REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4448 OF 2005 VEERU DEVGAN … APPELLANT

VERSUS

STATE OF TAMIL NADU & ANR. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J.

1. The present appeal is preferred by the

appellant against some of the directions issued

in the judgment delivered by the High Court of

Judicature at Madras on December 23, 1999 in

Civil Writ Petition No. 19842 of 1999.  By the

said judgment, the High Court held that though

the  appellant  herein-writ  petitioner  in  the

High  Court-had  not  violated  the  terms  and

conditions of the permission granted to him to

shoot a film and had not caused damage to the

grassland or adversely affected environment, he

would deposit Rs. fifty lakhs which will be

utilized  for  protection  and  improvement  of

environment  and  the  forest  in  and  around

Udhagamandalam.

2. To appreciate the grievance raised by

the  appellant  in  the  present  appeal,  few

relevant facts may be noted.

3. The appellant is the sole proprietor

of M/s Devgan Films which inter alia is engaged

in the production and direction of films since

1996.   The  appellant  conceived  an  idea  of

producing a musical film for children titled

“Raju Chacha”.  The appellant initially started

shooting of the said film in the Gulmarg area

in Kashmir but due to Kargil war, the shooting

was postponed. Then, a decision was taken to

change the venue to Schoolmund (Wenlock Downs

Reserve Forest), Ooty in the State of Tamil

Nadu. For the said purpose, the appellant made

an  application  to  the  Principal  Chief

Conservator of Forests of the State of Tamil

Nadu on August 31, 1999 for issuance of ‘no

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objection certificate’ to shoot a part of the

film in the Nilgiri South and North Division.

On  the  same  day,  the  Principal  Chief

Conservator of Forests granted such permission

for a period of 120 days from October 01, 1999

to March 30, 2000.  The appellant deposited an

amount of Rs. 60,000/- @ Rs. 500/- per day for

120  days  with  the  Information  and  Tourism

Department towards fee for using the area in

question.   He  also  deposited  an  amount  of

Rs.5,000/-  under the  head “Miscellaneous  and

Photograph  expenses”. On  September 06,  1999,

the  Director  of  Information  and  Public

Relations  granted  necessary  permission  for

shooting in Nilgiri District, Ooty. On October

5, 1999, the appellant furnished a refundable

security deposit of Rs. two lakhs in savings

account  towards  permission  for  shooting  the

film and erection of pre-fabricated sets in the

designated  area.  Immediately  thereafter  on

October 07, 1999, the permission sought by the

appellant  was  granted  to  erect  sets  of  a

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particular  size.   The  appellant  stated  that

similar permissions had been granted for more

than  100  films  during  previous  years  for

shooting in the Nilgiri under the Tamil Nadu

Forests  Department  Code,  1984.   A  formal

agreement  was  executed  between  the  sole

proprietor of M/s Devgan Films on the one hand

and  the  District  Forest  Officer  (‘DFO’  for

short),  Nilgiri  South  Division-respondent

No.2, on the other hand, whereby permission was

granted for shooting the film and erection of

temporary  sets  of  the  size  of  60mm  x  60mm

subject  to the  conditions specified  therein.

The appellant was directed to deposit an amount

of Rs.10,800/- as ground rent for erection of

temporary sets. A copy of the said agreement

has  been  produced  by  the  appellant  in  the

present proceedings.

4. It  appears  that  an  article  was

published on December 03, 1999 in a newspaper

‘Dinamalar’ (Tamil Daily) alleging therein that

grasslands were being damaged and wildlife was

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disturbed  by  the  actions  of  the  appellant.

A  notice  was,  therefore,  issued  by  DFO  on

December  06,  1999  to  the  appellant  to  show

cause why permission granted to the appellant

should not be cancelled as the appellant had

violated  conditions  of  the  agreement.  The

appellant was also directed to suspend further

erection of the sets for shooting the film. On

December  9,  1999,  the  appellant  made  a

representation to the Chief Secretary of the

State stating that he had taken full care of

the  environment  and  grasslands  had  not  been

damaged.  A prayer was also made to drop the

proceedings against the appellant and to allow

the  Company  to  complete  the  shooting.  The

grievance of the appellant is that in spite of

the  fact  that  there  was  no  damage  to  the

environment and the appellant had not committed

breach of any condition of agreement, the DFO,

without affording an opportunity of hearing to

the appellant, passed an order on December 10,

1999 cancelling the permission on the purported

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ground  that  the  appellant  had  violated

conditions  of  the  agreement  entered  into

between the parties and had caused damage to

grasslands.

5. Being  aggrieved  by  the  order

cancelling permission, the appellant approached

the High Court by filing a writ petition under

Article 226 of the Constitution challenging the

cancellation  of licence.   A  Non-Governmental

Organization  (NGO), namely,  Tamil Nadu  Green

Movement,  on  the  other  hand,  challenged  the

order  dated  October  07,  1999  by  which

permission  was  granted  to  the  appellant  to

shoot the film “Raju Chacha”.

6. Both  the  petitions  were  heard

together.  The  High  Court  by  the  impugned

judgment, dated December 23, 1999, held that it

was not proved that the appellant-licensee had

violated terms and conditions of the licence.

It also recorded a finding on the basis of the

reports  submitted  by  the  Forest  Authorities

that the appellant had not caused damage to

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environment  or  grassland.  The  action  of

cancellation  of  licence  and  termination  of

agreement was, therefore, illegal and contrary

to law.  The High Court, however, directed the

appellant  to  deposit  Rs.  50  lakhs  for

protection of environment.

7. Being  aggrieved by that part of the

order, the appellant has approached this Court.

The judgment of the High Court was delivered on

December  23,  1999.   Immediately  thereafter,

there was Christmas vacation. According to the

appellant,  under  the  circumstances,  he  was

constrained to comply with the order passed and

direction issued by the Court.

8. After  getting  certified  copy  of  the

judgment, the appellant approached this Court

by filing Special Leave Petition on April 03,

2000.  On April 24, 2000, notice was issued by

this Court and the matter was ordered to be

tagged with Writ Petition (Civil) No. 202 of

1995 [T.N. Godavarman Thirumulpad v. Union of

India & Ors.].  It may be stated that in T.N.

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Godavarman,  this  Court  is  considering  the

larger issue of protection of forests. On April

23, 2001, this Court ordered that any amount

deposited by the writ-petitioner in the High

Court of Madras should be invested in a fixed

deposit  in  a  nationalized  Bank.  The  Special

Leave  Petition  remained  pending  for  a  long

period. On April 01, 2005, however, when the

matter  was  placed  before  the  Court,  it  was

noticed that the instant case did not relate to

larger issue raised in T.N. Godavarman but was

an individual one. The Court, hence, ordered to

place the matter before a regular Bench. On

July 22, 2005, leave was granted. On February

25, 2008, a Bench presided over by Hon’ble the

Chief Justice of India directed the Registry to

place  the  appeal  for  final  hearing  during

summer vacation.  That is how the matter has

been placed before us.

9. We have heard the learned counsel for

the parties.

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10. The learned counsel for the appellant

strenuously contended that the direction issued

by  the  High  Court  to  pay  Rs.  50  lakhs  was

wholly illegal, unlawful and arbitrary.  Once a

finding is recorded by the High Court that the

appellant  had  not  violated  conditions  of

licence or committed breach of the agreement

entered into between the parties and no damage

had been caused to grassland, nor environment

had been adversely affected, the Court had no

power, authority or jurisdiction to direct the

appellant  to  pay/deposit  any  amount.   The

counsel submitted that affidavits were filed by

the  parties,  records  were  called  for  and

parties  were  heard.  On  the  basis  of  the

findings  recorded  in  the  reports  submitted

before  the  Court,  it  concluded  that  the

appellant had acted in consonance with terms

and  conditions  of  the  agreement.  Whatever

amount required to be paid towards damage was

actually paid by the appellant. Compounding of

offences under the relevant laws had also been

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done  and  the  requisite  amount  was  paid.

Precisely because of that the Court allowed the

petition filed by the appellant-writ petitioner

and  set  aside  the  order  dated  December  10,

1999. The Court also, only for that reason, did

not grant relief sought by NGO in the other

petition  seeking  setting  aside  permission

granted and agreement entered into between the

appellant  and  the  State  of  Tamil  Nadu.  The

counsel further submitted that over and above

regular  payments  which  were  required  to  be

made, certain additional amounts were also paid

by the appellant including refundable deposit

of Rs. 2 lakhs.  The State was duty bound to

refund  even  the  said  amount.   On  all  these

grounds,  it  was  submitted  that  the  appeal

deserves to be allowed by setting aside the

direction of the High Court to deposit Rs. 50

lakhs by the appellant-writ petitioner to the

respondent State Authorities. The State is also

bound  to  repay  refundable  deposit  of  Rs.2

lakhs.

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11. The learned counsel appearing for the

State fairly stated before the Court that the

High  Court,  no  doubt  recorded  a  finding  in

favour of the appellant. He, however, submitted

that  the  High  Court  was  exercising  plenary

jurisdiction  under  Article  226  of  the

Constitution. The Court, in exercise of that

jurisdiction, thought it proper to direct the

appellant  to  deposit  Rs.  50  lakhs  for

protection of environment.  The said amount can

be utilized in general public interest and in

making  citizens  aware  of  the  environmental

protection.

12. Having heard the learned counsel for

the  parties,  in  our  opinion,  the  direction

issued by the High Court cannot be said to be

in  accordance  with  law  or  based  on  the

materials  before  the  Court  or  conclusions

recorded by the Court on that basis.  We have

been taken to the relevant part of the judgment

of the High Court. The High Court considered in

detail the complaint made against the appellant

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as also the reports submitted by the Forest

Authorities. On the basis of the reports, the

Court  recorded  a  finding  that  there  was  no

violation on the part of the appellant of terms

and conditions of the agreement entered into

between the appellant and the State and hence

State was not justified in cancelling licence

and terminating the agreement. The High Court,

therefore, set aside the order passed by the

State  cancelling  licence  and  terminating

agreement by allowing the petition.

13. Referring  to  the  relevant  statutes,

such  as,  Forest  (Conservation)  Act,  1980,

Forest  (Conservation)  Rules,  1981  and  Tamil

Nadu  Forest  Department  Code,  1984,  the  High

Court stated;

“The real question here, however, is as to whether the words ‘breaking up or  clearing  of  any  forest  land  or portion thereof’ are applicable to the activity undertaken by Producer in the Schoolmund area. The activity that has been  permitted is the erection of a temporary set for and shooting a film, which set is to remain on the land for a  period  of  about  120  days.  The technology  used  in  erecting  the  set

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does not involve digging the earth for support. The set rests on the base of the G.I. pipes. The base of the G.I. pipe merely rests on the ground and is not embedded therein. The set is to be removed within a matter of few months. On  such  removal,  the  grass  will admittedly  regenerate  after  the winter.  The  forest  land  is  to  be restored to its original condition. No part  of  the  forest  land  is  lost  as would  be  the  case  if  a  structure involving digging of foundations were to be constructed. For the duration of about 120 days the land cannot be used for other purposes. The land is free of tree growth. Admittedly, no trees existed or exist on this land, and no tree  has  been  cut.  The  land  is grassland,  the  land  is  located  very close  to  a  main  Highway,  the plantations which exist at a distance of  about  450  meters  are  man  made plantations.  There  is  a  settlement with a School also at a distance of about  450  meters.  Close  to  the location  is  a  forest  road,  through which  equipment  has  been  apparently brought to the site by the Producer.

   According to the Producer, the State Government has consistently been permitting  the  shooting  of  films  in this  area.  In  the  counter-affidavit filed by one Kumar Mangat, who holds a Power of Attorney from the Producer, it is stated that several films have been  shot  in  this  area.  He  has mentioned the names of certain films, Betabi in 1997, Deewana in 1992, Allan in 1995, Sadak in 1995, Khubsoorat in 1999,  Hum  in  1980s,  Jigar  in  1992, Tridev,  Ravanraj  etc.  He  has  also

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stated  that  he  had  reliably  learnt that  permission  had  been  granted  by the  Department  earlier  to  one Padmalaya Films, Madras to erect sets of a dimension of 300 ft x 300 ft in adjoining  area  of  Paimund  on  Old Mysore Road at Udugai, South Range in the  year  1995.  The  State  Governemnt has  not disputed the fact that this area  has been made available in the past  to Producers as a location for their films. In fact, the Tamil Nadu Forest  Department  Code  specifically contemplates  the  grant  of  such permission  and  also  sets  out  the authority  competent  to  grant  the permission  and  the  power  of  that authority  to  impose  such  conditions and restrictions as may be considered appropriate  by  the  Chief  Conservator of Forests”.

14. Proceeding  further,  the  Court

observed;

“’Breaking  up’  referred  to  in  the Explanation involves activity such as extensive  digging  over  a  substantial area, or to considerable depth, or for a purpose which is of long duration. Digging  wells,  or  foundation  for houses or tillig the land for purposes of cultivation in a forest may amount to  breaking up the forest land. The breaking up should be such as to have some  degree  of  permanence.  All activity on the forest land does not amount to breaking up the forest land. Resting  the  support  for  a  temporary set  for  a  few  months  on  the  forest land  does not amount to breaking up

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the forest land. So also the laying of a  water  pipe  of  relatively  small diameter, or of electric wires covered with  plastic,  a  little  below  the surface, for a short period cannot be regarded as amounting to breaking up the  forest  land,  especially  when  at the end of that period of few months the pipes and wires are to be removed and  the  grass  will  regenerate  over that area.

… … … … …

   The shooting of a film, per se, in a reserve forest cannot be regarded as a  non-forest  purpose  as  defined  in Section  2  of  Forest  (Conservation) Act. Nature is meant to be enjoyed at the  least  visually,  and  not  merely kept in a frozen state, unless there are  very  special  reasons  for preventing  entry  of  people  into special areas, which are sensitive and delicate,  and  whose  preservation  in their  current  state  is  for  good reasons  regarded  as  essential.  The Apex  Court  has  had  occasion  to consider  the  provisions  of  the  Act largely in the context of claims that mining activity should be allowed to continue,  or  that  trees  should  be allowed to be cut, or that forest land be  allowed  to  be  leased,  or  that buildings be allowed therein. In all such  cases,  where  deforestation  was the  evident  consequence,  approval  of the Central Government was held to be mandatory.  There  is  no  danger  of deforestation  by  the  erection  of  a temporary  set rested on the base of G.I.  pipes which merely rest on and are not rooted in the earth”.

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15. Dealing with the reports submitted by

the Authorities, the Court said;

“In this case, we have reports of the Collector  and  the  District  Forest Officer.  According  to  the  Collector, in  the  winter  months  grass automatically  withers  away,  and  that only  in  May,  they  will  naturally regenerate. According to the District Forest  Officer,  the  winter  ends  in February.  Permission  given  to  the Producer here is only upto the period which expires long before the month of May  begins, and grass will begin to regenerate  naturally.  Moreover,  the minimal damage caused to the grass is undertaken  to  be  repaired  by  the Producer,  who  even  according  to  the State’s Officers, has been maintaining the grass.

     Having regard to the facts of this case, which we have set out in considerable  details  in  the  earlier part  of  our  Order,  we  are  not persuaded  to  hold  that  the  prior approval of the Central Government in the circumstances was essential before the Producer could have proceeded to put  up  the  temporary  set  at  the Schoolmund  area,  or  that  such permission  is  necessary  for  shooting the film in the forest.

      We do not belittle in anyway, the  genuine  concern  of  the environmentalists for the preservation of the forest land in the area. The granting of permission to erect sets

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is  not  a  part  of  the  standard conditions subject to which permission is to be granted for filming in the area. The details regarding the extent of  the  area  to  be  occupied  by  a temporary set, it’s weight etc., were not made known by the Producer to the Principal Chief Conservator or to the Director of Information, when he first applied. That application as we have seen is a bad one. It is only when he approached the District Forest Officer that  details  were  made  known.  The District  Forest  Officer  in  turn  had only  secured  permission  and concurrence  of  the  Principal  Chief Conservator  over  telephone  for incorporating permission to put up the set  in the agreement. We cannot say that the Producer has been fair to the State  in  the  manner  in  which  he secured  permission  for  putting  up  a set of this magnitude. It is also not in  dispute  that  the  Petitioner  had compounded alleged offences regarding the  drawing  of  water  from  a  water source  at  some  distance  for  the purpose of watering the grass in and around  the  structure.  He  had  also compounded an offence for damaging the grass in some parts, the extent of the damage is not known. Having regard to the  amount  of  fine  that  has  been levied  and  collected,  it  could  not have been substantial.

     Having regard to this conduct of the  Producer  and  also  having  due regard to the need for ensuring that no damage is done to the forest land, we consider it appropriate to appoint a  Commissioner  at  the  cost  of  the Producer  to  supervise  all  further

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activity  of  the  Producer  in Schoolmund. The Commission may at his discretion  associate  such  other persons  as  he  may  regard  as  being possessed  of  special  knowledge  and experience of the area or of ecology and administration in his work”.

16. The High Court, however, in para 47,

directed;

“47.   The producer has obtained the right to use of this land, though for a limited period, for a nominal fee, which does not in the lease represent the proper value of what he has been allowed  to  use.  The  budget  for  the film is said to be Rs.10 crores. It has  been  stated  by  him  in correspondence that he has incurred an expenditure of about Rs.4 crores for the erection of the set. Keeping in view  this,  and  other  relevant considerations, we direct the Producer of the film to deposit a sum of Rs.50 lakhs  (Rupees  Fifty  Lakhs)  in  this Court within a period of one week from today. That amount shall be utilised for  the  activities  concerning  the protection  and  improvement  of  the environment  and  the  forest  in  and around  Udhagamandalam  and  also  for programme  for  creating  a  greater awareness of the need to preserve the environment and of the methods to be employed in that regard. The disbursal of  that  amount  shall  be  subject  to further directions to be made by this Court after receiving the reports from

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the  Commissioner  appointed  by  this Court,  who  shall  consult  all  such experts  as  he  may  consider  to  be capable of giving well informed expert view on the forests and ecology in and around Ooty”.     (emphasis supplied)

17. In para 51, the Court stated;

“51. In  view  of  the  order  now made, and subject to compliance by the petitioner  with  the  directions  given by  us  in  this  order,  and  the directions which the Commissioner may give during the period between now and the completion of the shooting and the restoration  of  the  area  to  it’s original condition, we set aside the order of the District Forest Officer dated  10.12.1999  cancelling  the agreement  dated  7.10.1999.  We  find that the extreme step of cancellation of the agreement on the grounds stated therein was not in the circumstances justified. The employment of about 125 persons for erecting the set was only to be expected having regard to it’s size. The District Forest Officer had not objected to the employment of that number till 95% of the set at a cost of  over  Rs.  2  crores  had  been completed, though he was aware of the size  of  the  set  and  the  number  of persons  employed.  Moreover  the relevant  clause  in  the  agreement advisedly used to the term ‘about’ and did  not  prohibit  the  employment  of persons  in  excess  of  a  specified number.  The  persons  employed  were, according to Collector, paid Rs.150/- per  day, and there was no complaint from  anyone.  The  use  of  water  for

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sprinkling  the  grass  and  marginal ‘damage’  to  grass  had  been  computed and were not such serious breaches of the  agreement  as  to  warrant  its cancellation”.

18. From  the  above  observations,  it  is

clear that according to the High Court, the

appellant  had  not  caused  damage  to  the

grassland nor had committed any action which

warranted cancellation of licence and yet it

imposed an enormous condition to deposit Rs. 50

lakhs  inter alia  on the grounds, namely, (i)

fixation of nominal fee by the State for the

use of the site; and (ii) heavy budget of the

film (Rs.10 crores). 19. The  counsel  submitted  that  both  the

grounds weighed with the High Court were wholly

irrelevant and totally extraneous to the issue

in question and could not have been taken into

account  by  the  Court  while  adjudicating  lis

between the parties.  To satisfy the conscience

of the Court, however, the counsel submitted

that almost on the same terms and conditions,

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permission  was  granted  to  several  film

producers having more budgets and the case in

hand  was  not  of  showing  any  concession  in

favour of the appellant in fixation of fee.

Hence, even on factual ground, the High Court

was not right.  The counsel also submitted that

even the film was not commercially successful

and according to the appellant, the producer

had incurred loss.

20. Be  that  as  it  may,  in  our  opinion,

legal submission of the learned counsel for the

appellant is well-founded and must be upheld.

If  after  following  proper  procedure  and

complying with all terms and conditions, the

appellant-writ  petitioner  was  granted

permission to shoot the film and all payments

had been made as per the terms and conditions

of the agreement and there was no finding as to

damage  to  environment,  to  grassland  or  to

wildlife as alleged in the newspaper report and

once the High Court was satisfied on the basis

of the reports submitted by the authorities and

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it  set  aside  the  order  of  cancellation  of

licence and termination of agreement, in our

judgment,  the  High  Court  could  not  have

directed the appellant to deposit Rs. 50 lakhs

to be used towards creating greater awareness

for  environmental  protection  and  for

preservation of forests.

21. No doubt the High Court was exercising

plenary jurisdiction under Article 226 of the

Constitution.  To  us,  however,  even  plenary

powers  must  be  exercised  judicially  and

judiciously on the basis of facts before the

Court and on well-settled principles.  Since

the findings recorded by the High Court were in

favour  of the  appellant-writ petitioner,  the

grievance voiced by the appellant that the High

Court was in error in directing deposit of Rs.

50 lakhs is well-founded and the appellant is

entitled to refund of the said amount.

22. As stated by the learned counsel for

the  appellant,  he  had  to  deposit  the  said

amount in view of the fact that on deposit of

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the said amount, the appellant was allowed to

proceed with the shooting of the film. He was

thus  constrained  to  make  such  deposit.  It

would, therefore, be appropriate if we direct

refund of the said amount with accrued interest

thereon to the appellant. The State will also

refund Rs.2 lakhs paid by the appellant to the

State  towards  refundable  deposit,  however,

without  interest.  Let  such  payment  be  made

within a period of four months from today.

23. For the foregoing reasons, the appeal

is allowed, the order passed by the High Court

to the extent of directing the appellant to

deposit Rs. 50 lakhs by him is set aside and

the  said  amount  with  accrued  interest  is

ordered  to  be  paid  to  the  appellant-writ

petitioner of Civil Writ Petition No. 19842 of

1999.  The State will also refund Rs.2 lakhs to

the  appellant.  On  the  facts  and  in  the

circumstances of the case, however, there shall

be no order as to costs.

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…………………………………..J. (C.K. THAKKER)

NEW DELHI,                   ……………………………………J. September 11, 2008. (LOKESHWAR SINGH PANTA)

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