Purushottam Agrwal & 3 Ors. Applicant (s)
State of Madhya Pradesh & Anr. Respondent(s)
12. The natural source of air, water and soil cannot be utilized, if the utilization results in irreversible damage to environment. There has been accelerated degradation of the environment primarily on account of lack of effective enforcement of environmental laws and non- compliance with statutory norms. It has been repeatedly held by the Supreme Court that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to enjoyment of pollution free water and air for full enjoyment of life. The definition of sustainable development which was given more than three decades back still holds goods. The phrase covers the development that meets the need of the present without compromising the availability of future generation to meet their own needs. Sustainable development means the type or extent of development that can take place and which can be sustained by nature / ecology with or without mitigation. In these matters the required standards now is that the risk or harm to the environment or to human health is to be decided in public interest according to a reasonable person test. Life, public health and ecology has priority over unemployment and loss of revenue.
13. This is a condition which is squarely covered by Hinchlal Tiwari Vs Kamla Devi 2001 AIR SCW 2865 followed and quoted in Jagpal Singh Vs State of M.P. (2011) 11 SCC 396. It is authoritatively reiterated in Hinchlal Tiwari and Jagpal Singh that land recorded as pond must not be allotted to anybody for construction of a house or any allied purpose. The court ordered the respondents in the case of Hinchlal Tiwari and Jagpal Singh to vacate the land they had illegally occupied after taking away the material of the house. In another case of MI Builders (P) Ltd. Vs Radheshyam Sahu (1999) 6 SCC 464 the Supreme Court ordered restoration of a park after demolition of shopping complex constructed at the cost of Rs.100 crores.
14. Both these judgments of Hinchlal Tiwari and Jagpal Singh have been appreciated by a Division Bench of the court in (2011) 2 MPLJ 618 Rinkesh Goyal Vs. State of M.P. in which under similar circumstances directions have been given that there should not be any encroachment over the land of ponds, tanks and lakes. Long period of encroachment is no defence and does not give any equity. The cost of construction done after destroying a pond is also immaterial. In the present case it is undisputed that the pond area has been converted into the cultivation of crops, construction of residential, commercial activities which is not permissible in law. The inevitable conclusion therefore is the same has to be restored.
15. In view of the provision as contained in Section 57 Madhya Pradesh Land Revenue Code the entire land of water body, minerals etc. are the property of the State Government. The State Government is the owner of the land including water bodies and the Municipal Corporation was not competent to take any decision to construct commercial shops or residential buildings on and around the said water body. He has also taken reliance on the judgement of the Hon'ble the Madhya Pradesh High Court in Sukchain vs. the State of Madhya Pradesh decided on 20.09.2017 (High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 1377/2016). The relevant portions are quoted as below:
"14. This is a case where Gram Sabha and petitioners on the strength of Article 243(A) and Sections-5(A) and 7 of the 41 Adhiniyam, trying to justify the resolution and construction of shops at the pond whereas Government's stand is that said provisions do not confer any such licence to Gram Sabha to construct the shops at the pond. This interesting conundrum can be best defined in the words of Justice K.K. Mathew:
"The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty become licence; and the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever shifting tangle of human affairs."
[see- 'Legends in Law', Page 372, Universal Publication ]
15. Before dealing with rival contentions, it is apposite to refer the relevant portion of Sections-5-A and 7 of the Adhiniyam:
Section-5-A. Constitution and incorporation of Gram Sabha.-
There shall be a Gram Sabha for every village. The Gram Sabha shall be a body corporate by the name specified therefor having perpetual succession and a common seal and shall by the said name sue and be sued and shall subject to the provisions of this Act and the rules made there under have power to acquire, hold and dispose of any property movable or immovable, to enter into contract and to do all other things necessary for the purpose of this Act."
Writ Petition No.1377 of 2016.
[Section-7. Powers and functions and Annual meeting of Gram Sabha. - (1) Subject to the rules, which the State Government may make in this behalf, and subject to the general or special orders, as may be issued by the State Government from time to time, the Gram Sabha shall have the following powers and functions, namely,- (j-ii) to manage natural resources including land, water, forests within the area of the village in accordance with provisions of the Constitution and other relevant laws forthe lime being in force;
(j-iii) to advise the Gram Panchayat in the regulation and use of minor water bodies;
(l) construction, repair and maintenance of public wells, ponds and tanks and supply of water for domestic use;
(m) construction and maintenance of sources of water for bathing and washing and supply of water for domestic animal;
(o) construction, maintenance and clearing of public streets, latrines, drains, tanks, wells and other public places;
(p) filling in of disused wells, unsanitary ponds, Pools ditches and pits and conversion of step wells into sanitary wells;
16. As noticed, the constitutional provision and Sections-5-A and 7 of the Adhiniyam in no uncertain terms makes it clear that powers and functions of Gram Sabha are not absolute in nature. Such powers and functions are subject to the provisions of local laws and general instructions/orders issued by the Government. The State legislature introduced Madhya Pradesh Gram Panchayat (Registration of Coloniser Terms & Conditions) Rules, 1999 (hereinafter called as 'Rules of 1999'). Rule 2(i) describes 'Competent Authority' which means such Sub Divisional Officer who has jurisdiction over Gram Panchayat concerned. Rule 2(d) defines 'Coloniser'. This definition is wide enough to include the activity of converting any land including agricultural land into plots and action to transfer such plots to the persons desirous to construct residential or non-residential or group housing etc. The Rules of 1999 further provide the methodology for the purpose of registration etc. As per these rules, the Government has made attempt to ensure that even land situated in a Panchayat is regulated by way of statutory rules. Section-57 of Madhya Pradesh Land Revenue Code reads as under:
Writ Petition No.1377 of 2016.
"57. State ownership in all lands.-(1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government:
[Provided that nothing, in this section shall, save as otherwise provided in this Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property.] (2) Where a dispute arises between the State Government and any person in respect of any right under subsection (1) such dispute shall be decided by the [State Government].
17. As per this provision, the legislature has declared that not only the lands but all such things including -(a) standing and flowing water, (b) mines, (c) quarries, (d) minerals, (e) forest reserved or not and (f) all rights in the sub-soil of any land, shall be the property of the State Government. In exercise of power under Section-172 of the said Code, rules regarding diversion of land for building purposes were notified by notification No.1183-(VIII)-63, 03.05.1963. Rules 7 of these rules reads as under:
"7. If any portion of the land included in a holding is occupied by a public road or public tank for irrigation or any nistar purposes or is being used by the general public for any kind of nistar, permission to divert it to any other purpose except agriculture shall not be granted, unless the road or tank thereon has ceased to exist or to meet the convenience of the public, or the land is no longer required for a public purpose. Permission to divert the remaining portion of the holding may be granted, subject to the condition that such diversion shall not adversely affect the use and utility of the excluded portion as above. Explanation.- For the purpose of this rule "Public tank" shall not include a tank which is used only for irrigation of land in the sole occupation of the Bhoomiswami in whose holding the tank lies."
18. A careful reading of this provision shows that if a public tank is being used for the purpose of nistar etc. by general public, permission for its diversion can be granted only for the purpose of agriculture. Thus, the Government has taken pains to ensure that pond/water bodies are properly preserved.
Writ Petition No.1377 of 2016.19. Reverting back to Section-7 of the Adhiniyam, on which great emphasis was laid by Shri Trivedi, it is apposite to mention that clause (j-ii) provides that in order to manage natural resources, the necessary powers can be exercised. Interestingly, we 'manage' something which is precious to us. We manage our family, finance, property, resources etc. Thus, the word 'manage' in the context it is used, shows an endeavour to keep, preserve and protect the natural resources including the pond. In Black's Law Dictionary the word 'manage' is defined as 'to control and direct', 'to administer', 'to take charge of' etc. Almost similar meaning is given to this word in Webster's Comprehensive Dictionary and P. Ramanatha Aiyar's Law Lexicon. This is golden rule of interpretation that 'interpretation must depend on the text and the context'. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statue is best interpreted when we know why it was enacted. (See 1987 (1) SCC 424 [Reserve Bank of India Vs. Peerless General Finance and Investment Company Limited & others]). It is equally well settled that adopting the principle of literal construction of the statue alone, in all circumstances without examining the context and scheme of the statue, may not subserve the purpose of the statue. In the words of V.R.Krishna Iyer, J., such an approach would be 'to see the skin and miss the soul'. Whereas, 'the judicial key to construction is the composite perception of deha and dehi of theprovision'. (See 1977 (2) SCC 256 [The Chairman, Board of Mining Vs. Ramjee] followed in 2013 (3) SCC 489 [Ajay Maken Vs. Adesh Kumar Gupta and another]).
20. Thus, in my view, the word 'manage' cannot be read in the manner suggested by the petitioners. A combined reading of aforesaid reproduced clauses of Section-7 shows that the legislative intention behind it is to preserve and protect the water bodies/tanks. I am unable to hold that Gram Sabha has any unfettered/unbridled power to 'manage' its water bodies in the manner it likes. The preservation of water bodies is the constitutional mandate and the statutory duty of the Gram Sabha.
Writ Petition No.1377 of 2016.
21. On more than one occasion, the Courts have expressed their concern for preservation of water bodies. In 2001 (6) SCC 496 [Hinch Lal Tiwari Vs Kamla Devi], the Apex Court considered Section-117 of U.P. Zamindari Abolition and Land Reforms Act, 1950. As per said provision, certain powers were given to the Gaon Sabhas and other local Authorities. While interpreting the said provision, it was held that it is difficult to sustain the order of the High Court. There exists a concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case, no part of it could have been allotted to anybody for construction of house building or any allied purposes.
22. The judgment of Hinchlal Tiwari (supra) was again considered in 2011 (11) SCC 396 [Jagpal Singh Vs State of Punjab]. In addition, the judgment of Madras High Court reported in 2005 (4)CTC 1 (MAD) [L. Krishnan Vs State of T.N.] was considered and it was held that the Court will pass a similar order as it was passed in Hinchlal Tiwari and L. Krishnan (supra). A Division Bench of this Court also expressed its concern about conservation of water and natural resources in 2011 (2) MPLJ 618 [Rinkesh Goyal Vs State of Madhya Pradesh]. Pertinently, it was a PIL in which necessary directions as under were issued.
Writ Petition No.1377 of 2016. 23.
In 2006 (1) SCC 1 [T.N. Godavaraman Thirumulpad Vs. Union of India & others] the Apex Court poignantly held as under: "Natural, resources are the assets of the entire nation. It is the obligation of all concerned, including the Union Government and State Governments to conserve and not waste these resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51-A, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures."
24. In the same judgment, the Supreme Court held that we are trustees of natural resources which belong to all including the future generation as well. The public trust doctrine has to be used to protect the right of this as also the future generation.
25. Similarly, a Division Bench of Madras High Court presided over by Markandey Katju, CJ and F.M. Ibrahim Kalifulla, J. (as their Lordships' then were) in 2005 SCC Online Mad 438 [L. Krishnan Vs. State of T.N] considered the need of protecting water bodies. After considering Articles 21, 47, 48-A and 51-A (g) of Constitution, it was held that the State has to protect and improve the environment. It has to safeguard the forest, lakes, rivers and wildlife. The 'precautionary principles' makes it mandatory for the State Government to anticipate, prevent and attack all of environmental degeneration. The Madras High Court followed the judgment reported in 1997 (3) SCC 715 [M.C.Mehta Vs Union of India] and came to hold that we have no hesitation in holding that in order to protect the two lakes from environmental degradation, it is necessary to limit the construction activity in close vicinity of lakes. This finding is based on para-10 of the judgment of Supreme Court in the case of M.C. Mehta (supra). In 2015 SCC Online Utt 1829 [Tahseen Vs. State of Uttarakhand and others] Alok Singh, J. held as under:-
"What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous person using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with their original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.
[Emphasis supplied] At the cost of repetition, it is apposite to remember that the Apex Court, in no uncertain terms, clarified that construction activity even in the close vicinity of the lakes; is impermissible. Resultantly, the High Court directed the Authorities to remove encroachments and restore the water body in its original form.
26. In 2013 SCC Online P&H 10564 [Jagdev Singh Vs. State of Punjab & Haryana and others], the High Court followed the ratio decidendi of Hinchlal Tiwari (supra) and opined that the Gram Panchayat which has a statutory obligation to ensure that water bodies are not diverted for any other use and further to ensure that these water bodies are protected, cleaned and recharged, it cannot be allowed to use a part of it for installation of a statue of a resident of the village. A Division Bench of Calcutta High Court in 2013 SCC Online Cal 1060 [Sandhya Barik & others Vs. State of West Bengal & others] expressed its view that this is bounden duty of panchayat and other authorities to prohibit such construction and said property cannot be alienated or permitted to be destroyed in any manner. No construction can be permitted over such water body. Construction, if any, which have been made by any person, the respondent cannot claim equity. Even if any sanction is granted with regard to construction over the canal, the same is illegal and void. It was further directed that if there exists any encroachment on water body, appropriate action must be taken for clearing the encroachment made over the canal. The public trust doctrine expounded by Supreme Court in M.C. Mehta was followed by Calcutta High Court in Sandhya Barik (supra).
27. Indisputably, in the instant case, the Gram Sabha took a decision to construct shops on the periphery (esM-) of the pond. In view of constitutional scheme, public trust doctrine and object engrained in Section-7 of the Adhiniyam, Gram Sabha cannot take any decision or pass resolution to raise construction either by disturbing the water body or on the periphery(esM-) of the water tank. In M.C. Mehta (supra), such action was clearly disapproved by Supreme Court. The common string in the judgments referred hereinabove is that herculean efforts should to be made to protect the water bodies. Such bodies are required to be protected from greedy politicians and persons. Ancient poet Rahim said: jfgeu ikuh jkf[k,] fcu ikuh lc lwu A ikuh x;s u mcjs eksrh] ekuq'k] pwu AA Meaning thereby:
Water is most important. As without water, there is no wealth (pearls), life or earth.
28. Interestingly, in Jagpal Singh (supra), the Apex Court with pains recorded that 'our ancestors were not fools'. They knew that in certain years, there may be droughts or water shortages for some other reasons, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple etc. These were their traditional rain water harvesting methods, which, served them for thousands of years. With great concern, Apex Court emphasized that the ponds are now a day's auctioned of at throw away prices to businessmen for fisheries in collusion with Authorities/ Gram Panchayat Officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.
29. In the considered opinion of this Court, neither Constitution nor the Adhiniyam gives any unbridled/unfettered power and discretion to Gram Sabha to raise construction at or on the periphery (esM-) of the pond. Thus, argument of petitioners in this regard must fail. The judgments of Rajendra Shankar Shukla and S.N. Chandrashekhar (supra) have no application in the facts and circumstances of this case. Any autonomy 49 given by the Constitution or by the Adhiniyam needs to be tested on the anvil of enabling provision. When impugned action was tested on the anvil of such enabling provision, the said action was not found to be in consonance with the enabling provisions nor such action can be said to be in larger public interest. At this stage, it is apt to remember the words of Douglas, J. (in United States Vs. Winderlince [1996 L. Ed. 113:342 US 98 (1951)]) 'Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler.....where discretion is absolute, man has always suffered'. The Apex Court followed this principle in 2012 (10) SCC 1[Natural Resources Allocation In Re, Special Reference No.1 of 2012] and expressed that it is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in Wilkes, (ER p. 334): Burr at p.2539 means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague and fanciful.
Article 343-A read with Section-7 of the Adhiniyam makes it clear like noon day that law makers have taken care of this aspect and ensured that unfettered and uncanalized discretion or power is not given to Gram Sabha in the matter of exercise of their power and functions. The powers and functions are subject to the provisions of law and its interpretation by the Courts. Writ Petition No.1377 of 2016.
30. The reliance was placed by petitioners on the case of 2008 (3) MPLJ 617 [Prathmik Om Sai Gramin Mahila Bahuddeshiya Sehkari Samitie Maryadit Vs. Sub Divisional Officer, Baihar and other]. This judgment was relied upon to bolster the submission that if the complainants/private respondent was aggrieved by decision of Gram Sabha, the proper course was to assail the said resolution as per the procedure laid down in Section- 7(H) of the Adhiniyam. In view of relevant provision of the Constitution, Adhiniyam and Rules made under the Adhiniyam and Land Revenue Code, the Gram Sabha was not justified in taking the decision to construct shops on the periphery (esM-) of the pond. In view of settled legal position, this Court has no scintilla of doubt that the Gram Sabha has exceeded its authority while passing such resolution. In that case, it is not necessary to relegate the complainant/party to avail alternative remedy as per Section 7(H) of the Adhiniyam. Since resolution is passed by exceeding 50 jurisdiction/authority, it will not be proper to compel the complainant to go through the procedural technicalities of law. The action of Gram Sabha also runs contrary to public trust doctrine. Thus, such resolution and further action based there upon cannot be permitted to stand.
31. As noticed, in the present case, the learned Collector has taken decision on the basis of directions issued by this Court in a Public Interest Litigation. It is important to note here that Punjab & Haryana, Madras and Calcutta High Courts have entertained Public Interest Litigation and issued necessary directions for preservation of water bodies. M.P. High Court in Rinkesh Goyal (supra) also entertained a PIL and issued necessary directions.
Since the impugned order is passed as per the directions issued in PIL, it cannot be said that said order is without jurisdiction or without authority of law.
32. So far the contention of the petitioners regarding two different reports of Revenue Authorities regarding (report of partwari and demarcation report) encroachment on the pond is concerned, I do not find much substance in the said argument. True it is that the order of Tehsildar is based on the report of Patwari and as per Patwari's report, the shops are being constructed by making encroachment in the pond whereas Revenue Inspector gave a different report stating that the construction has been made on the periphery (esM-) of the water body. In view of clear principles laid down in M.C. Mehta, permission of construction even in the close vicinity of water bodies is impermissible. In the present case, as per the petitioners own claim, the shops are being constructed on the periphery (esM-) of the lake. Thus, it is clearly done in the close vicinity of the lake. Thus, contradiction (if any) in the report of Patwari and Revenue Inspector is of no help to the petitioners.
33. In view of foregoing analysis, the resolution of Gram Sabha regarding construction of shops in the periphery (esM-) of pond cannot be countenanced. The said action runs contrary to the relevant provisions and law laid down by the Courts. Thus, no fault can be found in the impugned order.
34. Before parting with the matter, I deem it apposite to direct the State Government and the concerned Collector to ensure that all such constructions/encroachments are removed. The official respondents shall remove such constructions and encroachments and file a compliance report before this Court within 60 days. It shall be the duty of respondents to restore water pond to its original shape and condition and preserve it as per the constitutional mandate.
16. Hon'ble the High Court while disposing the various Writ Petitions has directed the Collector to ensure that all such construction encroachments are removed. The officer respondent shall remove such constructions and encroachments and file a compliance report within Sixty days and it shall be the duty of respondent to restore water pond to its original shape and condition and preserve it as for the Constitution mandate. In view of the Constitution Provisions, Adhiniyam and the Rules and Governments Orders issued under the Adhinyam and Land Revenue Code, the Municipal Corporation is not justified in taking the decision to construct the commercial shops on the periphery of the pond. In view of settled legal position this Tribunal has no scintilla of doubt that the corporation has exceeded its authority while passing such resolution. The action of Corporation runs contrary to public trust doctrine. It is to be noted that any autonomy given by the Constitution or by Adhiniyam needs to be tested on anvil of enabling provisions. When impugned action was tested on the anvil of such enabling provisions, the said action was not found to be in consonance with the enabling provisions nor can such action be said to be in the larger public interest.
17. The reliance has been placed by the learned counsel on Susetha vs. State of Tamilnadu decided on 08.08.2006 by Hon'ble Supreme Court of India, Appeal (Civil) No. 3418 of 2006 (AIR 2006 SC 2893). The relevant portion are quoted below :
"Drawing our attention to a decision of the Division Bench of the Madras High Court in L. Krishnan v. State of Tamil Nadu, AIR (2005) Madras 311, it was argued that the State Government was enjoined with a duty to preserve the tank by taking all possible steps both by way of preventive measures as well as removal of unlawful encroachments and not to use the same for commercial purpose."
"Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in Articles 47 and 48-A of the Constitution of India. Article 51-A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life. [See Animal and Environment Legal Defence Fund v. Union of India and Ors., AIR (1997) SC 1071; M.C.
Mehta (Badkhal and Surajkund Lakes Matter v. Union of India and Ors., [1997] 3 SCC 715 and Intellectuals Forum, Tirupathi v.
State of A.P. and Ors., [2006] 3 SCC 549.
Maintenance of wetlands was highlighted by the Calcutta High Court in People united for better living in Calcutta - Public and Anr. v. State of West Bengal and Ors., AIR (1993) Cal. 215, observing that the wetland acts as a benefactor to the society.
Recently, in T.N. Godavaraman Thirumulpad (99) v. Union of India and Ors., [2006] 5 SCC 47, this Court again highlighted the importance of preservation of natural lakes and in particular those which are protected under the Wild Life (Protection) Act, 1972.
We may, however, notice that whereas natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if it has fallen in disuse. The same principle, in our opinion, cannot be applied in relation to artificial tanks.
In L. Krishnan (supra), the Division Bench of the Madras High Court had been dealing with natural resources providing for water storage facility and in that view of the matter the State was directed to take all possible steps both preventive as also removal of unlawful encroachments so as to maintain the ecological balance.
The matter has also been considered at some details by this Court in Intellectuals Forum, Tirupathi (supra), wherein again while dealing with natural resources, it was opined: "This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust, Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources." [Emphasis supplied] This Courts have not, in the aforesaid decisions, laid down a law that alienation of the property held as a public trust is necessarily prohibited. What was emphasized was a higher degree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogan, it is required to be implemented taking a pragmatic view and not on ipse dixit of the court.
In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors., [2006] 3 SCC 434, referring to a large number of decisions, it was stated that whereas need to protect the environment is a priority, it is also necessary to promote development stating:
"The harmonization of the two needs has led to the concept of sustainable development, so such that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines `sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs."
Treating the principle of sustainable development as a fundamental concept of Indian law, it was opined: "The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires."
xx...............................xx..............................x...............xx "We would, however, direct the State and Gram Panchayat to see that other tanks in or around the village are properly maintained and necessary steps are taken so that there is no water shortage and ecology is preserved."
18. The philosophy of the judgment as laid-down and quoted above are very much clear that it is the pious duty of the State and Local Authorities that the tanks and ponds of the villages/town are properly maintained and necessary steps be taken so that there is no water shortage and ecology is preserved. It is nowhere mentioned, authorizing anybody and everybody to make encroachment on water bodies anywhere or everywhere.
19. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the Rule of Law provides the corner stone. The Rule of Law is to be distinguished from rule by the law. The framers comprehended the setting up of a legal regime with clearly defined the 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 culpable of exacting compliance. Rule by the law on 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 precepts of Rule of Law in constitutional democracy rest on constitutional foundation.
20. We know and can take judicial cognizance of the fact that entire country is facing a tremendous scarcity of drinking and potable water almost everywhere and, in fact, it is a global phenomenon. It is this reason which required Regulators/Statutory Authorities to act responsibly for protection of environment and ecology and in particular, wetland/water bodies. They are expected to function in a more responsible and accountable manner and deeper study ought to have been made, before allowing any construction activities in vicinity of a wetland/water body, more so when project site is abutting the wetland itself. Importance of water no one can deny.
21. It cannot be doubted that water though cover three-fourth of earth, still drinking and potable water is in great scarcity. Manmade ventures are the basic cause for this situation. Protection of wetland assumed international importance at very late stage. However, serious concern at global level is writ large from the fact that in 1991, Convention in Ramsar was held only to discuss protection of wetland. Some important wetlands across the world were identified therein. Signatory countries vowed to protect wetland by taking all necessary measures including stringent actions. This is a matter of common knowledge that people residing in urban areas had turned cities into jungles of concrete. Nature has lost its place, healthy and clean environment has been compromised in the name of development. The consequences are air pollution, scarcity of drinking water, extreme heat and cold, lack of raining etc. Earlier's comfortable life in such cities has become a nightmare. Resourceful people are now resorting to other areas on the outskirt or near such cities where they can enjoy proximity with nature. This attempt or desire is nothing but costing heavy to nature. It is a concerted effort by greedy elite class to cause destruction of nature in un- probed areas, which have remained untouched till date, but now are being frequently occupied by them.
22. These constructions near water bodies areas are not as a necessity to provide shelter to homeless needy people or development to economy in general but virtually a part of luxury life for those who can afford. The elite class and its greed, in the name of development, has already destroyed cities and now moving towards the areas, rich in natural flora and fauna including forests, lakes, rivers, streams i.e., different type to water bodies and wetlands. In the name of stay in the lap of nature, in reality they are causing damage and destructing nature. In fact, commercial or residential construction projects do not need vicinity of wetlands or water bodies etc., as a necessity but Promoters/PPs/Developers normally choose such sites so as to increase salability and commercial value of their projects/constructions.
23. When we talk of maintaining greenbelt surrounding a wetland/water body, it does not mean a public recreation place like public park, open space etc. It means a place reserved for natural wetlands own activities untouched by any PP/Developer for taking it as a part of its project.
24. Problem of environment today is a Global phenomenon. The irresponsible and unmindful development has proved an enemy to environment. It has increased pollution everywhere compelling Global leaders to take recourse for protection of environment, if necessary, by framing strict and stringent provisions, but fact remains, that condition of environment today is extremely alarming.
25. It is the pious duty of the Municipal Corporation to make a planning including town planning, planning for economic and social development, roads and bridges, water supply for domestic, industrial and commercial purposes, public health, sanitation conservancy and Solid Waste Management, urban forestry, protection of the environment and promotion of ecological aspects, slum improvement and up-gradation, urban poverty alleviation. Provisions of urban amenities and facilities such as parks, gardens, playgrounds promotion of cultural educational and aesthetic aspects. Cattle ponds prevention of cruelty to animals and public amenities.
26. While dealing the matter of protection and restoration of water bodies in O.A. No. 325 of 2015 (vide order dated 18.11.2020), the following facts were suggested by the Expert body:
S. No. Activity proposed Organization Responsible
1 Identification and Geo- Tagging of NRSA, State Space Ponds or Lakes in the Country Application Centre and Concerned State Departments
2 Assessment of Water Quality of Through Laboratories Ponds or lakes. approved under E(P) Act, 1986 by the Concerned State Department /ULBs/State Environment Dept./SPCB/PCC.
3 Prioritization of Ponds or Lakes for State Environment restoration in consultation with the Dept./SPCB /PCC. respective SPCB.
4 Preparation and submission of State Environment action plans for restoration of Dept./SPCB /PCC. prioritized Ponds or Lakes to CPCB for random scrutiny of proposed action plans.
5 Execution of approved action plans. State Environment Dept./SPCB /PCC under the overall supervision of Principal Secretary, Environment Department.27.
As per report submitted by the CPCB, the status of ponds, lakes/water bodies in Madhya Pradesh as reported are 66,438 and in Rajasthan it is reported to be 12,127. The chart does not disclose the number of water bodies presently under restoration or number of water bodies restored so far. The action is required to be taken by the State of Madhya Pradesh to restore the water body, to protect it and to take remedial action according to environmental laws. We deem it just and appropriate to quote the relevant portion of analysis and directions as issued in the referred case.
Analysis and Directions
16. We find that the steps taken so far can hardly be held to be adequate. As already noted, protection of water bodies serves great public purpose and is essential for protection of the environment. It helps not only aesthetics but also water availability, aquatic life, micro climate, recharge of ground water and maintaining e-flow of the rivers. Under the Public Trust Doctrine, the State has to act as trustee of the water bodies to protect them for the public use and enjoyment for current and future generations. We may note the observations of the Hon'ble Supreme Court on the subject which are as follows: i. State of T.N. v. Hind Stone, (1981) 2 SCC 205, at page 212:
6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.
ii. Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496, at page 500:
"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature‟s bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution." iii. T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, at page 628:
......... ......................... ......
33. ... As was observed by this Court in M.C. Mehta v. Kamal Nath our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
iv. Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, at page 574:
75. In M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388, Kuldip Singh, J., writing for the majority held:
"34. Our legal system ... includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. ... The State as a trustee is under a legal duty to protect the natural resources."
76. The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:
"Thus, the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust."
This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources [Joseph L. Sax ―The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention‖, Michigan Law Review, Vol. 68, No. 3 (Jan. 1970) pp. 471-566]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine [ibid]:
1. The property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
2. The property may not be sold, even for fair cash equivalent;
3. The property must be maintained for particular types of use (i) either traditional uses, or
(ii) some uses particular to that form of resources."
―...
v. Jitendra Singh v. Ministry of Environment & Ors., 2019 SCC Online 1510 pr 20 "
.... .......
20. .... Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal."
17. In NGT order dated 27.08.2020 in OA 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors., it was observed:
"
........... .......... ..............
34. One of the serious challenges is solid and liquid waste management, apart from encroachments.
There are binding directions of the Hon‟ble Supreme Court in Almitra H. Patel Vs. Union of India & Ors1. and Paryavaran Suraksha vs. Union of India2 on the subject of scientific management of solid waste and sewage/effluents in accordance with the statutory provisions of the Water (Prevention and Control of Pollution) Act, 1974, ("Water Act") Air (Prevention and Control of Pollution) Act, 1981, ("Air Act") and waste management rules framed under the Environment (Protection) Act, 1986 ("EP Act"). There is large scale non-compliance of the said statutory provisions which has led this Tribunal to consider the issue of river pollution in OA No. 673/2018, News item published in "The Hindu" authored by Shri Jacob Koshy Titled "More river stretches are now critically polluted: CPCB" in view of acknowledged data of 351 polluted river stretches in the country. Apart from the said issue, large scale failure has been found in the matter of solid waste management as repeatedly recorded in O.A. No. 606/2018. The Chief Secretaries of all the States/UTs were required to remain present in person before this Tribunal for interaction and further planning. In O.A. No. 325/2015, Lt. Col. Sarvadaman Singh Oberoi v. UOI & Ors., the Tribunal has considered the issue of restoration of water bodies. In Original Application No. 593/2017, Paryavaran Suraksha Samiti & Anr. v. UOI & Ors., the issue of untreated sewage or effluent being discharged in water bodies have been taken up for consideration. There are several other matters dealing with the such issues, including coastal pollution, pollution of industrial clusters etc.
35. There is discussion in the media about inadequacy of monitoring of action for restoration of lakes, wetlands and ponds which is certainly necessary for strengthening the rule of law and protection of public health and environment3. Several directions have been issued by the Hon‟ble Supreme Court in M.K. Balakrishnan and Ors. v. UOI & Ors."
18. We also note that the Ministry of Urban Development, Government of India, Central Public Health and Environmental Engineering Organization (CPHEEO) has issued an advisory on "Conservation and Restoration of Water Bodies in Urban Areas"5 in August, 2013 which need to be followed. The matter was also considered by the Standing Committee on Water Resources (2015-16), Sixteenth Lok Sabha. Its Tenth Report has been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation under the heading "Repair, Renovation and Restoration of Water Bodies-Encroachment on Water Bodies and Steps Required to Remove the Encroachment and Restore the Water Bodies"6 in August, 2016. Further, the "Guidelines for the Scheme on Repair, Renovation and Restoration (RRR) of Water Bodies under PMKSY (HKKP)"7 have been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation, Govt. of India in June, 2017. The said report also provides useful material to be looked into by the enforcement agencies.
20. There is, thus, need for continuous planning and monitoring at National, State and District levels. Suggestions and observations of CPCB and the Oversight Committee need to be acted upon.
21. As suggested by the CPCB, a single agency needs to be set up in every State/UTs within one month. This work may either be assigned to the Wetland Authority of the State or the River Rejuvenation Committee or to any other designated authority such as the Secretary, Irrigation and Public Health/Water Resources. It is made clear that if the State Wetland Authority is to be assigned the task of protection of all water bodies, this task will be in addition to the normal functioning of the State Wetland Authority under the Wetland (Conservation and Management) Rules, 2017. Such nodal agency must call a preliminary meeting on the subject with all the District Magistrates on or before 31.01.2021 to take stock of the situation and to plan further steps. Thereafter, a regular meeting may be held for periodic monitoring at the District level as well as the State level with the identified targets of proper and scientific identification and protection of all water bodies, assigning unique identification number, removing encroachments, preventing dumping of waste, maintaining water quality and restoration by taking other appropriate steps, involving the Panchayats and the community, utilizing the financial resources available from different sources. Steps taken need to be documented and compiled and reported to a central authority, preferably the CPCB. This Tribunal has already constituted a CMC to be headed by the Secretary, MoJS with the assistance of CPCB and other authorities to monitor remedial action for 351 polluted river stretches. Restoration of water bodies is also a connected issue which can be monitored by the same Committee atleast thrice a year at the national level.
Directions
22. Accordingly, we dispose of this application with following directions:
(i) All States/UTs may forthwith designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated.
(ii) Under oversight of the Chief Secretaries of the States/UTs, the designated nodal agency may a. Hold its meeting not later than 31.1.2021 to take stock of the situation and plan further steps, including directions to District authorities for further course of action upto Panchayat levels and to evolve further monitoring mechanism as well as Grievance Redressal Mechanism (GRM).
b. Submit periodical reports to the CPCB/Secretary Jal Shakti, Government of India. First such report may be furnished by 28.02.2021.
(iii) The CMC for monitoring remediation of 351 polluted river stretches, headed by the Secretary, MoJS may monitor the steps for restoration of water bodies by all the States periodically, atleast thrice in a year. First such monitoring may take place by 31.3.2021.
(iv) The CMC may give its action reports to this Tribunal in OA 673/2018 and first such report may be furnished preferably by 30.4.2021 by e-mail."
28. The matter of illegal construction in violation of Environmental Laws has again been dealt with by the Hon'ble Supreme Court of India in Civil Appellate Jurisdiction Civil Appeal No. 5041 of 2021 arising out of SLP (C) No. 11959 of 2014 decided on 31.08.2021 where Hon'ble the Supreme Court of India discussed the matter of illegal /unauthorised constructions as follows:-
"146 The rampant increase in unauthorized constructions across urban areas, particularly in metropolitan cities where soaring values of land place a premium on dubious dealings has been noticed in several decisions of this Court. This state of affairs has often come to pass in no small a measure because of the collusion between developers and planning authorities."
"147 From commencement to completion, the process of construction by developers is regulated within the framework of law. The regulatory framework encompasses all stages of construction, including allocation of land, sanctioning of the plan for construction, regulation of the structural integrity of the structures under construction, obtaining clearances from different departments (fire, garden, sewage, etc.), and the issuance of occupation and completion certificates. While the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations - the protection of the environment and the well-being and safety of those who occupy these constructions. The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned. Hence, when these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards.
Hence, illegal construction has to be dealt with strictly to ensure compliance with the rule of law."
"148 The judgments of this Court spanning the last four decades emphasize the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation. Hence, the law must step in to protect their legitimate concerns"
"149 In K. Ramadas Shenoy v. Chief Officer, Town Municipal Council, Chief Justice AN Ray speaking for a two judge Bench of this Court observed that the municipality functions for public benefit and when it ―acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess". This Court also held:
"27...The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the courts. If sanction is given to build by contravening a bye-law the jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative. (See Yabbicom v. King [(1899) 1 QB 444])."
".This Court held that an unregulated construction materially affects the right of enjoyment of property by persons residing in a residential area, and hence, it is the duty of the municipal authority to ensure that the area is not adversely affected by unauthorized construction".
"150 These principles were re-affirmed by a two judge Bench in Dr. G.N. Khajuria v. Delhi Development Authority9 where this Court held that it was not open to the Delhi Development Authority to carve out a space, which was meant for a park for a nursery school. Justice BL Hansaria, speaking for the Court, observed:
10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined (sic), retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."
"151. In Friends Colony Development Committee v. State of Orissa, this Court dealt with a case where the builder had exceeded the permissible construction under the sanctioned plan and had constructed an additional floor on the building, which was unauthorized. Chief Justice RC Lahoti, speaking for a two judge Bench, observed :
"24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building."
Noting that the private interest of land owners stands subordinate to the public good while enforcing building and municipal regulations, the Court issued a caution against the tendency to compound violations of building regulations:
"25...The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."
"152 In Priyanka Estates International (P) Ltd. v. State of Assam , Justice Deepak Verma, speaking for a two judge Bench, observed:
"55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activitiesare required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."
The Court lamented that the earlier decisions on the subject had not resulted in enhancing compliance by developers with building regulations. Further, the Court noted that if unauthorized constructions were allowed to stand or are ―given a seal of approval by Court‖, it was bound to affect the public at large. It also noted that the jurisdiction and power of Courts to indemnify citizens who are affected by an unauthorized construction erected by a developer could be utilized to compensate ordinary citizens. "153 In Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai12, Justice GS Singhvi, writing for a two judge Bench, reiterated the earlier decisions on this subject and observed:
"8. At the outset, we would like to observe that by rejecting the prayer for regularisation of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law- abiding citizens that someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their hands and get away with it."
The Court further observed that an unauthorized construction destroys the concept of planned development, and places an unbearable burden on basic amenities provided by public authorities. The Court held that it was imperative for the public authority to not only demolish such constructions but also to impose a penalty on the wrongdoers involved. This lament of this Court, over the brazen violation of building regulations by developers acting in collusion with planning bodies, was brought to the fore-front when the Court prefaced its judgment with the following observations:
"1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise."
Finally, the Court also observed that no case has been made out for directing the municipal corporation to regularize a construction which has been made in violation of the sanctioned plan and cautioned against doing so. In that context, it held:
"56. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas."
"154 These concerns have been reiterated in the more recent decisions of this Court in Kerala State Coastal Zone Management Authority v. State of Kerala13, Kerala State Coastal Zone Management Authority v. Maradu Municipality, Maradu and Bikram Chatterji v. Union of India.
29. In the conclusion, Hon'ble the Supreme Court of India has directed to demolish the illegal and unauthorised construction and the cost of demolition and all incidental expenses including the fees payable to the experts are directed to be borne by the person who have constructed illegally.
30. In view of the above facts, we direct as follows:
(i) The Collector is directed to remove the encroachment from the ponds, water bodies in accordance with law.
(ii) The Collector, and the Municipal Corporation/Municipal Council, are directed to ensure that no solid waste should be thrown in the pond area and in case if it is found that there is a violation of Solid Waste Management Rules, 2016, State Pollution Control Board is directed to take necessary action, initiating prosecution as well as calculation and realisation of Environmental Compensation as per parameters laid down by the Central Pollution Control Board.
(iii) The Collector, and the Municipal Corporation/Municipal Council, are directed to ensure that there shall not be any discharge of untreated sewage water in to the water body/pond and if there is any violation of the Water (Prevention and Control of Pollution) Act, 1974 or direction issued by the Hon'ble Supreme Court of India and Principal Bench of this Tribunal, environmental compensation at the rate prescribed must be assessed and realised.
(iv) In light of the settled pronouncement of Hon'ble the Supreme Court in Goel Gang Developers India Pvt. Ltd. vs. Union of India referred above with regard to the calculation of environmental compensation, 10% of the project cost shall be assessed and realized from the polluter. State Pollution Control Board is directed to proceed and to exercise its statutory duty to initiate the proceedings of prosecution as well as the calculation and assessment of the realization of environmental compensation in accordance with law.
(v) A copy of the order be sent to the Secretary (Environment), State of Madhya Pradesh who shall monitor or may constitute a committee or direct the authorities concerned to comply the order and remove the encroachment on the State land/water bodies which was found unauthorized and illegal. He shall monitor periodically and ensure the removal of encroachment at the earliest in due process of law. Accordingly, the Original Application 48 of 2022 stands disposed off.