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JITENDRA SINGH

v.

MINISTRY OF ENVIRONMENT & ORS.

(Civil Appeal No. 5109 of 2019)

NOVEMBER 25, 2019

[ARUN MISHRA AND SURYA KANT, JJ.]

Environmental Law:

Environment protection – Allotment of local ponds – To private

industrialists – By Industrial Development Authority – Challenged

before Green Tribunal – Challenge dismissed on the basis of affidavit

by the Authority claiming to develop bigger alternative water-bodies

– Appeal to Supreme Court – Plea of Authority that Government

order dated 3.6.16 permitted destruction of exiting ponds and

allotment thereof to third-parties in extra-ordinary circumstances

and that the land was not a ‘Pokhar’ Pond – Held: Allotment having

been made in 2012, order passed in 2016 would not operate

retrospectively – Moreover, no extra-ordinary circumstances made

out in favour of the allottee – Revenue records show that the land

was a ‘Pokhar’ – Protection of such village commons is essential to

safeguard the right u/Art. 21 of the Constitution – It is also

constitutional obligation of the respondents to ensure protection

and integrity of the environment as enshrined u/Arts. 48-A and 51-

A(g) – The scheme which extinguish local water bodies albeit with

alternatives are violative of constitutional principles and hence

liable to be struck down – Constitution of India – Arts. 48-A and

51-A(g),

Allowing the appeal, the Court

HELD : 1. The respondents have not been able to

demonstrate how the 2016 Government Order can be made

applicable retrospectively, the possession having been given to

the Company in 2012. Notwithstanding this, no case of the present

instance being an extraordinary circumstance (hence permitting

recourse to the exceptional provisions of the Government Order)

has been made before the Court either. Photographs show that

[2019] 14 S.C.R. 220

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there is substantial water in the pond, which has not been

controverted. Further, revenue records maintained by the

Revenue Department themselves show that the land wa s

‘pokhar’. It is hence not open for the authorities to contradict

and plead against the record without any scientific or empirical

support, for such categorisation had been made by them in the

past. Further, it was conceded by respondent-authorities during

arguments that Khasra No. 490 was also recorded as ‘pokhar’ in

revenue records and that it too had been integrated in the

industrial development project. [Para 12] [226-G-H; 227-A-B]

2. Repeal of the UP Zamindari Abolition and Land Reforms

Act, 1950 and vesting of such ponds and local areas in the State

by Section 57 of the UP Revenue Code, 2006 would not by itself

either change the nature of land contrary to revenue record nor

will defeat the long-established rights of the local people on

commons. [Para 13] [227-C-D]

3. Industrial activities without any rationale classification,

unlike the narrow class exempted under the Government Order

dated 3.6.16 do not serve a social public purpose or benefit the

local people, and thus will be hit by the inalienability bar.

[Para 17] [229-A]

4. Even otherwise, the action of the respondent-authorities

contravenes their Constitutional obligations. Article 48-A of the

Constitution casts a duty on the State to “endeavour to protect

and improve the environment and to safeguard the forests and wild

life of the country”, and Article 51-A(g) expects every citizen to

perform his fundamental duty to “protect and improve the natural

environment”. A perusal of the Constitutional scheme and judicial

development of environmental law further shows that all persons

have a right to a healthy environment. The State is nothing but a

collective embodiment of citizens, and hence collective duties of

citizens can constructively be imposed on the State. Therefore,

it is the responsibility of the respondents to ensure the protection

and integrity of the environment, especially one which is a source

for livelihood for rural population and life for local flora and fauna.

[Paras 18 and 19] [229-B-C; 230-A]

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5. Protection of such village-commons is essential to

safeguard the fundamental right guaranteed by Article 21 of the

Constitution. These common areas are the lifeline of village

communities, and often sustain various chores and provide

resources necessary for life. Waterbodies, specifically, are an

important source of fishery and much needed potable water. Many

areas of the 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. [Para 20] [230-B-C]

6. The respondents’ scheme of allowing destruction of

existing water bodies and providing for replacements, exhibits a

mechanical application of environmental protection. Although it

might be possible to superficially replicate a waterbody elsewhere,

however, there is no guarantee that the adverse effect of

destroying the earlier one would be offset. The respondents’

reduction of the complex and cascading effects of extinguishing

natural water-bodies into mere numbers and their attempt to

justify the same through replacement by geographically larger

artificial water-bodies, fails to capture the spirit of the

Constitutional scheme and is, therefore, impermissible. Hence,

it is clear that schemes which extinguish local waterbodies albeit

with alternatives, as provided in the 2016 Government Order by

the State of UP, are violative of Constitutional principles and are

liable to be struck down. [Paras 21 and 22] [230-D-H]

Chigurupati Venkata Subbayya v. Palaguda Anjayya

(1972) 1 SCC 521 : [1972] 3 SCR 172 ;Hinch Lal

Tiwari v. Kamala Devi (2001) 6 SCC 496 : [2001]

1 Suppl. SCR 23 ;Jagpal Singh v. State of Punjab

(2011) 11 SCC 396 : [2011] 2 SCR 250 ;MC Mehta v.

Union of India(1988) 1 SCC 471 : [1988] 2 SCR 530

– relied on.

Case Law Reference

[1972] 3 SCR 172 relied on Para 13

[2001] 1 Suppl. SCR 23 relied on Para 15

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[2011] 2 SCR 250 relied on Para 16

[1988] 2 SCR 530 relied on Para 18

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5109

of 2019.

From the Judgment and Order dated 06.03.2019 of the National

Green Tribunal, Principal Bench, New Delhi in O.A. No. 161 of 2017.

A. N. S. Nadkarni, ASG, V. K. Shukla, Sr. Adv., S. S. Rebello,

Bharat Singh, Ms. Arzu Paul, M. P. Gupta, Neeleshwar Pavani,

Ms. Shivikka Agarwal, Ms. Riya Soni, G. S. Makker, Sanjeev Kumar

Dubey, Rajmangal Kumar, Hitendra Nath Rath, Sanjay Dubey, Vishal

Kaushik, Shiv Kumar, Vikash Sinha, Shiv Shankar, Rana Sudershan

Biswas, Jai Singh, Uttam Singh Negi, Avijit Roy, Pradeep Misra, Suraj

Singh, Ravindra Kumar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

SURYA KANT, J.

1. The instant statutory appeal has been preferred under Section

22 of the National Green Tribunal Act, 2010 (hereinafter “NGT Act”)

against the order dated 06.03.2019 of the Principal Bench of the National

Green Tribunal (“NGT”), whereby appellant’s grievance against allotment

of local ponds to private industrialists has been dismissed summarily

without any adjudication of the lis or merits, but merely on the basis of

an affidavit filed by Respondent No. 5 (Greater Noida Industrial

Development Authority – hereinafter “GNIDA”) claiming that it was

developing bigger alternative water-bodies.

FACTUAL BACKGROUND

2. The appellant is a permanent resident of village Saini, tehsil

Dadri, of district Gautam Budh Nagar, which falls in the National Capital

Region. He claims to be a socially-active lawyer dedicated to bettering

the lives of his co-villagers and alleges that the Original Application before

the NGT was triggered when around 18.01.2017 the agents of a private

entity (Respondent No. 6 - M/s Sharp Enterprises Pvt. Ltd. - hereinafter

“Sharp”) using excavataors and other heavy machinery attempted to

forcibly takeover possession of a ‘common-pond’, which had been in

use by local villagers for a century. This was objected to by the villagers,

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and the appellant subsequently made a complaint on 25.01.2017 to various

authorities including the District Collector. Pointing out revenue records

which elucidate the commons-status of the ponds, he sought directions

to restrain Sharp and its agents. However, there was no action on his

representation for more than 10 days, leading to another attempt by

Sharp at dispossession, compelling the appellant to seek police help. A

few days later, he submitted another representation to the Collector, but

to no avail. Aggrieved, he was left with no recourse but to approach the

NGT by way of an Original Application under Section 14 (read with

Sections 15 and 18) of the NGT Act for adjudication of these

environmental issues.

3. Before the Tribunal, appellant contended that large tracts of his

village (but not the impugned water-bodies) had been acquired under

the Land Acquisition Act, 1894 ostensibly for industrial development by

GNIDA. Subsequently, these acquired lands (including some local ponds)

had been leased to private industrialists, including Sharp in 2012. Using

revenue records obtained under the UP Consolidation of Holdings Act,

appellant showed that Khasra Nos. 552 (1140 sq meters) and 490 (8470

sq meters) were ‘pokhar’ (pond) and Khasra Nos. 522 (1620 sq meters)

and 676 (9804 sq metres) were ‘rajwaha’ (canal). Highlighting that the

water bodies were vested in the Gram Sabhas per Section 117 of the UP

Zamindari Abolition and Land Reforms Act, 1950, he contended that

such land had neither been acquired, nor resumed and hence there was

no power with GNIDA to transfer the same to Sharp. He further claimed

to have discovered other similar illegal allotments of water bodies by

GNIDA to other third-parties.

4. The appellant urged that neither the mandatory environmental

clearances under the Environmental (Protection) Act, 1984 had been

obtained by the industrialists nor the statutory authorities applied their

mind that the project would negatively impact the environment and human

health. Laying support on the Ramsar Convention and Rule 4 of the

Wetland (Conservation and Management) Rules, 2010 which prohibited

reclamation of wetlands, setting up or expansion of industries, permanent

construction or any other activity with potentially adverse effects on

ecosystem, he sought cancellation of such illegal allotments and protection

of water-bodies.

5. During pendency of the proceedings, GNIDA’s representatives

started filing up certain ponds and started developing an alternate area

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(1.25 times bigger) as a new waterbody to save the allotment made in

favour of Sharp (as admitted in an additional affidavit filed before the

NGT on 15.01.2019 by GNIDA).

6. Over the course of proceedings, the appellant was permitted to

amend his prayers in the Original Application to enable challenge to all

illegalities concerning village commons. No rejoinder or additional affidavit

was filed by any respondent against the amended Original Application.

7. The NGT vide its brief impugned order dated 06.03.2019 took

note of this representation of constructing alternate pond and abruptly

concluded that appellant’s substantial grievance had been redressed. It

accordingly dismissed his application, without venturing into the merits

or the lis of the dispute.

CONTENTIONS OF PARTIES

8. This summary dismissal by the NGT has been challenged before

us. Appellant raises grievance against the manner in which the NGT,

without even looking at the sweep of his prayers, disposed off the mater

before it, merely on the strength of a proposed affidavit (which was

actually filed only on 12.03.2019, post adjudication of the application by

the NGT and without any advance copy to the appellant). He further

protests the haste with which his application was disposed of and how

the reluctance by the NGT to conduct even a proper enquiry has resulted

in conferrment of illegal benefits to third-parties, at the cost to the

environment and local residents.

9. The appellant contends that the disputed pond is situated near

the Aravali hills which are in an arid zone with a low-water table. He

demonstrated how the existing sparse flaura and fauna in the region

was hence unlikely to survive elsewhere. Highlighting the unchecked

urbanisation and construction of concrete jungles in the ecologically

sensitive area, the appellant alleged that Respondent-authorities were in

active connivance with industrialists and real estate companies, were

negligently discharging their duties. This, he contended, violated public

trust and consequently the right to a wholesome environment guaranteed

under Article 21 of the Constitution. Interpreting Article 48A and Article

51-A(g) to place a duty on the State to protect the environment, including

lakes and water-bodies, the appellant has sought intervention of this Court

to save and restore the local ponds.

JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.

[SURYA KANT, J.]

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10. Per contra, learned Counsel for GNIDA (Respondent No. 5)

placed reliance on a Government Order dated 03.06.2016, which he

claimed permitted destruction of existing ponds and allotment of filled-

up land to third-parties in certain extraordinary circumstances, with the

stipulation that 25%-larger alternate water-bodies be developed

elsewhere. Further, he questioned recording of Khasra Nos. 552 and

490 as ‘pokhar’ in revenue record, contending that it was merely ‘slightly

low lying land’ over which some water would get accumulated during

rainy season. There was statedly no water on the pond-land since the

past year, showing that it was merely ordinary in nature. Even if ‘pokhar’,

Khasra Nos. 552 was only 1140 sq. meters in size, which constituted a

miniscule portion (only 1.4%) of the total allotted plot of 80,900 sq. meters.

It was also explained that no other ‘pokhar’ had been included and Khasra

No. 490 had not been allotted to Sharp. GNIDA also put forth a contrary

allegation that the appellant was, in fact, aggrieved by non-disbursement

of compensation and had set up the entire dispute as a rouse to stall

development of the area so that he could instead use it for his private

purpose of cattle grazing.

11. Sharp (Respondent No. 6) has averred that the disputed land

was no longer vested in the Gram Sabha as the UP Zamindari Abolition

and Land Reforms Act, 1950 had been repealed by the UP Revenue

Code, 2006. This new Code specified that title of all lands including

lakes, ponds, tanks, streams and nallas vest in the State Government.

Through Section 59 of the Code, the land was merely entrusted to the

Gram Panchayat, and the State retained power to alter such entrustment

at any time. It claimed to have paid Rs 25 crores as sale consideration

for leasehold rights over acquired areas and is allegedly suffering as a

result of litigation-induced delays.

ANALYSIS & FINDINGS

12. At the outset, we must note, that the respondents have been

unable to demonstrate how the 2016 Government Order can be made

applicable retrospectively, the possession having been given to Sharp in

2012. Notwithstanding this, no case of the present instance being an

extraordinary circumstance (hence permitting recourse to the exceptional

provisions of the Government Order) has been made before us either.

Further, argument that Khasra No. 552 is a ‘slightly-sloped seasonal

rainfall-catchment area’ and not a ‘pond’, is creative but without merit.

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Photographs have been placed on record by the appellant showing that

there is substantial water in the pond, which has not been controverted.

Further, revenue records maintained by the Revenue Department

themselves show that the land was ‘pokhar’. It is hence not open for the

authorities to contradict and plead against the record without any scientific

or empirical support, for such categorisation had been made by them in

the past. Further, it was conceded by respondent-authorities during

arguments that Khasra No. 490 was also recorded as ‘pokhar’ in revenue

records and that it too had been integrated in the industrial development

project.

13. Additionally, it is clear that repeal of the UP Zamindari Abolition

and Land Reforms Act, 1950 and vesting of such ponds and local areas

in the State by Section 57 of the UP Revenue Code, 2006 would not by

itself either change the nature of land contrary to revenue record nor

will defeat the long-established rights of the local people on commons.

Such a proposition had unequivocally been laid down in Chigurupati

Venkata Subbayya v. Palaguda Anjayya

1

, where this Court negatived

a contention that communal rights in the suit-land stood abolished per

Section 3 of the Estates Abolition Act, 1948 for it provided that estates,

including communal lands, would stand transferred to the Government

free from any encombrance. Further, it was held that even explicit

destruction of all rights and interests created by the principal or

landholders, would not apply to community rights as such rights originated

elsewhere.

14. Given that Section 22 of the NGT Act, 2010 specifies that the

nature of the appeal shall be akin to a second appeal as specified under

Section 100 of the Code of Civil Procedure, 1908, we would restrict our

deliberation to a singular substantive question of law. That is, whether it

is permissible for the State to alienate common water-bodies for industrial

activities, under the guise of providing alternatives?

15. In Hinch Lal Tiwari v. Kamala Devi

2

, this Court settled that

‘ponds’ were a public utility meant for common use and held that they

could not be allotted or commercialised. It had refused to give any weight

to similar arguments of the pond having become levelled, with merely

some portion getting covered during rainy season by water. Importantly,

it emphasised that:

1

(1972) 1 SCC 521.

2

(2001) 6 SCC 496.

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“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. The Government, including the Revenue

Authorities i.e. Respondents 11 to 13, having noticed that a

pond is falling 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.”

16. This Court reiterated in Jagpal Singh v. State of Punjab

3

and noted that since time immemorial, certain common lands had vested

in village communities for collective benefit. Except in exceptional

circumstances when used exclusively for the downtrodden, these lands

were inalienable. It was observed that such protections, however,

remained on paper, and since Independence powerful people and a corrupt

system had appropriated these lands for personal aggrandisement. Pointing

out the harms in allowing such misappropriation, the Court noted an

urgent public interest in stopping such misdeeds. Further, various directions

were issued for eviction of illegal occupants and restoration of the

common land to villagers. It was explicitly specified that “long duration

of such illegal occupation or huge expenditure in making

constructions thereon” cannot be a “justification for condoning this

illegal act or for regularising the illegal possession”.

17. It is uncontroverted, in the present case, that the Government

Order dated 03.06.2016 was a consequence of the afore-cited judgment

in Jagpal Singh. Curiously, however, Clause 5 of the Government Order

carves an exception of “huge projects/works” (albeit in extraordinary

circumstances) to Jagpal Singh’s strict principle of non-alienation of

common water-bodies. It is clear that such ground of exception doesn’t

fall under the limited class of grants to “landless labourers or members

of the Scheduled Castes/Scheduled Tribes, or where there is already

a school, dispensary or other public utility on the land”. Such

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industrial activities without any rationale classification, unlike the narrow

class exempted, do not serve a social public purpose or benefit the local

people, and thus will be hit by the inalienability bar.

18. Even otherwise, the action of the respondent-authorities

contravenes their Constitutional obligations. Article 48-A of the

Constitution casts a duty on the State to “endeavour to protect and

improve the environment and to safeguard the forests and wild life

of the country”, and Article 51-A(g) expects every citizen to perform

his fundamental duty to “protect and improve the natural environment”.

A perusal of our Constitutional scheme and judicial development of

environmental law further shows that all persons have a right to a healthy

environment. It would be gainsaid that the State is nothing but a collective

embodiment of citizens, and hence collective duties of citizens can

constructively be imposed on the State. Such an interpretation of the

Constitution has also been adopted in MC Mehta v. Union of India

4

wherein this Court mandated the State to ensure mandatory

environemental education to all school students in pursuance of the

fundamental duties ensrined in Article 51-A(g):

“24. Having regard to the grave consequences of the pollution

of water and air and the need for protecting and improving

the natural environment which is considered to be one of the

fundamental duties under the Constitution (vide Clause (g)

of Article 51A of the Constitution) we are of the view that it is

the duty of the Central Government to direct all the educational

institutions throughout India to teach atleast for one hour in

a week lessons relating to the protection and the improvement

of the natural environment including forests, lakes, rivers and

wildlife in the first ten classes. The Central Government shall

get text books written for the said purpose and distribute them

to the educational institutions free of cost. Children should

be taught about the need for maintaining cleanliness

commencing with the cleanliness of the house both inside and

outside, and of the streets in which they live. Clean

surroundings lead to healthy body and healthy mind. Training

of teachers who teach this subject by the introduction of short

term courses for such training shall also be considered. This

should be done throughout India.”

4

(1988) 1 SCC 471.

JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.

[SURYA KANT, J.]

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19. There remains therefore no doubt that it is the responsibility

of the respondents to ensure the protection and integrity of the

environment, especially one which is a source for livelihood for rural

population and life for local flaura and fauna.

20. Protection of such village-commons is essential to safeguard

the fundamental right guaranteed by Article 21 of our Constitution. These

common areas are the lifeline of village communities, and often sustain

various chores and provide resources necessary for life. 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.

21. The respondents’ scheme of allowing destruction of existing

water bodies and providing for replacements, exhibits a mechanical

application of environmental protection. Although it might be possible to

superficially replicate a waterbody elsewhere, however, there is no

guarantee that the adverse effect of destroying the earlier one would be

offset. Destroying the lake at Khasra Nos. 552 and 490, for example,

would kill the vegetation around it and would prevent seepage of

groundwater which would affect the already low water-table in the area.

The people living around the lake would be compelled to travel all the

way to the alternative site, in this case allegedly almost 3 kms away.

Many animals and marine organisms present in the earlier site would

perish, and wouldn’t resuscitate by merely filling a hole with water

elsewhere. Further, the soil quality and other factors at the alternate site

might not be conducive to growth of the same flora, and the local

environment would be altered permanently. The respondents’ reduction

of the complex and cascading effects of extinguishing natural water-

bodies into mere numbers and their attempt to justify the same through

replacement by geographically larger artificial water-bodies, fails to

capture the spirit of the Constitutional scheme and is, therefore,

impermissible.

22. Hence, it is clear that schemes which extinguish local

waterbodies albeit with alternatives, as provided in the 2016 Government

Order by the State of UP, are violative of Constitutional principles and

are liable to be struck down.

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23. For the reasons stated above, we allow the appeal and set

aside the impugned order passed by the NGT. The allotment of all water

bodies (both ponds and canals), including Khasra Nos. 552 and 490 to

Respondent No. 6, or any other similar third party in village Saini, tehsil

Dadari, 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-water bodies 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.

Kalpana K. Tripathy Appeal allowed.

JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS.

[SURYA KANT, J.]