way; there may not be any depletion of water resources and long-term planning must be undertaken to keep up the national wealth. It has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation.

9. The need for protection of the environment again came up for consideration before the Supreme Court in the judgment in Indian Council for Enviro-Legal Action v. Union of India and Ors. wherein the Supreme Court has held in paragraph 31 as follows:

While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.

In the same judgment, the Supreme Court has also broadlined the role of the judiciary in paragraphs 41 & 42, which read as follows:

With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though, laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any courts, in a way, act as the guardian of the people's fundamental rights but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though, it is not the function of the court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law.

As far as this Court is concerned, being conscious of its constitutional obligation to protect the fundamental rights of the people, it has issued directions in various types of cases relating to the protection of environment and preventing pollution. For effective orders to be passed, so as to ensure that there can be protection of environment along with development, it becomes necessary for the court dealing with such issues to know about the local conditions. Such conditions in different parts of the country are supposed to be better known to the High Courts. The High Courts would be in a better position to ascertain facts and to ensure and examine the implementation of the anti-pollution laws where the allegations relate to the spreading of pollution or non-compliance of other legal provisions leading to the infringement of the anti-pollution laws. For a more effective control and monitoring of such laws, the High Courts have to shoulder greater responsibilities in tackling such issues which arise or pertain to the geographical areas within their respective States. Even in cases which have ramifications all over India, where general directions are issued by this Court, more effective implementation of the same can, in a number of cases, be effected, if the High Courts concerned assume the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution or degradation of ecology.

10. The very same issue again came up for consideration before the Supreme Court in the judgment in M.C. Mehta v. Kamal Nath and Ors. wherein the Supreme Court propounded a theory known as "Public Trust Theory". While reiterating the obligation of the State to maintain the natural resources, the Supreme Court in paragraphs 25 and 34 has held as follows:

The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The Doctrine enjoins upon the Government to protect the resources for the enjoyment of general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on the Governmental authority:

Three types of restrictions on the Governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses

The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

11. In the judgment in Hinch Lal Tiwari v. Kamala Devi and Ors. the Supreme Court has held in paragraph 13 as follows:

It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc., are nature's bounty. They maintain delicate ecological

balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e., Respondents 11 to 13, having noticed that a good is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.

12. In the recent judgment in T.N. Godavarman Thirumulpad v. Union of India and Ors., the Supreme Court in paragraphs 86 & 87 has observed as follows:

The national development agenda must recognise the necessity of protecting the long-term ecological security. The problem area is the growing population, high degree of mechanism and steep rise in energy use which has led to activities that directly or indirectly affect the sustainability of the environment.

It is recognised that the sustainable use of biodiversity is fundamental to ecological sustainability. The loss of biodiversity stems from destruction of the habitat, extension of agriculture, filling up of wetlands, conversion of rich biodiversity sites for human settlement and industrial development, destruction of coastal areas and uncontrolled commercial exploitation. It is thus evident that the preservation of ecosystems, biodiversity and environment whether examined on common-law principle or statutory principle or constitutional principle, eyeing from any angle, it is clearly a national issue to be tackled at the national level. All initiatives are required to be seriously pursued.

13. From the rival averments made in the counter affidavits of the Assistant Commissioner of Land Reforms, Madras as well as the District Forest Officer, Theni Division, it is seen that the land in question lies in the midst of Kottagudi hills. There are many brooks and streams from which drinking water flows to the main river namely, Kottagudi river. It is the specific stand of the District Forest Officer that considering the status of the land which has good potential for vegetation including spontaneous growth and it is the natural habitation for the wild animals, already proposals have been forwarded to the Government for declaration of the entire Kottagudi hills as reserve forest. It appears from the counter affidavit of the Assistant Commissioner of Land Reforms, Madras that the land has not been so far put in use for any agricultural purpose and by such use, the ecological balance of the forest hill is not in any way affected.

14. The Central Government keeping in mind deforestation, which causes ecological imbalance and leads to environmental deterioration, had brought up the Forest (Conservation) Act, 1980 to check further deforestation. The said Act applies to any forest land irrespective of the fact that it has been declared as reserve forest area. Equally it applies to any unutilised land, which lies in the midst of a forest.

15. In this context, it must be seen that the word "forest" shall generally mean such of those lands which are also in the midst of either the forest or reserve forest, as the case may be, and any restricted meaning would not be in the interest of maintaining ecological balance of the hills. The question as to whether it is utilised for any agricultural purpose or left vacant is not the criteria for determining the issue in question. To our mind, forest means a parcel of land on which trees have been grown. A forest is best defined as an ecosystem or assemblage of ecosystem dominated by trees and other woody vegetations. Moreover, a legal definition is different from an ecological definition. The perspective of the economist differs from that of a geographer. But all definitions stress the importance of trees in the ecosystem. That apart, considering the need to protect the wild animals, the Central Government also had brought the Wild Life (Protection) Act, 1972 to provide for the protection of wild animals, birds, plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country. To give effect to the said Act, protection of wild animals in the Kottagudi hills should be ensured for ecological and environmental security. The Government of Tamil Nadu had also enacted the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 with an object to prevent deforestation and soil erosion and also to preserve the special characteristics of the hill areas as regards landscape, vegetal cover and climate. With the above object, the Act also provides for regulation of the cutting of trees and the cultivation of land in hill areas in the State. Section 3 of the said Act prohibits the cutting of trees in the forest land without previous permission of the committee constituted by the Government under Section 2A of the Act. Similarly, Section 4 prohibits the use of the land for new cultivation.

16. Factually, in the case on hand, major portion of the land in question is covered by thick forest commonly known as Shola forest, and only a small extent of land is left barren. In the event a barren land is put in use for any other purpose including for agricultural purpose, it would result in deforestation, which is bound to occur in the near future. That apart, the area is a source for continuous water flow and such water is the only source of drinking water for the Bodinaickkanur Municipality. The conservancy of forest land, though not included in the reserve forest, should be retained as open forest and in fact the State is obligated to guard against alienation of vacant land within the reach of forest growth in order to maintain the natural forest. Any new inhabitation would certainly affect the natural source of water apart from resulting in ecological imbalances. It would be also not in the interest of habitation of wild animals.

17. From the consistent declaration of law of the Supreme Court, in our opinion, the land in question cannot be either assigned or pattas could be granted to any individual and the said land, which is kept vacant for years and lies in the midst of thick reserve forest, should be kept as a forest only to maintain ecological balance. Any attempt to put the land for different use would certainly endanger the preservation and conservation of forest and for the said reason, the petitioners have to succeed in the writ petitions. Accordingly, the writ petitions are allowed forbearing the respondents from granting the pattas in respect of the lands in Survey Nos.1079/1B, 1110/2, 1113/1B, 1185/1B, 1195, 1197, 1186 and in Survey Nos.1079, 1185, 1186, 1195, 1197 in Kottagudi village, Bodinayakkanoor Taluk, Theni District acquired under Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 to any person. No costs.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3418 of 2006 (Arising out of SLP (Civil) No. 4502 of 2006)

Appellants: Mrs. Susetha Vs. Respondent: State of Tamil Nadu and Ors. : Decided On: 08.08.2006,

Equivalent Citation AIR2006SC2893, 2006(7)SCALE640, (2006)6SCC543

Hon'ble Judges:
S.B. Sinha and Dalveer Bhandari, JJ.

Acts/Rules/Orders:
Constitution of India - Articles 21, 47, 48A and 51A; Wild Life (Protection) Act, 1972

Prior History:
From the Judgment and Order dated 18.1.2006 of the High Court of Judicature at
Madras in W.P. No. 35942/2006

Disposition:
Appeal dismissed

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. The Appellant herein claims herself to be a member of the Okkiam Thoraipakkam Panchayat Union. There exists a temple tank in the said village. The village is located on both sides of the main road connecting Chennai City with Mahabalipuram on the Old Mahabalipuram Road. The said tank admittedly was lying in disuse. It was in fact an abandoned one. The Panchayat took a decision of constructing a shopping complex for the purpose of user thereof for resettlement of those persons who were displaced due to expansion of a highway project. The State of Tamil Nadu also issued a Government Order permitting constructions of a shopping complex therein. A writ petition was filed by the Appellant before the High Court of Madras, questioning the said decision. By an order dated 06.12.2005, the High Court, having regard to the stand taken by the Respondents herein in their counter affidavit, appointed the Director, Centre for Water Resources, Guindy, Chennai, as the Commissioner to inspect the tank land and submit a report in regard to the condition thereof. Pursuant to or in furtherance of the said direction, an inspection was carried out at the instance of the Director. A report by the Centre for Water Resources, College of Engineering, Guindy, Anna University, Chennai also was filed before the High Court.

Relying on or on the basis of the said report, a Division Bench of the Madras High Court by reason of the impugned order dismissed the writ petition filed by the Appellant herein. The Appellant is, thus, before us.

3. Ms. Indu Malhotra, the learned Counsel appearing on behalf of the Appellant, submitted that keeping in view the water shortage faced by the public in general, the High Court committed a manifest error in permitting construction of a shopping complex on a water body. Drawing our attention to a decision of the Division Bench of the Madras High Court in L. Krishnan v. State of Tamil Nadu, it was argued that the State Government was enjoined with a duty to preserve the tank by taking all possible steps both by way of preventive measures as well as removal of unlawful encroachments and not to use the same for commercial purpose. Drawing our attention to a report of the Director, the learned Counsel urged that the" conclusions arrived at therein were not correct as a it was noticed that during rainy season, the tank did not remain dry. Resurrection of the tank, according to the learned Counsel, being possible, the High Court should have exercised its extra-ordinary jurisdiction in directing so.

4. Mr. Harish N. Salve, the learned Senior Counsel, appearing on behalf of the Respondent-State of Tamil Nadu, on the other hand, supported the impugned judgment contending that the tank in question being an artificial tank and not a natural water resource, all considerations relevant for passing an appropriate order having been taken note of by the High Court, this Court should not exercise its discretionary jurisdiction. Mr. L. Nageswara Rao, the learned Senior Counsel appearing on behalf of the Gram Panchayat, urged that the Appellant herein is not a member of the Gram Panchayat. It was further submitted that there had been no shortage of water in or around the tank.

5. The tank in question was admittedly a temple tank. It was not a lake. Although it was classified in the revenue records as a tank poramboke, but it had lost its utility a long time back. It was being used as a dumping yard. There was no inlet or outlet facilities. It was also prone to encroachments. In its report the Centre for Water Resources, upon inspection of the tank, drew the following conclusions:

i) The catchment area available is 26,781 m2. The present capacity of the tank is 1,861 m3. The annual runoff potential is 8,034 m3.

ii) There is no specific inlet or surplus channels for the temple tank.

iii) The water from the tank is not directly being used by the public/cattle or for any other purpose.

iv) The water contained in the tank is unfit for human consumption.

v) The tank area has not been maintained properly over the years and has been used as a dumping yard.

vi) When such water bodies are not maintained property, they are likely to be encroached.

vii) From the interaction with the Public, the team learnt that but for the recent heavy rains, the tank would have remained dry.

viii) The tank area has no access from three sides namely South, North and Eastern sides and could be accessed only from the Old Mahabalipuram road side.

ix) The tank does not contain any built up structures like steps to enter, etc. but contains building debris dumped into it.

x) The area is surrounded by three other bigger sized tanks, two in the East and one in the west, which will be recharging the ground water in that area and the recharge contribution of this temple tank will be insignificant.

xi) The Temple tank is in a dilapidated condition.

6. The tank is situated in Survey No. 211/2. It is abutting a highway. Within a kilometer from the said tank, there are five other tanks, relevant details whereof are as under:

                                                                                             Extent
 
SI. No.  
Name of the Tank       
Survey No.
Hec. Are   
Acre Cent
1
Kannankkan Kulam
41/7        
032.5       
0.80
 
2
Kuttai
101/2      
0.52.5       
1.30
3
Aya Kulam
207
1.03.5       
2.55
4
Puthu Kulam 
209/1      
0.31.0       
0.77
5
Periya Chandran Kulam  
263/2A
0.70.0
1.73
 
Total
 
2.89.5       
7.15
 
 
                                      

It is also not in dispute that the shops and other dwelling units abutting the said highway were subject matter of acquisition proceedings and the affected families were to be provided alternate sites, shop or dwelling units under the rehabilitation and settlement scheme. The State in its counter affidavit stated that having regard to the condition of the said tank, levelling of the land was taken up and completed on 15.02.2006 and, thus, it is contended that it is in public interest that the proposed shopping complex are allowed to be constructed.

7. Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in Articles 47 and 48-A of the Constitution of India. Article 51-A of the Constitution of India furthermore makes a fundamental duty of very citizen to protect and improve the natural environment including forests, lakes, rivers and wild life. [See Animal and Environment Legal Defence Fund v. Union of India and Ors.; M.C. Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India and Ors.; and Intellectuals Forum, Tirupathi v. State of A.P. and Ors..

8. Maintenance of wetlands was highlighted by the Calcutta High Court in People united for better living in Calcutta - Public and Anr. v. State of West Bengal and Ors., observing that the wetland acts as a benefactor to the society. Recently, in T.N. Godavaraman Thirumulpad (99) v. Union of India and Ors. (2006) 5 SCC 47, this Court again highlighted the importance of preservation of natural lakes and in particular those which are protected under the Wild Life (Protection) Act, 1972. We may, however, notice that whereas natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if it has fallen in disuse. The same principle, in our opinion, cannot be applied in relation to artificial tanks.

In L. Krishnan (supra), the Division Bench of the Madras High Court had been dealing with natural resources providing for water storage facility and in that view of the matter the State was directed to take all possible steps both preventive as also removal of unlawful encroachments so as to maintain the ecological balance.

9. The matter has also been considered at some details by this Court in Intellectuals Forum, Tirupathi (supra), wherein again while dealing with natural resources, it was opined:

This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources....

[Emphasis supplied]

This Courts have not, in the aforesaid decisions, laid down a law that alienation of the property held as a public trust is necessarily prohibited. What was emphasized was a higher degree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogan, it is required to be implemented taking a pragmatic view and not on ipse dixit of the court.

10. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors., referring to a large number of decisions, it was stated that whereas need to protect the environment is a priority, it is also necessary to promote development stating:

...The harmonization of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs.

11. Treating the principle of sustainable development as a fundamental concept of Indian law, it was opined:

The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires.

12. The case at hand must be judged having regard to the aforementioned principles in mind. The Respondents categorically denied and disputed that there is any water shortage in the village. The village is situated on both sides of the National highway. It is situated near a sea and having five water tanks in or around therein. It is, therefore, difficult to accept that there had been acute water shortage in the village, as was submitted by Ms. Malhotra. The tank in question is not a natural tank. Only rain water could be collected in it. It has been a dumping ground for a long time. Although there is no material on records to show as to since when it has been fallen in disuse, indisputably the tank in question is in a dilapidated condition for a long time and has been used as a dumping yard and sewage collection pond. In our opinion, thus, it is not a case where we should direct its resurrection.

13. The High Court in its judgment has taken into consideration all relevant factors. It was not pointed out that essential features or other relevant principles of law were not taken into consideration by the High Court in passing the impugned judgment. We would, however, direct the State and Gram Panchayat to see that other tanks in or around the village are properly maintained and necessary steps are taken so that there is no water shortage and ecology is preserved.

For the foregoing reasons, we do not find any reason to interfere with the impugned judgment. The appeal is dismissed without any order as to costs.

IN THE SUPREME COURT OF INDIA

Civil Writ Petition No. 202 of 1995 and I.A. No. 1156 in WP (C) No. 202 of 1995 with I.A. Nos. 1192, 756, 1463, 1501 and 1532 in WP (C) 202 of 1995

Appellants: T.N. Godavarman Thirumulpad Vs. Respondent: Union of India (UOI) and Ors.: Decided On: 17.10.2006:133(2006)DLT605(SC), 2006(10)SCALE246

Hon'ble Judges:

 
Arijit Pasayat and S.H. Kapadia, JJ.

Subject: Environment

Acts/Rules/Orders:
Environment (Protection) Act, 1986 - Sections 3(2), 3(3) and 5; National Capital Region Planning Act, 1985; Air and Water Act

Cases Referred:


Vellore Citizens Welfare Forum v. Union of India and Ors.

Citing Reference:

*****        Referred

 
Vellore Citizens Welfare Forum v. Union of India and Ors.          *****
 

JUDGMENT

Arijit Pasayat, J.

1.The present IAs relate to acceptability of the report given by the Expert Committee relating to alleged violation of the environmental norms by the respondents.

2. Background facts in a nutshell are as follows:

The Delhi Development Authority (in short the 'DDA') proposed the development of International Hotel Complex on 315 hectares of land situated in the Vasant Kunj area after the same area was identified in the Master Plan for Delhi 2001 for urban use. According to the applicants, the said area under the earlier Master Plan 1962 was identified as green area but there was a change of user to urban area under the latter Master Plan i.e. Master Plan 2001. DDA planned to develop the said area for construction of Hotels, Convention Centres etc. Initially, by an order dated 13.9.1996 this Court directed inter alia as follows:

The proposal of the Delhi Development Authority (DDA) called International Hotels Complex (Complex on 315 hectares of prime land situated in South Delhi is before us for consideration. In the affidavit filed by Mr. Arun Khaisalkar, Commissioner (Planning), (DDA), the details of the development in respect of the said 315 hectares has been given. It is not disputed that the Master Plan of Delhi 2001 was amended on June 17, 1995 whereunder out of the total area of the complex the area assigned for residential purposes was reduced from 100 hectares to 49 hectares and for commercial purposes increased from 8 hectares to 65 hectares. Apart from that 39 hectares have been earmarked for public and semi-public, 15 hectares for transportation and remaining 147 hectares for recreational purposes.

It is stated in the affidavit that there is an acute shortage of tourist accommodation in Delhi and as such it is necessary to provide sites for 4/5 Star Hotels, Institutions, Hospital, Shopping Mall etc. It is further stated that the Complex area is not a part of the Ridge. It is about 2 Km. away from Southern & South Central Ridge.

We have heard Mr. V.B. Saharya, learned counsel for DDA and also Mr. P.C. Jain, Consultant, Planner, DDA. We have heard Mr. Mehta, Dr. Rajiv Dhawan and other learned counsel assisting us in this matter.

Mr. Sunder Subramanian, Member of Citizens for the South Western Lake Wilderness & Others and of PILSARC, has filed an affidavit pursuant to this Court's order dated September 4, 1996. It is stated in the affidavit that the area is topographically a part of the South Ridge which is to South Delhi what the Central Ridge is to Central Delhi. It is further stated in the affidavit that the area is lake studded covering over 1000 acre. The affidavit indicates that the area was kept green under the 1962 Master Plan in the Draft Zonal Plan of 1993 (ZDP Zone 121993-Z-P/F/93-52) of the DDA 2001 Master Plan. It is further stated that this area is the natural extension of Sanjay Van a notified reserve forest and a part of Ridge. Along with the affidavit, various photographs have been attached to depict the ecology of the area.

This Court in Vellore Citizens Welfare Forum v. Union of India and Ors. has observed that the development and environment protection must go together. There should be balance between development and environment protection. It is, therefore, necessary that before the proposed Complex of the DDA is brought into execution, it should have environment clearance from the authorities concerned. The whole of the area has to be surveyed from the point of view of environment protection. In other words, the environment impact assessment of the area has to be done by the experts. We are of the view that the authority contemplated by Section 3(3) of the Environment (Protection) Act, 1986 ('the Act') can be the only appropriate Authority to look into the environment protection side of the present project or any other project which the DDA or any other Authority may initiate in future. Needless to say that the City of Delhi is already highly congested and has been rated by the World Heath Organization as the 4th most polluted city so far as the air pollution is concerned. It is, therefore, necessary that the development in the city should have environmental clearance.

We, therefore, direct the Central Government to constitute an Authority under Section 3(3) of the Act and confer on the said authority all the powers necessary to deal with the environmental protection issue arising out of the project in hand or any other project which may in future come under its consideration. The authority shall he headed by a retired Judge of a High Court and it may have other members - preferably experts in the field of pollution control and environment protection to be appointed by the Central Government. The Central Government shall confer on the said Authority the powers to issue directions under Section 5 of the Act and for taking measures with respect to the matters referred to in clauses (i), (iii), (iv), (vi), (viii), (ix), (x) and (xii) of Sub-section (2) of Section 3 of the Act. The Central Government shall constitute the Authority before October 10, 1996. This Authority shall have the jurisdiction over the National Capital Region as defined under the National Capital Region Planning Act, 1985.

Needless to say that the authority so constituted shall keep in view the 'Precautionary Principle" and other principles laid down by this Court in Vellore Citizens Welfare Forum's case (supra). The Authority shall lay down its own procedure.

We further direct that till the time the Complex is cleared by the Authority so constituted by the Central Government, there shall be no construction and no development of any kind in the area by the DDA or by any other authority. The DDA can, however, clean the area and plant trees if they so wish.

The proceedings initiated on Kuldip Nayar's letter are disposed of.

3. Subsequently, on an application filed, this Court by an order dated 19.8.1997 held that 92 hectares of land out of the aforesaid 315 hectares of land was a constraint area and only in respect of the balance 223 hectares of land the constructions have to abide by the conditions of clearance. Subsequently, a Writ Petition was filed (W.P. Nos. 564/2003) which was dismissed by an order dated 8.3.2004. Pursuant to the directions of this Court the Committee constituted has given its report. The recommendations made by the Committee are as follows:

1. The project site has topographical features similar to that of the ridge. Various studies, including EIA documents submitted now for obtaining environmental clearance, establish the environmental value of this area, particularly as a zone of groundwater recharge. Therefore, DDA should have exercised adequate environmental precaution based on a sustainable environmental management approach. There is no evidence that the environmental impact of the construction of malls was assessed beforehand and that the development of this area for commercial activities is in accordance with the Master Plan.

2. DDA's advertisement (Hindu Dec 12, 2003 ) states: "purchaser would be required to obtain necessary clearance for the project from the EPCA and/or DPCC before submitting the plans for sanction to the Building Dept of DDA". There is no confirmation that this requirement was fulfilled by the allottees.

3. DDA has mentioned that FAR for the projects under reference is pegged at 1.0. However, it is seen that for all the buildings proposed in Plot Nos. 1 to 5, DDA has permitted a higher FAR which works out to 1.25 to 1.29.

4. In hindsight it is evident that the location of large commercial complexes in this area was environmentally unsound. Now many proponents have constructed very substantially and really speaking awarding clearances even with conditions is largely a compromise with de-facto situation. The Expert Committee is of the opinion that at this stage only damage control is possible by strict implementation of effective EMP and resource conservation measures in the project construction and operational stages.

5. As stated earlier in the interim report, the Committee suggests that the Ministry of Environment & Forests and the Supreme Court may consider imposing a penalty on the project proponents who commenced construction works without obtaining environmental clearance in contravention to the Notification in July 2004.

6. Existing vacant plots (no. 6 and 7) of the shopping mall complex should not be auctioned by DDA for more malls or commercial activities. They may be kept open as a fringe of the bio-diversity park or earmarked for development of any common facilities that may be needed in the area.

7. Treated sewage from Vasant Kunj Sewage Treatment Plant must be utilized as much as possible for such purposes as water cooled chillers, toilet flushing, gardening and horticulture and floor washing. This will reduce the requirement of fresh water.

8. The aforesaid purposes will need tertiary treatment of sewage. Since the allottees of offices and malls have proposed to carry out entire treatment up to tertiary level on their own, it should be possible for them to treat the treated sewage received from Vasant Kunj sewage treatment plant to the required level.

9. While rainwater harvesting should be done, the withdrawal of ground water should not he permitted in the shopping mall area.

10. For construction, use of ready-mix concrete (RMC) should be made compulsory so as to reduce movement and storage of materials and generation of dust.

11. Utilization of solar energy must he maximized in all these proposals both for heating water and generating power to light up corridors and parking.

12. A Monitoring Committee may be constituted for overseeing the project so as to ensure effective implementation and compliance to environmental safeguards.

4. In support of the applications, learned Counsel has submitted that it has never been held by this Court that 92 hectares of land are not a part of the ridge. On the contrary, the first order itself made the position clear. The clarification by order dated 19.8.1997 had really expressed no opinion on the question whether the land was a part of the ridge. A report was given by the Environmental Pollution (Prevention and Control) Authority (in short 'EPCA') chaired by Shri Bhure Lal wherein it has been clearly stated that environmental factors were not in favour of urban development use of land and the entire parcel of land should be developed as green. Therefore, it is submitted that there has been clear violation of the norms fixed on 7.7.2004.

Per contra, learned Counsel for DDA and the allottees inter alia submitted that the applicants are trying to re-open an issue which had become final about a decade back. The order dated 19.8.1997 made the position absolutely clear that 92 hectares of land was constraint area and was not an integral part of Delhi Ridge. Out of the said 92 hectares of land, only 19 hectares of said land are sought to be utilized for the purpose of construction. Learned Counsel for the DDA additionally submitted that long back the 92 hectares of land have been declared constraint area and there has never been any challenge to the Notification. In a nutshell, DDA and allottees have prayed for dismissal of the applications.

5. The first order of this Court which was relied i.e. 13.9.1996 has been quoted above. It would be appropriate to quote the subsequent orders. They are as follows:

Order 19.8.1997

Having heard learned Counsel for the parties and the learned Additional Solicitor General, we are satisfied that this Court's Order dated 13.9.1996 on I.A. Nos. 18 in WP ( C ) No. 4677/85 is in effect to govern the constructions made under the proposal of the Delhi Development Authority (DDA) called 'The International Hotels Complex' in South Delhi and mention of the area of 315 hectares in relation to that complex is inadvertent since the DDA's proposal itself excluded the constraint area described at page 33 of the paper book (page 13 of the booklet) which is a total of 92 hectares including the shopping Mall and Hotel site of 25 hectares within which is located the site of the petitioner's proposed Hotel under construction in an area of 4 hectares. In other words, the proposal of the DDA called "The International Hotels Complex" in South Delhi is to be understood as that for the area of 315-92 = 223 hectares as shown in the DDA's proposal itself. This clarification of this Court's order dated 13.9.1996 has become necessary on account of the fact that the concerned authorities are construing the order dated 13.9.1996 to operate also in respect of the aforesaid constraint area of 92 hectares in addition to some other areas which are even outside the area of 315 hectares. However, it is made clear that the petitioner and all other similarly situated outside the 223 hectares of the area of the proposal of the DDA are required to abide by all the conditions of clearance from the environmental authorities including taking the measure necessary for checking pollution and other requirements of law.

In view of the manner in which this Court's aforesaid order dated 13.9.1996 is to be construed, the order of the Authority of 31st January, 1997 and 7th March, 1997 do not survive.

The Special Leave Petition is disposed of in these terms.

Order dated 8.3.2004

We are satisfied that the proposed Mall is on the area measuring 92 hectares of land, which has already been excluded by the order of this Court on 19th August, 1997. In that view of the matter, we do not find any merit in this petition. It is accordingly dismissed. However, this order will not preclude the petitioner from availing any remedy, which may be available to him under law.

6. The order dated 19.8.1997 makes the position clear that 92 hectares of land were kept out of consideration and in fact it was clearly declared to be a constraint area. The expression 'constraint area' has its own connotation. As has been pointed out by learned Counsel for the DDA, a Notification in respect of the land in question has been issued. The said Notification has never been challenged. The EPCA's report dated 6.10.1999 nowhere indicates that the land in question was a part of the ridge. Both the EPCA and the Expert Committee's report under consideration refer to the land as "similar to ridge area". Significantly, the EPCA in its report has taken note of the fact that there is no statutory definition of "ridge". That being so, at this juncture, it would be inappropriate to reopen the whole issue as to whether the land in question was a constraint area or ridge land. A bare reading of the order dated 19.8.1997 makes the position clear that this Court had treated the land as constraint area. It has been emphasized by learned counsel for the petitioners that the Expert Committee's report is per se unacceptable because it has focused more on the aspects of regularizing the unauthorized areas rather than on the consequences flowing from the non observance of the procedure before undertaking any construction. It is stated that this Court has taken serious view of unauthorized construction and some times on the basis of permissions, wrongly granted. Various decisions in this regard are relied on.

7. In response, learned Counsel for the respondents have stated that their lands were allotted by the DDA. As per Notification No. SO/60(E) dated 27.1.1994 for the first time a provision for obtaining environmental clearance by a Central Government (MoEF) before undertaking any new project listed in Schedule-I to the Notification was introduced. The Notification did not relate to new construction projects and as such did not apply to them is the stand of the respondents. The auction was conducted by DDA. Having undertaken the project, huge investments have been made and with sanction of building plans they applied for. In some cases applications were filed before DPCC for obtaining clearance under the Air and Water Acts. According to them prior to 7.7.2004 no other environmental clearance was required except clearance as afore-stated. The auction Notice of DDA dated 12.12.2003 mentions about clearance from EPCA. According to the respondents, this referred to the draft Notification dated 7.10.2003 which proposed to include new construction projects within the ambit of the parent Notification dated 27.1.1994. According to them, the amendment by Notification dated 7.7.2004 postulates post facto clearance contemplated for new construction projects undertaken.

8. In some cases the Expert Committee after public hearing has made the recommendations with certain stipulations. It has been clearly stated that the project can be recommended for environmental clearance. The confusion arose because DDA all through gave an impression to the parties participating in auction that all requisite clearances had been obtained. Had such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money. The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the present cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise. Some of the allottees are the National Book Trust, School of Planning or Architecture, Shri Ram Vithala Sikha Seva Samiti, International Centre for Alternate Dispute Resolution and Institute for Studies and Industrial Development. In most of these cases the constructions are already complete and have become functional.

9. DDA had also made some constructions at the site in question. That being so, it is submitted that the recommendations made by the Expert Committee should be accepted. Learned Counsel for the DDA while adopting the submissions made by the other respondents submitted that the DDA proceeded on a bona fide impression that all requisite clearances had been obtained by it. There was no question of it acting in mala fide manner or irregular manner.

10. In view of what has been stated above, the MoEF has now to take a decision by taking the land as constraint area. It is needless to say that even if the land is held to be constraint area the constructions thereon have to be made after having the requisite clearance. The MoEF shall take note of the stands projected by the respondents. We are prima facie satisfied about the bona fides of the respondents but at the same time it needs no emphasis that DDA should have been more transparent in ensuring that it was not putting a site for auction where there was scope for litigation. It had definitely created an impression that all necessary clearances had been obtained, though it does not appear to be so. What remains to be decided as to what remedial measures including imposition of such amounts as costs can be taken.

Let the MoEF take a decision within a period of 2 months from today to avoid unnecessary delay. The IAs. are accordingly disposed of.

IN THE SUPREME COURT OF INDIA

Appellants: T.N. Godavarman Thirumulpad Vs. Respondent: Union of India (UOI)and Ors.: Decided On: 15.12.2006

Hon'ble Judges:


Y.K. Sabharwal, C.J., Arijit Pasayat and S.H. Kapadia, JJ.

Subject: Environment

Acts/Rules/Orders:
Conservation Act - Section 3; Mineral Conservation and Development Rules, 1988 - Rule 23C

JUDGMENT

Arijit Pasayat, J.

1. These I.As. are in essence oft shoot of a judgment of this Court in IA 670 of 2001 in Writ Petition (C) 202 of 1995 in K.M. Chinnappa (applicant in T.N. Godavarman Thirumulpad v. Union of India and Ors.. It related to the question whether functioning of Kudremukh Iron and Ore Company Ltd. (in short 'KIOCL') was having adverse effect on the environment and ecosystem. In paras 51 and 52 of the judgment it was inter alia directed as follows:

51. Taking note of the factual background and the legal position highlighted above, we think it proper to accept the time period fixed by the Forest Advisory Committee constituted under Section 3 of the Conservation Act. That means mining should be allowed till the end of 2005 by which time the weathered secondary ore available in the already broken area should be exhausted. This is, however, subject to fulfilment of the recommendations made by the Committee on ecological and other aspects.

52. The modalities as to how these have to he worked out shall be done in the manner recommended by the Committee. It was submitted by the learned Counsel for the State of Karnataka that the recommendation made about transfer of buildings and other infrastructure to the Forest Department of the State Government at book value is not acceptable to it. This is a matter which can be considered by the Committee on an appropriate motion being made by the State before it. The modalities to be adopted to effectuate the order passed by this Court and recommendations of the Committee shall be worked out by the Ministry of Environment and Forests, the State Government and the Company under the supervision and guidance and monitoring of the Committee.

Unfortunately the Central Government for reasons best known to it notwithstanding the clear position indicated in the judgment construed that the expression "Committee" meant "Forest Advisory Committee" (in short 'FAC'). There was no scope for taking the stand in view of what has been stated in para 5 of the judgment. It has been stated that FAC is also a statutory committee. By order dated 20th January, 2006 it has been observed that the constitution of the Monitoring Committee is not in consonance with the directions of this Court.

2. Learned Counsel appearing for KIOCL submitted that in line with direction of this Court and keeping in view the Rule 23C of the Mineral Conservation and Development Rules, 1988 (in short the 'Rules') which became operative with effect from 10.4.2003, an approved final Mine Closure Plan was submitted. Views of expert bodies were taken. It has been stated that in line with the statutory prescriptions, which even though became operative after the judgment various steps have been taken. Indian Bureau of Mines (in short the 'IBM') has also given its report. It is, therefore, stated that though IIT Delhi was asked to give its view but that has no relevance. If there would have been non-compliance with the statutory requirement of Rule 23C of the Rules, it would have exposed it to penal consequences. In essence the stand is taken that IIT Delhi's report should not be accepted and the following modalities on the other hand should be adopted.

(a) It would utilize its machinery and workmen for the purpose of achieving slope stability by excavating the 33.81 hectares on the basis that out of the net profit generated by the mining operation, 50% of the net profit would be paid over to a fund to be established and operated by a committee constituted by the Government of Karnataka or in any other manner directed by this Court or a high powered statutory committee created for this purpose (in the nature of the Tennessee Valley Authority) for the purpose of utilizing this 50% net profit for rehabilitation and eco-restoration for the Kudremukh Forest Area. (b) On a rough estimate, the 50% of net profit is likely to be in the range of Rs.50 to 75 crores per annum, for the purpose of rehabilitation and eco-restoration of the Kudremukh National Park and also establishing and promoting sustainable environmental development and eco- tourism in the area. Towards this end, the existing buildings and infrastructure could also prove useful. (c) If this proposal is accepted, an amount in the range of (approximately) Rs.150 Crores to 225 Crores could be available to the fund during the period of about 3 years which would be necessary for excavating 33.81 hectares.

3. It is further submitted that in the judgment at paras 49 and 51 had permitted mining of the weathered secondary ore in the already broken up area till the end of 2005, as this Court expected that the weathered ore would be exhausted. But in reality, about 20 million tons of weathered ore are still available in already broken up area. This should be permitted to be used as it is likely to generate revenue of about rupees 25 crores per annum. If this is permitted nearly rupees 300 crores would be available to the Kudremukh Authority for Eco Restoration Fund which would be able to bring about dramatic change in the eco-system of the Kudremukh National Park.

4. Per contra, learned Amicus Curiae has submitted that this Court clearly directed closure of mining operation by the end of 2005. Time was not given for running the mines for profit, but as a winding down period at the end of which mining should have been closed. The operations during the period had to be under the supervision of the Monitoring Committee which in turn function under the supervision of Central Empowered Committee (in short 'CEC'). What KIOCL wants now is to continue mining of 8 to 9 lakh tonnes of ore.

5. We have considered rival submissions. IIT, Delhi was appointed vide order dated 24th February, 2006. It has been found that KIOCL has used the concerned period for carrying on commercial operations without taking necessary steps for winding down operations. On 10th May, 2006 an affidavit was filed by KIOCL taking the stand that there was likelihood of serious pollution of Bhadra river if KIOCL was not allowed to do the operations for the purpose of avoiding pollution. IIT, Delhi did not consider the exercise necessary. It has been pointed out by learned Amicus Curiae that contrary to what KIOCL thought to be inevitable, there was no damage whatsoever despite heavy monsoon. It is to be noted that the IIT, Delhi in its report has observed that the solution has to be found by experts and the heart-beat of that solution is the stability of the slopes involving "no or minimal disturbance to the unbroken area". It is noted that at various times, petitions have been filed practically with a view to undo what had been definitely held to be imperative by this Court.

At this juncture, it would be appropriate to take note of what IIT, Delhi stated in its various reports.

6. In their report dated 12th April, 2006 on the Stability of Slope and related issues during mine closure of KIOCL, it was inter alia observed as follows:

3.0 Observations on Stability of Slopes

Based on the above methodology, the following observations are made concerning the stability of the slopes.

(a) The excavated slopes of the mine exist at varying degrees of steepness with benches of variable widths.

(b) Some slopes are stable with grass growing on them; others are observed to show signs of surficial erosion/debris flow/mud flow; yet others show signs of planar slippage or slides of limited depth.

(c) The instability of slopes at specific locations is observed to be on account of (i) excessive steepness, (ii) inadequate strength of soil/rock mass under saturated condition and (iii) seepage pressure exerted by infiltrating rain water during monsoons.

(d) Saturation of mine slopes and seepage pressure exerted on the slopes appear to be the two factors that have the greatest role in instability of slopes since these slopes are reported to be relatively stable during dry months and become unstable during monsoons. Saturation reduces the strength of the soil/rock mass and seepage pressure induces downward movement.

4.0 Observations on Instability of North West Part of the Mining Area

One part of the mining area on the north western side is observed to be particularly susceptible to slope instability due to collection of water in a catch pit constructed at the base of the broken area, above the unbroken area. The catch pit was constructed by excavation during mining operations and is observed to cause the following effects:

(a) The unbroken area on the downstream side of the catch pit is being destabilized as the collected water seeps into the unbroken area;

(b) When the catch pit overflows, uncontrolled flow of water cascades downhill in the form of surface water laden with silt which eventually reaches the Bhadra River at the base of the unbroken area; this has also resulted in the formation of gullies and erosion channels in the unbroken area.

5.0 Observations on Slope Stability Aspects in the Closure Plan

Slope stability aspects have been covered in the following reports in the Closure Plan:

Report of NIRM: Slope Stability Investigations at Kudremukh Iron Ore Mines Report of CWPRS: Desk Studies on Stability of Hill Slopes in Mining Area at Kudremukh Iron Ore Mine, Karnataka

The Closure Plan proposes stabilization of the slopes by flattening them and also by additional excavation of slopes in the broken region as well as the unbroken portion in the northwestern part of the mine. This would be followed by revegetation of slopes for controlling erosion of fine material. Check dams have been proposed to prevent siltation of the Bhadra River during the initial stages till vegetative growth gets established and causes reduction in silt erosion.

7. The following are the observations on slope stability aspects in the closure plan:

(a) The suggested methodology of stabilizing the north west part of the mine by deep excavation in the unbroken portion over an area of 33.81 hectares can be one alternative but not necessarily the only one. Other methods which would minimize disturbance to the unbroken area could have been examined.

(b) In addition, the following aspects have not been covered in the Closure Plan:

i) A surface water drainage plan for the entire mining area indicating location of surface water drains at the benches and along the perimeter of the base of the mining area;

ii) Methodology for periodic removal and relocation of silt collected in check dams and catch pits;

iii) Provision of bio-geotechnical engineering measures for assisting vegetative growth in problematic areas where regular debris flow or mud flow is observed;

iv) Stability measures for north west part of the mine such as elimination of collection of water and overflow of water from the existing catch pit as well as stabilization measures for the unbroken area destabilized by the catch pit;

v) The measures listed at (i) to (iv) above could result in significant additional costs.

6.0 Conclusions and Recommendations

(a) The slopes are not stable in the present state and need stabilization.

(b) If the mine is abandoned without stabilization of the slopes, as indicated earlier, it will result in excessive silt discharge due to erosion as well as in the sliding of the slopes at some locations in future years.

(c) The north west part of the mine needs immediate attention and remedial measures to prevent the possible occurrence of large scale movement during the forthcoming monsoon.

(d) A Closure Plan is necessary for stabilizing the slopes. The Closure Plan proposed at present is well conceptualized but falls short of adequacy in detailing (as indicated in 5.0 (a) and (b) above). This is perhaps so because there is inadequate experience in the country regarding closure of mines of such size in a short time. The regulations relating to closure have been notified only in recent years in the country and it will take time for the expertise to develop fully.

(e) It is suggested that the task of mine closure be given, on a turnkey basis, to an Organization having requisite experience in similar works (on design- and-build basis). Such an Organization can be selected through a global competitive bid. It should be the responsibility of such an Organization to reanalyze the stability of slopes and then draw up a Closure Plan and execute it with minimum disturbance to unbroken area of the mine. KIOCL could assist such an Organization in executing the closure. Since the execution of closure would involve a large expenditure and a time frame of several years for vegetation to be established, such a task could be overseen by a special cell/nodal agency created for this purpose.

(f) The award of work as listed in (e) above could take several months. Till then, KIOCL need to monitor and maintain the slopes (in the entire mine area in general and the northwestern portion in particular) as well as maintain/operate the silt control measures at the site.

8. Again on 12th June, 2006 the report of Expert Committee made certain observations on the basis of presentation made by KIOCL officers on various dates. The observations were to the following effects:

Officers of KIOCL, headed by Mr. J.N. Kini, Director (Production & Projects), made a presentation at IIT Delhi on 8th June 2006 on the measures taken to for controlling silt and for stability of north western portion. A report was also submitted containing conceptual design and detailed design of water pollution control measures. The following were present:

Mr. J.N. Kini KIOCL

Mr. K.S. Kasinath. KIOCL

Mr. G. Pai, KIOCL

Mr. MK. Rajagopalan, KIOCL

Prof. G.V. Rao, Member, Expert Committee

Prof. K.G. Sharma, Member, Expert Committee

Prof. Manoj Datta, Member, Expert Committee

All the three members of the Expert Committee visited the mine site on 10th and 11th June 2006 to study the measures taken.

9. The following are the observations of the Expert Committee members on the basis of the presentation by KIOCL officers, report submitted by them and the site visit.

Silt Control Measures

1. It is observed that concerted efforts have been made by KIOCL for controlling the flow of silt from the mine site to the Bhadra river in the form of drainage channels, catchpits, berms and dykes, check bunds and check dams.

2. From amongst the two main pollution control dams, one is observed to be nearly full (PCD 1) whereas significant storage capacity exists in the other (PCD2).

3. Attempts have been made by KIOCL, to the extent feasible, to empty the reservoir behind PCD1 and these have been abandoned with the onset of monsoons. Further attempts can be tried during periods of extended lull in the monsoon, if any.

4. Diversion of silt laden water has been made at select locations from drainage channel of PCD1 to the drainage channel of PCD2.

5. It is stated by officers of KIOCL that the storage capacity of the main catchpit before PCD2 as well as the reservoir of PCD2 is sufficient to hold most of the silt for the present monsoon. However measures have to be taken for handling the silt of future years.

6. The upsteam slope of PCD2 is observed to exhibit evidence of piping. Remedial measures such as provision of geotextile filter and plugging have been undertaken by KIOCL. Suitable long term measures may be taken up after the monsoons. Careful monitoring of both PCD2 and PCDI may be done during and after the monsoons.

7. It is observed that silt laden water from the north-west portion does not reach either PCDI or PCD2 but overflows from the low lying area in the north west portion into the Bhadra river through an erosion gully. A gabion structure has been constructed to control the silt but the possibility of silt overflow during heavy rains can not be ruled out. Additional measures are required to control the silt release from this area. KIOCL has proposed the re-profiling of the north west portion to enable the silt laden water to reach PCD2. This would take around 6 months and can be taken up only after the monsoons. Other alternatives with conceptual and detailed plans need to be considered for this problem.

Stability of North-West portion

1. The stability of the North-West region is observed to be slightly improved on account of non-accumulation of water in the low-lying area.

2. However, the stability could still be affected due to the presence of erosion gully because of overflowing water.

3. Complete access to the periphery of the low-lying area is not available due to the absence of benches and access roads.

4. It is important that a few alternate solutions be ccnceptualized with the following features for the north west region as long term measures:

(a) Minimal accumulation of water,

(b) Drainage channel to reach PCD2,

(c) Benches to stabilize steep slopes,

(d) Access load all around the low-lying area, and

(e) Sealing of opening(s) to the erosion gully(ies).

Final Remarks

KIOCL may prepare revised conceptual designs and remedial measures on the basis of the observations made in this report.

10. On 13.7.2006 the opinion of IIT, Delhi in the background of the affidavit filed by KIOCL on 10th May, 2006 was as follows:

"The Expert Body of IIT Delhi has studied the affidavit filed by KIOCL. The following are the views of the Expert Body in respect of item 3 titled "Achieving Slope Stability in the Entire Mine Area".

1. For stability of slopes of the mine area, the scope of work defined by KIOCL to NIRM for their study did not specify the condition of "no or minimal disturbance to unbroken area". As a consequence, the NIRM report presents only one solution, which disturbs the broken area. It does not give any other alternative solutions.

2. Other reports by IIT Kharagpur, CMRI Dhanhad, Monitoring Committee, CWPRS Pune, use the report of NIRM as the bases of analysis, hence give recommendations similar to that of NIRM.

3. As stated in the earlier Report submitted by the Expert Body on 10th April 2006, it is reiterated that a solution to the stability of slopes with no or minimal disturbance to unbroken area is feasible.

4. Flattening of unstable slopes by excavation in broken area along with appropriate drainage and silt control measures can improve stability of the mined area. For this purpose the mechanism already suggested at item 6(e) of Expert Body Report dated 10th April 2006 submitted to Hon'ble Supreme Court may be adopted.

11. The significant aspects in the aforesaid report are as follows:

(a) The scope of work defined by KIOCL to NIRM for their study did not specify the condition of "no or minimal interference to unbroken area".

(b) Other reports (i.e. of IIT, Kharagpur, CMRI, Dhanbad, Monitoring Committee, CWPRS, Pune used NIRM's report as the foundation for analysis and, therefore, their recommendations were similar to those of NIRM.

(c) Solution to the stability of slopes with no or minimal disturbances to unbroken area is feasible.

(d) By adopting certain measures, stability of the mined area can be improved.

12. In the background of what has been noted above, and keeping in view the suggestions and recommendations of IIT, which we find to be founded on rational basis, we direct as follows:

(i) On the basis of the report dated 10.04.2006 of IIT Delhi through a Global Competitive Bid an Agency to be selected for:

(a) re-analysing the stability of slopes

(b)drawing up of mine closure plan and

(c) implementation of the above plan.

(ii) IIT Delhi shall draw up detailed terms for the work to be done, consistent with the basic paradigm of "no or minimal disturbance to unbroken area" and submit to this Court within a period of four weeks for further directions.

(iii) The Ministry of Mines, Government of India, shall designate an officer to take over possession of the mines immediately. IIT Delhi shall depute a team of experts to go and do a survey of the mines and the surrounding area and submit a report to this Court regarding any immediate step(s) that need to be taken during the interregnum till the appointment of the expert agency. IIT Delhi can ask the designated officer to take any necessary steps on an emergent basis.

(iv) The expenditure for the purpose of inviting global competitive bid and evaluation such as on advertisement etc. may initially be met out of Rs.19 crores deposited by the KIOCL, and which are presently lying with the Adhoc- CAMPA.

(v) If any funds are required in excess of the aforesaid amount, the Agency, or the Designated Officer shall move this Court for necessary directions.

I.A.s are accordingly disposed of.