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                                         REPORTABLE                IN THE SUPREME COURT OF INDIA

                CIVIL ORIGINAL JURISDICITON

          INTERLOCUTORY APPLICATION NO. 1901                           IN

          INTERLOCUTORY APPLICATION NO. 1888

                             IN

            WRIT PETITION (CIVIL) NO. 4677 of 1985

M.C. Mehta                                    ...Appellant

         Versus

Union of India & Ors.                         ...Respondents

                            WITH

Interlocutory Application No.1955 in Interlocutory Application              No.1988 in W.P. (C) No. 4677 of 1985

                         JUDGMENT

Dr. ARIJIT PASAYAT, J.

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1.   I.A. 1901 of 2005 relates to the land situated in Aravalli

Range. Challenge     basically is to the communication dated

31.1.2005 by the Divisional Forest officer, Faridabad requesting

the Commissioner, Faridabad, the Administration Haryana,

Urban Development Authority (in short the ‘HUDA’)         and the

District Town Planner, Faridabad forwarding list of area closed

under Sections 4 & 5 of the Punjab Land Preservation Act, 1900

(in short the ‘Act’). It was indicated that these areas have been

declared by this Court to be "forest" and, therefore, penal action

is required to be taken for any non forest activities under the

Forest Conservation Act, 1980 (in short the ‘Conservation Act’).

This communication was issued purportedly on the basis of this

Court’s order. Similar communication was made by the Senior

Town Planner, Gurgaon Circle, Gurgaon intimating Dr. Mathan

Singh Kanwar that he has to obtain "NOC" from the forest

department and produce the same before the Senior Town

Planner so that the next course of action with regard to granting

occupation certificate can be carried out.    Reference has also

been made to a letter dated 19.9.1999 by the Commissioner and

Secretary   to   Government,    Haryana    Forest   and   Wildlife

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Department addressed to the Principal Chief Conservator, Forest

Conservation, Haryana on the subject of prohibition in the areas

covered under the Notification issued under the Act. It has been

indicated therein that the Forest Department will not declare

areas notified, under Sections 4 & 5 of the Act as "forest".

2.     The background facts show that the State Government

decided to notify the area in question under Section 4 of the Act,

prohibiting activities contained in the said notification dated 18th

August, 1992 for a period of 30 years. The effect of the decision

in M.C. Mehta v. Union of India & Ors. (2004 (12) SCC 118) on

the areas declared under Sections 4 and 5 of the Act, have to be

noted.

3.     Learned counsel for the petitioner in the I.A. No. 1901 and

I.A.   No.1999    filed   by   Kant   Enclave   Residents      Welfare

Association, I.A. 1955 filed on behalf of Karamyogi Shelters Pvt.

Ltd. and certain other I.As. i.e. I.A. Nos. 1965-66 and 2024 in

I.A. 1901-1904 for impleadment and directions are filed by PCL

Industries. It is the stand that the decision of this Court in M.C.

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Mehta’s case (supra) fully takes care of the situation.         It is

submitted that the decision was mining centric. In the instant

case the development started in 1992. The earlier judgment

clearly excluded constructions already undertaken. There cannot

be any retrospective effect in the inter-fraction of forest and in

the instant case the first and in most of the cases the first licence

was granted prior to the Conservation Act. Reference is also

made to Faridabad Complex Requisition and Development Act,

1971 (in short the ‘1971 Act’) the National Capital Region

Planning Board, 1985 and also to the object of 1971 Act.        It is

pointed out that the situation for pre 21.12.1992 period has

been dealt with in paras 80 & 81 of the earlier judgment. Similar

stand has been dealt with and rejected in para 82. It is pointed

out that there is an overriding effect so far as Section 27 is

concerned and the1971 Act has to be kept out of consideration

because of Section 27.

4.   Learned Amicus curie on the other hand submitted that

this Court nowhere has kept the cases of the applicant out of

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consideration.    In fact the other questions like the effect of

Section 4 were examined.

5.   In the order dated 18th August, 1992 issued by the Forest

Department of the Government, Serials 9 to 16 become relevant.

6.   It is to be noted that Section 4 is subject to Section 3

Notification. Conservator of Forest in his letter to M/s R. Kant &

Company dated 15.5.1996 noted as follows:

           "M/s. R. Kant & Co. 407 Vishal Vhawan 95             Nehru Place, new Delhi 110019 is allowed to             proceed ahead with their plan in Khasra No. 9             to 16 Vill. Anangpur, Faridabad in accordance             with the agreement signed with Haryana             Government.      Through Commissioner and             Secretary.     Town and Country Planning             Haryana dated 27 May 1992."

7.   It is to be noted that earlier the focus was on areas and not

on khasra numbers. The stand of the applicants regarding pre

21.12.1992 has been dealt with in paras 80 &81 of the earlier

judgment.     The decision of this Court in M.C. Mehta’s case

(supra) dealt with the applicability of the Conservation Act to the

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areas teated as forest by the State Forest Department in

Paragraphs 78 ,79, 80, 81 & 82. It was inter alia observed as

follows:

              "78. The provisions of the Act provide for            the conservation of forest and for matters            connected therewith or ancillary or incidental            thereto. Any forest land or portion thereof            cannot be used for any non-forest purposes or            assigned by way of leases or otherwise to any            private     person    or  to   any    authority,            corporation, agency or any other organisation            not owned, managed or controlled by the            Government, except with the prior approval of            the Central Government. Mining activity within            forest    area    cannot   be    permitted    in            contravention of the provisions of the Act. The            Act makes the contravention of any of the            provisions of Section 2 as an offence            punishable in the manner provided in the Act.                79. The controversy is in respect of certain            leases where area under the lease is covered            under notification issued under Sections 4            and/or 5 of the Punjab Land Preservation Act,            1900. The question is whether such area is            "forest" of any kind.                80. Under Section 3 of the aforesaid Act,            whenever it appears to the State Government            that it is desirable to provide for the            conservation of subsoil water or the prevention            of erosion in any area subject to erosion or            likely to become liable to erosion, such            Government may by notification make a            direction accordingly. Under Section 4(b), the            State Government has power to regulate,            restrict or prohibit the quarrying of stone or            the burning of lime at places where such stone            or lime had not ordinarily been so quarried or            burnt prior to the publication of the            notification under Section 3. Under Section 5            (b) in respect of any specified village or            villages, or part or parts thereof, comprised

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within the limits of any area notified under Section 3, the State Government may, by special order, temporarily regulate, restrict or prohibit the quarrying of any stone or the burning of any lime at places where such stone or lime had ordinarily been so quarried or burnt prior to the publication of the notification under Section 3. In respect of some mining areas notifications have been issued under Section 4 and in respect of some, notifications have been issued both under Sections 4 and 5. The submission is that invoking of Sections 3, 4 and 5 is only to conserve subsoil water and prevention of the area from erosion of land and is not to create any forest. It has been pointed out that in cases where the notifications have been issued, only felling of trees had been prohibited and not quarrying of stone.

  81. It cannot be disputed that the State Forest Department has been treating and showing the aforesaid areas as "forest". The contention urged on behalf of the State Government is that it was on account of erroneous viewpoint of the Forest Department. In fact and law, such area is not "forest" and mining is not prohibited and, therefore the question of seeking permission under Section 2 of the FC Act does not arise.    82. In the instant case, it is not necessary to decide the legal effect of issue of the notification under Sections 4 and/or 5 of the Act. Not only in their record has the area been shown as forest but affidavits have been filed in this Court stating the area to be "forest". In T.N. Godavarman Thirumulkpad v. Union of India10 this Court held that the term "forest" is to be understood in the dictionary sense and also that any area regarded as a forest in government records, irrespective of ownership, would be a forest. The State of Haryana, besides having filed affidavits in the forest

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         matters treating such areas as forest for the           purposes of the FC Act has been seeking prior           approval from the Central Government for           diversion of such land for non-forestry           purpose. Reference in this connection may           also be made to the affidavit dated 8-12-1996           filed by Banarsi Das, Principal Chief           Conservator of Forests, Chandigarh, Haryana           in Environmental Awareness Forum v. State of           J&K11. Our attention has also been drawn to           letter dated 26-11-2002 addressed by the           Divisional Forest Officer, Faridabad to the           Mining Officer, Faridabad forwarding to him a           list of blocked forest areas of Faridabad           district and requesting him to ensure that the           said forest areas are not affected by any           mining operations as also to a letter dated 17-           9-2001 sent by the Principal Chief Conservator           of Forests, Haryana (Panchkula) to the           Director of Environment, Haryana stating           therein that no mining activity can be           permitted in the area. On the facts and           circumstances of the case, we cannot permit           the State Government to take a complete           somersault in these proceedings and contend           that the earlier stand that the area is forest           was under some erroneous impressions. In the           present case, for the purposes of the FC Act,           these areas shall be treated as forest and for           use of it for non-forestry purpose, it would be           necessary to comply with the provisions of the           FC Act."

8.   In para 82 it has been noted that it is not necessary to

    decide the legal effect of the issue of the notifications under

    Sections 4&5 of the Act.

9.   Conclusions in the said case were to the following effect:

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"96. 1. The order dated 6-5-2002 as clarified hereinbefore cannot be vacated or varied before consideration of the report of the Monitoring Committee constituted by this judgment.

2. The notification of environment assessment clearance dated 27-1-1994 is applicable also when renewal of mining lease is considered after issue of the notification.

3. On the facts of the case, the mining activity in areas covered under Sections 4 and/or 5 of the Punjab Land Preservation Act, 1900 cannot be undertaken without approval under the Forest (Conservation) Act, 1980.

4. No mining activity can be carried out on area over which plantation has been undertaken under the Aravalli Project by utilisation of foreign funds.

5. The mining activity can be permitted only on the basis of sustainable development and on compliance of stringent conditions.

6. The Aravalli hill range has to be protected at any cost. In case despite stringent conditions, there is an adverse irreversible effect on the ecology in the Aravalli hill range area, at a later date, the total stoppage of mining activity in the area may have to be considered. For similar reasons such step may have to be considered in respect of mining in Faridabad district as well.

7. MOEF is directed to prepare a short-term and long-term action plan for the restoration of environmental quality of Aravalli hills in Gurgaon district having regard to what is stated in final report of CMPDI within four months.

8. Violation of any of the conditions would entail the risk of cancellation of mining lease.

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          The mining activity shall continue only on            strict compliance of the stipulated conditions."

10.   It is to be noted that in the counter affidavit filed by the

State of Haryana on 10.9.2006 it has been inter alia stated as

follows:

                "This notification covers Khasra Nos. 9 to            16 of the village Anangpur. Since then this            land is being treated as forest and it was also            included in the list of forests in the            Government record. The affidavit filed by the            forest department, Haryana in case of CWP            No. 202 of 1995 in T.N. Godavarman            Thirumulpad v. Union of India & Ors., this            area was shown as a forest. Section 2 of the            Forest Conservation Act, 1980 restricts the de-            reservation of forest or use of forest land for            non-forest purposes."

                "M/s. R.Kant & Co. present applicant            applied     for   exemption    from   Haryana            Development and Regulation of Urban Area            Act, 1975 for establishment of Films Studio            and Allied Complex at village Anangpur. The            Government exercising the powers conferred            by Section 23 of Haryana Development and            Regulation of Urban Area Act, 1975            (hereinafter referred to as ‘Act of 1975’) vide            letter dated 17.4.1984 granted the exemption            subject to certain conditions.        Prior to            notification under Section 4 of Punjab Land            Preservation Act, 1900, the said land was not

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          shown as forest in Government records. The            conditions were: (a)        The company gets the layout plan finally            approved from DTCP within 60 days of the            grant of the exemption letter. (b)        The company shall submit a bank guarantee            equal to 10% of the total cost of all            development works as certified by the Director            within 60 days of the issue of this letter. (c)        That the exemption is conditional and subject            to the production of title deeds as proof of            ownership of the land in question by M/s.            R.Kant and Company."

17.   That the applicant failed to comply with the terms       and conditions of the agreement and undertaking of       the exemption granted u/s 23 of the Act of 1975.       Therefore a show cause notice dated 19.12.1986       was issued to the applicant for withdrawal of the       exemption. The copy of the show cause notice       dated 19.12.1986 is as Annexure R-5.                      21. That         Principal      Chief                      Conservator of Forest vide letter                      dated 27.1.2006 informed the                      Director Town & Country Planning                      Department that Khasra Nos. 9 to                      16 of Anangpur is notified under                      Section     4   of    Punjab    Land                      Preservation     Act,   1900     vide                      notification dated 18.8.1992. Hence                      the above area was treated as Forest                      in view of the order dated 18.3.2004                      passed by this Court in M.C.                      Mehta’s case (supra).      Since the                      applicant never submitted any                      proposal      with     the     Forest                      Department for diversion of Forest                      land for non-forestry use under the                      Forest Conservation Act, 1980,

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                       therefore the Director Town &                         Country     planning    asked    the                         applicant     vide   letter   dated                         27.6.2006 to seek the diversion of                         Forest land in Khasra Nos. 9 to 16                         of village Anangpur for non-forestry                         use under the Forest Conservation                         Act, 1980."

11.   Reference can be made to Sections 3, 4 and 5 of the Act.

Section   3   inter-alia    provides   that   whenever    the        State

Government with a view to conserve - (a) sub-soil water; (b)

erosion in any area; may make a notification for the said purpose

and Section 4 thereof provides as to what activities can be

prohibited. A perusal of Section 4 and 5 would show that what

can be prohibited is-

         (a) The clearing or breaking up of                  any           area/land which was not under cultivation;

         (b) The quarrying of stone or burning of lime           which was not so being done earlier;           (c) The cutting of trees or timber or collection           or removal of any forest produce except for           bonafide domestic use;

         (d) The setting on fire of trees, timber or forest           produce;

         (e) The admission,           herding,   retention     or           pasturing of animals;

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          (f)   The examination of forest produce;

          (g) The grant of permits to the inhabitants of            the towns and villages to take any tree or timber            or forest produce for their own use or to pasture            sheep or camel or to cultivate or to make building            etc."

12.   In view of the notification under Section 4 when the clearing

or breaking up of the land is not permitted that itself is a bar

from fresh construction because a construction only can take

place if clearing and breaking of an area/land taking place. This

prohibition is clearly contained in the notification of 1992. The

reliance placed by the applicants on clause (g) is clearly

misconceived, inasmuch as the permissible activity allowed

within clause (g) is in favour of inhabitants of town and villages

within the limits or vicinity of any such area. The admitted case

is that the applicants herein have developed plots in the area in

question and have sold it to persons who are not inhabitants of

towns and villages within such specified living area, but could be

anybody from all over the country or outside, and therefore

clause (g) in Section 4 has no application. The factum of

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developing a plot and then construct therein would amount to

clearing or breaking up of an area or land.

13.   The judgment in M.C. Mehta’s case (supra) notes the

argument, which is presently reiterated that the State Forest

Department has been treating and showing the areas notified

under Sections 3, 4 and 5 as forest. This Court noted this in

para-82 of the judgment which has been extracted above.

14.   This Court was not only examining the mining activity in

the area upto 5 km on the Haryana side of the Ridge, but also in

the Aravalli Hills causing environmental degradation as is

apparent from para-1 of the judgment. Further in para-8, it has

been noted that the application that was filed by Delhi Ridge

Management Board not only sought for a direction to stop all

mining activities but also of pumping of ground water in and

from areas upto 5 km from Delhi Haryana border on the Haryana

side of the Ridge, inter-alia stating that this was in the larger

interest of maintaining ecological balance of the environment. As

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per learned Amicus Curie location of the applicant company’s

plots are in the Ridge and in the Aravalli chain.

15.   Under the orders of this Court dated 22.7.2002, the

Environmental Pollution Control Authority (EPCA for short) was

directed to give a report with regard to the Environment in the

area preferably after a personal visit. The objective of the visit by

the EPCA members has been noted in para 12 of the judgment

as under:

  1. Assessment of the level of compliance with the conditions

     laid down in the regulatory procedures like the no-

     objection certificate (NOC) granted by authorities to the

     mine-owners.

  2. Evidence of land and habitat degradation in and around

     the mining sites.

  3. Evidence of misuse and shortage of ground water in the

     area.

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   4. Assessment of the implication of such activities for the

     local ecology and drinking water sources in the area.

16.   During the visit, it appears EPCA found clear evidence of

violation of some of the key conditions of order of this Court,

dated 10.5.1996.

17.   EPCA referred to the notification of August, 1992 which

report is extracted at para-14 of the judgment. In fact the EPCA,

in its report regarding compliance of environmental management

plans recommended by NEERI as directed by this Court on

10.5.1996 at SI.No.4 noticed as under:

S1. No.     Directive                           Enforced or not

4         Green belt on either side            We saw large-scale

         of the road between                  construction on this

         Surajkund and Badkal                 road from schools to

         (P.S. The applicant’s                management colleges

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         near the Surajkund)                  and housing colonies

18.   The recommendation of EPCA are as under:

         ’Not only must further degradation be           halted but all efforts must be made to           ensure     that    the  local   economy     is           rejuvenated, with the use of plantations and           local water harvesting-based opportunities.           It is indeed sad to note the plight of people           living in these hills who are caught between           losing their water-dependent livelihood and           between losing their only desperate           livelihood to break stones in the quarries. It           is essential that the Government of Haryana           seriously    implements     programmes     to           enhance the land based livelihood of people           - agriculture, animal care and forestry.           Local people must not be thrown into           making false choices, which may secure           their present but will destroy their future.           Already, all the village visited by EPCA           complained of dire and desperate shortages           of drinking water. Women talked about long           queues before taps to collect water. Clearly           water resources of the region are critical           inputs to development and cannot be           wasted and destroyed like this. The State           Government must come up with strategies           to involve local communities in the future           development of this region’.

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19.   Central Ground Water Board’s report referred to in para-16

shows that the area in question in Village Anangpur has been

notified as a very precarious ground water situation. Any

construction activity therein without adequate water reserves will

also have a negative effect. In para-24 of M.C. Mehta’s case it is

noted that ground water table is already at critical stage in

Faridabad.

20.   Therefore it is not correct as contended by the applicant

that the nature of lands of the applicant were considered by this

Court in the earlier case and the restrictions did not operate so

far as they are concerned.

21.   I.A.s are accordingly dismissed.

                                        .....................................J                                               (DR. ARIJIT PASAYAT)

                                        .....................................J

                                                      (C.K. THAKKER)

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                .....................................J

              (LOKESHWAR SINGH PANTA)

New Delhi, May 14, 2008

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