| Content Provider | Supreme Court of India |
|---|---|
| e-ISSN | 30484839 |
| Language | English |
| Access Restriction | NDLI |
| Subject Keyword | Environmental laws: Forest land |
| Content Type | Text |
| Resource Type | Law Judgement |
| Jurisdiction | India |
| Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 |
| Case Type | Appeal |
| Court | Supreme Court of India |
| Disposal Nature | Appeal Disposed Off |
| Headnote | Environmental laws: Forest land – Diversion of forest land for construction of bus stand and parking space at McLeod Ganj – Construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex – Legality of – By order dated 12 November 1997, MOEF permitted diversion of 0.093 hectares of forest land for construction of a parking space at McLeod Ganj in accordance with s.2 of the Forest Act – Another order dated 1 March 2001 was passed by MOEF diverting another 0.48 hectares of forest land for construction of a bus stand at McLeod Ganj – In April 2000, appellant-authority was constituted for construction of bus stands in the State of Himachal Pradesh – In 2006, the land diverted for non-forest use under orders dated 12 November 1997 and 1 March 2001 was transferred on a 99 year lease to the appellant for construction of parking facility in McLeod Ganj – Appellant decided to construct a Bus Stand-cum-Parking Complex and approved the lowest bid of second respondent – Second respondent started construction of the Bus stand Complex without awaiting approval of plans and drawings by the Town and Country Planning (TCP) Department – Subsequently TCP Department received application seeking approval of drawings of Bus Stand Complex – TCP Department pointed out certain shortcomings – As second respondent continued with the construction without rectifying the shortcomings, TCP Department called upon the appellant to halt the construction of Bus Stand Complex – Relying upon the report of CEC, NGT gave findings that the project proponent not only started the construction without obtaining appropriate approval and sanction from the concerned State and Central Government but had also worked in collusion with some of the authorities who consented to the commencement of construction which was entirely uncalled or and was illegal – Hence instant appeal – Held: The construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex was illegal and constituted a brazen violation of law – The permission which was granted by MOEF on 12 November 1997 was only for construction of a ‘parking place’ at McLeod Ganj – Similarly, the permission granted on 1 March 2001 was granted for constructing a ‘bus stand’ in the same area – At no point was any permission granted for the construction of a hotel or commercial structure – Appellant, on being granted permission to engage in construction for a specified purpose, unlawfully utilised that permission as the basis to construct a different structure which was not authorized – It did so in disregard of the provisions of the Forest Act – The provisions of s.2 of the Forest Act mandated strict and punctilious compliance – Mere substantial compliance is not enough – The officials of statutory bodies of the State Government connived at the violation of law which is a reflection on the nature of governance by those who are expected to act within the bounds of law – NGT acted within its mandate in a case of this nature, where the appellant actively allowed the perpetration of a structure in breach of environmental norms – Not looking askance at the construction of the Hotel-cum-Restaurant structure, in an area which the NGT rightly describes as the “lap of nature”, would lead on the path of judicially sanctioned environmental destruction – Directions passed to demolish the Hotel-cum-Restaurant structure in the Bus Stand Complex – Further, as directed by the NGT, the State of Himachal Pradesh and the second respondent can utilise the parking space and the bus stand in the Bus Stand Complex, after the demolition of the Hotel-cum-Restaurant structure – However, this should be in accordance with orders dated 12 November 1997 and 1 March 2001 issued by the MOEF, i.e., it shall not be used for any purpose other than parking of cars and buses, as the case may be – Forest Act – s.2 – Himachal Pradesh Town and Country Planning Act, 1977. Environmental laws: Environmental rule of law – Essential features of – Held: It seeks to facilitate a multi-disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection – It recognises that the ‘law’ element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges – On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats – Environmental rule of law seeks a unified understanding of these concepts – There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. Environmental rule of law – Violation of – In the case in hand, the exact effect of the construction of the Hotel-cum-Restaurant structure by the appellant and the second respondent on the ecology of the area cannot be determined in quantifiable terms – The parties engaged in the construction without complying with the plans drawn by the appellant’s third-party consultants, which were agreed to by them in the RFP – The construction proceeded even when the TCP Department tried to halt it, refusing to approve its plans – Even the post facto refusal by the MOEF for changing the nature of the diverted forest land was not enough to stop the parties – Ultimately, when they were forced to halt the construction by the CEC, they proceeded with it under the guise of an order of this Court which permitted only legal construction – A combination of these circumstances highlighted not only conduct oblivious of the environmental consequences of their actions, but an active disdain for them in favour of commercial benefits – While the second respondent was a private entity, they were actively supported in these efforts by the appellant – Hence, their actions stood in violation of the environmental rule of law – The environmental rule of law surely means that construction of this sort cannot receive acceptance, no matter what its economic benefits may be. Jurisprudence: Rule of law and Rule by the law – Distinction between – In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone – The rule of law is to be distinguished from rule by the law – The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process – The rule of law postulates a law which is answerable to constitutional norms – The law in that sense is accountable as much as it is capable of exacting compliance – Rule by the law on the other hand can mean rule by a despotic law – It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations – A rule of law framework dwells on the institutions which provide the arc of governance – By focussing on the structural norms which guide institutional decision making, rule of law frameworks recognise the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed – A modern rule of law framework is hence comprehensive in its sweep and ambit – It recognises that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power – Rule of law then dwells beyond a compendium which sanctifies rules of law – Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance. National Green Tribunal Act, 2010: Whether the NGT could have adjudicated upon a violation of the TCP Act, which is not an Act present in Schedule I of the NGT Act – Held: The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP Department before changing the nature of the land through their construction – Non-conformity with this stipulation led to a violation of their environmental obligations – In any case, this question is academic in the instant case because the NGT’s impugned judgment grounds its decision in the appellant and second respondent’s violation of s.2 of the Forest Act, which is an Act present within Schedule I of the NGT Act – Forest Act – s.2 – Himachal Pradesh Town and Country Planning Act, 1977. |
| Judge | Hon'ble Dr. Justice D.Y. Chandrachud |
| Neutral Citation | 2021 INSC 18 |
| Petitioner | Himachal Pradesh Bus Stand Management And Development Authority (hpbsm & Da) |
| Respondent | The Central Empowered Committee Etc. & Ors. |
| SCR | [2021] 1 S.C.R. 344 |
| Judgement Date | 2021-01-21 |
| Case Number | 5231 |
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