|
IN THE SUPREME COURT OF Appellants: Hon'ble Judges: Counsels: Subject: Subject: Acts/Rules/Orders: Cases Referred: Disposition: JUDGMENT Y.K. Sabharwal, C.J. 1. The question for consideration in these matters is whether the land
measuring about 15 hectares leased by State of Chhattisgarh
to M/s. Maruti Clean Coal and Power Limited (for
short 'Maruti') for setting up of coal washery is a part of forest land or not. This question has
been raised by one Deepak Agarwal by filing I.A. 858
of 2003 claiming to be a public spirited person and journalist by profession
and concerned about the adverse affect on environment of the area as a result
of the grant of lease of forest land for non forest activities in violation of
law. The applicant claims that undue favour and
patronage has been extended to Marti for establishment of coal washery plant in respect of land which is a forest land by
wrongly showing in various revenue records that the land is part of the village
Nawagaon Khurd whereas
actually the land forms part of village Ratija. 2. The Parliament enacted 3. The Government of Madhya Pradesh, of which Chhattisgarh
was a part at the relevant time, issued a circular dated 4. According to the applicant, on application of aforesaid circular, the
land in question would be forest land and it is also so under the Government
record and as per the dictionary meaning of the term 'forest' as well. To
examine the question whether land is part of forest or not, this Court by order
dated 5. The CEC submitted its report dated 6. The State of Chhattisgarh and Maruti vehemently disputed that the land is part of forest.
Their stand is that the land was allotted after it was clearly established that
it was not a forest land. The first report shows that hearing before CEC took
place on four different dates i.e. 7. Detailed objections were filed to the first report of CEC. On directions
of this Court, an affidavit dated 13th August, 2004 was filed by
T.S. Chatwal, Secretary (Forest) Government of Chhattisgarh, inter alia, stating
that land is not recorded in the forest land records at Katghora
Division either as protected or as reserved forest; has not been subject matter
of any blanket notification covering 'protected forest' for the then Central
Provinces and Barar issued under Section 29 of the
Indian Forest Act, 1927; does not form part of the un-demarcated protected
forest in village Ratija etc. It was further stated
that as per available traversing records for the year 1893-1894, the land in
question was traversed by the Survey of India and was named as Nawagaon Khurd surrounded by
village Ratija, Chainpur
and Sirkikhurd and its area was measured to be 50.25
acre. The settlement operation carried in 1929-1930 did not cover the land in
question and as such no survey number was assigned to this piece of land, which
remained unsurveyed till June 2002. 8. The State Government was directed to trace the relevant notifications and
other notifications issued by the forest department in the month of October
1949 and place the same before the CEC. Maruti
claimed that notification of October 1949 had considerable bearing on the
question of the land being forest or not. Maruti was
also permitted to place the same before CEC. Other parties were also permitted
to file before CEC additional documents. CEC was directed to further examine
the matter, hear the parties and file a report with its recommendations. 9. In compliance of the aforenoted directions, a
report dated (a) the area of village Nawagaon
Khurd was not merged and made a part of village Ratija or any other adjoining villages during the
settlement of 1928-29; (b) no settlement records for the area of Nawagaon Khurd were prepared
during 1928-29; (c) since new settlement has not taken place after 1928-29, the settlement
maps prepared during 1928-29 are the relevant and the correct maps which have
to be relied upon; and (d) the location of the land allotted to M/s Maruti falls within the area of Nawagaon
Khurd and not within the village Ratija. In respect of Notifications of 1949, CEC said that: (a) none of the notifications particularly the
notification dated 17.10.1949 pertain to Bilaspur
district; and (b) the notification No. 3228-2845 dated 17.10.1949
or 3228-3283/2845 dated 17.10.1949 referred to in the draft orange area
proposal of 2002 either do not exist or pertain to other districts. The CEC in the second report concluded that the land allotted to Maruti is not a forest land. 10. The second report has also noticed the submission of Maruti
that application of Deepak Agarwal is not in public
interest and that he has been set up to serve the business interest of M/s
Aryan Coal Private Limited (for short, 'Aryan') who will be adversely affected
financially after the establishment of coal washeries
by Maruti due to increased competition and consequent
reduction in prices. It was also pointed out that during hearing before CEC,
Deepak Agarwal was represented by K.K. Srivastava who had represented Aryan in revenue proceedings
before Tehsildar and also that he was a witness in a
large number of sale deeds executed by shareholders of Aryan for purchase of
land in Rajgarh. 11. The second report led to filing of various applications and also a
letter dated 27th March, 2005 by Secretary, Bilaspur
Environment Society filing therewith a report of Regional Remote Sensing
Services Centre, Nagpur dated 28th
February, 2005 with a view to challenge the conclusion contained in the second
report about land being not forest land and seeking to rely upon settlement
record. 12. By an order dated 13. The third report, inter alia, shows that a
request was made by CEC to Forest Survey of India to carry out photo
interpretation of the satellite imagery of the area by comparing imageries of
different period and to give views about vegetation, forest cover, number of
trees etc. Simultaneously, the National Remote Sensing Agency was also
requested to give their comments on the satellite imagery of the area in and
around the land area allotted to Maruti along with
significant changes in the forest cover during different periods, reliability
and accuracy of the interpretation and methodology for identifying the areas
allotted etc. The site was also visited between (i) Mr. B.L. Wadera - Hon'ble High Court of Chhattisgarh
at Bilaspur; (ii) Mr. Sanjay Srivastava (relation of Mr. K.K. Srivastava) - Hon'ble High Court
of Chattisgarh at Bilaspur; (iii) Mr. Deepak Agarwal - present application
before the Hon'ble Supreme Court (iv) Mr. Surendra Sahu -
petition before the Hon'ble High Court of Chhattisgarh at Bilaspur; (v) SECL - present application for intervention before this (vi) SECL - suit in (vii) SECL - Writ Petition against CEC's report
before this (viii) Samyuki Kendriya Shramik Sangathan - application
for intervention before this (ix) Koyla Mazdoor Sabha - application for intervention before this (x) Rashtriya Colliery Mazdoor
Congress - application for intervention before this (xi) Koyla Shramik Sangh - application for intervention before this (xii) Bhartiya Koyla Khadan Mazdoor Sangh - application for intervention before this (xiii) Mr. B.L. Wadera - SLP against the Hon'ble High Court's order. 14. Regarding nexus between K.K. Srivastava and
Aryan and what type of society the Bilaspur
Environmental Society is, the report states that: After considering the number of cases, filed on this issue, the documents
filed by M/s Maruti regarding alleged nexus between
Mr. K.K. Srivastava with M/s Aryan, reduction in the
washed coal prices agreed to by M/s Aryan after an offer at a cheaper rate was
made by M/s Maruti to Gujarat Electricity Board,
annual account of Bilaspur Environment Society. SECL's own use of revenue forest land on a large scale,
prima-facie there appears to be some merit in the contention of M/s Maruti that the plethora of cases in various Courts have
been filed on behalf of its competitor M/s Aryan with a view to prevent him
from establishing the coal washery, and not in public
interest. The claim made by Mr. K.K. Srivastava that he is a
public spirited person involved in protection of environment and forests and
that he is not getting financial support from anybody but is spending from his
own resources and contribution from his friends and relations, is difficult to
accept on its face value; The accounts of Bilaspur Environment Society show
that it does not have a bank account and all receipts and expenditure are in
cash. The third report reiterates the conclusions and the recommendations made in
the second report that the land allotment of Maruti
is not of forest land. 15. At this stage, we may note that some dispute as to the title of the land
in question between State Government and Maruti on
one hand and M/s South East Collieries Limited (SECL) on the other is pending
in a civil court. In these proceedings, we are not concerned about the title of
the land that may have to be examined and decided by the civil court. All
pleas, factual and legal, as permissible in law, would be open to the parties
to be agitated before the civil court. The only question for our consideration
in these proceedings is as to the nature of the land, namely, it is forest land
or not. 16. However, before we consider the aforesaid question, first the bonafides of the applicant need to be determined. In
opposition to the application filed by Deepak Agarwal,
it has been urged that the label of public interest given by the applicant in
the present litigation, is clearly and demonstrably a camouflage since the real
person behind this application allegedly filed in public interest is a
competitor of Maruti operating in the area and having
a monopoly. 17. Some unions have also tried to jump into the fray by filing applications
seeking impleadment in these proceedings so as to
contend that the allotment is of a forest land. We see no reason to allow the impleadment of parties in these proceedings. Be that as it
may, we have to decide in the light of facts aforenoted,
whether the land leased to Maruti is forest land or
not. But before we examine the question of the nature of the land being forest
or not, it is necessary to consider the bonafides of
Deepak Agarwal who has approached this Court in
public interest. Howsoever genuine a cause brought before a court by a public
interest litigant may be, the court has to decline its examination at the
behest of a person who, in fact, is not a public interest litigant and whose bonafides and credentials are in doubt. In a given
exceptional case where bonafides of a public interest
litigant are in doubt, the court may still examine the issue having regard to
the serious nature of the public cause and likely public injury by appointing an Amicus Curiae to assist the court but under no
circumstances with the assistance of a doubtful public interest litigant. No
trust can be placed by court on a mala fide applicant
in public interest litigation. These are basic issues which are required to be
satisfied by every public interest litigation. 18. It was sought to be contended on behalf of Deepak Agarwal
that the CEC had no authority to examine his bonafides
and, thus, exceeded its jurisdiction by stating in its report that his bonafides are in doubt. Some insinuations were sought to be
made against CEC and learned Amicus Curiae. We strongly deprecate this approach
of the applicant. The CEC has been appointed and so also learned Amicus Curiae
to assist this Court in determining issues relating to depletion of forests and
preservation and conservation of forests in the country. Many forest survey
reports recognise that various orders by this Court
have helped in arresting fast depletion of forests. Assuming in a given case an
error is committed by the Committee in its report, while pointing it out, it is
necessary for the applicant to use temperate language in the pleadings and not
the one used by the applicant. Since, during hearing, neither the insinuations
nor the language was supported and rather regret was expressed, we would say no
more on this aspect. It, however, deserves to be clarified that it is incorrect
to assume that CEC exceeded its jurisdiction in pointing out facts which are
relevant to determine the bonafides of the applicant.
In fact, having regard to nature of duties assigned and responsibility placed
upon CEC, it is the duty of CEC to point out facts relevant to determine bonafides of any applicant. It is always necessary to
determine real motive behind a public interest
litigation. 19. It has been repeatedly held by this Court that none has a right to
approach the Court as a public interest litigant and that Court must be careful
to see that member of the public, who approaches the Court in public interest,
is acting bona fide and not for any personal gain or private profit or
political motivation or other oblique considerations, {See S.P. Gupta v.
Union of India and Anr. 1981 Supp. SCC 87}. 20. For the last few years, inflow of public interest litigation has increased
manifold. A considerable judicial time is spent in dealing with such cases. A
person acting bona fide alone can approach the court in public interest. Such a
remedy is not open to an unscrupulous person who acts, in fact, for someone
else. The liberal rule of locus standi exercised in favour of bona fide public interest litigants has immensely
helped the cause of justice. Such litigants have been instrumental in drawing
attention of this Court and High Courts in matters of utmost importance and in
securing orders and directions for many under-privileged such as, pavement
dwellers, bonded labour, prisoners' conditions,
children, sexual harassment of girls and women, cases of communal riots,
innocent killings, torture, long custody in prison without trial or in the
matters of environment, illegal stone quarries, illegal mining, pollution of
air and water, clean fuel, hazardous and polluting industries or preservation
of forest as in the Godavarman's case.
While this Court has laid down a chain of notable decisions with all emphasis
at their command about the importance and significance of this newly developed
doctrine of PIL, it has also hastened to sound a red alert and a note of severe
warning that courts should not allow its process to be abused by a mere
busybody or a meddlesome interloper or wayfarer or officious intervener without
any interest or concern except for personal gain or private profit or other
oblique' consideration {See Janata
Dal v. H.S. Chowdhary and
Ors. MANU/SC/0532/1992} 21. It seems that this caution has not had the desired effect on the
applicant like the present one. In a recent decision in Dattaraj
Nathuji Thaware v. State of
It is depressing to note that on account of such trumpery proceedings
initiated before the Courts, innumerable days are wasted, which time otherwise
could have been spent for the disposal of cases of the genuine litigants.
Though we spare no efforts in fostering and developing the laudable concept of
PIL and extending our long arm of sympathy to the poor, the ignorant, the
oppressed and the needy whose fundamental rights are infringed and violated and
whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid
but express our opinion that while genuine litigants with legitimate grievances
relating to civil matters involving properties worth hundreds of millions of
rupees and criminal cases in which persons sentenced to death facing the
gallows under untold agony and persons sentenced to life imprisonment and kept
in incarceration for long years, persons suffering from undue delay in service
matters - government or private, persons awaiting the disposal of cases wherein
huge amounts of public revenue or unauthorized collection of tax amounts are
locked up, detenus expecting their release from the
detention orders etc. etc. are all standing in a long serpentine queue for
years with the fond hope of getting into the Courts and having their grievances
redressed, the busybodies, meddlesome interlopers, wayfarers or officious
interveners having absolutely no public interest except for personal gain or
private profit either of themselves or as a proxy of others or for any other
extraneous motivation or for glare of publicity break the queue muffling their
faces by wearing the mask of public interest litigation and get into the Courts
by filing vexatious and frivolous petitions and thus criminally waste the
valuable time of the Courts and as a result of which the queue standing outside
the doors of the Courts never moves, which piquant situation creates
frustration in the minds of the genuine litigants and resultantly they lose
faith in the administration of our judicial system. Public interest litigation is a weapon which has to be used with great care
and circumspection and the judiciary has to be extremely careful to see that
behind the beautiful veil of public interest, an ugly private malice, vested
interest and/or publicity-seeking is not lurking. It is to be used as an effective
weapon in the armory of law for delivering social justice to citizens. The
attractive brand name of public interest litigation should not be used for
suspicious products of mischief. It should be aimed at redressal
of genuine public wrong or public injury and not be publicity-oriented or
founded on personal vendetta. As indicated above, Court must be careful to see
that a body of persons or member of the public, who approaches the court is
acting bona fide and not for personal gain or private motive or political
motivation or other oblique considerations. The Court must not allow its
process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested
interest indulge in the pastime of meddling with judicial process either by
force of habit or from improper motives, and try to bargain for a good deal as
well as to enrich themselves. Often they are actuated by a desire to win
notoriety or cheap popularity. The petitions of such busybodies deserve to be
thrown out by rejection at the threshold, and in appropriate cases with
exemplary costs. It was further said : Courts must do justice by promotion of good faith, and
prevent law from crafty invasions. Courts must maintain the social balance by
interfering where necessary for the sake of justice and refuse to interfere
where it is against the social interest and public good. ( 22. Now, reverting to the present case, it seems that lakhs
of rupees have been spent by the applicant and/or on his behalf to prosecute
the present litigation. On our direction, the applicant filed his income tax
return which shows that he has hardly any means to incur huge amounts which
have been spent to pursue this litigation. Further, when the matter was
referred by this Court to CEC for a report on first date of hearing, K.K. Srivastava represented the applicant. Learned senior
counsel for the applicant fairly and candidly admitted that sometimes along
with the advocate-on-record, K.K. Srivastava has been
coming to instruct him. There is ample material on record that on numerous
occasions, K.K. Srivastava represented Aryan before
number of authorities. 23. There is also ample material to show that K.K. Srivastava
has been collecting material to prove that the land in question is forest land.
He is a person in contact with Aryan, Regarding his financial status, Deepak Agarwal has filed
an affidavit dated 24. On perusal of record, we have no doubt that the application filed by
Deepak Agarwal is far from bona fide. He has been set
up by others. We strongly deprecate the filing of an entirely misconceived and mala fide application in the garb of public interest
litigation by Deepak Agarwal. He is nothing but a
name lender. 25. Despite our conclusion as aforesaid, we have in-depth examined the three
reports of CEC, The CEC in its second report has explained in detail the
grounds and the reasons for reversal of its findings as contained in the first
report. The first report had only considered the letter dated 26. The third report is based on the satellite imageries and supports the
conclusions reached by CEC in its second report. In respect of the third
report, one of the submissions made on behalf of Deepak Agarwal
was that reliance by CEC on LISS III (23.5 metre
resolution) is not warranted because the satellite images provided by RRSSC has
satellite data of LISS III with Panchromatic Data Technology and LISS IV (5.8 metre resolution). It was argued that State Forest Report,
2003 of Forest Survey of India noticed that 5.8 metre
resolution recorded various images as small as 0.1 hectare (within given area,
in this case, the area of interest of 18.12 hectares) whereas 23.5 meter
resolution is not capable of recording anything less than 1 hectare forest
cover within that area. In nutshell, the contention is that LISS III has
limited technology and, therefore, the report based on LISS III is not
reliable. The submission is that LISS IV should have been used for arriving at
the correct position. 27. In short, Deepak Agarwal has submitted that
the report of NRSA was not accurate because it has opted for a technology with
23.5 metre spatial resolution and output generation
in the scale of 1:50000 considered to be inferior with respect to smaller
portion of land. According to Deepak Agarwal, NRSA
should have opted for a better technology available today under which the
spatial resolution is available at 5.8 meter and also output generation in the
scale of 1:15000. According to Deepak Agarwal, CEC
should not have accepted the report of NRSA based on the above parameters of
23.5 metre (spatial resolution) and of output
generation in the scale of 1: 50000. 28. In order to decide the above contentions, it is necessary to understand
the following concepts: i) GIS
(GEOGRAPHICAL INFORMATION SYSTEM) GIS is an organized collection of computer hardware, software, geographic
data designed to capture all forms of geographically referenced information
(See Volusia.org). In short, it is a computer system capable of holding
and using data describing places on the earth's surface. ERDAS IMAGINE 8.6 is a
computer tool under GIS. It is referred to in the report of Forest Survey of
India (FSI) dated 14.4.2005 annexed to the third report of CEC. ERDAS IMAGINE 8.6 is an advanced software product used for image processing,
to uncover features like boundary and area of a given plot of land (face). Once
uncovered, the geographical information is integrated with attributes (spatial
and non-spatial) and stored in an information system to be used for analysis. Images can be taken from satellites or from planes flying over an area of
interest (AOI). Under ERDAS IMAGINE 8.6, the images are comprised of pixels
(picture elements) which are contained in the image. These pixels are scanned
by the computer which gives the boundary and the area. It also scans the colours. Different surfaces reflect light differently. Colour images are used to identify various ground objects
like forests, man-made surfaces, roads etc. For example, healthy crops contain
infra-red light whereas forests reflect different colours
of the spectrum, making the spectrum information an important component of
geographical information analysis. This advancement of technology is due to
combination of telecommunication and computer engineering (See:
webopedia.com). The above discussion is important because Deepak Agarwal
has relied upon photo printing analysis done by him with the help of CAD
(Computer Aided Designing). The issue which is required to be considered is whether ERDAS IMAGINE 8.6
used by NRSA is better than CAD which is a programme
used by Deepak Agarwal. We have indicated broadly the
advanced features of the software, viz., ERDAS IMAGINE 8.6." On the other
hand, CAD, is also a software used by engineers to
view a design from an angle with the push of a button and to zoom in and zoom
out for close-ups and long distance views. It helps the computer to tract
designs. CAD software generally examines the boundaries and that too in a
design. In the present case, we are concerned with the area covered by the forests.
Therefore, the technology adopted by NRSA based on ERDAS IMAGINE 8.6 is more
reliable than CAD. Therefore, GIS links spatial data with geographical information about a
particular feature on the map (See: volusia.org). ii) GPS (Global Positioning System) GPS is a satellite based positioning system operated by iii) IRS - LISS III It stands for Linear Imaging Self Scanning Sensor which is a multi-spectral
camera. LISS-III products comprise of path/row products, georeferenced
products etc. (See: earth.esa.int). It
helps to track areas and boundaries. Combination of LISS III with ERDAS-imagine
is more reliable than photo print analysis by CAD. It is better to depend on
interpretation of IRS LISS III Digital Data by EDRAS Imagine than by CAD. As stated above, the main challenge to the NRSA report is that proper
parameters have not been taken into account and although better technology was
available the same was not deliberately resorted to. The contention is that CEC
should have opted for the latest technology. 29. We do not find merit in this argument. The technology of 2001, 2002 and
2003 is not to be discarded. The later technology gives more spatial
information but that does not mean that the information given by the earlier
technology is inaccurate. The latest technology under GIS can locate even a pin
on the earth. However, we are not concerned with such a tiny object in this
case. Be that as it may, we may also point out that even in the State of Forest
Report 2003, FSI has based its figures of forest cover by using Digital Image
Processing (DIP) by using the scale of interpretation of 1:50000. Further, in
that report, FSI has relied upon the introduction of a new methodology based on
remote sensing to estimate the trees covered below 1 hectare which cannot be
discerned by using LISS-III data. Under the new method, a canopy of all forests
that can be delineated from satellite data (Sensor LISS-III) was termed as
forest cover. Even under this new technology adopted by FSI the spatial
resolution of 23.5 mtr. of
LISS-III has been taken into account and by using DIP technique, forest cover
was mapped even in 2003 at a scale of 1: 50000. Therefore, consistently, FSI
has taken the above parameters into account. Hence, there is no merit in the
contentions raised by Deepak Agarwal saying that CEC
has been randomly selecting queries and data. 30. In short, NRSA's report submitted through FSI
is reliable and we see no reason to reject it. On the basis of the said report,
it can be said that AOI (area of interest) does not qualify so as to be
included in the category of 31. Before concluding, it may also be noted that except Deepak Agarwal, other parties before us have not questioned the
conclusions in the second and the third report of CEC that the land in question
is not a forest land. Besides, Maruti being the allottee, the State of 32. In view of the aforesaid discussion, even on facts we find no substance
in the plea that the land allotted to Maruti is
forest land. Accordingly, we accept the recommendations of CEC as contained in
the second and third report. As already noted, the dispute in respect of the
title is not a matter in issue before us. Thus, we have not examined this
issue. 33. In conclusion, we dismiss the applications filed by Deepak Agarwal with costs. The applicant has abused the process of
law and deserves to be sternly dealt with. The enormous judicial time has been
wasted which could have been used for deciding other cases. It has also
resulted in CEC and others incurring huge expenses and their wastage of time as
well. In this view, we quantify costs at Rs. 1,00,000/- payable by the applicant Deepak Agarwal to CEC. The cost, if not deposited with CEC within
four weeks, shall be executable as a decree. The amount of cost shall be
utilized for preservation of forests in State of |