Himachal Pradesh Bus Stand … vs The Central Empowered Committee on 12 January, 2021


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Supreme Court of India

Himachal Pradesh Bus Stand … vs The Central Empowered Committee on 12 January, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, Sanjiv Khanna

                                                                       Reportable

                           IN THE SUPREME COURT OF INDIA
                            CIVIL APPELLATE JURISDICTION


                            Civil Appeal Nos. 5231-32 of 2016


          Himachal Pradesh Bus Stand Management                  .... Appellant
          and Development Authority (HPBSM&DA)



                                         Versus



          The Central Empowered Committee Etc. & Ors.            .... Respondents

                                          With

                           Civil Appeal Nos. 5229-5230 of 2016




Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2021.01.12
14:32:36 IST
Reason:




                                            1
                                  JUDGMENT




Dr Dhananjaya Y Chandrachud, J



This judgment has been divided into sections to facilitate analysis. They are:

A     The appeal

B     Previous orders of this Court

C     The history of the forest land

D     The construction of the Bus Stand Complex

E     Proceedings before the first respondent

F     Proceedings before the NGT

G     Report of the District and Sessions Judge, Kangra

H     Submissions of counsel

I     Analysis

      I.1    Environmental rule of law

      I.2    Role of courts in ensuring environmental protection

      I.3    Illegal activities on forest land

      I.4    Jurisdiction of NGT

J     Conclusion




                                           2
                                                                           PART A


A      The appeal

1      The civil appeals in the present case arise under Section 22 of the National

Green Tribunal Act, 2010 (“NGT Act”). The correctness of a judgment and order

dated 4 May 2016 of the National Green Tribunal (“NGT”) is in issue.


2      The NGT dealt with an original application filed by the second respondent,

who is also the appellant in companion Civil Appeal Nos. 5229-5230 of 2016, to

challenge a report dated 18 September 2008 of the Central Empowered

Committee (“CEC”), the first respondent. In its report, the CEC concluded, inter

alia, that a part of the Bus Stand Complex constructed by the second respondent

and the appellant at McLeod Ganj in Himachal Pradesh violates the provisions of

the Forest (Conservation) Act, 1980 (“Forest Act”). The CEC recommended the

demolition of the illegal portions.


3      The NGT accepted the findings of the CEC, observing that the Bus Stand

Complex seriously disturbs the ecology of the area in which it has been

constructed. The NGT directed, inter alia, that:


(i)    The structure of the Hotel-cum-Restaurant in the Bus Stand Complex be

       demolished by the second respondent;


(ii)   The second respondent shall pay a compensation of Rs. 15 lacs in terms

       of Sections 15 and 17 of the NGT Act;




                                         3
                                                                                 PART B


(iii)   The appellant shall pay a compensation of Rs. 10 lacs, while the State of

        Himachal Pradesh and its Department of Tourism shall pay a

        compensation of Rs. 5 lacs each; and


(iv)    The Chief Secretary of the State of Himachal Pradesh shall conduct an

        enquiry against the erring officers of the appellant, in order to fasten the

        responsibility for the illegal project.




B       Previous orders of this Court

4       By an order dated 16 May 2016, this Court admitted the present appeals

and framed the following substantial questions of law, as provided in Section 22

of the NGT Act:

               “1. Whether the Tribunal has failed to appreciate that the land
               which is subject matter of the appeal had already been
               diverted for non - forest use under Section 2 of the Forest
               (Conservation) Act, 1980?

                2. Whether the Tribunal failed to consider properly the effect
               of Section 14 of the Himachal Pradesh Bus Stand
               Management and Development Authority Act, 1999 which
               empowers the authority to establish and maintain hotels and
               restaurants at or near bus stands?

               3. Whether the Tribunal exceeded its jurisdiction in holding
               that alleged violations of the Himachal Pradesh Town and
               Country Planning Act, 1977 are made out even though the
               said enactment is absent in the Schedule I of enactments
               attached to the National Green Tribunal Act?”



This Court also granted a stay against the operative portion of the NGT’s

judgment directing: (i) the demolition of the Hotel-cum-Restaurant structure in the

Bus Stand Complex; and (ii) an enquiry to be conducted against the appellant’s

officers.
                                               4
                                                                              PART C


5      The above order was modified on 9 September 2016, by lifting the stay

against the enquiry to be conducted against the appellant’s officers. However,

this Court directed that an enquiry shall be conducted by the District and

Sessions Judge, Kangra within whose jurisdiction the Bus Stand Complex is

located. The District and Sessions Judge was directed to place a report before

this Court. Parties to the present appeals were permitted to associate themselves

with the enquiry being conducted by the District and Sessions Judge.




C     The history of the forest land

6     The genesis of the present case originates in an order dated 12 November

1997 of the Union Ministry of Environment and Forests (the fourth respondent,

“MOEF”), on a proposal made by the State of Himachal Pradesh, permitting the

diversion of 0.093 hectares of forest land for the construction of a parking space

at McLeod Ganj, in accordance with Section 2 of the Forest Act. The order is

extracted below:

             “After careful consideration of the proposal of the State
             Government, the competent authority hereby conveys
             approval under Section -2 of Forest (Conservation) Act, 1980,
             for diversion of 0.093 hectares of forest land for the
             construction of parking place at McLeod Ganj, forest division
             Dharamsala, District Kangra, HP, subject to following
             conditions:

             1. Legal status of the forest land will remain unchanged. The
             forest land will be restored to forest Department as and when
             it is no more required.

             2. Compensatory afforestation will be carried out, by planting
             at least 250 plants of deodar and ornamental species around
             McLeod Ganj town as proposed, at a cost of Rs.11500/ -
             which is reported to have been deposited by user agency vide
             TC No.3 dt. 02.09.97.


                                             5
                                                                               PART C


             3. The Forest land will be used only for the purpose as
             mentioned in the proposal.

             4. The user agency will abide by any condition that may be
             imposed by the State Forest Department in the interest of
             afforestation and protection of the forest.

             5. This approval is subject to the clearance of the proposal
             under other relevant Acts/ Rules / Court's Ruling /Instructions
             etc. as applicable to this proposal.

             State Government will ensure fulfilment of these conditions.”



7     MOEF issued a further order dated 1 March 2001, diverting another 0.48

hectares of forest land for the construction of a bus stand at McLeod Ganj. The

contents of the order read thus:

             “After careful consideration of the proposal of the State
             Government, the competent authority hereby conveys
             approval for diversion of 0.48 hectares of forest land for
             construction' of above mentioned project at Dharmsala, forest
             division Dharamsala and district Kangra, H.P., subject to
             following conditions.

             1. Legal status of the forest land will remain unchanged.

             2. Minimum no. of trees as are unavailable may be felled
             which should not exceed 17 (seventeen) as proposed.

             3. Compensatory afforestation will be carried out, on 0.098
             forest land at P46K Dharamsala C.B. Govt. Forest of
             Dharamsala forest division at a cost of Rs.14,900/- (Rs.
             Fourteen thousand nine hundred) which is reported to have
             been deposited by user agency vide cheque No.055710 dated
             19.10.2000.

             4. Forest Guard hut as proposed in the proposal, will also be
             constructed at a cost of Rs.2.25 lacs which is reported to have
             been deposited by user agency.

             5. The user agency will abide by any condition that may be
             imposed by the State Forest Department In the interest of
             afforestation and protection of the forest.

             6. This forest land will not be used for any other purpose than
             that mentioned in the proposal.


                                              6
                                                                             PART D


             7. This approval is subject to the clearance of the proposal
             under other relevant Acts/Rules /Court's Ruling /Instructions
             etc. as applicable to this proposal.

             8. The Ministry may revoke suspend the clearance if
             implementation of any of the above conditions is not
             satisfactory. State Government through state forest
             department will ensure fulfillment of these conditions.”


8     Of the above land, an area admeasuring 0.093 hectares is above the main

Dharamshala-McLeod Ganj road while an area admeasuring 0.48 hectares is

below the main road. Both these pieces of land face each other and are a part of

Banoi Reserve Forest. The user agencies responsible for the construction of the

parking space and the bus stand were the S.D.O. Dharamshala and Himachal

Pradesh Tourism Department. The cost of these projects was estimated at Rs. 10

lacs and Rs. 90-95 lacs.


9     In April 2000, the appellant was constituted for the construction of bus

stands in the State of Himachal Pradesh following the enactment of the Himachal

Pradesh Bus Stands Management and Development Authority Act, 1999 (“HP

Bust Stands Act”). In January/February of 2006, the land diverted for non –

forest use under the above orders dated 12 November 1997 and 1 March 2001

was transferred on a 99 year lease to the appellant.




D     The construction of the Bus Stand Complex

10    The land transferred to the appellant was to be utilised for the construction

of a parking facility in McLeod Ganj. Given the nature of the costs that would be

incurred for the creation of a ‘modern complex’, the Board of Directors of the

appellant in their meeting held on 7 November 2003 decided to construct a Bus

                                            7
                                                                                                        PART D


Stand-cum-Parking Complex on a Build-Operate-Transfer basis1. In furtherance

of this, the appellant invited offers on 19 November 2003. The appellant received

only one offer, which was considered financially unviable since it envisaged a

concession period of 75 years.


11       The appellant decided to alter the nature of the Bus Stand Complex in

order to make it financially viable for private entities by issuing a new Request for

Proposal on 13 July 2004 for the construction of the modified Bus Stand

Complex. Apart from the construction of the bus stand itself on the lower level,

the appellant envisaged further construction in the complex of:


(i)      a multi-level commercial complex with shops at the road level;


(ii)     a dormitory and a budget hotel at the first, second and third levels;


(iii)    a dining facility/restaurant/food plaza at the top level; and


(iv)     a parking provision for fifty cars at the road level.


The area of the multi-level commercial complex was to be 2779 M2; of the road

level parking, 1100 M2; and of the bus stand at the lower level, 2580 M2 (which

included 359 M2 of area for shops/kiosks).


12       On 13 October 2004, the Board of the appellant approved the lowest bid

submitted by the second respondent for the construction of the Bus Stand

Complex. The second respondent was awarded construction rights through a

‘notice of award’ dated 18 November 2004. The appellant and the second
1
 In a BOT project, the public sector grantor grants to a private company the right to develop and operate a facility
or system for a certain period (the "Concession Period"), in what would otherwise be a public sector project.
(See, ‘Concessions, Build-Operate-Transfer (BOT) and Design-Build-Operate (DBO) Projects’ available at
<https://ppp.worldbank.org/public-private-partnership/agreements/concessions-bots-dbos> accessed on 23
December 2020).

                                                         8
                                                                        PART D


respondent entered into a ‘Concession Agreement’ on 23 December 2004 under

which the concession period commenced from 15 December 2005, and was to

be for 16 years, 7 months and 15 days.


13     The second respondent started the construction of the Bus Stand Complex

in December 2005 without awaiting the permission of the Town and Country

Planning Department (“TCP Department”), approving the plans and drawings.


14     On 4 March 2006, the TCP Department received an application seeking

approval of the drawings of the Bus Stand Complex. It pointed out shortcomings

in the proposed drawings on 10 March 2006. Through further letters between 28

July 2006 to 19 February 2007, it directed the appellant to provide further

information and to rectify the shortcomings in the proposed construction. During

the midst of this process, the second respondent continued with the construction

of the Bus Stand Complex.


15     Finally, through notices dated 5 October 2006, 8 March 2007 and 5 June

2008, the TCP Department called upon the appellant to halt the construction of

the Bus Stand Complex. The second respondent nonetheless continued with the

construction.


16     On 8 May 2007, the State of Himachal Pradesh sent a proposal to MOEF

requesting, inter alia, that:


(i)    The use of the entire land (measuring 0.573 hectares) which was permitted

       to be diverted for non – forest use under orders dated 12 November 1997

       and 1 March 2001 be changed to the construction of the Bus Stand

       Complex; and
                                         9
                                                                              PART D


(ii)   The user agency be changed to the appellant.


17     Through its order dated 12 June 2007, MOEF rejected the proposal of the

State of Himachal Pradesh. The order was in the following terms:

             “Please refer to your letter No. FFE-B-F(2)-87/97 dated 8th
             May, 2007 on the above mentioned subject seeking approval
             of Government of India for changing of land use from
             construction of parking on 0.093 hectare of forest land and
             Bus Stand Complex and Hotel on entire 0.573 hectare of
             forest land for non-forestry propose under Forest
             (Conservation) Act, 1980 and change in the name of user
             agency from SDO(Civil) and HP Tourism Department to HP
             Bus Stand Management and Development Authority.

             The request of the State Government has been examined
             and the competent authority conveys its inability to consider
             the same and it is therefore, rejected.”



18     As explained in greater detail below, when proceedings were initiated

before it, CEC directed a halt in construction. The second respondent

approached this Court by filing an interim application. By an order dated 7

September 2007, this Court directed that the second respondent can proceed

with the construction of the bus stand, observing thus:

             “In this application, the applicant is seeking a direction for
             construction of a bus stand. It is alleged that the C.E.C. has
             prevented the applicant from constructing some parking area
             near the bus stand. We are told that the C.E.C. is proposing
             to inspect the site and shall give a report. We think that
             before giving any direction to the applicant, the C.E.C. may
             hear the applicant and file a report and meanwhile the work
             relating to the construction of bus stand may continue but no
             other construction shall be carried out.”



The construction of the Bus Stand Complex was then completed by the second

respondent on 7 July 2008.


                                             10
                                                                         PART E


E      Proceedings before the first respondent

19     During the construction by the second respondent, the sixth and the

seventh respondents approached the CEC by filing an application on 20 April

2007, alleging that the construction of the Bus Stand Complex was in violation of

the Forest Act. As stated above, the CEC directed that the construction of the

Bus Stand Complex be halted.


20     The second respondent filed an interim application, in which this Court

passed an order dated 7 September 2007, which has been extracted above. The

second respondent was impleaded in the proceedings before the CEC.


21     The members of the CEC visited the site of the Bus Stand Complex on 27

September 2007. The CEC heard the parties before it on multiple dates. It also

had before it a report dated 18 August 2008 of the Chief Secretary of Himachal

Pradesh.


22     The CEC submitted its report dated 18 September 2008 to this Court. The

salient findings were that:


(i)    The construction of the Hotel-cum-Restaurant structure within the Bus

       Stand Complex was not permitted, by MOEF’s orders dated 12 November

       1997 and 1 March 2001. Hence, the construction is in violation of the

       Forest Act;


(ii)   The post facto permission sought by the State of Himachal Pradesh from

       MOEF for changing the use of the diverted forest land was rejected on 12

       June 2007;


                                       11
                                                                           PART E


(iii)   The RFP issued by the appellant on 13 July 2004 indicated that a multi-

        level commercial complex was to be of an area admeasuring 2779 M2,

        while the combined area of the road level parking and the bus stand at the

        lower level was to be 3680 M2. However, the actual area of the multi-level

        commercial complex constructed by the second respondent is 3324.89 M2,

        which is 545.89 M2 in excess. Similarly, the actual area of the road level

        parking and the bus stand constructed is 9945.65 M2, which is 6265.65 M2

        in excess. This additional construction had been tacitly approved by the

        Board of the appellant;


(iv)    While the RFP issued by the appellant indicated that only two lower levels

        would be constructed for the bus stand, the second respondent had

        constructed four additional levels. This had also been tacitly approved by

        the Board of the appellant;


(v)     The above factors establish connivance between the officers of the

        appellant and the second respondent, in order to benefit the second

        respondent;


(vi)    The construction of the Bus Stand Complex by the second respondent has

        been done without the prior approval of the TCP Department. The notices

        issued by the Department to halt construction were ignored;


(vii)   Due to the nature of the construction of the bus stand at the lower levels,

        additional forest area will be required since there was no area for the

        buses to turn in; and



                                         12
                                                                                PART E


(viii)   No car parking is available for the residents of the hotel in the commercial

         complex, who would either have to park on the roads or use the road level

         parking in the complex. This would create traffic congestion and will not

         increase the net parking available in the area.


23       Based on its conclusions, the CEC issued the following recommendations:

               “22. The above clearly highlights that there has been absolute
               anarchy in the matter of construction of the parking place and
               Bus Stand. At the same time there is a very real need at
               McLeod Ganj for both the Parking place and the Bus Stand
               Complex on the two pieces of forest land. With a view to
               finding a way out of this terrible muddle created by the deep
               vested interests and at the same time ensuring that those
               who have connived in the serious lapse are not allowed to go
               scot free the following is recommended:

               a) the hotel complex structure should be pulled down
               immediately and the 0.093 ha. of forest land should be
               cleared of debris. This should be done within three months.
               Thereafter a Parking place may be constructed as was
               originally visualized when the project was approved under the
               Forest (Conservation) Act, 1980. Prior to that approval of the
               Town and Country Planning Department may be taken as
               required under the law. This will send a clear signal to the
               building mafia and their supporters that such brazen acts of
               illegal and unauthorized construction will not be tolerated;

               b) the serious shortcomings noted in the construction of Bus
               Stand Complex would need to be with the approval of the
               Town and Country Planning Department. Towards this end it
               is proposed that the State Government may constitute a
               Committee with the Chief Secretary as Chairman with the
               Principal Chief Conservator of Forests, senior most Engineer
               in the State PWD and a representative of MoEF as Members.
               The Director, Town and Country Planning Department,
               Himachal Pradesh, could be the Member Secretary. The
               Committee may immediately go into the entire matter and
               may in a time bound manner within two months propose to
               this Hon'ble Court how best the Bus Stand Complex can be
               salvaged from the present mess so that the State
               Government is able to:

               i) ensure best and most efficient use of the Bus Stand so that
               the maximum number of buses are able to ply from there.
               While providing for commercial, shops, public toilets,

                                              13
                                                                                  PART E


               restaurants, telephone booths and the like at the Bus Stand
               the only consideration should be the actual requirements of
               the travelling public; and

               ii) ensure maximum parking place for vehicles;

               c) there has been a collective failure and serious lapses on
               the part of the officials and others of the State Government
               connected with the unauthorized and illegal construction of
               the twin project on the two pieces of forest land and reflects
               on the pathetic state of affairs in the matter of governance. In
               this background the State Government of Himachal Pradesh
               has to take the blame and may be directed to deposit an
               amount of Rupees one crore, in a special fund for the
               conservation and protection of the forest and wildlife;

               d) the State Government may also be directed to
               simultaneously identify and initiate stringent and deterrent
               action in a time bound manner against all the concerned
               persons and officials for complete abdication of their
               responsibility and accountability in the matter of governance
               and who are responsible for blatantly allowing the
               unauthorized and illegal building structures to come up on the
               two pieces of forest land in flagrant violation of the Forest
               (Conservation) Act, 1980, the HP Town and Country Planning
               Act, 1977 and other relevant local laws; and

               e) the services of M/S Prashanti Surya Construction
               Company should be dispensed with and M/s Prashanti Surya
               should be blacklisted and should also be penalized suitably
               for the grave illegalities and irregularities knowingly
               committed to promote his private interests.”



24       The second respondent then filed another application before this Court for

setting aside the report issued by the CEC. The second respondent argued that

they had not been provided a fair hearing, and had the right to file a detailed

reply.


25       By an order dated 5 October 2015, this Court transferred the proceedings

to the NGT.




                                               14
                                                                                     PART F


F     Proceedings before the NGT

26    In its impugned judgment, the NGT noted that the following facts were

indisputable:

                “A. At no point of time there was any permission, sanction or
                approval granted by the Competent Authority in the State
                Government and/or Central Government under the Act of
                1980 and even (under) other relevant laws for the hotel and
                shopping complex.

                B. Right from the initial stages, the hotel and shopping
                complex were never a part of the project for which the
                Government departments and/or the project proponent even
                submitted applications for grant of approval/sanction from the
                Competent Authority. MoEF&CC vide its letter dated 12th
                June, 2007 had specifically declined the permission for
                conversion of the forest land for any other non forest activity.
                Once such permission for hotel and shopping complex was
                declined, the project proponent could not have been taken up
                and commenced any activity.

                C. The project proponent not only started the construction
                without obtaining appropriate approval and sanction from the
                concerned State and the Central Government, but had also
                worked in collusion with some of the authorities who
                consented [to] the commencement of construction temporarily
                which was entirely uncalled for and in fact was illegal.”



27    The NGT further noted that the approval accorded by the MOEF on 12

November 1997 was only for construction of a ‘parking place’ at McLeod Ganj.

Further, on 1 March 2001, approval was accorded only for construction of a ‘bus

stand’ at McLeod Ganj. The State of Himachal Pradesh had no power to

authorize the construction of the Hotel-cum-Restaurant structure and, therefore,

the construction was entirely illegal. It further endorsed the findings by the CEC

and observed:

                “3. It is clear from the above report of the CEC that there are
                serious violations of law. It is a project coming up in the forest


                                                 15
                                                                                      PART F


                   area without Forest Clearance, and even the consent to
                   establish and/or operate has not been granted by the
                   concerned Board. Moreover, this project is bound to have an
                   adverse impact on environment and ecology. The
                   recommendations of the CEC clearly state that the whole
                   complex should be pulled down and only a parking place
                   must be constructed as was originally visualized, for which
                   the Forest Clearance under the Act of 1980 has been
                   granted. The CEC also blames the concerned authorities by
                   suggesting that there has been collective failure and serious
                   lapses on part of the State Government and its officials
                   connected with the unauthorized and illegal construction of
                   the project, which was constructed on the two pieces of land.
                   The Report also observed that the State Government should
                   be directed to deposit Rs. 1 Crore in a special fund and the
                   project proponent should be blacklisted and penalized
                   suitably for the grave illegalities and irregularities committed
                   by him.”



28         The NGT characterized the construction of the Hotel-cum-Restaurant

structure as an intentional violation that exhibited “violation of law coupled with

serious adverse impacts on environment and ecology of the eco sensitive area”2.

It held that just as seeking an Environmental Clearance under MOEF’s

Notification dated 14 September 2006 is a precondition to the commencement of

the project, which cannot be derogated from, seeking a Forest Clearance under

Section 2 of the Forest Act was a necessary precondition in the present case

before construction could have begun. It drew on this Court’s jurisprudence on

the precautionary principle, polluter pays principle and the principle of sustainable

development.




2
    Para 27 of the impugned judgment.

                                                   16
                                                                            PART G


G       Report of the District and Sessions Judge, Kangra

29      In furtherance of this Court’s order dated 16 May 2016, the District and

Sessions Judge submitted his enquiry report on 9 October 2018. The report is

based on documentary evidence and statements from sixteen witnesses.


30      In his report, the District and Sessions Judge has found that the Bus Stand

Complex:


(i)     Has been constructed on forest land, in violation of the provisions of the

        Forest Act;


(ii)    Has been constructed without requisite permissions being obtained from

        the TCP Department;


(iii)   Does not conform to the plans prepared by third-party consultants hired by

        the appellant, which were submitted during the RFP;


(iv)    Has not been properly maintained, and is plagued by issues of seepage;

        and


(v)     Suffers from architectural defects due to which it is extremely difficult for

        buses to turn into the bus stand from the main road.


31      The District and Sessions Judge concludes that the second respondent

could not have engaged in this illegal construction without the connivance of the

officials of the following departments: (i) the appellant; (ii) Himachal Pradesh

Tourism Department; (iii) TCP Department; (iv) Forest Department; (v) Municipal

Committee and Municipal Corporation; (vi) Revenue Department; and (vii)
                                          17
                                                                                     PART G


Electricity Department. The report states this in the following terms:


                 “28. I have no hesitation to conclude that the officials/officers
                 of all the departments were hand in gloves with the M/s
                 Prashanti Surya Construction Company, in order to give
                 undue advantage to M/s Prashanti Surya Construction
                 Company including the financial benefits. For the same these
                 officers/officials are liable. It is a case of serious lapse and
                 failure on the part of officers/officials of State Government,
                 who were duty bound to take prompt and immediate action to
                 stop the un-authorised and illegal construction of the structure
                 in dispute. So, it is my humble submission that concerned
                 Disciplinary Authority/Authorities of the State Government be
                 directed to take deterrent action against the defaulting
                 officers/officials. It appears that the CEO and Board of
                 Directors suo moto assumed the powers to change the
                 conceptual plan and allowed the construction work of illegal
                 structure on the spot by throwing into the air the statutory
                 provisions of law. Moreover, the structure of bus stand on the
                 spot has not been properly erected. As submitted here in
                 above, due to pillars, there was lack of sufficient space for
                 turning the buses and at the same time there is no separate
                 entry and exit point of the buses. The structure has not been
                 properly maintained and seepage was found on the spot.
                 There is no separate place for idle bus parking. So, it appears
                 that the Bus Stand Authority’ has got no control over the
                 maintenance of the bus stand structure and it is not paying
                 any heed in this regard. In view of my submissions, it is a
                 case of open favoritism of M/s Prashanti Surya Construction
                 Company. All the concerned Authorities were well aware of
                 the legal requirements, but they preferred to continue with the
                 illegal construction without following the legal requirements. It
                 cannot be believed that the construction work on the spot
                 continued from mid 2005 to beginning 2009 without
                 connivance [sic of] the aforesaid Government Agencies and
                 these officials/officers.”




                                              18
                                                                            PART H


H       Submissions of counsel

32      Challenging the impugned judgment of the NGT, the appellant has made

the following submissions:


(i)     The appellant had been legitimately provided the land for the construction

        of the Bus Stand Complex, when the forest land was diverted for “non-

        forest purposes” through orders dated 12 November 1997 and 1 March

        2001 issued by the MOEF;


(ii)    The appellant included the Hotel-cum-Restaurant structure in the Bus

        Stand Complex to make it more commercially viable, for which it then

        assigned the rights to the second respondent without assigning it any

        interest in the land;


(iii)   While this was in public knowledge from the beginning, the sixth and

        seventh respondents did not raise any objections then but only did so

        belatedly when the construction of the Bus Stand Complex was already

        underway;


(iv)    In relation to the violations of the Himachal Pradesh Town and Country

        Planning Act, 1977 (“TCP Act”):


        (a) once the project was handed over to the second respondent, it was

           their responsibility to get appropriate permissions;

        (b) arguments in relation to violation of the TCP Act were not raised by the

           sixth and seventh respondents before the CEC or the NGT;

        (c) the NGT cannot, in any case, consider violations of the TCP Act; and


                                          19
                                                                             PART H


        (d) the Deputy Commissioner Kangra had recommended, by a letter dated

           13 April 2007 addressed to the Director of the TCP Department for

           relaxation in respect of the parameters since this was a first of its kind

           parking complex at a hill station which regularly suffers from traffic

           congestion.


(v)     Section 14(3)(e) of the HP Bus Stands Act empowers the appellant to

        establish and maintain hotels and restaurants at or near bus stands. There

        was no secrecy or wrongdoing in awarding the project to the second

        respondent, it having made the lowest bid. The project was to be

        constructed on a BOT basis and would be handed back to the State of

        Himachal Pradesh at the end of the concession period;


(vi)    Since by the orders dated 12 November 1997 and 1 March 2001

        permission had already been obtained to divert the land for a “non-forest

        purpose”, no further consents from the MOEF were needed for the

        construction of the Hotel-cum-Restaurant. Even so, the State of Himachal

        Pradesh, by way of abundant caution, moved an application to seek its

        consent for change of land use for the construction of a Hotel-cum-

        Restaurant structure within the Bus Stand Complex. On 12 June 2007, the

        application was not dismissed on merits through a speaking order, but only

        owing to an “inability to consider the same” since proceedings were

        ongoing before the CEC; and


(vii)   The Explanation attached to Section 2 of the Forest Act expressly provides

        that “non forest purpose” means the breaking up or clearing of any forest


                                         20
                                                                             PART H


        land or portion thereof for any purpose other than re-afforestation. As a

        result, the incidental and ancillary facilities of the Hotel-cum-Restaurant

        structure in the Bus Stand Complex were sanctioned by the clearances

        already granted.


33      Supporting the submission of the appellant, the second respondent

submits that:


(i)     It decided to participate in the project because it was not limited to the bus

        stand, but also included the management of the Hotel-cum-Restaurant

        which made it commercially viable. Under the Concession Agreement, the

        second respondent was to build the bus stand, parking and Hotel-cum-

        Restaurant which it would retain until the year 2022, following which it

        would stand transferred to the State of Himachal Pradesh. According to the

        second respondent, this was done through a transparent process;


(ii)    The CEC incorrectly decided the application filed by the sixth and seventh

        respondents without properly understanding the second respondent’s

        reasons for constructing the additional floors in the structure, which was

        due to the strength and condition of the soil. The same error was made by

        the NGT in its impugned judgment;


(iii)   The allegation that the appellant acted in a biased manner are unfounded.

        The appellant is a nodal independent statutory authority for maintenance of

        modern commercial bus stand infrastructure. The appellant is empowered

        under Section 14(3)(e) of the HP Bus Stands Act to establish and maintain

        hotels and restaurants at or near bus stands. At the relevant time, the

                                          21
                                                                           PART H


       appellant did not have adequate financial resources to construct bus

       stands on its own and so it took a policy decision for their construction by

       seeking private participation on a BOT basis;


(iv)   ‘Not an inch of forest land’ was encroached upon other than what was

       permitted by the MOEF. Further, on the lower parcel of land, minimum

       trees were felled by the forest department and on the upper portion of land

       there were no trees. The felling and removing of the trees was done strictly

       in accordance with the permission granted;


(v)    The District and Sessions Judge ignored the public nature of the project

       and that the land will revert to the State of Himachal Pradesh after the

       concession period. There is nothing to suggest that the second respondent

       constructed the project with the objective of obtaining wrongful gain or

       undue advantage. The second respondent has invested more than Rs. 19

       crores in the public project in question, with a major chunk of it being

       sourced through bank borrowings. Under the financial scheme of the

       project, 70% of the revenue was to be recovered by the second

       respondent from the Hotel-cum-Restaurant and 30% from the operation of

       the bus stand. Hence, since the Hotel-cum-Restaurant has not been

       operationalized, the second respondent, after making the investment in the

       project, has not been able to receive proportionate returns and has been

       forced to face a financial crisis, for no fault of its own;


(vi)   The second respondent is no longer managing or operating the parking

       space and the bus stand after the District Magistrate, Kangra by an order


                                            22
                                                                              PART H


         dated 7 June 2019 under Section 144 of Code of Criminal Procedure,

         1973, constituted and authorized an Executive Committee to take control

         of the parking space and run it free of cost in public interest. Further, the

         District Magistrate, through an order dated 31 July 2019, notified the space

         available at McLeod Ganj Bus Stand as public parking place under Section

         117 of the Motor Vehicles Act, 1988, in the interest of the efficient

         organization of the transport system;


(vii)    The NGT erred in not directing the Central Government to consider the

         possibility of granting ex-post facto clearance to the Hotel-cum-Restaurant

         structure of the Bus Stand Complex under Section 2 of the Forest Act,

         given that the construction of the Hotel-cum-Restaurant structure took

         place pursuant to a tender floated by a statutory authority;


(viii)   The NGT overlooked the fact that the CEC’s report dated 18 September

         2008 was prepared without following the principles of natural justice. This

         was because it was prepared on the basis of the second affidavit dated 18

         August 2008 filed by the Chief Secretary of the State of Himachal Pradesh,

         which was not served upon the second respondent; and


(ix)     The NGT should have considered that the appellant had made a

         representation to the second respondent in the Concession Agreement

         that all the necessary permissions have been obtained by it for the

         execution of the Bus Stand Complex.


34       The State of Himachal Pradesh has made the following submissions:



                                           23
                                                                            PART H


(i)     The Bus Stand Complex had all requisite permissions, and had been

        constructed lawfully without the conferment of undue benefits to the

        second respondent;


(ii)    The report of the District and Sessions Judge dated 9 October 2018 is

        flawed because:


        (a) the appellant did not ask for permission from the MOEF, since such

           permission was already available;

        (b) the project was constructed in accordance with approved plans, and

           keeping in mind the topography of the area; and

        (c) the maintenance of the project could not be questioned because its

           upkeep had to be abandoned in 2009 after the litigation began.


(iii)   As regards the findings in the report of the District and Sessions Judge

        dated 9 October 2018, the reason why no consent for the construction of

        the Hotel-cum-Restaurant structure was separately sought was because

        the appellant was under the impression that the consent for diverting forest

        land for a “non-forest purpose”, granted by the MOEF by its orders dated

        12 November 1997 and 1 March 2001, was sufficient.


35      The State of Himachal Pradesh argues that this is a case involving

procedural lapses, as opposed to illegality. The setting up of such projects in the

State is a gigantic task given the peculiar topography and other conditions

existing there. The project, if allowed to be continued/completed, will not only

provide facilities of a modular bus stand to the people of the town but also, the

provision of a commercial complex will cater to economical              services to

                                         24
                                                                            PART H


commuters, besides providing opportunities of employment to the local

population. However, if the structure is ordered to be demolished at this stage, it

is likely to cause environmental damage since it will be difficult to dispose of the

huge debris emanating from the demolition as the area is congested and covered

with extensive vegetation. Some part of the proceeds received as income from

the commercial complex may be utilized to compensate the loss that might have

been caused to the environment and ecology of the area due to the construction

of the Bus Stand Complex.


36     The State of Himachal Pradesh later submitted before this Court on 3

November 2020 that it had taken steps for initiating prosecutions for violations of

the provisions of the Forest Act. It placed on record, through an affidavit, the

steps taken by it.


37     Opposing these submissions and arguing in support of NGT’s impugned

judgment, the CEC submits the following:


(i)    The forest land was permitted to be diverted for “non-forest purposes” only

       for the construction of a bus stand and parking space. However, the

       appellant expanded the scope to include a Hotel-cum-Restaurant without

       prior permission;


(ii)   The second respondent started construction of the Bus Stand Complex

       without approval of the drawings and plans by the TCP Department, which

       later pointed out issues with the plans; and




                                         25
                                                                                PART H


(iii)      On 12 June 2007, MOEF rejected the request of the State of Himachal

           Pradesh for the extension of the use of the forest land for anything other

           than a bus stand and a parking space.


38         Supporting the submissions of the CEC, the sixth and seventh

respondents submit:


(i)        The de-reservation of forest land for the construction of the Hotel-cum-

           Restaurant structure in the Bus Stand Complex was in violation of: (i)

           Section 2(i) of the Forest Act; and (ii) the order dated 13 November 2000

           issued by this Court in Centre for Environmental Law, WWF - I vs Union

           of India3, which held that further land shall not be de-reserved pending

           further orders from this Court;


(ii)       As such, the actions of the appellant and the second respondent in

           deliberately violating the provisions of the Forest Act constitute a violation

           of the “environmental rule of law” enunciated by this Court in Hanuman

           Laxman Aroskar vs Union of India4; and


(iii)      The entire Bus Stand Complex was constructed without requisite

           permissions under the TCP Act.


39         The MOEF has accepted the report submitted by the District and Sessions

Judge in its entirety and stands by its findings.


40         The rival submissions now fall for our consideration.




3
    Writ Petition (Civil) No. 337 of 1995
4
    (2019) 15 SCC 401

                                             26
                                                                                 PART I


I     Analysis


41    The construction of the Hotel-cum-Restaurant structure in the Bus Stand

Complex is illegal and constitutes a brazen violation of law. The permission which

was granted by MOEF on 12 November 1997 was only for construction of a

‘parking place’ at McLeod Ganj. Similarly, the permission granted on 1 March

2001 was granted for constructing a ‘bus stand’ in the same area. At no point was

any permission granted for the construction of a hotel or commercial structure.

NGT’s finding on this count commends acceptance. The appellant, on being

granted permission to engage in construction for a specified purpose, unlawfully

utilised that permission as the basis to construct a different structure which was

not authorized. It has done so in disregard of the provisions of the Forest Act.


42    Section 2 of the Forest Act reads as follows:


             “2. Restriction on the de-reservation of forests or use of forest
             land for non-forest purpose.— Notwithstanding anything
             contained in any other law for the time being in force in a
             State, no State Government or other authority shall make,
             except with the prior approval of the Central Government, any
             order directing—

             (i) that any reserved forest (within the meaning of the
             expression “reserved forest” in any law for the time being in
             force in that State) or any portion thereof, shall cease to be
             reserved;

             (ii) that any forest land or any portion thereof may be used for
             any non-forest purpose;

             (iii) that any forest land or any portion thereof may be
             assigned by way of lease or otherwise to any private person
             or to any authority, corporation, agency or any other
             organisation not owned, managed or controlled by
             Government;

             (iv) that any forest land or any portion thereof may be cleared
             of trees which have grown naturally in that land or portion, for
             the purpose of using it for reafforestation.

                                              27
                                                                                PART I


             Explanation.— For the purposes of this section “non-forest
             purpose” means the breaking up or clearing of any forest land
             or portion thereof for—

             (a) the cultivation of tea, coffee, spices, rubber, palms, oil-
             bearing plants, horticulture crops or medicinal plants;

             (b) any purpose other than reafforestation,

             but does not include any work relating or ancillary to
             conservation, development and management of forests and
             wild-life, namely, the establishment of check-posts, fire lines,
             wireless communications and construction of fencing, bridges
             and culverts, dams, waterholes, trench marks, boundary
             marks, pipelines or other like purposes.”



The provisions of Section 2 mandate strict and punctilious compliance. Mere

substantial compliance is not enough. The construction of the Hotel-cum-

Restaurant structure is entirely illegal, having been carried out in clear breach of

this mandatory statutory stipulation. That officials of statutory bodies of the State

Government have connived at the violation of law is a reflection on the nature of

governance by those who are expected to act within the bounds of law.


43    The report of the CEC is a serious indictment of the actions of the

appellant. The CEC report indicates that: (i) the construction of the Hotel-cum-

Restaurant structure in Bus Stand Complex was illegal; (ii) the land was a

reserved forest; (iii) there was no valid permission for diversion for the land for

the construction of the Hotel-cum-Restaurant structure; (iv) Forest Act consent

was taken only for the parking facility and the bus stand; (v) there was no valid

approval from the TCP Department of the plans of the entire Bus Stand Complex;

and (vi) the finally constructed Bus Stand Complex is not in conformity with the

appellant’s own proposed plans in the RFP.



                                             28
                                                                              PART I


44    The findings which were arrived at in NGT’s judgment are supported by the

report submitted by the District and Sessions Judge. The report presents a

striking analysis of the manner in which the Hotel-cum-Restaurant structure was

constructed in breach of statutory requirements and how this was made possible

by the connivance of multiple state actors. The relevant findings from the report

are excerpted below:


            “4.     The EPC has prepared the conceptual plan Ex. Cl
            I4A, but the bus stand authority went on to flout the aforesaid
            conceptual plan and on its own and decided to construct bus
            stand-cum-parking and hotel complex on two pieces of forest
            land under BOT basis. No sanction or approval was obtained
            by the Bus Stand Authority under the provision of Forest
            (Conservation) Act, 1980 for diversion of forest land to use
            the same for non - forest purpose. The Government of India
            Ministry of Environment and Forest, turned down the request
            to use the forest land for non-forest purpose and change the
            name of user agency from SDO(C) and H.P. Tourism
            Department to Bus Stand Authority vide copy of letter Ex.
            Cl03.

            ...

7. The illegal construction of disputed structure was raised
with sole motive to give undue advantage to M/s Prashanti
Surya Construction Company and for the same Bus Stand
Authority is primarily responsible and in addition to that the
officers/officials of other concerned departments are also
responsible.

12. In this case the Bus Stand Authority did not inform in
writing the Director of Town and Country Planning
Department, regarding the construction work in question as
discussed here in above in the aforesaid statutory provisions.
Said information should have been given by the CEO of the
Bus Stand Authority in the year of 2005 when the construction
work started on the spot. So, the CEO of Bus Stand Authority
in the year 2005, is responsible for ignoring the statutory
provisions of Section 28 of the H.P. Town and Country
Planning Act.”

29
PART I

45 NGT acted within its mandate in a case of this nature, where the appellant

actively allowed the perpetration of a structure in breach of environmental norms.

Not looking askance at the construction of the Hotel-cum-Restaurant structure, in

an area which the NGT rightly describes as the “lap of nature”, will put us on the

path of judicially sanctioned environmental destruction.

I.1 Environmental rule of law

46 In a constitutional framework which is intended to create, foster and protect

a democracy committed to liberal values, the rule of law provides the

cornerstone. The rule of law is to be distinguished from rule by the law. The

former comprehends the setting up of a legal regime with clearly defined rules

and principles of even application, a regime of law which maintains the

fundamental postulates of liberty, equality and due process. The rule of law

postulates a law which is answerable to constitutional norms. The law in that

sense is accountable as much as it is capable of exacting compliance. Rule by

the law on the other hand can mean rule by a despotic law. It is to maintain the

just quality of the law and its observance of reason that rule of law precepts in

constitutional democracies rest on constitutional foundations. A rule of law

framework encompasses rules of law but it does much more than that. It

embodies matters of substance and process. It dwells on the institutions which

provide the arc of governance. By focussing on the structural norms which guide

institutional decision making, rule of law frameworks recognise the vital role

played by institutions and the serious consequences of leaving undefined the

norms and processes by which they are constituted, composed and governed. A

30
PART I

modern rule of law framework is hence comprehensive in its sweep and ambit. It

recognises that liberty and equality are the focal point of a just system of

governance and without which human dignity can be subverted by administrative

discretion and absolute power. Rule of law then dwells beyond a compendium

which sanctifies rules of law. Its elements comprise of substantive principles,

processual guarantees and institutional safeguards that are designed to ensure

responsive, accountable and sensitive governance.

47 The environmental rule of law, at a certain level, is a facet of the concept of

the rule of law. But it includes specific features that are unique 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 does so to enhance our

understanding of environmental challenges – of how they have been shaped by

humanity’s interface with nature in the past, how they continue to be affected by

its engagement with nature in the present and the prospects for the future, if we

were not to radically alter the course of destruction which humanity’s actions

have charted. The environmental rule of law seeks to facilitate a multi–

disciplinary analysis of the nature and consequences of carbon footprints and in

doing so it brings a shared understanding between science, regulatory decisions

and policy perspectives in the field of environmental protection. It recognises that

the ‘law’ element in the environmental rule of law does not make the concept

peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw

within the fold all stakeholders in formulating strategies to deal with current

challenges posed by environmental degradation, climate change and the

31
PART I

destruction of habitats. The environmental rule of law seeks a unified

understanding of these concepts. There are significant linkages between

concepts such as sustainable development, the polluter pays principle and the

trust doctrine. The universe of nature is indivisible and integrated. The state of

the environment in one part of the earth affects and is fundamentally affected by

what occurs in another part. Every element of the environment shares a

symbiotic relationship with the others. It is this inseparable bond and connect

which the environmental rule of law seeks to explore and understand in order to

find solutions to the pressing problems which threaten the existence of humanity.

The environmental rule of law is founded on the need to understand the

consequences of our actions going beyond local, state and national boundaries.

The rise in the oceans threatens not just maritime communities. The rise in

temperatures, dilution of glaciers and growing desertification have consequences

which go beyond the communities and creatures whose habitats are threatened.

They affect the future survival of the entire eco-system. The environmental rule of

law attempts to weave an understanding of the connections in the natural

environment which make the issue of survival a unified challenge which confronts

human societies everywhere. It seeks to build on experiential learnings of the

past to formulate principles which must become the building pillars of

environmental regulation in the present and future. The environmental rule of law

recognises the overlap between and seeks to amalgamate scientific learning,

legal principle and policy intervention. Significantly, it brings attention to the

rules, processes and norms followed by institutions which provide regulatory

governance on the environment. In doing so, it fosters a regime of open,

32
PART I

accountable and transparent decision making on concerns of the environment. It

fosters the importance of participatory governance – of the value in giving a voice

to those who are most affected by environmental policies and public projects. The

structural design of the environmental rule of law composes of substantive,

procedural and institutional elements. The tools of analysis go beyond legal

concepts. The result of the framework is more than just the sum total of its parts.

Together, the elements which it embodies aspire to safeguard the bounties of

nature against existential threats. For it is founded on the universal recognition

that the future of human existence depends on how we conserve, protect and

regenerate the environment today.

48 In its decision in Hanuman Laxman Aroskar vs Union of India (supra),

this Court, speaking through one of us (DY Chandrachud, J.) recognized the

importance of protecting the environmental rule of law. The court observed:

“142. Fundamental to the outcome of this case is a quest for
environmental governance within a rule of law paradigm.
Environmental governance is founded on the need to promote
environmental sustainability as a crucial enabling factor which
ensures the health of our ecosystem.

143. Since the Stockholm Conference, there has been a
dramatic expansion in environmental laws and institutions
across the globe. In many instances, these laws and
institutions have helped to slow down or reverse
environmental degradation. However, this progress is also
accompanied, by a growing understanding that there is a
considerable implementation gap between the requirements
of environmental laws and their implementation and
enforcement — both in developed and developing countries
alike

156. The rule of law requires a regime which has effective,
accountable and transparent institutions. Responsive,
inclusive, participatory and representative decision making

33
PART I

are key ingredients to the rule of law. Public access to
information is, in similar terms, fundamental to the
preservation of the rule of law. In a domestic context,
environmental governance that is founded on the rule of law
emerges from the values of our Constitution. The health of
the environment is key to preserving the right to life as a
constitutionally recognised value under Article 21 of the
Constitution. Proper structures for environmental decision
making find expression in the guarantee against arbitrary
action and the affirmative duty of fair treatment under Article
14
of the Constitution.”

49 In its first global report on environmental rule of law in January 2019, the

United Nations Environment Programme (“UNEP”) has presciently stated5:

“If human society is to stay within the bounds of critical
ecological thresholds, it is imperative that environmental laws
are widely understood, respected, and enforced and the
benefits of environmental protection are enjoyed by people
and the planet. Environmental rule of law offers a framework
for addressing the gap between environmental laws on the
books and in practice and is key to achieving the Sustainable
Development Goals.

Successful implementation of environmental law depends on
the ability to quickly and efficiently resolve environmental
disputes and punish environmental violations. Providing
environmental adjudicators and enforcers with the tools that
allow them to respond to environmental matters flexibly,
transparently, and meaningfully is a critical building block of
environmental rule of law.”

50 The need to adjudicate disputes over environmental harm within a rule of

law framework is rooted in a principled commitment to ensure fidelity to the legal

framework regulating environmental protection in a manner that transcends a

case-by-case adjudication. Before this mode of analysis gained acceptance, we

faced a situation in which, despite the existence of environmental legislation on

5
UNEP, ‘Environmental Rule of Law First Global Report’ (January 2019), pgs viii and 223.

34
PART I

the statute books, there was an absence of a set of overarching judicially

recognized principles that could inform environmental adjudication in a manner

that was stable, certain and predictable. In an article in the Asia-Pacific Journal of

Environmental Law (2014), Bruce Pardy describes this conundrum in the

following terms6:

“Environmental regulations and standards typically identify
specific limits or prohibitions on detrimental activities or
substances. They are created to reflect the principles and
prohibitions contained in the statute under which they are
promulgated. However, where the contents of the statute are
themselves indeterminate, there is no concrete rule or set of
criteria to apply to formulate the standards. Their
development can therefore be highly political and potentially
arbitrary.

Instead of serving to protect citizens’ environmental welfare,
an indeterminate environmental law facilitates a utilitarian
calculus that allows diffuse interests to be placed aside when
they are judged to be less valuable than competing
considerations.”

51 However, even while using the framework of an environmental rule of law,

the difficulty we face is this – when adjudicating bodies are called on to

adjudicate on environmental infractions, the precise harm that has taken place is

often not susceptible to concrete quantification. While the framework provides

valuable guidance in relation to the principles to be kept in mind while

adjudicating upon environmental disputes, it does not provide clear pathways to

determine the harm caused in multifarious factual situations that fall for judicial

consideration. The determination of such harm requires access to scientific data

which is often times difficult to come by in individual situations.
6
Bruce Pardy, ‘Towards an Environmental Rule of Law’, 17 Asia Pacific Journal of Environmental Law 163
(2014).

35
PART I

52 In an article in the Georgetown Environmental Law Review (2020), Arnold

Kreilhuber and Angela Kariuki explain the manner in which the environmental

rule of law seeks to resolve this imbroglio7:

“One of the main distinctions between environmental rule of
law and other areas of law is the need to make decisions to
protect human health and the environment in the face of
uncertainty and data gaps. Instead of being paralyzed into
inaction, careful documentation of the state of knowledge and
uncertainties allows the regulated community, stakeholders,
and other institutions to more fully understand why certain
decisions were made.”

The point, therefore, is simply this – the environmental rule of law calls on us, as

judges, to marshal the knowledge emerging from the record, limited though it

may sometimes be, to respond in a stern and decisive fashion to violations of

environmental law. We cannot be stupefied into inaction by not having access to

complete details about the manner in which an environmental law violation has

occurred or its full implications. Instead, the framework, acknowledging the

imperfect world that we inhabit, provides a roadmap to deal with environmental

law violations, an absence of clear evidence of consequences notwithstanding.

53 In the case before us, it is not possible for us to determine in quantifiable

terms the exact effect of the construction of the Hotel-cum-Restaurant structure

by the appellant and the second respondent on the ecology of the area. Both of

them have tried to argue that the number of trees felled by them, in the case of

the present construction, is what it would have been, had they only built a bus

stand and a parking space. However, what we can record a determination on is

7
Arnold Kreilhuber and Angela Kariuki, ‘Environmental Rule of Law in the Context of Sustainable Development’,
32 Georgetown Environmental Law Review 591 (2020).

36
PART I

the way in which the appellant and second respondent have gone about

achieving this object. Specifically, the parties have engaged in the construction

without complying with the plans drawn by the appellant’s third-party consultants,

which were agreed to by them in the RFP. The construction proceeded even

when the TCP Department tried to halt it, refusing to approve its plans. Even the

post facto refusal by the MOEF for changing the nature of the diverted forest land

was not enough to stop the parties. Ultimately, when they were forced to halt the

construction by the CEC, they proceeded with it under the guise of an order of

this Court which permitted only legal construction. A combination of these

circumstances highlights not only conduct oblivious of the environmental

consequences of their actions, but an active disdain for them in favour of

commercial benefits. While the second respondent was a private entity, they

were actively supported in these efforts by the appellant. Hence, it is painfully

clear that their actions stand in violation of the environmental rule of law.

Whatever else the environmental rule of law may mean, it surely means that

construction of this sort cannot receive our endorsement, no matter what its

economic benefits may be. A lack of scientific certainty is no ground to imperil the

environment.

I.2 Role of courts in ensuring environmental protection

54 In a recent decision of this Court in Bengaluru Development Authority

vs Sudhakar Hegde8, this Court, speaking through one of us (DY Chandrachud,

J.) held:

8

2020 SCC OnLine SC 328

37
PART I

“107. The adversarial system is, by its nature, rights based. In
the quest for justice, it is not uncommon to postulate a
winning side and a losing side. In matters of the environment
and development however, there is no trade-off between the
two. The protection of the environment is an inherent
component of development and growth…

108. Professor Corker draws attention to the idea that the
environmental protection goes beyond lawsuits. Where the
state and statutory bodies fail in their duty to comply with the
regulatory framework for the protection of the environment,
the courts, acting on actions brought by public spirited
individuals are called to invalidate such actions…

109. The protection of the environment is premised not only
on the active role of courts, but also on robust institutional
frameworks within which every stakeholder complies with its
duty to ensure sustainable development. A framework of
environmental governance committed to the rule of law
requires a regime which has effective, accountable and
transparent institutions. Equally important is responsive,
inclusive, participatory and representative decision making.
Environmental governance is founded on the rule of law and
emerges from the values of our Constitution. Where the
health of the environment is key to preserving the right to life
as a constitutionally recognized value under Article 21 of the
Constitution, proper structures for environmental decision
making find expression in the guarantee against arbitrary
action and the affirmative duty of fair treatment under Article
14
of the Constitution. Sustainable development is premised
not merely on the redressal of the failure of democratic
institutions in the protection of the environment, but ensuring
that such failures do not take place.”

55 In Lal Bahadur vs State of Uttar Pradesh9, this Court underscored the

principles that are the cornerstone of our environmental jurisprudence, as

emerging from a settled line of precedent: the precautionary principle, the polluter

pays principle and sustainable development. This Court further noted the

importance of judicial intervention for ensuring environmental protection. In a

recent decision in State of Meghalaya & others vs All Dimasa Students

9
(2018) 15 SCC 407.

38
PART I

Union10, this Court reiterated the key principles of environmental jurisprudence in

India, while awarding costs of Rs. 100 crores on the State of Meghalaya for

engaging in illegal coal mining.

56 The UNEP report (supra) also goes on to note11:

“Courts and tribunals must be able to grant meaningful legal
remedies in order to resolve disputes and enforce
environmental laws. As shown in Figure 5.12, legal remedies
are the actions, such as fines, jail time, and injunctions, that
courts and tribunals are empowered to order. For
environmental laws to have their desired effect and for there
to be adequate incentives for compliance with environmental
laws, the remedies must both redress the past environmental
harm and deter future harm.”

57 In its Global Judicial Handbook on Environmental Constitutionalism, the

UNEP has further noted12:

“Courts matter. They are essential to the rule of law. Without
courts, laws can be disregarded, executive officials left
unchecked, and people left without recourse. And the
environment and the human connection to it can suffer.

Judges stand in the breach.”

58 The above discussion puts into perspective our decision in the present

appeals, through which we shall confirm the directions given by the NGT in its

impugned judgment. The role of courts 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.

10
(2019) 8 SCC 177.

11

Supra at note 5, pg 213.

12 rd
UNEP, Global Judicial Handbook on Environmental Constitutionalism (3 edition, 2019), pg 7.

                                                     39
                                                                                    PART I


I.3       Illegal activities on forest land


59         We are not traversing unexplored territory. In the past, this Court has

clamped down on illegal activities on reserved forest land specifically, and in

violation of environmental laws more generally, and taken to task those

responsible for it. In a recent three-judge bench decision of this Court in the case

of Hospitality Association of Mudumalai vs In Defence of Environment and

Animals13, this Court was confronted with a situation involving illegal commercial

activities taking place in an elephant corridor. Justice S. Abdul Nazeer, speaking

for the Court, held as follows:

“42… the “Precautionary Principle” has been accepted as a
part of the law of our land. Articles 21, 47, 48A and 51A(g) of
the Constitution of India give a clear mandate to the State to
protect and improve the environment and to safeguard the
forests and wild life of the country. It is the duty of every
citizen of India to protect and improve the natural environment
including forests and wild life and to have compassion for
living creatures. The Precautionary Principle makes it
mandatory for the State Government to anticipate, prevent
and attack the causes of environmental degradation.”

60 In Goel Ganga Developers India Pvt. Ltd. vs Union of India14, this Court

dealt with a situation in which the project proponent had engaged in construction

that was contrary to the environmental clearance granted to it. Coming down on

the project proponent, a two-judge bench, speaking through Justice Deepak

Gupta, held as follows:

“64. Having held so we are definitely of the view that the
project proponent who has violated law with impunity cannot
be allowed to go scot-free. This Court has in a number of

13
2020 SCC OnLine SC 838.

14

(2018) 18 SCC 257.

40

PART I

cases awarded 5% of the project cost as damages. This is
the general law. However, in the present case we feel that
damages should be higher keeping in view the totally
intransigent and unapologetic behaviour of the project
proponent. He has manoeuvred and manipulated officials and
authorities. Instead of 12 buildings, he has constructed 18;

from 552 flats the number of flats has gone up to 807 and
now two more buildings having 454 flats are proposed. The
project proponent contends that he has made smaller flats
and, therefore, the number of flats has increased. He could
not have done this without getting fresh EC. With the increase
in the number of flats the number of persons residing therein
is bound to increase. This will impact the amount of water
requirement, the amount of parking space, the amount of
open area, etc. Therefore, in the present case, we are clearly
of the view that the project proponent should be and is
directed to pay damages of Rs 100 crores or 10% of the
project cost, whichever is more.”

61 In M.C. Mehta vs Union of India15, a two judge Bench of this Court held

that the land notified under Punjab Land Preservation Act, 1900 in the Kant

Enclave was to be treated as “forest land”. As a result, any construction made on

the land or its utilization for “non-forest purposes” without Central Government

approval was violative of the Forest Act and therefore illegal. The relevant

excerpt of this Court’s decision, speaking through Justice Madan B. Lokur, is as

follows:

“132… R. Kant & Co. and the Town and Country Department
of the State of Haryana being fully aware of the statutory
Notification dated 18-8-1992 and the restrictions placed by
the notification. R. Kant & Co. and the Town and 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 and Country
Department of the State of Haryana. They must pay for this.”

15
(2018) 18 SCC 397.

41

PART I

62 In the present set of appeals, the forest land was allowed to be used by the

MOEF for the specific purposes of constructing a ‘parking space’ and ‘bus stand’

in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this

permission, even when granted an opportunity to do so. Hence, any construction

undertaken by the second respondent, even with the tacit approval of the

appellant being a statutory authority under the HP Bus Stands Act, will be illegal.

I.4        Jurisdiction of NGT


63         An ancillary issue now remains for our consideration, which is whether the

NGT could have adjudicated upon a violation of the TCP Act, which is not an Act

present in Schedule I of the NGT Act. In a recent two-judge Bench decision of

this Court in State of M.P. vs Centre for Environment Protection Research &

Development16, one of us speaking for the Court (Justice Indira Banerjee), held

as follows:

“41. The Tribunal constituted under the NGT Act has
jurisdiction under Section 14 of the said Act to decide all civil
cases where any substantial question relating to environment
including enforcement of any right relating to environment is
involved and such question arises out of the implementation
of the enactments specified in Schedule I to the said Act,
which includes the Air (Prevention and Control of Pollution)
Act
, 1981 and the Environment (Protection) Act, 1986.

42. In view of the definition of “substantial question relating to
environment” in Section 2(1)(m) of the NGT Act, the learned
Tribunal can examine and decide the question of violation of
any specific statutory environmental obligation, which affects
or is likely to affect a group of individuals, or the community at
large.

43. For exercise of power under Section 14 of the NGT Act, a
substantial question of law should be involved including any

16
(2020) 9 SCC 781.

42

PART J

legal right to environment and such question should arise out
of implementation of the specified enactments.

44. Violation of any specific statutory environmental obligation
gives rise to a substantial question of law and not just
statutory obligations under the enactments specified in
Schedule I. However, the question must arise out of
implementation of one or more of the enactments specified in
Schedule I.”

The provisions of the TCP Act required the appellant and second respondent to

take prior permission from the TCP Department before changing the nature of the

land through their construction. Non-conformity with this stipulation led to a

violation of their environmental obligations. In any case, this question is academic

because the NGT’s impugned judgment grounds its decision in the appellant and

second respondent’s violation of Section 2 of the Forest Act, which is an Act

present within Schedule I of the NGT Act.

J     Conclusion


64    Based on our analysis above, we uphold the directions which have been

issued by the NGT in its judgment. By the earlier orders dated 16 May 2016 and

9 September 2016, this court only stayed NGT’s direction in relation to the

demolition of the Hotel-cum-Restaurant structure. The appellant has tried to

argue against the demolition of the Hotel-cum-Restaurant structure in the Bus

Stand Complex, submitting that it may be allowed to stand for their use. However,

we cannot accept this submission. Doing so would legalise what is an otherwise

entirely illegal construction, the reasons for which have been adduced by us in

the judgment above.

65 Hence, we direct that the process of demolishing the Hotel-cum-

Restaurant structure in the Bus Stand Complex be commenced within two weeks
43
PART J

from the date of the judgment and the structure shall be demolished by the

second respondent within one month thereafter. In the event of default, the Chief

Conservator of Forest along with the administration of district Dharamshala shall

demolish the structure and recover the cost and expenses as arrears of land

revenue from the second respondent.

66 Further, as directed by the NGT, the State of Himachal Pradesh and the

second respondent can utilise the parking space and the bus stand in the Bus

Stand Complex, after the demolition of the Hotel-cum-Restaurant structure.

However, this has to be in accordance with orders dated 12 November 1997 and

1 March 2001 issued by the MOEF, i.e., it shall not be used for any purpose other

than parking of cars and buses, as the case may be.

67    The appeals are accordingly disposed of.


68    Pending application(s), if any, stand disposed of.




…….………….…………………………………………J.
[Dr Dhananjaya Y Chandrachud]

…….…………………………………………………….J.
[Indu Malhotra]

…….…………………………………………………….J.
[Indira Banerjee]

New Delhi;

January 12, 2021.

44



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