Brief facts of the case
These Civil appeals arose under Section 22 of the National Green Tribunal Act, 2010 ( NGT Act). The correctness of the judgment and order dated 4 May 2016 of the National Green Tribunal (NGT) is an issue.
The Central Empowered Committee, the first respondent in its report, concluded that part of Bus Stand Constructed by the M/s. Prashanti Surya Construction Co., the second respondent and the appellant, the Himachal Pradesh Bus Stand Management and Development Authority at McLeod Ganj in Himachal Pradesh violates the provisions of the Forest (Conservation) Act, 1980. The CEC recommended the demolition of the illegal portions.
The NGT accepted these findings of the CEC, observing that the Bus Stand disturbs the ecology of the area. Thus, the NGT directed the demolition of the structure of the Hotel-cum-Restaurant in Bus Stand Complex by the second respondent, along with compensation to be paid by the second respondent, Appellant and, State of Himachal Pradesh and its Department of Tourism and an inquiry to be conducted by Chief Secretary of the state of the Himachal Pradesh.
It was submitted that the land for construction of the Bus Stand Complex was legitimately provided when the forest land was diverted for “non-forest purposes” through orders issued by MOEF.
The appellant included the Hotel-cum-Restaurant structure in the Bus Stand Complex to make it commercially viable, for which it then assigned the rights to the second respondent without assigning any interest in the land.
The objection was not raised by sixth and seventh respondents when this was in public knowledge, but they only did so belatedly when the construction was already underway.
It was the responsibility of the second respondent to get appropriate compliances under Himachal Pradesh Town and Country Planning Act, 1977 (TCP Act), after the project was handed over.
The Deputy Commissioner Kangra had recommended the Director of the TCP Department to relax the parameters as this was a first of its kind parking complex at a hill station, regularly suffering from traffic congestion.
Section 14(3)(e) of the HP Bus Stand Act empowers the appellant to establish and maintain hotels and restaurants at or near the bus stands. No secrecy in awarding the project to the second respondent, having made the lowest bid.
The state of Himachal Pradesh even moved an application to seek the consent of MOEF for a change of land use for the construction of a Hotel-cum-Restaurant structure. The application was not dismissed on merits, but only owing to an “inability to consider the same” as proceeding were before the CEC.
The explanation under Section 2 of the Forest Act, provides that “nonforest produce” means the breaking up or clearing of any forest land for any purpose other than re-afforestation. Thus, the Hotel-cum-Restaurant structure was sanctioned by the clearances already granted.
Further, the State of Himachal Pradesh submitted that the Bus Stand Complex had all the required permissions and the second respondent was not conferred any undue advantages. The report of District and Sessions Judge, which the Supreme Court asked it to submit was flawed.
The State of Himachal Pradesh argued that this project will help in economic improvement in the area by employing the local population. If the project was to be demolished at that stage, it will cause environmental damage as debris arising out of demolition will be difficult to dispose of in an area that is congested and covered with extensive vegetation.
The appellant expanded the scope of permission for the construction of a Bus Stand and parking space, to the construction of Hotel-cum-Restaurant structure. The Second respondent began construction without the approval of drawings and plans by the TCP Department, which later pointed to the issues in the plans.
MOEF rejected the request state of Himachal Pradesh for the extension of the use of the forest land for anything other than a Bus Stand and parking space.
The de-reservation of forest land for the construction of the Hotel-cum-Restaurant structure violated section 2(i)of the forest Act and order dated 13 November 2000 issued by this Court in Centre for Environmental Law vs. Union of India, which held that further land shall not be de-reserved pending further orders from this Court.
The actions of the appellant and the second respondent were deliberately in violation of the provisions of the Forest Act, constituting the violation of the “environmental rule of law” enunciated by this Court in Hanuman Laxman Aroskar vs. Union of India.
Observations by the Court
The environmental rule of law is a facet of the concept of rule of law. It includes features that are specific to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools- conceptual, procedural, and institutional to bring structure to the discourse on environmental protection. It seeks a multidisciplinary analysis of any concepts with the shared understanding between science, regulatory decisions, and policy perspective.
The “law” element in the environment rule of law does not make it peculiar to lawyers and Judges, however, it seeks to include all stakeholders in formulating strategies to deal with current environmental challenges. In the decision of Hanuman Laxman Aroskar vs. Union of India, it was held that environmental governance is founded on the need to promote environmental sustainability and the health of the environment is key to preserving the right to life under Article 21 of the Constitution. Proper structure for environmental decision-making finds expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution.
The environmental rule of law calls on judges to marshal the knowledge from the record, which is sometimes limited, and respond sternly and decisively to the violations of the environment. In this case, as well the exact damage cannot be quantified but the procedure by which the appellant and the second respondent sought to achieve their purpose is not acceptable.
The appellant and second respondent engaged in construction without complying with the plans drawn proceeded even after being halted by TCP. Even the post facto refusal by the MOEF was also not taken into consideration. These actions violate environmental rule of law. A lack of scientific certainty is no ground to imperil the environment.
The Supreme Court in the case Lal Bahadur vs. State of Uttar Pradesh noted the importance of judicial intervention for ensuring environmental protection and underscored the principles that are the cornerstone of our environmental jurisprudence i.e., the precautionary principle, the polluter pays principle, and sustainable development.
The role of the Court and tribunals cannot be overstated in ensuring that the ‘shield’ of the “rule of law” can be used as a facilitative instrument in ensuring compliance with environmental regulations. Thus, the direction given by NGT in its impugned judgment shall be confirmed.
The Court clamps down on the illegal activities on forest land. In the case of the Hospitality Association of Mudumalai vs. Defence of Environment and Animals, it was held that the Precautionary Principle makes it mandatory to anticipate, prevent, and attack the causes of environmental degradation.
In MC Mehta vs. Union of India, the Court held that the utilization of forest land for “non-forest purposes” without Central Government approval was violative of the Forest Act and therefore illegal.
The present permission by MOEF was only for the construction of ‘parking space’ and ‘bus stand’ in Mcleod Ganj and consciously decided not to modify the permission. The Construction by the second respondent, even with the tacit approval of the appellant would have been illegal.
The issue that the TCP Act was not in Schedule I of the NGT, Act, thus NGT cannot adjudicate the violations under TCP Act. The appellant and the second respondent as per the TCP Act had to take prior permission from the TCP department before changing the nature of land but they did not. This issue of adjudication was academic as NGT’s impugned judgment was grounded on the violation of Section 2 of the Forest Act, which was an Act within Schedule I of the NGT Act.
The Court directed the demolition of the Hotel-cum-Restaurant structure in the Bus Stand Complex. The state of Himachal Pradesh and the second respondent could utilize the parking space and bus stand in the complex after demolition.
Click here to read the full judgement.
Libertatem.in is now on Telegram. Follow us for regular legal updates and judgment from courts. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter. You can subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.