M.C. MEHTA v. UNION OF INDIA & ORS.

p. 426 Copy page pinpoint

75Copy pinpoint75. We may mention, without comment, that the purpose of issuing a notification under the PLP Act is to ensure that in the closed area there is no activity such as cultivation, pasturing of sheep and goats, erection of buildings, herding, pasturing or retaining cattle etc. Therefore, the notification is a clear indication that such closed areas must be forest land or treated as forest land so that such objectionable non-forest activities B are not carried out therein and that activities that are not normally carried out in forests are prohibited in forest land, so as to preserve and protect such forest land. A notification under the PLP Act does not convert land into forest land but recognizes it as such or at least requires it to be treated as such.

76Copy pinpoint76. We may also mention, enpassant, the provisions of Section 35(1) of the Indian Forest Act, 1927. This refers to breaking up or clearing of land for cultivation, pasturing of cattle etc. and reads as follows: “35. Protection of forests for special purposes. – (1) The State Government may, by notification in the Official D Gazette, regulate or prohibit in any forest or waste-land - (a) the breaking up or clearing of land for cultivation; (b) the pasturing of cattle; or (c) the firing or clearing of the vegetation; when such regulation or prohibition appears necessary for any of the following purposes: - (i) for protection against storms, winds, rolling stones, floods and avalanches; (ii) for the preservation of the soil on the ridges and slopes and in the valleys of hilly tracts, the prevention of landslips or of the formation of ravines, and torrents, or the protection of land against erosion, or the deposit thereon of sand, stones or gravel; (iii) for the maintenance of a water-supply in springs, rivers and tanks; G (iv) for the protection of roads, bridges, railways and other lines of communication; (v) for the preservation of the public health. (2) ……… (3) ………” H

M.C. MEHTA v. UNION OF INDIA & ORS. 427 [MADAN B. LOKUR, J.]

77Copy pinpoint77. We leave it at that because of the distinguishing features in the M.C. Mehta set of orders as contrasted and recognized with the facts in Sandhu. Review in disguise

78Copy pinpoint78. Notwithstanding unambiguous conclusions arrived at by this Court from time to time on matters pertaining to the environmental degradation of the Aravalli hills and the implications of a notification issued under the provisions of the PLP Act, the applicant persisted in pressing these applications and sought to contend that it was fully entitled, as of right, to make constructions on the land owned by it and known as Kant Enclave. Submissions were made by learned counsel for the applicant on issues that have conclusively been settled by this Court and in fact, the submissions were only a rehash of submissions made from time to time and which have been rejected. It was submitted by learned counsel for the applicant, relying on Delhi Administration v. Gurdip Singh Uban16 that the applications filed by it and by the Residents Welfare Association were perfectly maintainable. Reference was made to Point D No. 1 discussed in the decision. This Point reads as follows: “Whether a party who had lost his case in civil appeal could be permitted to bypass the procedure of circulation in review matters and adopt the method of filing applications for “clarification”, “modification” or “recall” of the said order in civil appeals so that the matters were not listed in circulation but could be listed in Court straight away? Whether such applications could be filed even after dismissal of review applications? What is the procedure that can be followed in such cases?”

79Copy pinpoint79. This Court considered the question in considerable detail and deprecated the practice of filing review applications in undeserving cases without any proper examination of the substance of the applications. It was noted that indiscriminate filing of such review petitions wastes the time of the Court and that there must be some seriousness and restraint in filing review applications. This Court answered the question in the following manner: “At the outset, we have to refer to the practice of filing review applications in large numbers in undeserving cases without properly examining whether the cases strictly come within the narrow 16 (2000) 7 SCC 296 H

p. 428 Copy page pinpoint

A confines of Rule XL of the Supreme Court Rules. In several cases, it has become almost everyday experience that review applications are filed mechanically as a matter of routine and the grounds for review are a mere reproduction of the grounds of special leave and there is no indication as to which ground strictly falls within the narrow limits of Rule XL of the Rules. We seriously deprecate B this practice. If parties file review petitions indiscriminately, the time of the Court is unnecessarily wasted, even it be in chambers where the review petitions are listed. Greater care, seriousness and restraint is needed in filing review applications.”

80Copy pinpoint80. It was made clear that what is of important is the substance of the application and not the title given to it and genuine cases requiring a clarification or modification or a recall would of course be entertained. It was observed by this Court as follows: “We should not however be understood as saying that in no case an application for “clarification”, “modification” or “recall” is maintainable after the first disposal of the matter. All that we are saying is that once such an application is listed in Court, the Court will examine whether it is, in substance, in the nature of review and is to be rejected with or without costs or requires to be withdrawn with leave to file a review petition to be listed in chambers by circulation. Point 1 is decided accordingly.”

81Copy pinpoint81. On this basis, it was submitted by learned counsel for the applicant that there was no bar in the applicant moving or pressing appropriate applications and that is precisely what has been done.

82Copy pinpoint82. In our opinion, there is nothing in these applications before us to remotely suggest that the various orders passed by this Court need any clarification or modification or recall. All issues raised by the applicants have been considered threadbare by several Benches of this Court and all of them have arrived at a similar conclusion namely that the environmental and ecological degradation of the Aravalli hills must G stop and that everybody is bound by the terms of the notification issued under the provisions of the PLP Act and that closed land under the notification dated 18th August, 1992 is a forest and should be treated as a forest.

M.C. MEHTA v. UNION OF INDIA & ORS. 429 [MADAN B. LOKUR, J.]

83Copy pinpoint83. That apart, the view expressed by this Court in Gurdip Singh A Uban cannot be limited only to applications for modification, clarification or recall. There is a growing tendency to provide different nomenclatures to applications to side-step the rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled as applications for directions, rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review petition by circulation. In our opinion, the nomenclature given to an application is of absolutely no consequence - what is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation.

84Copy pinpoint84. Considering the substantive applications filed by the applicant, we are of the clear opinion that these applications are nothing but disguised review petitions and they should not have been listed for hearing in open D Court without an appropriate order passed by this Court. They should have first been circulated and dealt with as review petitions and if the concerned Bench was of the view that they were required to be heard in open Court, only then should they have been listed for hearing in open Court. However, we are not detaining ourselves any further in this regard since we propose to deal with these applications on merits, treating them as applications for clarification, modification, recall, reconsideration etc. of the orders passed by this Court from time to time.

85Copy pinpoint85. Learned counsel for the applicants (Kant & Co. as well as the Residents Welfare Association of Kant Enclave) and the learned Amicus made detailed submissions over a couple of days on a variety of issues that they believed arose in these cases. Even though we are of opinion that in view of several decisions rendered by this Court from time to time, such submissions are not open to be made by learned counsel, nevertheless, the submissions having been made, we will deal with each of them. G Is the notified land a forest or treated as a forest?

86Copy pinpoint86. The principal contention urged by learned counsel for the applicants is that the land in question Khasra Nos. 9 to 16 in village

p. 430 Copy page pinpoint

A Anangpur notified under the provisions of the PLP Act on 18 th August, 1992 was not forest land. This submission is clearly liable to be rejected. (i) Affidavits of the State of Haryana

87Copy pinpoint87. In this connection, we may refer to the affidavit of Shri Banarsi Das, IFS, Principal Chief Conservator of Forests, Haryana. The affidavit B dated 8th December, 1996 was filed in Environmental Awareness Forum v. State of Jammu & Kashmir.17 In this affidavit it is stated that the total forest area in Haryana in 1985-86 was 1,68,543 hectares. This included 26,499 hectares of areas closed under the PLP Act. In other words, as far back as in 1985-86, if not earlier, the Principal Chief C Conservator of Forests of the Government of Haryana considered and treated areas closed under the provisions of the PLP Act as forest land. This was well before the present controversy had arisen. The affidavit goes on to state that in 1995-96 the total forest area in Haryana was 1,54,706 hectares and this included 11,513 hectares of area closed under the PLP Act. It is quite clear to us that as far as the State of Haryana is concerned, closed areas under the PLP Act were always treated as forest land and this was well before any controversy arose in the matter.

88Copy pinpoint88. Pursuant to an order passed by this Court an affidavit was filed on 25th February, 1997 by Shri S.K. Maheshwari, IAS, Commissioner & Secretary in the Forest Department. The affidavit was filed in the case of Godavarman. It was stated that since the PLP Act came into force in 1900 some cut-off date was required for identification of forests and forest land. This cut-off date was taken as 25th October, 1980 that is the date on which the Forest (Conservation) Act, 1980 came into force. This date was taken only for convenience and for no other reason. F This is clear from the affidavit which also states that closure under the PLP Act “creates forests” during the period of closure, after which the land is no longer shown as forest in government records. The affidavit reiterates that closed areas are “counted as forest” during the currency of the closure under the PLP Act. Therefore, identification of forest land from 1900 would have been a humungous task and to avoid an G unnecessary exercise, the cut-off date of 25th October, 1980 was taken. The affidavit cannot be read or understood to mean that land not recorded as ‘forest’ on 25th October, 1980 in the Government records can never become or be recognised or treated as ‘forest’. This would be too far- fetched and would go against the letter and spirit of the PLP Act. H 17 W.P. No.171 of 1996

M.C. MEHTA v. UNION OF INDIA & ORS. 431 [MADAN B. LOKUR, J.]

89Copy pinpoint89. The affidavit of Shri Prem Prashant, IAS, Chief Secretary of A Haryana takes us back beyond 1985-86 and 25th October, 1980. In the affidavit dated 10th September, 2006 filed in response to I.A.No.1901 of 2005 filed by the applicants (in M.C. Mehta) Shri Prem Prashant takes us back to notifications dated 10, 1970 and 10th November, 1980 issued by the State of Haryana through the Forests and Animal Husbandry B Department and subsequent notifications dated 16th November, 1995 and 28th November, 1997. This was to bring on record that the provisions of the PLP Act have been made use of through notifications issued thereunder for several decades for the protection and preservation of forests and forest land, even if such lands are not recorded as ‘forest’ in Government records. This would be in consonance with the provisions and the spirit of the PLP Act.

90Copy pinpoint90. In an affidavit dated 15th March, 2009 filed by Shri Dharam Vir, the Chief Secretary of Haryana with reference to the report of the CEC dated 15th January, 2009 in M.C. Mehta it was submitted that all constructions made post 17th April, 1984 (the date on which exemption was granted to the applicants under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975) may be allowed to exist. This affidavit must be read in conjunction with the notification of 18th August, 1992 and if soread, it suggests that the Chief Secretary desired that constructions made between 17th April, 1984 and 18th August, 1992 may be allowed to exist. However, even Shri Dharam Vir did not doubt or deny that closed areas under the PLP Act are forest or forest land. He only suggested a possible reprieve to the applicants.

91Copy pinpoint91. The view of the Government of Haryana is therefore quite clear and consistent that land notified under the PLP Act is forest land and no construction can be made thereon but if some dilution is to be made, then it should be only for the period between 17th April, 1984 and 18thAugust, 1992.

92Copy pinpoint92. Quite apart from the affidavits filed by the State of Haryana through the Chief Secretary or the Principal Chief Conservator of Forests or the Commissioner & Secretary of the Forest Department, we are aware that through the conduct and correspondence of the Town & Country Planning Department that it was very keen on permitting construction in closed areas. We are not sure why the Town & Country Planning Department was persistently going out of its way to be of H

p. 432 Copy page pinpoint

A assistance to the applicants but whatever the reason, it was categorical in recommending the environmental degradation of the Aravalli hills. (ii) Orders of this Court

93Copy pinpoint93. In addition to the affidavits of the State of Haryana, the various orders passed by this Court from time to time in Godavarman and in B M.C. Mehta make it very clear that closed areas under the PLP Act are forest and forest land and need to be treated as forest land.

94Copy pinpoint94. The decisions of this Court, go back to 10th May, 199618 when this Court proposed to deal with preserving the environment and controlling pollution through the stoppage of mining operations within the C radius of 5 km from the tourist resorts of Badkal Lake and Surajkund. This Court considered reports prepared by the Haryana Pollution Control Board and the National Environmental Engineering Research Institute. It was noted that the State of Haryana had already prohibited mining operations within the radius of 5 km from these tourist resorts and on a D consideration of the reports mentioned above, it was concluded that there shall be no mining activity within a 2 km radius of the tourist resorts of Badkal Lake and Surajkund. All the mines, which fall within the said radius shall not be reopened. It was further directed that no construction activity of any type shall be permitted now onwards within the 5 km radius of Badkal Lake and Surajkund and all open areas shall be converted into green belts. Interestingly, this Court also noted as follows: “The Badkal lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. The mining activities in the vicinity of these tourist resorts may disturb the rainwater drains which in turn may badly affect the water level as well as the water quality of these water bodies. The mining may also cause fractures and cracks in the subsurface, rock layer causing disturbances to the aquifers which are the source of groundwater. This may disturb the hydrology of the area.”

95Copy pinpoint95. The order dated 10th May, 1996 was subsequently modified on 11 October, 199619 to the effect that now onwards construction th

activity would not be permitted in certain areas, and there was no blanket ban. Permission to construct was subject to utmost necessity for 18 M.C. Mehta v. Union of India, (1996) 8 SCC 462 19 M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India, H (1997) 3 SCC 715

M.C. MEHTA v. UNION OF INDIA & ORS. 433 [MADAN B. LOKUR, J.]

recreational and tourism purposes and no other. However, exemption was granted to plots already sold or allotted prior to 10th May, 1996 in developed areas (this was varied subsequently). It was further directed as follows: “All development schemes, and the plans for all types of constructions relating to all types of buildings in the area from one km to 5 km radius of the Badkhal Lake and Surajkund (excluding Delhi areas) shall have prior approval of the Central Pollution Control Board and the Haryana Pollution Control Board.”

96Copy pinpoint96. Further, with regard to the issue of water management, this Court referred to the report of the National Environmental Engineering C Research Institute and noted as follows: “…..According to the report Surajkund lake impounds water from rain and natural springs. Badkhal Lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The D land use and soil types as explained in the report show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large-scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed.”

97Copy pinpoint97. The reason why we are referring to availability of water, or the lack of it, is because even the Chief Minister of Haryana in his order of 11th July, 1990 had noted that the availability of water from the aquifers is of paramount importance and that aquifers available at the deeper level would be fully exploited to meet the demand of water supply for the population of Kant Enclave.

98Copy pinpoint98. In spite of all these concerns shown to the environment and availability of water, the fact of the matter is that today Badkal Lake is bone dry and there is no water in the ‘Lake’. We had specifically asked learned counsel for the parties as well as learned Amicus about the status of Badkal Lake and we were told quite categorically that today H

p. 434 Copy page pinpoint

A there is absolutely no water in Badkal Lake. The damage to the environment has been done and appears to be irreversible.

99Copy pinpoint99. One of the more significant orders was passed by this Court on 12th December, 1996.20 Through this order, this Court laid down what could be described as ‘forest’ and ‘forest land’. The view taken was that the two expressions must be given their dictionary or natural meaning and if so considered, there can be no doubt that degraded forests and closed lands under the PLP Act are nothing but forest land. Similarly, the orders passed by this Court from time to time in M.C. Mehta make it loud and clear that the Aravalli hills need protection from environmental degradation and the laws must be strictly enforced to ensure that there is no damage caused to the ecology of the Aravalli hills. In view of the clear expression of views and conclusions arrived at by this Court from time to time and repeated on several occasions we have no doubt that closed areas under the PLP Act are nothing but forest land and deserve to be treated as such.

100Copy pinpoint100. In the decision rendered on 12th December, 1996 this Court directed the identification of areas which are ‘forests’ irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest. As a result of this, each State Government was directed, inter alia, to: E (i) Identify areas which are “forests”, irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest; (ii) identify areas which were earlier forests but stand degraded, denuded or cleared. F

101Copy pinpoint101. Notwithstanding the concern shown by this Court for the environment and ecology of the Aravalli hills, the tacit support given to the applicants by the Town & Country Planning Department of the State of Haryana completely vitiated the efforts of the Forest Department as well as the orders of this Court. It came to such a pass that the Delhi G Ridge Management Board was compelled to file an application on 29th November, 2001 being I.A. No. 1785 of 2001 in which it was stated that the withdrawal and pumping of ground water in the Ridge was a matter of serious concern. It was, therefore, prayed that the Government of Haryana may be directed to stop all mining activity and pumping of H 20 T.N. Godavarman v. Union of India, (1997) 2 SCC 267

M.C. MEHTA v. UNION OF INDIA & ORS. 435 [MADAN B. LOKUR, J.]

ground water in and from the area of 5 km from the Delhi-Haryana A border in the Haryana side of the Ridge. This application resulted in this Court passing an order on 6th May, 2002 directing the stoppage of all mining activity and pumping of ground water as prayed for. This order was followed by another order passed by this Court on 22nd July, 2002 (not reported) requiring EPCA to furnish a report, which it did on B 9th August, 2002 to the effect that the order passed on 6th May, 2002 deserved to be confirmed.

102Copy pinpoint102. Subsequently, EPCA gave another report on 21st October, 2002 on the basis of information obtained from the Central Ground Water Board to the effect that mining activity was going on and the mines were operating below the ground water level which was resulting in C exploitation and destruction of ground water sources.

103Copy pinpoint103. The blatant and open flouting of orders passed by this Court resulted in the constitution of the Central Empowered Committee (CEC) on 17thSeptember, 2002 for monitoring and ensuring compliance of the orders passed by this Court. The CEC submitted reports to this Court D from time to time. These have already been adverted to and need not be repeated.

104Copy pinpoint104. In its decision dated 18th March, 2004 this Court considered all this material and addressed all the issues raised before it including issues of environmental and ecological degradation. E

105Copy pinpoint105. This Court specifically addressed itself to the question whether closed areas under the PLP Act are ‘forest’ of any kind. This Court noted that the Forest Department of the State of Haryana showed such areas as ‘forest’ in its records and treated such areas as ‘forest’; affidavits had also been filed on behalf of the State of Haryana in cases pending in F this Court to the same effect; the word ‘forest’ and ‘forest land’ had been clearly explained by this Court in its order dated 12th December, 1996 and finally the Government of Haryana itself sought permission from the Central Government to divert land closed by notifications under the PLP Act for non-forest purposes. Therefore, it was held that the G State of Haryana cannot now take a somersault and contend that areas closed under the PLP Act are not forest. This Court disposed of I.A. No. 1785 of 2001 and confirmed the order passed on 6th May, 2002 and held that areas closed under the PLP Act cannot be utilized for non-

p. 436 Copy page pinpoint

A forest purposes without the prior permission of the Central Government under the provisions of the Forest (Conservation) Act, 1980. (iii) Review Petition of Kant Enclave

106Copy pinpoint106. In view of the restrictions imposed by this Court, which obviously did not suit the applicants, a review petition being R.P. No. 914 B of 1997 was filed by R. Kant & Co. on or about 26thFebruary, 1997. In the review petition, it was not disclosed that a notification had been issued under the PLP Act. While concealing this extremely important fact, a review was sought of the order passed by this Court on 11th October, 1996 to the effect that no permission is required from the C Central Pollution Control Board or the Haryana Pollution Control Board in respect of the constructions made by the applicant beyond the 1 km but within the 5 km radius of Badkal Lake and Surajkund.

107Copy pinpoint107. The review petition was taken up for consideration on 17th March, 1997 when it was made clear that plans for construction of D houses could be filed before the Competent Authority who could examine them in accordance with the applicable rules and if the plans were in order, they could be “kept ready until further orders.” Since the full facts were not placed before this Court, an order was passed to the effect that for the purposes of examination, there should be no insistence by the concerned authorities on the production of No Objection Certificate E from the Central or State Pollution Control Board. It was also observed that 2 ½ storey buildings could be constructed.

108Copy pinpoint108. On 13th May, 1998 the Court modified the order passed on 17th March, 1997 to the effect that in certain private areas where construction is proposed, only single storey hutments could be permitted F to be constructed and not tall buildings as originally conceived. Therefore, it is quite clear from the orders passed by this Court that construction was not permitted until further orders but that plans could be prepared and examined.

109Copy pinpoint109. A reference to the above orders clearly indicates that the G State of Haryana and the applicants had full knowledge of the proceedings in this Court, but showed no concern for the environment and the ecology of the area.

110Copy pinpoint110. In our opinion, it was extremely important for R. Kant & Co. to have come out with full facts in the review petition filed by it, more H

M.C. MEHTA v. UNION OF INDIA & ORS. 437 [MADAN B. LOKUR, J.]

particularly the fact of the issuance of the notification dated 18thAugust, A 1992.The failure to disclose this material fact vitiates the proceedings initiated by the applicant in this Court. (iv) Interlocutory Application filed by the applicant

111Copy pinpoint111. Notwithstanding complete clarity on the issue of what is a forest and forest land, the status of closed areas notified under the PLP B Act and issues of environmental and ecological degradation of the Aravalli hills, the applicants made bold to file I.A. No. 1901 of 2005 (in M.C. Mehta) sometime in October 2005 in which it was prayed that the decision rendered by this Court on 18th March, 2004 is restricted only to mining activities and does not affect the construction activities carried out by the applicant, which it is entitled to in view of the orders passed by this Court on 13th May, 1998.

112Copy pinpoint112. In response to the application, an affidavit dated 10th September, 2006 was filed by Shri Prem Prashant, IAS, Chief Secretary of Haryana in which it was categorically stated that the provisions of the PLP Act have been taken recourse to from time to time for the protection of forests and forest land. In this regard, he annexed notifications issued by the State of Haryana on 12th March, 1970 through the Forests and Animal Husbandry Department, 10th November, 1980 through the Forest Department, 16th November, 1995 through the Forest Department and 28th November, 1997 through the Forest Department. E

113Copy pinpoint113. The notification dated 18th August, 1992 was one of such notifications for the protection of forests and forest lands. It was categorically stated on affidavit that from the date of the notification, that is, 18th August, 1992 the subject land was being treated as forest and it was also included in the list of forests in the Government records. F This was also shown as a forest in the affidavit filed by the State of Haryana in Godavarman. That the subject land was forest land was also stated by the Principal Chief Conservator of Forests in a letter dated 27th January, 2006 addressed to the Director, Town & Country Planning Department. In fact, the said Director had required the applicant G to seek the diversion of the forest land for non-forestry purposes by letters dated 27th January, 2006 and 27th June, 2006 but the applicant did not do so. It was specifically pointed out to the applicant in both the letters that constructions made by the applicant were illegal, but obviously, to no effect. H

p. 438 Copy page pinpoint

114Copy pinpoint114. The application was taken up for consideration by a Bench of three learned judges who dismissed the application by a judgment and order dated 14th May, 2008. 21 The issue whether land closed by a notification issued under the provisions of the PLP Act was forest land was once again considered by this Court and the decision rendered on 18th March, 2004 was specifically and categorically reiterated. B

115Copy pinpoint115. We would have imagined that the applicant R. Kant & Co. would have learnt a lesson from the dismissal of its review petition, the interlocutory application as well as the orders passed by this Court from time to time and reports given by expert bodies, but it does not appear to have been so. We say this because, after the decision of this Court C rendered on 14th May, 2008 R. Kant & Co. filed an application being I.A. No. 2310 of 2008 on 11thJuly, 2008 challenging a communication dated 23rd May, 2008 issued pursuant to the orders passed by this Court. Subsequently, the applicant also filed I.A. Nos. 2377-79 of 2009 objecting to the reports filed by the CEC. These I.A.s were not argued before us and no submissions were made in respect of these I.As. (v) Issue again raised in this Court

116Copy pinpoint116. The pendency of the present applications in this Court gave occasion to the applicants to once again try and raise the issue of closed areas under the PLP Act being not forest or forest land. Reference was made to the decision of this Court in Sandhu. It was submitted that this Court had struck a discordant note in Sandhu. We cannot agree since the decision in Sandhu itself distinguished the M.C. Mehta set of orders both on facts and in law. The decision rendered in Sandhu cannot, by any stretch of imagination, come to the aid of the applicants.

117Copy pinpoint117. We may only note that in so far as the present case is concerned, there is a wealth of material to indicate clearly that closed land under the PLP Act is forest land or in any event, is required to be treated as forest land. Several notifications issued under the PLP Act have been brought to our notice which prohibit certain activities which G ought not to be carried out on forest land. The affidavits filed by responsible officers of the State of Haryana, including affidavits filed by the Chief Secretary unequivocally state that lands closed under the PLP Act are forest land. Similarly, there are judgments and orders passed by this Court to the same effect and the conduct of the State of Haryana, 21 H M.C. Mehta v. Union of India, (2008) 17 SCC 294

M.C. MEHTA v. UNION OF INDIA & ORS. 439 [MADAN B. LOKUR, J.]

including the Forest Department and its relationship with the Town & A Country Planning Department is a clear indication that lands closed under the provisions of the PLP Act are nothing but forest or forest land.

118Copy pinpoint118. There is absolutely no doubt that Sandhu is distinguishable both on facts and in law and it has been recognised as such by this Court in the judgment delivered in Sandhu. It was suggested by learned counsel B for the applicants that because this Court did not enquire into the basis of inclusion of closed areas as forest, therefore the notification dated 18th August, 1992 is vitiated. Reliance placed on an observation in Sandhu with respect, may not strictly be valid, in the sense that there was enough material to indicate why, at least since 1970 closed areas have been included as forest and treated as forest by the State of Haryana. We C may add that there was a report of a Committee that eventually led to the issuance of the notification dated 18th August, 1992 but that was unfortunately not placed before us in spite of our request to learned counsel for the State of Haryana.

119Copy pinpoint119. What is of crucial importance and great significance is that no one has challenged the validity or correctness of the notification dated 18th August, 1992. We do not see how the correctness or validity of the notification can be challenged without any direct attack. A collateral attack cannot be permitted more certainly so by relying upon another decision of this Court, which has nothing to do with the facts of the present case.

120Copy pinpoint120. On the other hand, the applicants have ‘challenged’ every significant order passed by this Court, either through a Review Petition or through Interlocutory Applications. The applicants have been unsuccessful in every such adventure. F

121Copy pinpoint121. Taking an overall view of all the facts in the case and the law on the subject, we have no doubt that Kant Enclave is a forest or is a forest land or is required to be treated as a forest or forest land and absolutely no construction activity could have been permitted on it with effect from 18th August, 1992. Any and all construction activity in Kant G Enclave since that date is illegal and impermissible in law. Mining centric orders

122Copy pinpoint122. The next submission advanced by learned counsel for the applicants was to the effect that all the orders passed by this Court were H

p. 440 Copy page pinpoint

A mining centric and did not relate to construction activity in Kant Enclave. This argument is stated only to be rejected. The judgments delivered by this Court have only to be read and understood and it would be more than obvious that the concern of this Court was to preserve and protect the environment in and around the Aravalli hills and generally avoid environmental and ecological degradation of the area both through the stoppage of mining activity and constructions. Unfortunately, this Court was unable to enforce its orders in letter and spirit, thanks entirely to the apathy of the State of Haryana and the persistence of the applicants with the result that Badkal Lake is today, admittedly, absolutely dry.

123Copy pinpoint123. The culpability of some of the State authorities in ensuring this tragic situation is quite evident from I.A. No. 2269 of 2007 filed by the Administrator, Haryana Urban Development Authority, in which the first prayer is to the effect that this Court should issue an appropriate direction that the judgment and order dated 18th March, 2004 was restricted only to mining activities and did not affect the development or urbanisation or construction activities carried out as per the laws, rules and regulations of the Municipal Corporation of Faridabad or the Haryana Urban Development Authority. Despite the clear judgment and order passed by this Court, the attitude of some sections of the State Government obviously did not change and unrestricted development through mining activity and construction activity was given precedence over the environment resulting in, amongst other things a parched Badkal Lake. Notification issued erroneously

124Copy pinpoint124. It was then contended by learned counsel for the applicants that the inclusion of Khasra Nos. 9 to 16 in village Anangpur in the notification dated 18th August, 1992 was a mistake and that it was always the intention of the State of Haryana to keep this land out of the rigours of the PLP Act. This submission too is stated only to be rejected. If it was in fact the intention of the State of Haryana to keep Kant Enclave out of the purview of the notification dated 18th August, 1992 nothing prevented the State from either issuing a corrigendum or issuing a fresh notification or taking some positive step to deleteKhasra Nos. 9 to 16 in village Anangpur from the rigours of the notification. Alleged inapplicability of the notification

125Copy pinpoint125. Reliance was then placed on the provisions of sub-section H (1) and sub-section (7) of Section 29 of the Faridabad Complex

M.C. MEHTA v. UNION OF INDIA & ORS. 441 [MADAN B. LOKUR, J.]

(Regulation and Development) Act, 1971 to submit that the notification A dated 18th August, 1992 was not applicable to controlled areas. These provisions read as follows: “Section 29 - Declaration of controlled area (1) Notwithstanding any law for the time being in force the Chief Administrator may, with the previous approval of the State B Government by notification, declare the whole or any part of the area within the Faridabad Complex including an area within a distance of 8 kilometers on the outer sides of the boundaries of Faridabad Complex as a controlled area. (2) to (6) ————— C (7) After considering the objections, suggestions and representations, if any, and the recommendations of the Chief Administrator thereon, the State Government shall decide as to the final plans showing the controlled area and signifying therein the nature of restrictions and conditions applicable to D the controlled area and publish the same in the Official gazette and in such other manner as may be prescribed.”

126Copy pinpoint126. In terms of Section 2(f) of the said Act, a controlled area means an area declared under Section 29 of the said Act to be a controlled area. E

127Copy pinpoint127. We are unable to appreciate the relevance of this submission for the reason that, as per the Statement of Objects and Reasons, there was a multiplicity of local authorities in the Faridabad-Ballabhgarh area with the result that integrated development of this area was not possible. Consequently, it was essential to devise a set up for administration of this areawhich would meet the objectives of rapid and integrated development and eliminate haphazard development. The said Act was intended to achieve this objective. Quite clearly, this has nothing to do with the notification dated 18th August, 1992. Moreover, Section 29(1) of the said Act related to any law for the time being in force - the notification dated 18th August, 1992 came much later and was not in force when the said Act was enacted. Other submissions

128Copy pinpoint128. It was then contended that the exemption granted on 17th April, 1984 under the provisions of the Haryana Development and H

p. 442 Copy page pinpoint

A Regulation of Urban Areas Act, 1975 exempted the applicant or in any case Kant Enclave from all the provisions of the said Act. While this may be so, we do not see how the said Act exempts the applicant or Kant Enclave from the prohibitions imposed by the subsequent notification dated 18th August, 1992. The said Act has no relevance or reference to the provisions of the PLP Act. B

129Copy pinpoint129. Learned counsel for the applicants also contended that in view of the decision rendered by this Court in Sandhu, the subject land ought to have been an existing forest as on 25th October, 1980 when the Forest (Conservation) Act, 1980 came into force. In our opinion, this is not at all a correct interpretation of the decision rendered by this Court C in Sandhu. It is nobody’s case, and indeed it cannot be anybody’s case that no area can be declared as a forest after 25th October, 1980. If this were the interpretation given, then the entire purpose of the order dated 12th December, 1996 passed by this Court would be rendered meaningless since it was in terms of this order that forest land was directed to be D identified, even if that land was not so recognised as forest land. Acceptance of the interpretation sought to be given by learned counsel would also emasculate the PLP Act.

130Copy pinpoint130. The final submission of learned counsel for the applicants was that constructions were made in terms of the orders passed by this E Court on 17th March, 1997 and 13th May, 1998 and in fact, building plans and sanction plans were approved by the concerned authorities. Therefore, it must be held by this Court that the members of the Kant Enclave Residents Welfare Association had acted bonafide and therefore their houses or constructions should not be demolished as suggested by the CEC. F

131Copy pinpoint131. In this regard, it must be appreciated that the order dated 17th March, 1997as modified on 13th May, 1998 permitted construction only in accordance with law and not de hors the notification dated 18th August, 1992. It is not the case of any of the applicants before us, and indeed it cannot be their case, that the orders of this Court gave a complete go by to the notification and virtually quashed it even thoughit was never under challenge at that point of time or even today. It appears that very large residential complexes have been constructed despite the orders of this Court, which did not give any blanket permission to the applicants to make constructions, according to their whims and fancies. For reasons that are not at all clear, such constructions were permitted by the

M.C. MEHTA v. UNION OF INDIA & ORS. 443 [MADAN B. LOKUR, J.]

concerned authorities despite the orders of this Court and even though the notification dated 18th August, 1992 prohibited breaking up of the land. It is difficult, under the circumstances, to take the view that the applicants and the concerned authorities had acted bonafide.

132Copy pinpoint132. We had asked learned counsel for the applicants to place before us the details of the construction made in Kant Enclave. The B following chart was then placed before us on 24th July, 2018. This chart indicates that out of a total of about 1600 plots said to have been carved out by R. Kant &Co. in Kant Enclave, conveyance deeds have been executed only in respect of 284 residential plots and three commercial plots. On the residential plots, only 33 houses have been constructed and it appears that not one of them is a single-storey hutment. C

S.No. Particulars Work Done

1. Conveyance Deeds Executed 284 residential plots

2. Conveyance Deeds Executed 3 commercial plots

3. Houses constructed and people living 33 houses D

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

5. Overhead water tank of 545 KL capacity 3 nos. constructed and functional

6. Underground water tank of 1200 KL 3 nos. capacity constructed and functional

7. Pumping Station (Functional) 1 no.

8. Pumping Machine (Submersible pumps) 9 nos. E installed and functional

9. Sewage Treatment Plant having cost of 1 no. more than Rs. 70,00,000/- installed

10. Parks (fully developed) 14 nos.

11. Roads completed 136460 Sq. Mtr. (Approx. 20 KM)

12. Street lights poles erected and energised 627 nos. F

13. Internal sewage pipe lines completed and 21150 Mtrs. functional

14. Storm water drain completed and 18000 Mtrs. functional

15. Water supply pipe lines completed and 22700 Mtrs. functional G

16. Trees planted 10000 nos. (Along road side and in green belt)

17. Fire hydrants/Fire tanks having 265 CUM 3 nos. capacity

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

p. 444 Copy page pinpoint

133Copy pinpoint133. The extent of violation of the notification dated 18th August, 1992 is quite frightening and one can only imagine the phenomenal environmental and ecological damage caused to the area by the applicants. This could not have happened without the knowledge of the State of Haryana and its officers who permitted blatant disregard of the rule of law despite affidavits of the Chief Secretary of the State of B Haryana. The rule of law seems to have broken down in Haryana and become the rule of men only to favour the applicants. At this point, we cannot help but referring to a passage from a judgment of this Court with regard to the Aravalli hills and the need for their protection. We had intended to avoid this reference only because it would be repetitive, but it is painful to see such a mockery of the law and total lack of concern for the environment and ecology of the Aravalli hills.

134Copy pinpoint134. In the order dated 18 th March, 2004 22 it was stated in paragraph 58 of the Report as follows: “The Aravallis, the most distinctive and ancient mountain chain of peninsular India, mark the site of one of the oldest geological formations in the world. Heavily eroded and with exposed outcrops of slate rock and granite, it has summits reaching 4950 feet above sea level. Due to its geological location, the Aravalli range harbours a mix of Saharan, Ethiopian, peninsular, oriental and even Malayan E elements of flora and fauna. In the early part of this century, the Aravallis were well wooded. There were dense forests with waterfalls and one could encounter a large number of wild animals. Today, the changes in the environment at Aravalli are severe. Though one finds a number of tree species in the hills, timber- quality trees have almost disappeared. Despite the increase of F population resulting in increase of demand from the forest, it cannot be questioned nor has it been questioned that to save the ecology of the Aravalli mountains, the laws have to be strictly implemented.” [Emphasis supplied by us]. Relief G

135Copy pinpoint135. The question that now remains for consideration is whether any relief is required to be granted to the applicants and if so what relief should be granted.

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

M.C. MEHTA v. UNION OF INDIA & ORS. 445 [MADAN B. LOKUR, J.]

136Copy pinpoint136. There is no doubt that irreversible damage has been caused to the environment and ecology of the Aravalli hills. The damage was caused or allowed to be caused, despite a statutory notification issued under the provisions of the PLP Act. The brazenness of the applicants in flouting the law is quite apparent. But what is more unfortunate is the support given to the applicants by the Town & Country Department of the State of Haryana, despite the reservations of the Forest Department. The Town & Country Department in apparent collusion with R. Kant & Co. effectively led a very large number of people up the garden path. Fortunately, only 33 of them have made some personal constructions – but it is not clear whether their constructions are pre or post 18 th August,

137Copy pinpoint137. Therefore, we have two categories of persons who have been taken for a ride by R. Kant & Co. The first category consists of those who have been conveyed land by R. Kant & Co. and the second category consists of those who have been conveyed land and have made constructions. D

138Copy pinpoint138. As far as the first category of persons is concerned, the relief that can be awarded to them is a full refund of their investment along with interest at 18% per annum payable entirely by R. Kant & Co.from the date of the investment.We order accordingly.

139Copy pinpoint139. As far as the second category of persons is concerned, as E submitted by Shri Dharam Vir, Chief Secretary of the State of Haryana in his affidavit of 15th March, 2009 there is an available, reasonable and appropriate course of action to adopt. This course of action is to save or allow to exist constructions made in Kant Enclave pursuant to the exemption granted to the applicant (R. Kant & Co.) on 17th April, 1984 F under Section 23 of theHaryana Development and Regulation of Urban Areas Act, 1975 but before 18th August, 1992 when the notification under the provisions of the PLP Act came into force. Any construction made after 18th August, 1992 is clearly illegal and contrary to law and must be demolished as recommended by the Central Empowered Committee. We accept the submission made by Shri Dharam Vir and the CEC and G do not disturb the constructions made between 17th April, 1984 and 18th August, 1992. We direct accordingly.

p. 446 Copy page pinpoint

140Copy pinpoint140. However, in respect of constructions made after 18th August, 1992 there is no option but to direct the State of Haryanato demolish the illegal and unauthorised constructions. The demolition should be completed on or before 31st December, 2018. We direct accordingly.

141Copy pinpoint141. In Godrej & Boyce Manufacturing Company Limited v. B State of Maharashtra23 this Court considered the issue of unauthorised construction from the point of view of a well-meaning citizen who is led up the garden path by the State, which gives statutory permission for unauthorised constructions. In the present case of Kant Enclave, well- meaning citizens have been virtually duped into investing huge amountsdespiteR. Kant & Co. and the Town & Country Department of the State of Haryana being fully aware of the statutory notification dated 18th August, 1992 and the restrictions placed by the notification. R. Kant & Co. and the Town & Country Department of the State of Haryana were also fully aware that Kant Enclave is a forest or forest land or treated as a forest or forest land, and therefore any construction made on the land or utilisation of the land for non-forest purposes, without the prior approval of the Central Government, would be illegal and violative of the provisions of the Forest (Conservation) Act, 1980. Notwithstanding this, constructions were made (or allowed to be made) in Kant Enclave with the support, tacit or otherwise, of R. Kant & Co. and the Town & Country Department of the State of Haryana. They must pay for this. E This is not to suggest that those who have made constructions after 18th August, 1992 are completely innocent. Nevertheless, it is necessary to compensate them in view of the role played by the Town & Country Planning Department of the State of Haryana. To compensate them for the land, we direct that R. Kant & Co. to give them a full refund of their F investment in the land along with interest at 18% per annum from the date of the investment. We order accordingly.

142Copy pinpoint142. As far as the cost of construction is concerned, we tentatively quantify it at 50 lakhs. This will be paid to those who constructed after 18th August, 1992 and whose construction is directed to be demolished. G The quantified amount will be paid, in equal proportion, by R. Kant & Co. and the Town & Country Planning Department of the State of Haryana. The quantified amount is directed to be paid on or before 31st December, 2018. If anyone who’s construction is demolished in view of our orders, is not satisfied with the quantification, that person is 23 H (2014) 3 SCC 430

M.C. MEHTA v. UNION OF INDIA & ORS. 447 [MADAN B. LOKUR, J.]

at liberty to proceed againstR. Kant & Co. and the Town & Country A Planning Department of the State of Haryana by way of a civil suit in accordance with law and with the cause of action arising as on today.

143Copy pinpoint143. The Polluter Pays Principle is a wholesome principle that has been universally accepted and also adopted and applied in our country through several decisions of this Court. In this context, we may draw attention to among two of the earliest decisions rendered by this Court, namely, Indian Council for Enviro-Legal Action v. Union of India 24 and Vellore Citizens’ Welfare Forum v. Union of India.25 The law having been settled for more than two decades, we are of the view that it must be applied in a case such as the present. The damage caused to the Aravalli hills, as already noted, is irreversible. However, perhaps some of the damage could be remedied - at least we hope so. According to R. Kant & Co. it has expended ` 50 crore in developing Kant Enclave. We do not know the exact or accurate figure but proceed on the basis as stated. In our opinion, it would be reasonable to require R. Kant & Co. to deposit 10% of this amount (that is, ` 5 crore) for rehabilitation of the damaged areas. This amount should be deposited by R. Kant & Co. in the Aravalli Rehabilitation Fund within one month and in any case on or before 31st October, 2018. The matter be listed only for compliance of this direction in the first half of November 2018.

144Copy pinpoint144. We direct the incumbent Chief Secretary of the State of E Haryana to ensure compliance with our remaining orders, both in letter and spirit on or before 31st December, 2018.

145Copy pinpoint145. The substantive applications stand disposed of in the terms mentioned above. F Kalpana K. Tripathy IAs Disposed of.

G 24 (1996) 3 SCC 212 25 (1996) 5 SCC 647