Civil Appeal No. 5841 of 2022 @ SLP (C) Nos.37439 of 2016

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

J U D G M E N T

HIMA KOHLI, J.

1.Leave granted.

2.The appellant–State of Rajasthan

1

has assailed the judgment dated 26

th

February, 2016, passed by a Division Bench of the High Court of Judicature for

Rajasthan Bench at Jaipur whereby the order dated 05

th

October, 2012, passed by the

learned Single Judge dismissing a writ petition preferred by the respondent–Ultratech

Cement Ltd.

2

(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

1 In short ‘State Government’

2 In short ‘Company’

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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.

3.1With 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

3

was issued by the appellant–State Government on 16

th

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

07

th

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 19

th

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

3 In short ‘LOI’

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dated 22

nd

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 19

th

August, 2010 and the

appellant–State Government finally issued a LOI on 28

th

October, 2010.

3.2This 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

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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”

3.3In 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

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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

4

.

3.4Dissatisfied 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 23

rd

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

5

, in particular, para 3 thereof, that is

extracted hereinbelow:

4 2004(4) WLC (Raj.) 435

5 211 SCC Online Raj 3197

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“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.

3.5In compliance of the aforesaid order, the appellant–State Government passed an

order dated 25

th

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.

3.6The 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

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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.

3.7The impugned judgment went on to record that in Abdul Rahman’s case

4

,

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

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contrary to the judgment of the High Court in Abdul Rehman’s case

4

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

5

; that there are

decisions of this Court as in Vellore Citizens’ Welfare Forum v. Union of India and

Others

6

, A.P Pollution Control Board v. Prof. M. V. Nayudu (Retd.) And Others

7

,

Lafarge Umiam Mining Private Limited (Applicant) in T.N. Godarvarman

Thirumulpad v. Union of India and Others

8

, Electrotherm (India) Limited v. Patel

Vipulkumar Ramjibhai and others

9

, Common Cause v. Union of India

10

, Alembic

Pharmaceuticals Limited v. Rohit Prajapati and Others

11

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

12

, where directions were

issued to all State Governments to prepare schemes for eviction of illegal occupants of

6 (1996) 5 SCC 647

7 (1999) 2 SCC 718

8 (2011) 7 SCC 338

9 (2016) 9 SCC 300

10 (2017) 9 SCC 499

11 (2020) 17 SCC 157

12 (2011) 11 SCC 396

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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 07

th

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

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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

19

th

/27

th

April, 2011 and 25

th

November, 2012/5

th

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 19

th

December, 2012 and 26

th

, 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

4

, without appreciating that the said judgment has not declared that alienation of

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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.

6 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 23

rd

February, 2012 that the respondent–Company should produce a No

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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?

7 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 19

th

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 25

th

November, 2012 / 05

th

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;

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(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 01

st

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 26

th

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 03

rd

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 –

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(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 19

th

/27

th

April, 2011 and the second one on 25

th

November,

2012/05

th

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

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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 02

nd

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

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area does not fall within the water logging area or the catchment area. We, therefore,

decline to give any weightage to the letter dated 07

th

July, 2014 addressed by the

Tehsildar, Nawalgarh to the District Collector, Jhunjhunu.

9 The Circulars dated 26

th

June, 2012, 17

th

April, 2013 and 26

th

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

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Government on 19

th

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.”

10After receiving the aforesaid letter, the Secretary, Revenue Department

addressed a letter dated 1

st

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

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inquire into the matter and then issue appropriate orders. In compliance of the said

directions, the District Collector wrote another letter dated 26

th

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 19

th

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’.

11The 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

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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.

12Given 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 Forum

6

and A.P Pollution Control Board

7

, 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

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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.

13In Narmada Bachao Andolan v. Union of India

13

, 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.

13 (2000) 10 SCC 664

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14In Lafarge Umiam Mining Private Limited

8

,

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.

15The directions issued in Jagpal Singh’s case

12

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

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Civil Appeal No. 5841 of 2022 @ SLP (C) Nos.37439 of 2016

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.

16The focus in the case of Electrotherm (India) Limited

9

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

10

, 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.

17In Alembic Pharmaceuticals’ case

11

, 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

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Civil Appeal No. 5841 of 2022 @ SLP (C) Nos.37439 of 2016

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.

18Even the judgment of the Division Bench of the Rajasthan High Court in the case

of Abdul Rehman

4

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

4

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

5

, 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

4

will not come in the way of allotting the land to the petitioner.

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19For 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]

NEW DELHI,

AUGUST 26, 2022

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