Supreme Court grants 'breathing time' to remove encroachment by hospital from water body [26.09.2022]

ITEM NO.27 

COURT NO.9 

SECTION XII 

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS 

Petition(s) for Special Leave to Appeal (C) No(s). 16298/2022 

(Arising out of impugned final judgment and order dated 06-09-2022 in WP No. 23977/2022 

passed by the High Court Of Judicature At Madras) 

KOPPERUNDEVI                                                                                 Petitioner(s) 

VERSUS 

THE DISTRICT COLLECTOR & ORS.                                           Respondent(s) 

(FOR ADMISSION and I.R. and IA No.136614/2022-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ) 

Date : 26-09-2022 

This petition was called on for hearing today. 

CORAM : HON'BLE MR. JUSTICE DINESH MAHESHWARI 

HON'BLE MS. JUSTICE BELA M. TRIVEDI 

For Petitioner(s) Dr. Nanda Kishore, AOR 

For Respondent(s) 

UPON hearing the counsel the Court made the following 

O R D E R

The High Court of Judicature at Madras had expected in its order dated 30.11.2017 in W.P. No. 31168 of 2017, that the respondents shall take appropriate action for removal of encroachments in the watercourse, which included the land comprising Survey No. 134 at Virudhachalam Town. There had also been a contempt petition filed in the High Court bearing No. 1635 of 2022, alleging non-compliance of the order so passed by the High Court.

The authorities concerned having, thus, been jolted into action, the building in question, said to be housing a multi-speciality hospital, also came to be marked for removal, for being an encroachment over the land of watercourse/water body. As against this action, the petitioner attempted to invoke writ jurisdiction of the High Court while suggesting entitlement over the building in question, with reference to a property tax receipt of the year 2021-22. However, the petitioner essentially made the submissions before the High Court that she was ready to move to the alternative arrangement but required some breathing time for the same.

In the impugned order dated 06.09.2022, the High Court referred to the requirements of removal of encroachments with reference to the various decisions of this Court including that in Jagpal Singh v. State of Punjab: (2011) 11 SCC 396; and found no reason to grant any indulgence. Hence, the petitioner seeks special leave to appeal.

While seeking some relaxation/leniency, the petitioner has essentially stated as under: -

“The petitioner herein beg before this Hon’ble Court some time to vacate the Hospital run by the Petitioner in the name and style of “Deivam hospital” at Ulundurpet Road, Vridhachalam. The said hospital in running with 15 beds, upto 15 visiting doctors, 10 para medics such Nurses, lab technicians, ANMS and 15 non technical staff such as helpers, cashier, accountant, receptionist etc. Further, it is respectfully submitted that at present 15 in-patients taking treatment in the hospital and regularly 50 to 100 patients visit the hospital as out-patients. Further, the hospital has operation theater, ICU and lab facilities available and also wards such as common words, Special rooms and delivery wards etc. are available with the hospital.”  Learned senior counsel for the petitioner has also made a fervent plea for granting some time to vacate, particularly in view of the services being rendered in the hospital in question.

While rendering the health care services could be a laudable objective, establishment of a hospital for that purpose in the land of watercourse or water body cannot be countenanced. The reference to in-patients and other visiting patients is also seriously questionable, where a sympathy is sought to be gained with reference to their requirements.

We have no doubt that if the genuine case of a needy patient is before the revenue authorities, which include the District Collector, Cuddalore, they would take appropriate steps for ensuring alternative health care facilities to the patient concerned.

Though no relaxation as such appears available to the petitioner but, only for the purpose of extending some breathing time to the petitioner for removal of the moveables and making alternative arrangements, we are inclined to grant some time to the petitioner even without issuing notice to the respondents but, only until 10.10.2022.

Such a relaxation would be available to the petitioner only if she submits a specific undertaking to this Court supported by her affidavit within three days from today, that the building in question shall be vacated on or before 10.10.2022 and no hindrance would be caused in its removal after 10.10.2022; and further that she would not claim any compensation in regard to the removal of the encroachment as also shifting of movables. While removing the encroachment in question, the authorities shall, obviously, be expected to take appropriate care of the bona fide need of patients and provide them alternative medical support, if so required.

Having regard to the circumstances of the case, we are not disposing of this petition but would keep the same pending, while awaiting compliance from the petitioner as also from the respondents.

To avoid any ambiguity, we make it clear that another attempt to obstruct removal of encroachment was not countenanced by this Court, when we dismissed SLP(Civil) No. 15945 of 2022 on 19.09.2022, which was filed by Indra Nagar Residents Welfare Association while leaving it open for that petitioner to make appropriate request before the High Court as regards the prayer for alternative reliefs to its members, including that of rehabilitation. So far the present matter is concerned, a little breathing time is being provided to the petitioner subject to the undertaking as aforesaid only because of the reference to the likely difficulties of the patients, particularly indoor patients, who may require alternative arrangements. However, this order, in no way, absolve the authorities concerned from carrying out earnestly the task of removal of encroachments, as expected under the orders of the High Court.

List this matter on 17.10.2022.

 A copy of this order be forwarded to the District Collector, Cuddalore, for appropriate compliance and then, for submission of compliance report.

Madras High Court unhappy with non-compliance of its orders to evict encroachments from waterbodies [01.08.2022]

The Madras High Court, on Monday, expressed its displeasure over non-compliance of a slew of directions issued by it to the Tamil Nadu government on January 27 to prevent unauthorised occupation of lands classified as water bodies in revenue records. The court warned that it would be constrained to summon the Chief Secretary if its orders were not implemented in letter and spirit within the next 10 days.

Miffed over a number of writ petitions continued to be filed regarding alleged encroachment of water bodies, the first Division Bench of Chief Justice Munishwar Nath Bhandari and Justice N. Mala wondered why the government had not implemented the January 27 order effectively. The court also imposed costs of Rs. 25,000 on one of the government officials for having failed to remove encroachments.

A Bench comprising Chief Justice Bhandari and Justice P.D. Audikesavalu had, early this year, ordered demarcation of boundaries of all water bodies in the State in accordance with details available in Tamil Nilam website and ordered removal of all encroachments by issuing notices either under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act of 2007 or the Tamil Nadu Land Encroachment Act of 1905.

Then, the court directed the government to preserve those water bodies by desilting them at regular intervals, creating public awareness about the need to preserve them and arranging cleanliness drive for the surroundings with local participation, and preventing unauthorized occupation by fencing as well as installation of closed circuit television cameras for surveillance or by appointing security guards wherever possible.

The court had also ordered that no registering authority under the Registration Act of 1908 should register any document in respect of any land which had been notified as water body in the revenue records and that a declaration must be obtained from every applicant for registration of property or for approval of layout or building construction or assessment of property tax or electricity or water connection that the concerned property was not located on a water body.

Officials responsible for granting layout approval, building plan approval, assessment of property tax and electricity or water connection were also directed to conduct physical inspection of the site and also cross check the revenue records and confirm that the property in question was not located on a water body. They were further warned of disciplinary action if there were complaints of having granted approval to properties located on waterbodies.

Supreme Court of India: If no pond exists on site, revenue records can be corrected after inspection [26.08.2022]

REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5841/ 2022 

ARISING OUT OF 

PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. 37439 OF 2016 

THE STATE OF RAJASTHAN AND ANOTHER                                                 .… APPELLANTS 

Versus 

ULTRATECH CEMENT LTD                                                                                .... RESPONDENT 

JUDGMENT

HIMA KOHLI, J.

26.08.2022

1. Leave granted.

2. The appellant–State of Rajasthan has assailed the judgment dated 26th February, 2016, passed by a Division Bench of the High Court of Judicature for Rajasthan Bench at Jaipur whereby the order dated 05th October, 2012, passed by the learned Single Judge dismissing a writ petition preferred by the respondent–Ultratech Cement Ltd. (S.B. Civil Writ Petition No. 15416 of 2012) was set aside and its appeal allowed with a direction to the appellant–State Government to process the allotment of the land in favour of the respondent–Company for setting up a cement plant in Tehsil Nawalgarh, District Jhunjhunu, in terms of the letter of allotment dated 23 rd February, 2012.

3. A brief overview of the facts of the case is necessary.

3.1 With the idea of setting up a Cement plant having the capacity of 3 million tons of cement per annum in four villages situated in Tehsil Nawalgarh, District Jhunjhunu, spreading over 1000 hectares of land, the respondent–Company purchased/acquired 400 hectares of land through direct negotiations and took steps to acquire the remaining part of land through private negotiations, as also by way of allotment through RIICO. For executing the project of cement manufacturing, the respondent–Company applied to the appellant–State Government in the year 2000 – 2001 for grant of adjoining mining leases for mineral lime stone (cement grade) in Tehsil Nawalgarh, District Jhunjhunu. A letter of intent was issued by the appellant–State Government on 16th March, 2002 in respect of two mining leases, but due to non-availability of environment clearance within the stipulated time, the said LOI was cancelled by the State Government by order dated 07th February, 2005. The said order was challenged by the respondent–Company by preferring a revision petition before the Mines Tribunal which was allowed vide order dated 19th July, 2007 and the matter was remitted back to the State Government for fresh examination in accordance with law. The appellant–State Government vide order dated 22nd November, 2007, restored the LOI subject to compliance of certain conditions and on an undertaking to be furnished by the respondent–Company. The said LOI was however, cancelled by the Mines Tribunal vide order dated 29 th July, 2009. Aggrieved by the said cancellation order, the respondent–Company approached the High Court by filing a writ petition which was allowed vide order dated 19th August, 2010 and the appellant–State Government finally issued a LOI on 28th October, 2010. 

3.2 This time, the District Collector, Jhunjhunu issued an approval letter dated 23 rd February, 2012, for allocation of Government land falling under mining lease area to the respondent–Company for setting up a cement plant subject to the fulfillment of certain conditions stipulated therein. The captioned letter issued by the District Collector, Jhunjhunu is extracted hereinbelow:

“Sir, Vide above referred letter under above mentioned subject, the State Government has granted approval for reservation and allocation of land falling under mining lease area for setting up a cement plant is granted under Section 92 of the L.R. Act which shall be subject to the fulfillment of the below mentioned conditions: -

(i) Approval for allocation of the land recorded as pasture land in the mining leased area is given in favour of the applicant company subject to the condition that the company shall surrender the land equivalent to the allocated land after purchasing it in the same village and after developing it as grazing land and will also make it available to the concerned Gram Panchayat after doing fencing of the four walls of the land.

(ii) In-principle consent for allocation of the gair-mumkin johad land falling under mining lease area, as applied for by the company, is given in favour of the company subject to the condition that company shall purchase other land and develop it as Johad and surrender it to the Gram Panchayat. The company shall also produce NOC/ orders for allocation of Johad land obtained from Hon'ble High Court.

(iii)Company's application for allocation will be considered only after producing permission/ NOC of the competent authority of Panchayat Raj Vibhag and Education Department for gair-mumkin abadi school, graveyard, maszid etc. situated on the mining lease area.

(iv) 0.32 Hectare land in the mining lease area is recorded in the name of Ajmer Electricity Distribution Corporation Ltd. Above land shall be allocated in favour of the applicant-company on producing NOC from the Ajmer Electricity Distribution Corporation Ltd.

(v) Consent is issued for allocation of the classified land of gair-mumkin Bani & gair-mumkin passage as per your proposal which falls under mining lease area for the purpose in accordance with rules.

Therefore, kindly ensure action as above.

Encl: as above.

Sd/-

District Collector, Jhunjhunu” 

3.3 In view of condition No. (iii) contained in the captioned letter which called upon the respondent–Company to produce NOC/orders for allocation of ‘Johad’ land from the High Court, the respondent–Company approached the High Court by filing S.B. Civil Writ Petition No.15416/2012. Accompanying the said writ petition were several documents pertaining to the spot inspection of the site, the Reports of the Tehsildar and the correspondence between the parties to demonstrate that the subject land that had been classified as ‘Johad’, neither fell in the catchment area, nor did water gather there and there did not exist any natural source of water on the subject land and therefore, classification of the subject land could be converted to ‘Siwai Chak’ land. Not persuaded by the averments made in the writ petition, the learned Single Judge dismissed the writ petition at the stage of admission itself with an observation that it is for the State Government to decide whether the disputed land is ‘Johad’ land or not and that the Court was bound by the judgment of the Division Bench of the High Court in the case of Abdul Rahman v. State of Rajasthan and Others.

3.4 Dissatisfied with the in limine dismissal of its writ petition, the respondent–Company preferred an appeal before the Division Bench of the High Court registered as D.B.Special Appeal (Writ) No. 73/2013. Noting that several representations submitted by the respondent–Company to the appellant–State Government for examining the matter afresh and for making necessary corrections in the revenue records were pending, vide order dated 23rd November, 2015, the Division Bench directed the appellant–State Government to consider the respondent’s representations in the light of the observations made in the case of Director General, Research and Development v. State of Rajasthan & Others, in particular, para 3 thereof, that is extracted hereinbelow:

“It is conceded on facts that in fact there is no Gair Mumkin Nadi existing on the spot, therefore the decision rendered by the Division Bench of this court in (Abdul Rahman Vs. State of Rajasthan & Ors.) shall not come in the way of the respondents in making the allotment. In view of aforesaid factual matrix and considering the nature of requirement, we direct that let the allotment be processed as assured within six weeks from today". 

While passing the aforesaid order, it was made clear that in the event the appellant– State Government does not decide the representation of the respondent–Company, the appeal will be decided on merits.

3.5 In compliance of the aforesaid order, the appellant–State Government passed an order dated 25th January, 2016, holding inter alia that the subject land having been recorded in the revenue record as ‘Johad’, no allotment could be made in favour of the respondent–Company. In view of the aforesaid stand taken by the appellant–State Government, the Division Bench proceeded to hear the respondent’s appeal on merits and allowed the same by virtue of the impugned judgment whereunder the appellant– State Government has been directed to allot the subject land in question to the respondent–Company and take consequential steps in the matter. 

3.6 The High Court has specifically recorded in the impugned judgment that learned counsel for the appellant–State Government did not dispute the fact even before the Court that though the subject land in question was classified as ‘Johad’, it neither fell within any catchment area, nor did water ever collect there and there was no natural water reservoir on the subject land. The court opined that looking at the topography of the area, the site in question did not have use for any other purpose at all. In fact, the said site selected for mining, had commercially viable lime stone deposits and the selection was made after due consultation with the Gram Panchayat, Baswa. Thus, there was no justification for turning down the fact-finding Reports filed by the Tehsildar, Land Records, Nawalgarh, regarding the status of the land. In fact, the said Reports had been duly accepted by the appellant–State Government.

3.7 The impugned judgment went on to record that in Abdul Rahman’s case, referred to by the learned Single Judge, the Court had only directed the State Government to chalk out a plan for restoration of the catchment areas to their original shape. The said judgment did not prohibit alienation of the property held as a public trust except for highlighting the fact that any such alienation would require a higher degree of judicial scrutiny, thus creating a balance between the Doctrine of Public Trust and the Doctrine of Sustainable Development. It was observed that a pragmatic view ought to be taken in the matter, more so, when the area classified as ‘Johad’, did not fall in any catchment area, nor was there any natural water reservoir for it to be declassified from the category of ‘Johad’ to ‘Sawai Chak’ land.

4 Mr. Milind Kumar, learned Standing Counsel appearing for the appellant–State Government has assailed the impugned judgment by submitting that the same runs contrary to the judgment of the High Court in Abdul Rehman’s case where it has been held by the Division Bench that no right can be given to use Nadi land or other water bodies for construction activity and that catchment of pond/water reservoir shall not be allotted for any personal/commercial purposes; that utilizing the ‘Johad’ land for commercial purpose may cause environmental damage; that the High Court has erred in placing reliance on Director General, Research and Development; that there are decisions of this Court as in Vellore Citizens’ Welfare Forum v. Union of India and Others, A.P Pollution Control Board v. Prof. M. V. Nayudu (Retd.) And Others, Lafarge Umiam Mining Private Limited (Applicant) in T.N. Godarvarman Thirumulpad v. Union of India and Others, Electrotherm (India) Limited v. Patel Vipulkumar Ramjibhai and others, Common Cause v. Union of India, Alembic Pharmaceuticals Limited v. Rohit Prajapati and Others that have highlighted the use of precautionary principle in environmental matters and held that the burden of proof is on the project proponent who is proposing to alter the status quo or impact the environment. Reference was also sought to be placed on the judgment of this Court in Jagpal Singh and Others v. State of Punjab and Others, where directions were issued to all State Governments to prepare schemes for eviction of illegal occupants of Gram Sabha land and for restoration of the said land for common use of the villagers of the area. Learned counsel for the appellant–State Government went on to refer some additional documents filed recently, in particular, letter dated 07th July, 2014, addressed by the Tehsildar, Nawalgarh to the District Collector which mentioned the status of land in one of the four villages identified as mining area in district Jhunjhunu, namely Village Baswa and stated that in some khasra numbers of the said village, there exists a pucca pond which acts as a catchment area of rain water. Some circulars issued by the State Government have also been cited which state that all the allotments which were recorded in the revenue records as nala, river, pond, dam or embankment after 1955 and were converted by changing the land classification from agricultural purpose to non-agricultural purpose, be referred to the competent Court with the relevant facts for classification of allotment.

5 The aforesaid submissions have been repelled by Mr. Hiren P. Raval, Senior Advocate appearing for the respondent–Company who submitted that the present appeal is not maintainable when the appellant–State Government has already given its in-principle consent for the respondent–Company to use the subject land for mining purpose subject to obtaining a No Objection Certificate from the High Court. Once the High Court has given a No Objection Certificate in terms of the view expressed in the impugned judgment, there was no occasion to file the present appeal. On merits, it was submitted that there is no good reason for the appellant–State Government to have refused to rectify the error in the revenue records in respect of the classification of the parcel of land, part of which has been wrongly classified as ‘Gair-Mumkin Johad’ i.e. reservoir land, despite the fact that the Tehsildar, Nawalgarh and the District Collector, Jhunjhunu submitted two Reports stating inter alia that there was no water reservoir on the subject land at any point in time. To substantiate the said submissions, learned counsel referred to the two Reports submitted by the Tehsildar, Nawalgarh dated 19th/27th April, 2011 and 25th November, 2012/5th December, 2012. He also took this Court through the recommendations made by the District Collector, Jhunjhunu calling upon the State Government to examine the matter and pass appropriate orders. In particular, he referred to the letters dated 19th December, 2012 and 26th, February, 2013, addressed by the District Collector, Jhunjhunu to the Deputy Secretary, Revenue Department of the State Government recommending change of class of the land in the revenue records from ‘Gair-Mumkin Johad’ to ‘Sawai Chak’ land, on the basis of the certificates issued by the Tehsildar, Nawalgarh. Learned counsel pointed out that at no stage has the appellant–State Government disputed the Reports of the Tehsildar or the recommendations made by the District Collector. Instead, it has been harping on the judgment of the Division Bench of the High Court of Rajasthan in Abdul Rehman’s case, without appreciating that the said judgment has not declared that alienation of property held as a public trust, is totally prohibited. It was submitted that the fact situations of each case would have to be examined before taking a decision and in the instant case, it is not disputed by the appellant–State Government that the subject land does not fall in any catchment area, water does not collect there and there is no natural water reservoir on the land. In all this back and forth that commenced in the year 2000 and is continuing till now, the environment clearances issued in favour of the respondent–Company are going to lapse at the end of the year 2022, which would automatically result in cancellation of the LOI issued by the appellant–State Government, thus, leaving the respondent–Company high and dry for no fault attributable to it. It was therefore urged that the impugned judgment does not deserve to be interfered with, as it is based on fact finding Reports submitted by the revenue authorities that have not been questioned by the appellant–State Government till date. We have heard the arguments advanced by the learned counsel for the parties, perused the impugned judgment and the documents placed on record. The only issue that arises for the consideration of this Court is that once an in-principle consent has already been accorded by the appellant–State Government for reservation and allocation of the subject land under the mining lease in favour of the respondent– Company for it to set up a cement plant and the condition inserted in the approval letter dated 23rd February, 2012 that the respondent–Company should produce a NoObjection Certificate / order from the High Court permitting allocation of ‘Gair–Mumkin Johad’ land stands satisfied by virtue of the impugned judgment, would a challenge still lie against the same at the instance of the appellant–State Government? A perusal of the impugned judgment indicates the following factors that have weighed with the High Court for allowing the appeal preferred by the respondent– Company :-

(a) That the Tehsildar, Nawalgarh had made a physical spot inspection of the subject land in question and submitted a detailed Report to the District Collector, Jhunjhunu on 19th April, 2011 stating that the subject land, classified as a ‘Johad’ neither fell in the catchment area, nor did water ever collect there and that no natural source of water existed on the subject land;That the subject land was again inspected by the Tehsildar, Land Records, Nawalgarh, who sent a Report to the District Collector, Jhunjhunu on 25th November, 2012 / 05th December, 2012 stating inter alia that there is no natural water body on the subject land and the ‘Gair-Mumkin Johad’ falling under the proposed mining lease area, does not fall within the water logging area or the catchment area. Therefore, a recommendation was made for change of the class of land and for recording it as ‘Sawai Chak’ land;

(b) That the District Collector, Jhunjhunu made his recommendations on two different occasions to the State Government for issuing necessary orders to correct the revenue records and change the classification of the land to be recorded as ‘Sawai Chak’ land.

(c) That on receiving a communication dated 01st February, 2013 from the State Government calling upon him to re-examine the matter and pass appropriate orders, the District Collector, Jhunjhunu had once again made a recommendation vide letter dated 26th February, 2013, that necessary orders for correction of the revenue records ought to be made in the instant case;

(d) That the Gram Panchayat Baswa, Tehsil Nawalgarh, District Jhunjhunu passed Resolution No.21 dated 03rd February, 2011, stating that no water had ever accumulated in the subject land and the Gram Panchayat had no objection in granting the said land classified as ‘Johad’, to the respondent– Company for mining lease purposes, subject to the Company giving equal measure of developed land to the Gram Panchayat in the same village;

(e) the Court took note of the undertaking given by the respondent–Company in the writ proceedings for initiating the following activities for the benefit of the surrounding villages – 

(i) Equal and alternate land to be developed as 'Johad' in place of 'Johad' land in the mining activity area in the same village so that villagers could benefit from the basic amenities.

(ii) Creation of a water reservoir in the mined out area. 

(iii) Development of water harvesting structures for augmenting ground water recharging in the area.

(iv) Initiation of CSR activities in the surrounding villages.

(f) The respondent–Company gave an undertaking before the Court that development of the site for alternate ‘Johad’ would be done in a planned manner where the catchment area, water harvesting structures and cattle grazing land would be developed. The Company also undertook to convert Dug-cum-Bore Well (DCB Well) into injection wells in order to develop suitable drainage pattern for augmentation of ground water table; 

8 It is a matter of record that the appellant–State Government has not questioned the Reports prepared by the Tehsildar, Nawalgarh after making spot inspection on two occasions. The position remains the same even as of now. The first Report was prepared by the Tehsildar on 19th/27th April, 2011 and the second one on 25th November, 2012/05th December, 2012. Both the Reports were categorical in their findings that there was no natural water body on the subject land classified as a ‘Johad’ and that the subject land neither fell in the catchment area, nor did water ever collect there and there was no natural source of water that existed on the subject land. That being the position, we see no reason to permit learned counsel for the appellant–State Government to rely on a communication dated 02nd July, 2014, addressed by the Tehsildar to the District Collector, in respect of a part of the subject land falling in village Baswa to urge that there exists a pucca pond at some spots, more so when there is no explanation for not filing the documents. The aforesaid communication could have easily been filed by the appellant–State Government before the High Court at the appropriate stage, well before the date of passing of the impugned judgment. Nothing prevented the appellant–State Government from producing the relevant photographs of the purported pucca pond existing at some spots within village Baswa. It is not the case of the appellant–State Government that the earlier Reports submitted by the Tehsildar, Nawalgarh after conducting a physical spot inspection had been manipulated or prepared in a mala fide manner, nor is there any averment made in the appeal that departmental action was initiated against the then Tehsildar, Nawalgarh for having prepared incorrect Reports of the spot inspection. Given the said position, there is no reason to discard the two Inspection Reports prepared by the Tehsildar, Nawalgarh that form a part of the record. Both the said Reports have stated in clear terms that there is no natural water body on the subject land and the ‘Gair–Mumkin Johad’ falling under the proposed mining lease area does not fall within the water logging area or the catchment area. We, therefore, decline to give any weightage to the letter dated 07th July, 2014 addressed by the Tehsildar, Nawalgarh to the District Collector, Jhunjhunu. 

9 The Circulars dated 26th June, 2012, 17th April, 2013 and 26th July, 2017 issued by the Revenue Department can also not be of any assistance to the appellant–State Government, for the simple reason that the said circulars came to be issued in compliance of the judgments of the High Court and this Court directing removal of encroachment from the Gram Panchayat land and eviction of unauthorized occupants therefrom. The present case does not fall in the above categories for the simple reason that the respondent–Company has applied through proper channel for allotment of land for mining purpose; it has received requisite environment clearances followed by LOIs issued by the appellant–State Government. Armed with the necessary approvals from the State Government for reservation and allocation of land falling under mining lease area, the respondent–Company had approached the revenue authorities for setting up a plant on the subject land and requested that necessary changes be made in the revenue records pertaining to land described as ‘Johad’ at certain spots, where in fact, no ‘Johad’ actually existed. In this context, the recommendations made by the District Collector, Jhunjhunu gain significance. The first letter in this regard was addressed by the District Collector to the Deputy Secretary, Revenue Department of the appellant–State Government on 19th December, 2012, relevant extract whereof is reproduced hereinbelow:

“When a site inspection report in this connection was sought from Tehsildar, Nawalgarh, he informed vide his letter No.2501 dated 5.12.12 that there is a government primary school building on the gair-mumkin Johad land of Khasra No.493 area 3.96 hectare, Khasra No.546 raqba 16. 73 hectare, Khasra No.608 raqba 17.55 hectare, Khasra No.649 raqba 4.81 hectare, Khasra No.1304/493 raqba 0.14 hectare and Khasra No.1316/ 608 raqba 0.11 hectare land situated in village Basawa and rest of the land does not come within the catchment area. Land of the above mentioned Khasra Numbers does not have any natural water reservoir, nor it is in the catchment area. Tehsildar, Nawalgarh has recommended to change its class and declare it Sivaychak land.

In perspective of the above decisions of Hon'ble Rajasthan High Court and enclosing herewith the Tehsildar Report attached with letter No.2501 dated 5.12.12 (copy enclosed) and copy of the enclosed Jamabandi for Samvat 2067-2070, it is submitted that Tehsildar's report has been analyzed and I am satisfied with the report. As per the site inspection report of the Gair-mumkin Johad land of Khasra No.493 area 3.96 hectare, Khasra No.546 raqba 16.73 hectare, Khasra No.608 raqba 17.55 hectare, Khasra No.649 raqba 4.81 hectare, Khasra No.1304/4 93 raqba 0.14 hectare and Khasra No.1316/608 raqba 0.11 hectare land situated in village Basawa, there is a government primary school on 0.10 hectare land out of 16.73 hectare of Khasra No.546 it is recommended that class of the above land may be changed and allocated to M/s Ultratech Cement Limited Co. in accordance with law.” 

10 After receiving the aforesaid letter, the Secretary, Revenue Department addressed a letter dated 1st February, 2013 to the District Collector, Jhunjhunu clearly stating inter alia that only he as the ‘District Collector’ must certify whether the land in question is a ‘Johad’ land or not and the said certification is not to be done by the State Government. Therefore, the District Collector was directed to visit the site himself and inquire into the matter and then issue appropriate orders. In compliance of the said directions, the District Collector wrote another letter dated 26th February, 2013 to the Deputy Secretary, Revenue Department, reiterating that the revenue records do not record any water reservoir in the relevant khasra numbers of the subject land and it was in this background that letter dated 19th December, 2012 had been issued by him recommending change of class of the land on the basis of the certification of the Tehsildar, Nawalgarh in the revenue records. It was again stated by the District Collector that in the light of the Report of the Tehsildar and the copies of old and current revenue records, orders may be issued by the State Government with regard to change of class of the proposed land that was entered into revenue records as ‘Johad’. 

11 The aforesaid material has been examined at length in the impugned judgment. The High Court has also taken note of the Resolution passed by the Gram Panchayat, village Baswa and the certificate issued by the Gram Panchayat which records that no water had ever accumulated on the subject land and the Gram Panchayat did not have any objection to the said land being granted to the respondent–Company for mining lease purpose subject to the condition that it would be receiving an equal measure of developed land in the same village from the respondent–Company in view of the land being consumed for mining lease purpose. The respondent–Company has also given undertakings to the High Court that the environment of the village will not be adversely impacted and the ecological balance shall be maintained. One of the undertakings given by the respondent–Company is that the site identified for development of an alternate ‘Johad’ would be identified and developed in a planned manner, so as to create a catchment area, water harvesting structure and cattle grazing land. 

12 Given the above background, reliance placed by learned counsel for the appellant–State Government on the judgments cited by him, is found to be misplaced. In Vellore Citizens’ Welfare Forum6 and A.P Pollution Control Board, this Court recognized the requirement of reconciliation between the concept of development and ecology as a facet of sustainable development. The relevant Articles of the Constitution of India including Articles 21, 47, 48-A, 51-A (g) that protect and improve the environment have been highlighted and the Precautionary Principle and Polluter-Pays Principle have been declared to be a part of the environmental law of the country. It has also been accepted that the burden of proof should lie on the entity proposing an activity that is potentially harmful to the environment. There can be no quarrel with the above position, but neither of the aforesaid judgments are relevant in the facts and circumstances of the instant case, inasmuch as no burden has been placed on the respondent–Company to demonstrate that the industry proposed to be set up by it, shall not cause any serious and/or irreversible harm to the ecology of the area. On the contrary, it is the stand of the Revenue Department of the appellant–State Government itself that there is no likelihood of any damage to the ecology of the area as the spot inspections reveal that there is no pond existing on the subject land that may be impacted adversely.

13 In Narmada Bachao Andolan v. Union of India, this Court had the occasion to discuss the Precautionary Principle and it was held that the said principle and the corresponding burden of proof on the person who wants to change the status quo, will ordinarily apply in the case of polluting or other projects or industry where the extent of damage likely to be inflicted, is not known. But when the effect of the project is known, then the principles of sustainable development would come into play which will ensure that mitigative steps can be taken to preserve the ecological balance. In the present case, there is no such uncertainty due to lack of availability of data or scientific material about the damage if any, likely to be caused to the ecological balance of the area. Instead, detailed spot inspections have been conducted by the revenue authorities from time to time that establish that there is no ‘Johad’ existing on the subject land. Despite that, the respondent–Company has been directed to develop an alternate ‘Johad’ in a planned manner at the same area, as a mitigative step which it has undertaken to execute.

14 In Lafarge Umiam Mining Private Limited, this Court has recognized the fact that the environment has different facets and universal dependence of humans for the use of environmental resources for the most basic needs, inescapably requires choices to be made at different levels on environmental protection and factor in the risks which are to be regulated, as recognized by the concept of sustainable development. Conceding that it is impossible to lay down ‘across-the-board’ principles and much would depend on the facts of each case, this Court opined that what was required to be seen was how much protection would be sufficient and whether ends would be served by diverting resources to other uses and at the same time, strike a fine balance between environmental protection and environmental risk. No such fine balance is required to be struck in the instant case when admittedly, the spot inspections show that there does not exist any ‘Johad’ on the subject land that is likely to be affected on account of the change proposed in the revenue records.

15 The directions issued in Jagpal Singh’s case calling upon State Governments to prepare a scheme for eviction of illegal/unauthorized occupants of Gram Sabha land also do not come in the way of the respondent–Company. The purpose of the said direction was to prepare a scheme for removal of illegal occupants expeditiously. This does not prevent the respondent–Company from approaching the Court for correction in the revenue records when the site inspection Reports prepared by the Revenue Authorities show that there is no water body or catchment area on the subject land. 

16 The focus in the case of Electrotherm (India) Limited was on conducting public hearings as a mandatory requirement of the environmental clearance process and the Court has frowned upon doing away with public hearings in the course of the decision- making process. In the case of Common Cause, this Court was seized of the aspect of illegal/unlawful mining in the State of Odisha and it was observed that Courts cannot interfere with the Mining Policy or lay down limits on the extent of mining activity that should be permitted by the State/Central Government. The said decision does not have any application to the facts of the instant case where the appellant–State Government has already given an in-principle consent for setting up a cement plant in favour of the respondent–Company and the High Court was only required to examine the aspect of correction in the revenue records in relation to the subject land where a ‘Johad’ was mentioned, but none existed at site.

17 In Alembic Pharmaceuticals’ case, the issue before this Court was with respect to the operation of industries without obtaining prior environmental clearance for a long time and their liability on account of such non-compliance. Noting that the industries had evaded the legally binding regime of obtaining environment clearance, it was held that penalty must be imposed on them for disobedience and non-compliance of the rules and regulations. Here, the respondent–Company has admittedly received environmental clearances and in spite of the same, its project has not taken off due to various hurdles created by the appellant–State Government. Clearly, the present case is not one of breach of any norms for imposition of penalty on the respondent–Company. 

18 Even the judgment of the Division Bench of the Rajasthan High Court in the case of Abdul Rehman is being completely misread by the appellant–State Government. The focus in the said judgment was on the restoration of the catchment area to its original shape for which a plan was directed to be drawn up which included demarcation of the catchment areas, demarcation of drainage channels etc. Nowhere in the said judgment has it been observed that the description of a land as a pond in the revenue records, when no pond exists on site, cannot be corrected after conducting a spot inspection. We are inclined to accept the submission made by learned counsel for the respondent–Company that in the absence of any pond at the spot, the decision rendered in the case of Abdul Rehman cannot be an impediment for processing the application of the respondent–Company for allocation of the subject land, for setting up a cement plant. The High Court has rightly referred to the decision of this Court in Director General, Research and Development, where noting the fact that there was no ‘Gair-Mumkin’ Nadi existing on the spot, it was observed that the decision of the High Court in Abdul Rahman will not come in the way of allotting the land to the petitioner.  

19 For the aforesaid reasons, we concur with the findings returned in the impugned judgment which is upheld. The appellant–State Government is directed to take necessary steps to process the allotment of the subject land in favour of the respondent–Company within four weeks from today. The respondent–Company shall file a fresh undertaking with the State Government, within the same timeline, as was filed by it before the High Court, for initiating time bound activities for the benefit of the surrounding villages, as compensatory measures for the allocation of the subject land. The appeal is dismissed while leaving the parties to bear their own expenses.

.................................CJI.

[N. V. RAMANA] 

...................................J.

[HIMA KOHLI] 

.................................J. 

[C. T. RAVIKUMAR]

NGT in Rasulpur Dana Welfare Society vs. WB Pollution Control Board & Ors. [01.08.2022]

BEFORE THE NATIONAL GREEN TRIBUNAL 

EASTERN ZONE BENCH, KOLKATA 

ORIGINAL APPLICATION No.108/2021/EZ 

IN THE MATTER OF: 

Rasulpur Dana Welfare Society 

Through its President 

Having its registered office at 

Village-Baidyadanga, P.O.-Rasulpur, 

District-Purba Bardhaman-713151                                                                                          ....Applicant(s) 

Versus 

1. West Bengal Pollution Control Board Through the Chairman, Paribesh Bhawan, 10A, Block-LA, Sector-III, Bidhannagar, Kolkata-700106 

2. The Panchayat Pradhan Nimo-I, Memari-1, Purba Bardhwan-713151 

3. District Magistrate, Purba Bhardhaman-713101 

4. The Central Pollution Control Board Through the Chairman, Paribesh Bhawan, Maharshi Valmiki Marg, East Arjun Nagar, Vishwas Nagar, Shahdara, New Delhi-110032 

5. The Block Land and Land Reforms officer, Memari-1, Purba Bhardhaman-713146 

6. District Land and Land Reforms Officer, Rajbari, Purba Bhardhaman-713101 1 

7. Parbati Ghosh, Daughter of Nitya Gopal Ghosh Village Baidyadanga, Rasulpur, Burdawan-713151 

8. Haru Ghosh, Village Baidyadanga, Rasulpur, Burdawan-713151 

9. Anukul Biswas, Village Baidyadanga, P.O. Rasulpur, P.S Memari, District-Burdawan-713151 

....Respondent(s) 

COUNSEL FOR APPLICANT: Ms. Paushali Banerjee, Advocate 

COUNSEL FOR RESPONDENTS: Mr. Dipanjan Ghosh, Advocate for R-1, 

Mr. Sibojyoti Chakraborty, Advocate for R-3, 5 & 6, 

Mr. Rajib Ray, Advocate for R-4, 

Mr. Somnath Ghosh, Advocate a/w Ms. Tapti Sarkar, Advocate for R-7 & 8, 

Mr. Sandip Ghosh, Advocate a/w Mr. Partha Sarkar, Advocate & 

Ms. Mousaumi Chatterjee, Advocate for R-9 

JUDGMENT

PRESENT:

HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) 

HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER)

__________________________________________________________________ 

Reserved On: - 27th July, 2022 

Pronounced On: - 1st August, 2022

 __________________________________________________________________

1. Whether the Judgment is allowed to be published on the net? Yes

2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes 

JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) 

Heard the learned Counsel for the parties and perused the documents on record.

2. This Original Application has been filed by the Applicant alleging that Respondent Nos. 7, 8 & 9 are destroying the two ponds in the Dag No. 463 and Dag No. 25, J.L. No. 135, Mouza- Baidyadanga under Memari-I Block, Rasulpur in Purba Bardhaman and are converting the two ponds into garbage dumps. It is further alleged that unauthorized and illegal constructions are being raised by them in collusion with Respondent No. 2, the Panchayat Pradhan Nimo-1, Memari-I, Purba Bardhaman, destroying the two ponds.

3. Notices were issued to the Respondents and respondents have filed their affidavits.

4. A Report dated 10.12.2021 has been filed by the Block Land and Land Reforms Officer, Purba Bardhaman, Memari-I, Memari, Purba Bardhaman along with the affidavit dated 14.12.2021 of the Respondent No.6, Additional District Magistrate & District Land and Land Reforms Officer, Purba Bardhaman. This letter which is addressed to the Additional District Magistrate and District Land and Land Reforms Officer, Purba Bardhaman, confirms that eight persons had tried to fill up the Plot No. 463 of Mouza-Baidyadanga, J.L. No. 135 and FIR's have been lodged against them. It was also noted in the report that on enquiry of Plot No. 25 of Mouza- Baidyadanga, J. L. No. 135, it has been found that one Anukul Biswas was attempting to fill the western side of the pond and notice had been issued to him earlier on 04.07.2016 to stop such work. It is also stated that there is a Kachcha Road on the western side of the pond and the remaining area has been filled with garbage and bushes. This confirms the allegations made by the Applicant. However, the report of the Block Land and Land Reforms Officer, Purba Bardhaman, was scanty in information in as far as the total area of the pond; how much of the area has been filled up with garbage and bushes and how much area has been utilized for construction of Kachcha Road is not stated. The area encroached is not clearly mentioned. Since, this report did not disclose the complete facts and also whether penalty/fine had been imposed on the encroachers over the waterbody and whether encroachers have been removed, the Tribunal directed the District Magistrate, Purba Bardhaman to file a fresh affidavit.

5. In response, affidavit dated 24.05.2022 has been filed by Respondent No.5, District Magistrate, Purba Bardhaman, stating therein that in pursuance of the letter of Block Land & Land Reforms Officer, Memari-I, an enquiry was conducted by the Revenue Inspector and as per the enquiry report a notice was issued to Anukul Biswas (Respondent No.9) to stop filling the pond in question. Another enquiry was conducted on 31.03.2022 and enquiry report dated 01.04.2022 has been submitted, from which it is seen that the total area of the Plot No.25 is 0.44 acres; a waterbody exists on 0.36 acres and 0.06 acres of the area at the eastern side of the pond is filled up with earth and is used as 'Pukur Par' and road, and 0.02 acres of area on the western side is filled up and is being used as a Kachha road. It is stated that the recorded Raiyat namely Amit Kumar Ganguly, Ashim Kumar Ganguly, Ashish Kumar Ganguly and Asit Kumar Ganguly were issued notices under Section 4C (5) of the West Bengal Land Reforms Act, 1955 dated 17.05.2022, for restoration of the waterbody but the Revenue Inspector was informed that the recorded raiyats had already sold the land to others namely Sujit Ghosh, Pankaj Gayan and Pratima Biswas (since deceased) who were issued notices under Section 4C (5) of the West Bengal Land Reforms Act, 1955 dated 18.05.2022, for restoration of the waterbody within 2 days. Another enquiry was conducted by the Revenue Inspector, Nimo-I on 19.05.2022 and as informed by the Additional District Magistrate & District Land & Land Reforms Officer, Purba Bardhaman vide his letter dated 21.05.2022, the total area of Plot No.463 is 0.61 acres out of which 0.21 acres has been filled up and it is found that there were six pucca constructions. It is stated that: -

(a) The recorded raiyats of Khatian No.539 of the said plot namely Bani Chandra W/o Sujit Chandra has a pucca house over 1,000 sq. ft. area.

(b) The recorded raiyat of Khatian No. 756, Uttam Das Gupta S/o Dijendralal Dasgupta has one pucca house over 858 sq. ft. area.

(c) A two storied building was found constructed over 2659 sq. ft. area made by one Monojit Ghosh but he is not a recorded raiyat.

(d) One Gouranga Ghosh, Biplab Bairaggya and Dibakar Ghosh S/o Haru Ghosh who were also not recorded raiyats had made pucca houses over the area of 1365 sq. ft., 1159 sq. ft. and 858 sq. ft. respectively.

(e) In the North-Eastern side there is also a road encroachment over 342 sq. ft. area and garbage was found covering an area of 858 sq. ft. and the remaining 0.40 acre area was found to be a waterbody filled with water hyacinths.

6. It is also stated by the District Magistrate that proceedings have been started against some persons for allegedly filling up the waterbody known as 'Shib Pukur' vide Memari P.S. F.I.R. No.511/2016 dated 13.08.2016 under the provisions of Section 4D of the West Bengal Land Reforms Act, 1955 and in the said case Charge sheet has already been submitted and the case is pending for adjudication in the court of Judicial Magistrate, 2nd Court, Bardhaman. It is further stated that notices were issued to:

1) Sri Dibakar Ghosh S/o Haradhan Ghosh;

2) Sri Uttam Dasgupta;

3) Smt. Bani Ghosh;

4) Sri Parbati Ghosh S/o Nityagopal Ghosh;

5) Sri Ramesh Ghosh;

6) Sri Samaresh Ghosh;

7) Sri Gouranga Ghosh and

8) Smt. Shyamali Boiragi W/o Biplab Boiragi They were directed to restore the waterbody of plot no.463, Mouza-Baidyadanga, J.L. No.135 within 7 days.

7. Along with the affidavit of the District Magistrate, Purba Bardhaman, a letter dated 23.05.2022 of the Block Land & Land Reforms Officer, Memari-I has been filed as Annexure-R-1, wherein it is stated that in the proceedings under Section 4C (5) of the West Bengal Land Reforms Act, 1955, Anukul Biswas, Pankaj Gayen and one Sujit Ghosh appeared before the said authority in the proceedings and submitted a deposition they will restore the actual character of the land within 7 days. Accordingly, time of 7 days was granted to them in the proceedings under Section 4C (5) of the West Bengal Land Reforms Act, 1955.

8. Thus, from the documents on record, we find that the admitted position that emerges is that the waterbody recorded in Dag No.463 and Dag No.25, J.L. No.135, Mouza Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman have been illegally occupied by the aforesaid persons.

9. The Respondent No.7, Parbati Ghosh, in her affidavit dated 05.01.2022 has stated that although the classification of the land of the two ponds is mentioned as 'Pukur' in the Land Revenue Record, the ponds are unusable for fish farming or for aquatic animals but that the ponds are not breeding ground of mosquitoes and flies.

10. The Respondent No.8, has also filed a counter-affidavit dated 25.04.2022 sworn by one Dibakar Ghosh also known as Har Ghosh S/o Taraknath Ghosh stating therein that he is neither the owner nor in possession of the land in question and he has no connection with regard to the Dag No.463 and Dag No.25, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman. Though in paragraph 6 of his affidavit he admits that there are ponds in Dag No.463 and Dag No.25, J.L. No.135, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman, though he has denied that the said ponds have been filled with garbage.

11. It is however, surprising that in paragraph-4, II of his affidavit the deponent, Respondent No.8, has stated that since his birth he used to reside at the addresses mentioned in the cause title permanently which is other than the said plot of land Dag No.463, Mouza-Baidyadanga, J.L. No.135, Khatian No.148, Memari.

12. The Respondent No.9 in his affidavit dated 15.07.2022 has stated that he is a co-owner of the property, J.L. No.135, Plot No.25, total area of land 44 Satak, Nature of land is Pukur and this land had been purchased by his late wife Pratima Biswas. It is also stated that in the C.S. Record of Rights, Dag/Plot No.25 is recorded as 'Sona' although in the Land Revenue Records of Rights the same land is recorded as 'Pukur'.

13. From the above, analysis and scrutiny of records, we find that there is absolutely no dispute that the plots in question are recorded as 'Pukur' (waterbody) in the Land Revenue Records which is borne out from the documents filed as Annexure-A to the original application as well as the averments of Respondent Nos.7, 8 & 9, and Plot No.463 is also recorded as 'Pukur'. The Report of the Block Land & Land Reforms Officer clearly establishes that the Respondent No.9 had attempted to fill up the Western side of the pond and he was issued a notice on 04.07.2016 to stop the same. It is also established that part of the Plot Nos.463 and 25 have been converted to a Kachcha road on the Western side and the remaining area has been filled up with garbage and bushes.

14. One more affidavit dated 26.07.2022 has been filed by the District Magistrate & Collector, District Purba Bardhaman, wherein it is stated that the Block Land & Land Reforms Officer Memari-I vide his letter dated 21.07.2022 informed the District Magistrate, Purba Bardhaman that as per the enquiry report dated 27.06.2022 submitted by Revenue Inspector, Nimo-I, with respect to Plot No.25, Mouza-Baidyadanga, J.L. No.135, that presently the Plot No.25, has been restored to its actual classification i.e. 'Pukur'. It is also stated that with respect to the Plot No.463, Mouza-Baidyadanga, J.L. No.135, the Block Land & Land Reforms Officer, Memari-I, Bardhaman had vide letter dated 21.07.2022 inter alia informed the District Magistrate, Purba Bardhaman that the total area of Plot No.463 is 0.61 acres, out of which 0.21 acres has been filled up and six pucca constructions were found to have been made thereon and in the North-Eastern side there is also an encroachment of over 342 sq. ft. area and some garbage found over 858 sq. ft. area and the rest 0.40 acres area is filled with water but the same is covered with water hyacinth. It is further stated that from the previous records as available in the office it appears that after getting complaint of illegal filling up of waterbody an enquiry was conducted by the Revenue Inspector on 12.08.2016, over the said plot of land and as per report of the Revenue Inspector a notice for restoration of waterbody was served upon eight persons vide Memo No.752, dated 17.08.2016, and thereafter, as per provisions of Section 4D of the West Bengal Land Reforms Act, 1955 First Information Reports (F.I.Rs.) have been lodged with the Officer-in-Charge, Memari Police Station vide office memo No.808-814 dated 30.08.2016 and presently the said case is pending adjudication in the Trial Court.

15. The Hon'ble Supreme Court in (2011) 11 SCC 396, Jagpal Singh & Ors. vs. State of Punjab & Ors., in Paragraph 16, 17, 18 & 22 has held as under: -

"16. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005 (4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.

17. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, 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.

18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.

22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

16. In (2019) 20 SCC 581, Jitender Singh vs. Ministry of Environment & Ors., the Hon'ble Supreme Court in Paragraph 23 has given the following directions: -

 

"23. For the reasons stated above, we allow the appeal and set aside the impugned order passed by the NGT. The allotment of all waterbodies (both ponds and canals), including Khasra Nos.552 and 490 to Respondent No.6, or any other similar third party in village Saini, tehsil Dadri, district Gautam Budh Nagar is held to be illegal and the same is hereby quashed. Since this Court has on 15.07.2019 already directed the parties to maintain status quo, Respondent Nos.1 to 5 shall restore, maintain and protect the subject-waterbodies in village Saini. Respondents are further directed to remove all obstructions from the catchment area through which natural water accumulates in the village ponds, all within a period of three months."

17. In (2001) 6 SCC 496, Hinch Lal Tiwari vs. Kamala Devi & Ors., the Hon'ble Supreme Court held as under: -

"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. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is failing in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass- root level if they were to become the nation's pride."

18. The Hon'ble Supreme Court in (2018) 13 SCC 390, National Institute of Medical Science University Rajasthan & Anr. vs. State of Rajasthan & Ors., has approved the view taken by the Hon'ble Supreme Court in Jagpal Singh (supra). Paragraphs 41, 42 & 43 of the judgment which read as under: -

"41. This view was followed and endorsed in Jagpal Singh in the following words:

"In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 crores.

In Friends Colony Development Committee v. State of Orissa 1 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is (2004) 8 SCC 733 actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.

In many States government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored."

42. Keeping in mind the view expressed by this Court in these and other decisions, we also direct the demolition of the unauthorized construction by or on behalf of NIMS on Khasra No. 526. The demolition should be carried out by the Jaipur Development Authority with the assistance of the State Government and the Collector of Jaipur District on or before 30th November, 2017. The Director General of Police of Rajasthan is directed to render all necessary assistance in the process of demolition. The cost of demolition and removal of rubble etc. will be at the expense of NIMS. Any pending application made by NIMS for compounding the unauthorized construction or regularizing it stands superseded in view of our decision.

43. We are giving these peremptory time bound directions in view of the fact that the learned Single Judge felt it appropriate, while dismissing the writ petitions filed by NIMS, to grant interim relief limited to only 7 days. More importantly, we are of opinion that the possibility of water being now made available to Jaipur City in due course of time takes far greater precedence over the interests of NIMS and those associated with it."

19. For reasons aforesaid, we dispose of the original application and direct the District Magistrate, Purba Bardhaman to take all steps for removal of encroachments from Plot No.463 and Plot No.25, J.L. No.135, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman within one month and restore the area of 0.61 acres of the Plot No.463 and area 0.44 acres of the Plot No.25, J.L. No.135, under Memari-I Block, Rasulpur, Purba Bardhaman to its original form as waterbody and take steps for removal of water hyacinths and file affidavit of compliance within three months i.e. by 31st October, 2022.

20. With the aforesaid directions, the Original Application No.108/2021/EZ is disposed of.

21. There shall be no order as to costs.

.............................. B. AMIT STHALEKAR, JM                 .............................. SAIBAL DASGUPTA, EM 

Kolkata 

August 01, 2022 

Original Application No.108/2021/EZ

NGT: Conservation & environmental protection an inseparable part of right to life [05.07.2022]

BEFORE THE NATIONAL GREEN TRIBUNAL 

CENTRAL ZONE BENCH, BHOPAL 

(Through Video Conferencing) 

Original Application No.48/2022 (CZ) 

Purushottam Agrwal & 3 Ors.                                                                 Applicant (s) 

Versus 

State of Madhya Pradesh & Anr.                                                           Respondent(s) 

Date of hearing: 05.07.2022 

CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER 

                 HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER 

For Applicant(s): Mr. Abhimanyu Shrivastav, Adv. 

For Respondent(s) : None 

ORDER

1. Article 21 of the Constitution of India protects not only the human rights but also casts an obligation on human beings to protect and preserve species becoming extinct. Conservation and protection of environment is an inseparable part of right to life. In M. C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388, the Court enunciated the doctrine of "public trust", the thrust of that theory is that certain common properties such as rivers, seashores, forests and the air are held by the Government in trusteeship for the free and unimpeded use of the general public. The resources like air, sea, waters and the forests have such a great importance to the people as a whole, that it would be totally unjustified to make them a subject of private ownership. The State, as a custodian of the natural resources, has a duty to maintain them not merely for the benefit of the public, but for the best interest of flora and fauna, wildlife and so on. The doctrine of 'public trust' has to be addressed in that perspective.

2. Issue raised in this application has genesis in O.A. No. 23 of 2021 titled as "Swami Narhariyanand Sarovar Jirnodhar Samiti vs. State of M.P. & Ors" whereby and where under on 31.08.2021, the matter was taken up by this Tribunal and disposed of in the following manner:

1. "Issue raised in this original application is the encroachment of Talab, Natural Water Body/Pond popularly known as Swami Narhariyanand Sarovar, which is situated in village Saikheda, Tehsil and district Narsinghpur, (M.P.).

2. The Nazri Aksh (current map) of Swami Narhariyanand Sarovar/ Talab indicate that, Khasra/survey no. 456 measuring area 0.526 hectare, Khasra/survey no. 457 measuring area 0.291 hectare and Khasra/survey no. 458/1 measuring area 5.953, total area admeasuring 6,7770 hectare (which is equivalent to 16.72 Acres), is a natural body/bund, of this Sarovar, which is in its natural state.

3. The matter was taken up on 28.05.2021 and this Tribunal constituted a committee in a following manner :- 

"9. We deem it just and proper to call a report on the matter in issue in present application, from a Joint Committee consisting of:-

i. District Collector, Narsinghpur, Bhopal 

ii. Municipal Corporation, Narsinghpur 

iii. Central Pollution Control Board or its representative 

iv. Madhya Pradesh Pollution Control Board or its representative

10. The Committee is directed to visit the place and submit the factual and action taken report within six weeks. The State PCB will be the nodal agency for coordination and logistic support.

11. The report in the matter be filed by the Committee by email at ngtczbbho-mp@gov.in preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF."

4. In compliance thereof, the Joint Committee consisting District Collector, Narsinghpur, Bhopal, Representative of Madhya Pradesh Pollution Control Board, Representative of Central Pollution Control Board and Representative of Municipal Corporation has submitted factual and action taken report which is as follows:- 

"FIELD OBSERVATIONS:-

Swami Narhariyanand Sarovar is a natural water body at khasra/survey no.456 measunig area 0.526 hectare, khasra/survey no.457 measuring area 0.291 hectare and khasra/survey no.458/1 measuring area 5.953 hectare, total area admeasuring 6.7770 hectare (which is equivalent to 16.72 Acres). The water body is surrounded by dense residential area. There is residential encroachment on the West and North part of the Swami Narhariyanand Sarovar and the domestic waste water generated from these houses is directly discharged into the Swami Narhariyanand Sarovar. Other than the direct discharge from the above houses; 02 small drains also meet in Sarovar, carrying domestic waste water from the nearby residential-cum-commercial area. The map of Swami Narhariyanand Sarovar is enclosed. Swami Narhariyanand Sarovar is a holy place for the people. There is Samadhi of Swami Narhariyanand in the middle of the pond. Being having religious importance people walk round the pond (Parikrama) for holy purpose. The path of Parikrarna has also been obstructed by encroachments.

There are 73 encroachments identified which has been ordered to be removed by the Tahsildar Saikheda. The Nagar Parishad Saikheda has also given notice to remove the encroachment. The latest status & list of encroachments is enclosed. Water Sampling The committee after surveying the site and drains meeting the Sarovar; carried out water sampling from 02 respective locations to assess the water quality of the Sarovar:

1. Mid of the Sarovar near Samadhi (GPS location: 22.9607874, 78.5767628 )

2. Near Tehsil Office before meeting Sarovar (GPS location: 22.9589697,78.5785498).

The water analysis w.r.to pH, DO, BOD & Total Coliform report is as tabulated below:

Sl.     Parameters                 Unit              Mid of the Near Tehsil
No.                                                  Sarovar near Office before
                                                     Samadhi      meeting
                                                                  Sarovar

1       pH                         -                 7.86             7.92

2       Dissolved Oxygen           mg/l              7.8              5.2

3       BOD (3 days, 270C)         mg/l              3.2              4.8

4       Total Coliform             MPN/100ml         540              1100

The analysis results show impact of domestic waste water being discharged into Swami Narhariyanand Sarovar from the nearby houses mostly of which are constructed as an encroachment at the bank of Swami Narhariyanand Sarovar. There is plenty of water in the Swami Narhariyanand Sarovar to dilute the domestic effluent but at the bank near Tehsil Office the quality of water is more polluted than middle of the pond. Detail analysis report is enclosed. Earlier Action Taken by Authorities i. The total encroachment is 73, which has been ordered to be removed by the Tehsildar Saikheda, the Nagar Parishad Saikheda has also given notice to remove the encroachment. In the appeal there is no relief to the extortionists. ii. The nature of the encroachment of the encroachers is basically residential, which has been built for the last 30-40 years, it also has a multi-storey building, removing the encroachment can also create a law and order situation. iii. M. P. Pollution Control Board Bhopal has imposed a penalty of Rs. 44.0 Lakhs on Nagar Parishad, Saikheda for non- compliance of MSW Rules 2016 and direct discharge into water bodies in compliance of directions given by Hon'ble NGT O.A No. 606/2018 dated 25.02.2020 & 02.07.2020. Copy of the notice given to Nagar Parishad Saikheda in this regard is enclosed.

iv. Work for lying sewer line is under construction stage at Saikheda along with installation of Sewage Treatment Plant (STP) of 2.6 MLD capacities for the treatment of domestic waste water. Details of progress of STP is enclosed. Photographs along with coordinate recorded during inspection is enclosed.

Recommendations:-

1. The local authority should expedite the work of STP construction and drain connectivity to ensure that no untreated effluent meet water bodies.

2. District authority shall resolve the cases of identified encroachments per the law.

3. To stop direct discharge of domestic waste water in Sarovar, local authority may arrange to shift the domestic outlet drain of households towards road side (proposed sewer line) to avoid further deterioration of the pond water.

4. The local authority may provide in-situ bio-remediation to treat the effluent drains till the STP work is ongoing.

5. A moving fountain may be installed in Sarovar to improve the dissolved oxygen."

5. Learned counsel appearing for the State Pollution Control Board has submitted that the authorities are taking legal action against unlawful encroachment of water bodies and 2.6 MLD capacity Sewage Treatment Plant is under construction and likely to be completed very soon and State Pollution Control Board shall ensure that there should not be any discharge of untreated water into the water bodies.

6. Learned Counsel appearing for the applicant Shri Dharamveer Sharma has submitted that strong action should be initiated against the person who had made illegal encroachment on the public land or the water bodies. We accept the report of the joint committee and direct the authorities concerned that the recommendations made by the Joint Committee must be strictly observed. We further direct as follows -

1. Respondents/authorities are directed that the sewage Treatment Plant (2.6 MLD capacity) which is under construction must be completed within a stipulated time.

2. Respondents are directed to ensure that no untreated water/ sewage water/solid waste, be discharged into the waterbodies and in case it is found that waste water / garbage are being discharge into the waterbodies, the necessary legal action as well as calculation and realization of environmental compensation in accordance with the parameter laid down by the Principal Bench of this Tribunal must be realized, according to law.

3. The illegal encroachment on the waterbodies as narrated in para 1 & 2 of the action taken and recommended at Para 2 in the clause of the recommendation must be acted upon and Collector, Narsingpur is directed to ensure the removal of the unlawful encroachment from the public land/waterbodies in accordance with the law within a time frame, say within six months.

4. The State Pollution Control Board, M.P. is directed to proceed with in accordance of law to comply point number 3 of report with regard earlier Action Taken by the Authorities and realization of environmental compensation."

3. The revenue authorities initiated to remove the encroachment and the order as attached (Annexure-03) reveals that in the revenue case RCMS0036 vide order dated 01.02.2021, Nayak Tehsildar has issued notices and orders to remove the encroachments from Government land / water body Khasra no. 456, 457, 458/1. Aggrieved by the order an appeal no. RCMS0157/appeal/2020-2021 was filed and the Sub Divisional Officer, Revenue passed an order dated 30.03.2021, under Section 44 of Madhya Pradesh Land Revenue Act, 1959. The order reveals the facts that the matter was complained and placed before Hon'ble the Chief Minister of Madhya Pradesh and request was made to remove the encroachment from the water bodies/pond.

4. In an another appeal no. 178/Appeal/2020-2021 the concerned Revenue Officer discloses the facts that the land in question is government land recorded as pond and the Appellant failed to produce any record/documents with regard to the ownership of the property. The land was demarcated previously by the revenue authorities and it was found that it is a matter of encroachment without any lawful authority.

5. The receipt with regard to the deposit of any amount to the Municipal council does not create any right of ownership in favour of the depositor to any land, though the number and specification of the land has not been disclosed and this further does not create any right for transfer of any land which is recorded as state land to any other person without the authority of the state.

6. The revenue record and copy of the Khasra reveals that the property Khasra no. as mentioned above is recorded as a public property/ in the name of the government and is in a nature of water bodies.

7. The prayer is to issue directions to the authorities not to act arbitrarily or misinterpret the orders passed in O.A. No. 23 of 2021 (CZ).

8. Hon'ble the Supreme Court of India in so many decisions had directed that the heart of the public trust is that it imposes limits and obligations upon Government agencies and their administrators on behalf of all the people and especially future generations. All the property which is vested in the state is indirectly managed by the local administration on the Principle of Public Trust. It does not mean that the local administration is at liberty or at the discretion to use it in own way. We have two things, sovereignty of the State and the doctrine of public trust. We have to make a balance between the two, though the State has every authority to utilize the land but Public Trust Doctrine says that the property of the public should be utilized for the public purposes and not for the private purposes. The water bodies, lake, air and land all these are the public properties and should be made available to all for maintaining the health and environment. This doctrine of public trust and precautionary measures were discussed in public interest litigation no. 87/ 2006; Bombay Environmental Action Group Vs. State of Maharashtra 2018 SCC online bombay 2680.2019(1) Bombay CRI and it was held as follows:-

―Apex Court observed thus: ― "2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preachings contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora, fauna and every species of life.‖ ―The ancient Roman Empire developed a legal theory known as the ―doctrine of the public trust‖. It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few."

9. In the case of M.C. Mehta v. Kamal Nath, in paragraph 34 and 35, the Apex Court held thus:

"34. 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. Public at large is the beneficiary of the seashore, running waters, airs, 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.

35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.

10. In the case of Fomento Resorts & Hotels Limited v. Minguel Martins 4, In paragraphs 53 to 55 and 65, the Apex Court held thus:

"- The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.

- The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, ―The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention‖ (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.

- The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including 15 down slope lands, waters and resources.

- We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems.‖ (emphasis added)

- Public at large has a right to enjoy and have a benefit of our forests including mangroves forest. The pristine glory of such forests must be protected by the State. The mangroves protect our environment. Therefore, apart from the provisions of various statutes, the doctrine of public trust which is very much applicable in India makes it obligatory duty of the State to protect and preserve mangroves. 

‖ PRECAUTIONARY PRINCIPLE

11. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under:

"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem."

The Precautionary Principle has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51- A(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 wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife 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 environment degradation. 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 the close vicinity of the lakes.

17. India is endowed with extraordinarily diverse and distinctive traditional water bodies found in different parts of the country, commonly known as ponds, tanks, lakes, vayalgam, ahars, bawdis, talabs and others. They play an important role in maintaining and restoring the ecological balance. They act as sources of drinking water, recharge groundwater, control floods, support biodiversity, and provide livelihood opportunities to a large number of people. Currently, a major water crisis is being faced by India, where 100 million people are on the frontlines of a nationwide water crisis and many major cities facing an acute water shortage. The situation will worsen as United Nations and Niti Ayog reports say that the demand for water will reach twice the available supply, and 40 per cent of India's population will not have access to clean drinking water by 2030. One of the reasons is our increasing negligence and lack of conservation of waterbodies. Since independence, the government has taken control over the waterbodies and water supply. With a colonial mindset, authorities move further and further away in the quest of water supply, emphasing more on networks, infrastructure and construction of dams. This, over time, has led to the neglect of waterbodies and catchments areas. As a result, we have started valuing land more than water. In the last few decades, waterbodies have been under continuous and unrelenting stress, caused primarily by rapid urbanisation and unplanned growth. Encroachment of waterbodies has been identified as a major cause of flash floods in Mumbai (2005), Uttrakhand (2013), Jammu and Kashmir (2014) and Chennai (2015). Further, waterbodies are being polluted by untreated effluents and sewage that are continuously being dumped into them. Across the country, 86 waterbodies are critically polluted, having a chemical oxygen demand or COD concentration of more than 250 mg/l, which is the discharge standard for a polluting source such as sewage treatment plants and industrial effluent treatment plants. In urban India, the number of waterbodies is declining rapidly. For example, in the 1960s Bangalore had 262 lakes. Now, only 10 hold water. Similarly, in 2001, 137 lakes were listed in Ahmedabad. However, by 2012, 65 were already destroyed and built upon. Hyderabad is another example. In the last 12 years, it has lost 3,245 hectares of its wetlands. The decline in both the quality and quantity of these waterbodies is to the extent that their potential to render various economic and environmental services has reduced drastically. Although there are sufficient polices and acts for protection and restoration of waterbodies, they remain insufficient and ineffective.

18. Realizing the seriousness of the problem confronting waterbodies, the Centre had launched the Repair, Renovation and Restoration of Water Bodies' scheme in 2005 with the objectives of comprehensive improvement and restoration of traditional water bodies. These included increasing tank storage capacity, ground water recharge, increased availability of drinking water, improvement of catchment areas of tank commands and others. However, in this regard, not much has been seen on the ground.

19. It is of utmost importance for meeting the rising demand for water augmentation, improving the health of waterbodies as they provide various ecosystem services that are required to manage microclimate, biodiversity and nutrient cycling. Many cities are working towards conservation of waterbodies like the steps initiated in the capital city of Delhi for instance. In turning Delhi into a city of lakes, rejuvenation of 201 waterbodies has been finalised. Of these, the Delhi Jal Board (DJB) plans to revive 155 bodies while the Flood and Irrigation Department will revive 46. DJB claims that the aim is to achieve biological oxygen demand or BOD to 10ppm and total suspended solids to 10mg/l. Also the establishment of the Wetlands Authority by the Delhi government is a welcome step towards notifying and conserving natural waterbodies. In order to achieve the goal of revival of waterbodies, it is important to understand that one solution may not fit all the waterbodies. Depending on the purpose, ecological services, livelihood and socio-cultural practices, the approach will vary from one waterbody to another. However the issues with regard to lack of data and action plans, encroachments, interrupted water flow from the catchment, siltation, violations of laws, solid waste deposit and polluted water, involvement of too many agencies, etc have to be taken into consideration.

Action needs to be taken towards:

1. Attaining sustainability. Thus, emphasis on long-term goals, operation and maintenance should be included along with the allocation of budget.

2. Success of the lakes should be tested on all three fronts namely economic, environmental and social. Many studies point that a deliberate effort has to be made on the social front for which better publicity of the environmental benefits of the project and enhancing environmental awareness, especially among the local community is required.

3. Encouraging local people to collaborate with other stakeholders to successfully utilise resources and ensure the protection and conservation of waterbodies.

4. Traditionally, water was seen as a responsibility of citizens and the community collectively took the responsibility of not only building but also of maintaining the water bodies. This needs to be brought back into the system.

5. Thus, an integrated approach taking into account the long-term sustainability, starting from the planning stage where looking at every waterbody along with its catchment, is required.

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.

"10. In this view of the matter, this petition is disposed of with the following directions:-

(1) That, in each divisional level a Committee be constituted under the chairmanship of Revenue Commissioner of the division to monitor the effective implementation of the water conservation schemes introduced by the Government for the aforesaid purpose.

(2) The Committee shall also ensure that there should not be any encroachment over the land of ponds, tanks and lakes, and if, there is any encroachment that be removed immediately.

(3) The State Government shall take effective steps in regard to water harvesting and ground water level management so the problem of reducing the level of ground water could be tackled.

(4) A copy of this order be sent to the Chief Secretary of the State and also the Secretary, Revenue Department of the State."

[Emphasis supplied] 

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.