2024 INSC 310 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024

[Arising out of SLP (C) No. 6937 of 2021]

THE STATE OF TELANGANA & ORS. … APPELLANT(S)

VERSUS

MOHD. ABDUL QASIM (DIED) PER LRS. … RESPONDENT(S)

J U D G M E N T

M. M. Sundresh, J.

1. Leave granted.

2. The statement made by the Tribal Chief Seattle, way back in the year 1854, in

his letter to the offer of George Washington, the former First President of the

United States of America, to buy their land, is a pearl of wisdom not

understood by the ignorant, educated modern mind.

“Every part of the earth is sacred to my people. Every shining pine needle,

every sandy shore, every mist in the dark woods, every meadow, every

humming insect. All are holy in the memory and experience of my people.

xxx xxx xxx

This we know: the earth does not belong to man; man belongs to the earth.

All things are connected like the blood that unites us all. Man did not weave

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the web of life; he is merely a strand in it. Whatever he does to the web, he

does to himself.”

3. A well merited judgment, passed in A.S. No. 145 of 1994 by the High Court

of Judicature at Hyderabad for the State of Telangana and the State of Andhra

Pradesh, decided on a conscious consideration of the issues raised before it,

confirming the one rendered by the Trial Court, was reviewed like an

Appellate Court, based upon the materials that emanated after its filing, at the

instance of a party defendant in whose favour a decree was granted and that

too by acting without the requisite jurisdiction, is under challenge in this

appeal.

4. We are dealing with a case where an instrumentality of the State, despite a

categorical finding of the suit property being a forest land, took different

stands, but finally rectified by way of an affidavit before this Court. This act

of taking different stands resulted in facilitating the impugned order being

passed in favour of the respondents, setting aside the concurrent judgments

rendered by two courts below, on appreciation of fact and law.

5. Heard Learned Additional Solicitor General Ms. Aishwarya Bhati for

Appellants and Learned Senior Counsel Mr. Neeraj Kishan Kaul, Mr. L

Narsimha Reddy for Respondents, perused the entire record, including the

affidavits filed.

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THE ANDHRA PRADESH FOREST ACT, 1967

6. The Andhra Pradesh Forest Act, 1967 (hereinafter referred to as “the A.P.

Forest Act”) has been enacted with a laudable objective of conserving,

protecting and extending the forest cover, with a sound mechanism to deal

with all the disputes arising thereunder while declaring land as reserved forest.

“As this Act is only a Consolidating Act, it is necessary that the

objects and reasons of the Madras Act are incorporated so that the objects

and reasons for this Act can as well be known. The Objects and Reasons of

the Madras Act were published in Fort St. George Gazette Extraordinary,

dated 06

th

July 1882 at page 17 as follows:

Statement of Objects and Reasons: This Act is designed to supply

the want which had long been felt of legislative enactment to enable

Government to carry out effectually the conservancy of forests of the

Presidency, and to systematic and regulate the action of the Forest

Department.

The first necessity is to provide for the constitution of the more

important forests as State Reserves, and either to clear them under

arrangement for due compensation of private rights which mitigate

against forest conservancy, or to ascertain and define such rights so that

future extension of them and fresh encroachments shall be impossible.

To this end, the Act enables Government to empower officers to be

called Forest Settlement officers to enquire into and to commit on

record all private rights in areas to be elected for constitution as

reserved forests. From the decisions of the officers appeal will lie, in the

case of claims involving proprietary rights, to the District Courts, in the

case of rights of way, and of rights to pasture to forest produce, or to

the use of water to the Collector or other Revenue Officer of not less

than such standing. When the enquiry is completed and all claims

disposed of and settled, the forest will be declared by the Government

to be reserved, and thereafter no fresh rights can accrue therein. The

Bill also contains such provisions as are necessary for the protection of

forests declared reserved…”

(emphasis supplied)

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Section 2 of the A.P. Forest Act

“2. Definitions:- In this Act, unless the context otherwise requires-

xxx xxx xxx

(f) ‘forest officer’ means any person appointed by the Government or by any

officer empowered by the government in this behalf,-

[(i) to be the Principal Chief Conservator of Forests, Special Principal Chief

Conservator of Forests, Additional Principal Chief Conservator of Forests,

Chief Conservator of Forests, Conservator, Deputy Conservator, Assistant

Conservator, Divisional Forest Officer, Sub-Divisional Forest Officer,

Ranger, Deputy Ranger, Forester or Forest Section Officer, Forest Guard or

Forest Beat Officer, Assistant Beat Officer, Thanadar, Checking Officer or

Plantation Watcher or any other person or authority as may be notified;]

(ii) to perform any function of a forest officer under this Act or any rule or

order made thereunder;

but does not include a Forest Settlement Officer appointed under Clause (c)

of sub-section (1) of Section 4;”

Section 4 of the A.P. Forest Act

“4. Notification by Government:- (1) Whenever it is proposed to

constitute any land as a reserved forest, the Government shall publish a

notification in the Andhra Pradesh Gazette and in the District Gazette

concerned in any;

(a) specifying, as nearly as possible, the situation and limits of such land;

(b) declaring that it is proposed to constitute such land as reserved forest;

(c) appointing a Forest Settlement Officer to consider the objections, if any,

against the declaration under Clause (b) and to enquire into and determine

the existence, nature and extent of any rights claimed by, or alleged to exist

in favour of, any person in or over any land comprised within such limits, or

to any forest produce of such land, and to deal with the same as provided in

this Chapter.

Explanation:- (1) For the purpose of Clause (a), it shall be sufficient to

describe the limits of the land by any well-known or readily intelligible

boundaries, such as roads, rivers, bridges and the like.

(2) A person appointed to be a Forest Settlement Officer under Clause (c) of

sub-section (1) shall be an officer of the Revenue Department not below the

rank of a Revenue Divisional Officer.

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(3) Any forest officer may represent the Forest Department at the inquiry

conducted under this Chapter.”

Section 7 of the A.P. Forest Act

“7. Bar of accrual of fresh rights and prohibition of clearings:- (1) During

the interval between the publication of a notification in the Andhra Pradesh

Gazette under Section 4 and the date fixed by the notification under Section

15-

(a) no right shall be acquired by any person in or over the land included

in the notification under Sec. 4 except by succession or under a grant or

contract in writing made or entered into by or on behalf of the

Government or any person in whom such right was vested before the

publication of the notification under Section 4;

(b) no new house shall be built or plantation formed, no fresh clearing

for cultivation or for any other purpose shall be made, on such land and

no tress shall be cut from such land for the purpose of trade or

manufacture;

Provided that nothing shall prohibit the doing of any act specified in this

clause with the permission in writing of the Forest Settlement Officer;

and

(c) no person shall set fire or kindle or leave burning any fire in such

manner as to endanger or damage such land or forest produce.

(2) No patta in such land shall be granted by or on behalf of the

Government.”

Section 8 of the A.P. Forest Act

“8. Inquiry by Forest Settlement Officer:- (1) The Forest Settlement

Officer shall consider every objection and inquire into every claim made

under Section 6, after recording in writing the statements made or evidence

given in pursuance of the proclamation published or notice served under that

section. He shall record any representation which the forest officer, if any,

representing the Forest Department under sub-section (3) of Section 4, may

make in respect of any such objection or claim.

(2) The evidence under sub-section (1) shall be recorded in the manner

provided by the Code of Civil Procedure, 1908 in appealable cases.”

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Section 9 of the A.P. Forest Act

“9. Powers of Forest Settlement Officer:- For the purpose of an inquiry

under Section 8, the Forest Settlement Officer may exercise the following

powers, namely:

(a) power to enter by himself or to authorise any officer to enter upon any

land and to survey, demarcate and make a map of the land; and

(b) the powers conferred on a Civil Court by the Code of Civil Procedure,

1908, for summoning and enforcing the attendance of any person and

examining him on oath and requiring the production of any document or

other article.”

Section 10 of the A.P. Forest Act

“10. Claims to certain rights:- (1) Where the claims relate to a right in or

over any land other than the following rights:-

(a) a right of way;

(b) a right to water-course, or to use of water;

(c) a right of pasture; or

(d) a right to forest produce;

the Forest Settlement Officer shall, after considering the particulars of such

claim, and the objections of the forest officer, if any, pass, an order, admitting

or rejecting the same wholly or in part after recording the reasons therefor.

(2)(a) If any claim is admitted wholly or in part under sub-section (1), the

Forest Settlement Officer may:-

(i) accept the voluntary surrender of the right by the claimant or

determine the amount of compensation payable for the surrender of

the right of the claimant, as the case may be; or

(ii) direct the exclusion of the land from the limits of the proposed

forest: or

(iii) acquire such land in the manner provided by the Land

Acquisition Act, 1894 (hereinafter in this sub-section referred to as

the said Act).

(b) For the purpose of acquiring such land:-

(i) the acquisition shall be deemed to be for a public purpose; and the

notification under Section 4 shall be deemed to be a notification

under sub-section (1) of Section 4 of the said Act;

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(ii) the Forest Settlement Officer shall be deemed to be a Collector

under the said Act, and the claimant shall be deemed to be a person

interested and appearing before him in pursuance of a notice given

under Section 9 of the said Act;

(iii) the provisions of Sections 5-A, 6,7 and 8 of the said Act shall

not be applicable; and

(iv) the Forest Settlement Officer with the consent of the claimant,

or the Court as defined in the said Act-with the consent of the

claimant and of the Government may, instead of money

compensation, award compensation by the grant of any other land in

exchange, by the grant of any right in or over land or partly by the

grant of any land of any right therein and partly by the payment of

money.”

Section 13 of the A.P. Forest Act

“13. Appeals from the orders of Forest Settlement Officer:- (1) Where a

claim is rejected wholly or in part, the claimant may, within ninety days from

the date of the order under sub-section (1) of Section 10 and within sixty

days from the date of the order under sub-section (1) of Section 11, prefer an

appeal to the District Court having jurisdiction in respect of such rejection

only.

(2) Where a claim is admitted under Section 10 or Section 11 in the first

instance wholly or in part and where such claim does not relate to the

acquisition of any land under the Land Acquisition Act, 1894, a like appeal,

subject to the same period of limitation and subject to the same conditions,

may be preferred to the District Court having jurisdiction on behalf of the

Government by the forest officer or other person, generally or specially

empowered by the Government in this behalf.

(3) Every order passed on appeal under this section shall be final.

(4) Where the District Court, on appeal, decides that the claim or such part

thereof as has been rejected should be admitted, the Forest Settlement

Officer shall proceed to deal with it in like manner as if it has been in the

first instance admitted by himself.”

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Section 15 of the A.P. Forest Act

“15. Notification declaring Forest reserved:- (1) Upon the occurrence of

the following events namely:-

(a) the period fixed under Section 6 for preferring of an objection or

a claim had elapsed, and every objection or claim made under that

section was disposed of by the Forest Settlement Officer; and

(b) in any such claim was made, the period limited by Section 13 for

preferring an appeal from the order passed on such claim had

elapsed, and every appeal presented within such period was disposed

of by the appellate authority; and

(c) all proceedings mentioned in Section 10 were taken and all lands,

if any, to be included in the proposed forest, which the Forest

Settlement Officer had, under Section 10, elected to acquire under

the Land Acquisition Act, 1894, had become vested in the

Government under Section 16 of that Act;

the Government may publish a notification specifying definitely according

to the boundary marks erected or otherwise, the limits of the forest which it

is intended to reserve and declaring the same to be reserved from a date to

be fixed by such notification and from the date so fixed, such forest shall be

deemed to be a reserved forest.

(2) Copies of the notification shall also be published in the District Gazette,

if any, and in the manner provided for the proclamation under Section 6.”

Section 16 of the A.P. Forest Act

“16. Extinction of rights not claimed:- Rights in respect of which no claim

was preferred under Section 6 within the period fixed under that section shall

stand extinguished on the publication of the notification under Section 15

unless, before the publication of such notification the person claiming them

has convinced the Forest Settlement Officer that he had sufficient cause for

not preferring such claim within that period in which case the Forest

Settlement Officer shall proceed to dispose of the claim in the manner herein

before provided.”

7. Section 2 of the A.P. Forest Act, defines a “Forest Officer”, to mean a vast

category of officers. Such a forest officer is appointed to perform any function

of a forest officer under the A.P. Forest Act, or any rule or order made

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thereunder. Clause (f) of Section 2 clarifies that such Forest Officer does not

include a Forest Settlement Officer appointed under Clause (c) of sub-section

(1) of Section 4, thus, making a distinction between a Forest Officer and a

Forest Settlement Officer.

8. Under Section 4(2) of the A.P. Forest Act, a Forest Settlement Officer shall be

an officer of the Revenue Department not below the rank of a Revenue

Divisional Officer. Wide powers have been conferred upon the State

Government to declare any land as a reserved forest, subject to due compliance

of the other provisions. This has to be done by a notification published in

Andhra Pradesh Gazette and District Gazette under Section 4(1), by declaring

its intention through a proposal.

9. The legislature consciously did not confer any role on an officer working under

the forest department, by specifically naming an officer of the revenue

department with his designation for determining qualification, as Forest

Settlement Officer. Such an officer has to exercise quasi-judicial power.

10. After the commencement of proceedings under Section 4 of the A.P. Forest

Act, even the Government is restrained from issuing any patta to any

individual, for the reason that all disputes would have to be adjudicated under

the Act, be it one of title under Section 10 or any other limited right as

prescribed under Section 11 of the A.P. Forest Act. Under Sections 8 and 9 of

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the A.P. Forest Act, the Forest Settlement Officer has been conferred with

powers of the civil court, as available under the Code of Civil Procedure, 1908

(hereinafter referred to as “the CPC 1908”), for the aforesaid purpose. While

exercising power, the Forest Settlement Officer may even admit the claim

wholly or in part under Section 10(2) by excluding any extent of land which is

in dispute.

11. As per Section 13 of the A.P. Forest Act, an appeal lies before the District Court

having territorial jurisdiction, which is to be filed within a period of 90 days

from the date of the order passed under Section 10 by the Forest Settlement

Officer. Thus, anyone who claims a right of ownership under Section 10 or any

other limited right as illustrated under Section 11, has to seek an adjudication

of his claim before the Forest Settlement Officer. If aggrieved, the remedy lies

before the jurisdictional District Court, subject to the limitation as prescribed

under Section 13.

12. After completion of the said exercise, the State Government would declare the

proposed land as a reserved forest by issuing a notification under Section 15 of

the A.P. Forest Act. Thereafter, the vesting of the land takes place by way of a

deeming fiction i.e., giving the land the status of a reserved forest. Any right

not claimed with respect to the land, shall stand extinguished after the

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publication under Section 15 as declared expressly under Section 16, by way

of a reinforcement.

13. From the abovementioned provisions and their interpretation, it is very clear

that the completion of the process as prescribed under Section 15 of the A.P.

Forest Act would result in changing the character of land, including a forest

land into a reserved forest. Thereafter, there shall be no question of raising

any dispute on its character. The period of limitation mentioned under Section

13 of the A.P. Forest Act cannot be breached, though one might raise an

objection with respect to its commencement.

SCOPE OF REVIEW

14. We shall start our discussion with the statement of law rendered by Justice V.R.

Krishna Iyer.

Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2

SCC 167,

“14. A plea for review, unless the first judicial view is manifestly distorted,

is like asking for the moon. A forensic defeat cannot be avenged by an

invitation to have a second look, hopeful of discovery of flaws and reversal

of result…”

15. The legislature, in its wisdom, has chosen to restrict the scope of review from

time to time. To indicate this legislative shift, Section 376 and 378 of the Code

of Civil Procedure 1859 (hereinafter referred to as “the CPC 1859”), Section

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623 of the Code of Civil Procedure 1877 (hereinafter referred to as “the CPC

1877”), Section 114 and Order XLVII Rule 1 of the CPC 1908 are

reproduced herein below,

Section 376 of the CPC 1859

“376 - Review of Judgement on discovery of new evidence: Any person

considering himself aggrieved by a decree of a Court of original jurisdiction,

from which no appeal shall have been preferred to a Superior Court - or by

a decree of a District Court in appeal from which no special appeal shall have

been admitted by the Sudder Court - or by a decree of the Sudder Court from

which either no appeal may have been preferred to Her Majesty in Council,

or an appeal having been preferred no proceedings in the suit have been

transmitted to Her Majesty in Council - and who from the discovery of new

matter or evidence which was not within his knowledge, or could not be

adduced by him at the time when such decree was passed, or from any

other good and sufficient reason, may be desirous of obtaining a review of

the judgement passed against him – may apply for a review of judgement by

the Court which passed the decree.”

(emphasis supplied)

Section 378 of the CPC 1859

“378 - The order of the Court for granting or refusing the review is final:

If the Court shall be of opinion that there are not any sufficient grounds for

a review, it shall reject the application, but if it shall be of opinion that the

review desired is necessary to correct an evident error or omission or is

otherwise requisite for the ends of justice, the Court shall grant the review,

and its order in either case, whether for rejecting the application or granting

the review, shall be final. Provided that no review of judgement shall be

granted without previous notice to the opposite party to enable him to appear

and be heard in support of the decree of which a review is solicited.”

(emphasis supplied)

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16. Section 376 of the CPC 1859 provided a larger playing field to the court while

dealing with an application to review. However, under Section 378 of the CPC

1859, a finality was sought to be given to the order of the court.

Section 623 of the CPC 1877

“623. Application for review of judgement: Any person considering

himself aggrieved

(a) by a decree or order from which an appeal is hereby allowed, but from

which no appeal has been preferred;

(b) by a decree or order from which no appeal is hereby allowed; or

(c) by a judgement on a reference from a Court of Small Causes,

And who from the discovery of new and important matter or evidence

which, after the exercise of due diligence, was not within his knowledge

or could not be produced by him at the time when the decree was passed

or order made, or on account of some mistake or error apparent on the

face of the record, or for any other sufficient reason, desires to obtain a

review of the decree passed or order made against him,

may apply for a review of judgement to the Court which passed the decree

or made the order, or to the Court, if any, to which the business of the former

Court has been transferred.

A party who is not appealing from a decree may apply for a review of

judgement notwithstanding the pendency of an appeal by some other party,

except when the ground of such appeal is common to the applicant and the

appellant, or when, being a respondent, he can present to the appellate Court

the case on which he applies for the review.”

(emphasis supplied)

17. Thus, taking note of the existence of a larger power to review, the legislature

brought forth a change by adding the words “after the exercise of due

diligence”. Additionally, the words “on account of some mistake or error

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apparent on the face of the record” were also added. This conscious inclusion

clearly restricts the power of review.

Section 114 of the CPC 1908

“114. Review.—Subject as aforesaid, any person considering himself

aggrieved,—

(a) by a decree or order from which an appeal is allowed by this Code, but

from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for

a review of judgment to the Court which passed the decree or made the order,

and the Court may make such order thereon as it thinks fit.”

Order XLVII Rule 1 of the CPC 1908

“1. Application for review of judgment.—(1) Any person considering

himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from

which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence

which, after the exercise of due diligence was not within his knowledge

or could not be produced by him at the time when the decree was passed

or order made, or on account of some mistake or error apparent on the

face of the record, or for any other sufficient reason, desires to obtain a

review of the decree passed or order made against him, may apply for a

review of judgment of the Court which passed the decree or made the order.

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(2) A party who is not appealing from a decree or order may apply for a

review of judgment notwithstanding the pendency of an appeal by some

other party except where the ground of such appeal is common to the

applicant and the appellant, or when, being respondent, he can present to the

Appellate Court the case on which he applies for the review.

[Explanation.—The fact that the decision on a question of law on which the

judgment of the Court is based has been reversed or modified by the

subsequent decision of a Superior Court in any other case, shall not be a

ground for the review of such judgment.]”

(emphasis supplied)

18. Section 114 read with Order XLVII Rule 1 of the CPC 1908 is verbatim

similar to Section 623 of the CPC 1877, except for the Explanation to Order

XLVII Rule 1 which was added by way of an Amendment in the year 1976.

Section 114 of the CPC 1908 speaks of the circumstances, instances and

situations under which a review can be filed. The words “as it thinks fit”

cannot be interpreted to mean anything beyond what is conferred under Order

XLVII Rule 1. In other words, Section 114 has to be read along with Order

XLVII Rule 1. While they are to be read together, Section 114 is more

procedural, whereas Order XLVII Rule 1 is substantially substantive.

19. The words “due diligence”, though one of fact, places onus heavily on the one

who seeks a review. It has to be seen from the point of view of a reasonable

and prudent man. Though an element of flexibility is given to any evidence or

matter on its discovery, it has to be one which was not available to the court

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earlier. It could not have been produced despite due diligence, meaning

thereby that it should have been available and, therefore, in existence at least

at the time of passing the decree.

20. Mistake or error apparent on the face of record would debar the court from

acting as an appellate court in disguise, by indulging in a re-hearing. A

decision, however erroneous, can never be a factor for review, but can only

be corrected in appeal. Such a mistake or error should be self-evident on the

face of record. The error should be grave enough to be identified on a mere

cursory look, and an omission so glaring that it requires interference in the

form of a review. Being a creature of the statute, there is absolutely no room

for a fresh hearing. The court has got no role to involve itself in the process

of adjudication for a second time. Instead, it has to merely examine the

existence of an apparent mistake or error. Even when two views are possible,

the court shall not indulge itself by going into the merits.

21. The material produced, at this stage, should be of such pristine quality which,

if taken into consideration, would have the logical effect of reversing the

judgment. Order XLVII Rule 1 of the CPC, 1908 indicates that power of

review can be exercised by courts, in three different situations, but these

occasions ought to be read in an analogous manner. In other words, they

should be read in a manner to mean that a restrictive power has been conferred

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upon the court. As stated, the words “for any other sufficient reason” ought to

be read in conjunction with the earlier two categories reiterating the scope.

Being a judicial discretion, it has to be exercised with circumspection and on

rare occasions. It is a power to be exercised by way of an exception, subject

to the rigours of the provision.

22. A subsequent event per se cannot form the basis of a review. Sub-clause (c)

of Order XLVII Rule 1 of the CPC 1908, clearly specifies that the important

matter or evidence produced must have been available at the time when the

decree was passed. This is a matter of rule. On a very rare occasion, an

exception can be carved out. Such an exception can only be exercised when

the said matter or evidence is of unimpeachable quality. It is not only a new

matter or evidence that should be taken into consideration, but it should also

be an important one.

23. While exercising the said power, the court has to first check the evidentiary

value of such discovery, including the circumstances under which it

emanated, particularly when it inherently lacks jurisdiction or the evidence

cannot be made admissible in law and therefore, is not relevant. In such a

circumstance, there is no question of proceeding further in deciding the review

application.

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PRECEDENTS

24. Now, we shall place on record decisions rendered by this Court on the above

principle of law discussed by us,

Power of Review is not to be confused with Powers of Appellate Court in

Appeal Jurisdiction.

 Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others,

(1979) 4 SCC 389

“3. The Judicial Commissioner gave two reasons for reviewing his

predecessor's order. The first was that his predecessor had overlooked two

important documents Exs. A/1 and A/3 which showed that the respondents

were in possession of the sites even in the year 1948-49 and that the grants

must have been made even by then. The second was that there was a patent

illegality in permitting the appellant to question, in a single writ petition,

settlement made in favour of different respondents. We are afraid that neither

of the reasons mentioned by the learned Judicial Commissioner constitutes

a ground for review. It is true as observed by this Court in Shivdeo

Singh v. State of Punjab [AIR 1963 SC 1909] there is nothing in Article 226

of the Constitution to preclude a High Court from exercising the power of

review which inheres in every court of plenary jurisdiction to prevent

miscarriage of justice or to correct grave and palpable errors committed by

it. But, there are definitive limits to the exercise of the power of review.

The power of review may be exercised on the discovery of new and

important matter or evidence which, after the exercise of due diligence

was not within the knowledge of the person seeking the review or could

not be produced by him at the time when the order was made; it may be

exercised where some mistake or error apparent on the face of the

record is found; it may also be exercised on any analogous ground. But,

it may not be exercised on the ground that the decision was erroneous

on merits. That would be the province of a court of appeal. A power of

review is not to be confused with appellate powers which may enable an

appellate Court to correct all manner of errors committed by the

subordinate Court.”

(emphasis supplied)

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Error Apparent on the Face of Record

 Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2

SCC 167

“8. It is well-settled that a party is not entitled to seek a review of a

judgment delivered by this Court merely for the purpose of a rehearing

and a fresh decision of the case. The normal principle is that a judgment

pronounced by the Court is final, and departure from that principle is

justified only when circumstances of a substantial and compelling

character make it necessary to do so: Sajjan Singh v. State of

Rajasthan [AIR 1965 SC 845 : (1965) 1 SCR 933, 948 : (1965) 1 SCJ 377]

. For instance, if the attention of the Court is not drawn to a material statutory

provision during the original hearing, the Court will review its

judgment: G.L. Gupta v. D.N. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri)

279 : (1971) 3 SCR 748, 750] . The Court may also reopen its judgment if a

manifest wrong has been done and it is necessary to pass an order to do full

and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi [(1971) 3 SCC

5 : (1971) 2 SCR 11, 27] . Power to review its judgments has been conferred

on the Supreme Court by Article 137 of the Constitution, and that power is

subject to the provisions of any law made by Parliament or the rules made

under Article 145. In a civil proceeding, an application for review is

entertained only on a ground mentioned in Order 47 Rule 1 of the Code of

Civil Procedure, and in a criminal proceeding on the ground of an error

apparent on the face of the record (Order XL Rule 1, Supreme Court Rules,

1966). But whatever the nature of the proceeding, it is beyond dispute

that a review proceeding cannot be equated with the original hearing of

the case, and the finality of the judgment delivered by the Court will not

be reconsidered except “where a glaring omission or patent mistake or

like grave error has crept in earlier by judicial fallibility”: Sow Chandra

Kante v. Sheikh Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975)

3 SCR 933] .

9. Now, besides the fact that most of the legal material so assiduously

collected and placed before us by the learned Additional Solicitor - General,

who has now been entrusted to appear for the respondent, was never brought

to our attention when the appeals were heard, we may also examine whether

the judgment suffers from an error apparent on the face of the record. Such

an error exists if of two or more views canvassed on the point it is

possible to hold that the controversy can be said to admit of only one of

them. If the view adopted by the Court in the original judgment is a

20

possible view having regard to what the record states, it is difficult to

hold that there is an error apparent on the face of the record.”

(emphasis supplied)

 Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715

“9. Under Order 47 Rule 1 CPC a judgment may be open to review inter

alia if there is a mistake or an error apparent on the face of the record.

An error which is not self-evident and has to be detected by a process of

reasoning, can hardly be said to be an error apparent on the face of the

record justifying the court to exercise its power of review under Order

47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1

CPC it is not permissible for an erroneous decision to be “reheard and

corrected”. A review petition, it must be remembered has a limited

purpose and cannot be allowed to be “an appeal in disguise”.

10. Considered in the light of this settled position we find that Sharma, J.

clearly overstepped the jurisdiction vested in the Court under Order 47 Rule

1 CPC. The observations of Sharma, J. that “accordingly, the order in

question is reviewed and it is held that the decree in question was of

composite nature wherein both mandatory and prohibitory injunctions were

provided” and as such the case was covered by Article 182 and not Article

181 cannot be said to fall within the scope of Order 47 Rule 1 CPC. There

is a clear distinction between an erroneous decision and an error

apparent on the face of the record. While the first can be corrected by the

higher forum, the latter only can be corrected by exercise of the review

jurisdiction. While passing the impugned order, Sharma, J. found the order

in Civil Revision dated 25-4-1989 as an erroneous decision, though without

saying so in so many words. Indeed, while passing the impugned order

Sharma, J. did record that there was a mistake or an error apparent on the

face of the record which was not of such a nature, “which had to be detected

by a long-drawn process of reasons” and proceeded to set at naught the order

of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot

detract from the real import of the order passed in exercise of the review

jurisdiction. Recourse to review petition in the facts and circumstances of

the case was not permissible. The aggrieved judgment-debtors could have

approached the higher forum through appropriate proceedings to assail the

order of Gupta, J. and get it set aside but it was not open to them to seek a

“review” of the order of Gupta, J. on the grounds detailed in the review

petition. In this view of the matter, we are of the opinion that the impugned

21

order of Sharma, J. cannot be sustained and we accordingly accept this

appeal and set aside the impugned order dated 6-3-1997.”

(emphasis supplied)

Meaning of the Words ‘for any other sufficient reason’ in Order XLVII

Rule 1 of the CPC 1908

 Chhajju Ram v. Neki, 1922 SCC OnLine PC 11

“…It will be observed that the question with which their Lordships have

to deal is one concerned not with appeal to a Court of Appeal, but with

review by the Court which had already disposed of the case. In England

it is only under strictly limited circumstances that an application for

such a review can be entertained. In India, however, provision has for

long past been made by legislation for review in addition to appeal. But

as the right is the creation of Indian statue law, it is necessary to see what

such statutory law really allows. The law applicable to the present case

is laid down by O. 47, R. 1, of the Code of Civil Procedure, 1908. This

Rule is enacted in the following terms:—

“Any person considering himself aggrieved, (a) by a decree or order

from which an appeal is allowed, but from which no appeal has, been

preferred (b) by a decree or order from which no appeal is hereby allowed,

or (c) by a decision on a reference from a Court of Small Causes, and who,

from the discovery of new and important matter or evidence which, after the

exercise of due diligence, was not within his knowledge or could not be

produced by him at the time when the decree was passed or order made, or

on account of some mistake or error apparent on the face of the record, or

for any other sufficient reason, desires to obtain a review of the decree

passed or order made against him, may apply for a review of judgment to the

Court which passed the decree or made the order.”

xxx xxx xxx

If their Lordships felt themselves at liberty to construe the language of

O. 47 of the Code of Civil Procedure, 1908 without reference to its

history and to the decisions upon it, their task would not appear to be a

difficult one. For it is obvious that the Code contemplates procedure by

way of review by the Court which has already given judgment as being

different from that by way of appeal to a Court of Appeal. The three

cases in which alone mere review is permitted are those of new material

overlooked by excusable misfortune, mistake or error apparent on the

22

face of the record, or “any other sufficient reason.” The first two

alternatives do not apply in the present case, and the expression

“sufficient,” if this were all, would naturally be read as meaning

sufficiency of a kind analogous to the two already specified, that is to

say, to excusable failure to bring to the notice of the Court new and

important matters, or error on the face of the record. But before adopting

this restricted construction of the expression “sufficient,” it is necessary to

have in mind, in the first place, that the provision as to review was not

introduced into the Code for the first time in 1908, but appears there as a

modification of previous provision made in earlier legislation : and, in the

second place, that the extent of the power of a Court in India to review its

own decree under successive forms of legislative provision has been the

subject of a good deal of judicial interpretation, not, however, in all cases

harmonious. That the power given by the Indian Code is different from the

very restricted power which exists in England appears plain from the

decision in Charles Bright and Co. v. Seller [[1904] 1 K.B. 6.] , where the

Court of Appeal discussed the history of the procedure in England and

explained its limits.

xxx xxx xxx

Their Lordships have examined numerous authorities, and they have

found much conflict of judicial opinion on the point referred to. There

is plainly no such preponderance of view in either direction as to render

it clear that there is any settled course of decision which they are under

obligation to follow. Some of the decisions in the earlier cases may have

been influenced by the wider form of expression then in force, and these

decisions may have had weight with the learned Judges who, in cases

turning on the subsequent Code, had regarded the intention of the

legislature as remaining unaltered. But their Lordships are unable to

assume that the language used in the Codes of 1877 and 1908 is intended

to leave open the questions which were raised on the language used in

the earlier legislation. They think that R. 1 of O. 47 must be read as in

itself definitive of the limits within which review is to-day permitted, and

that reference to practice under former and different statutes is

misleading. So construing it they interpret the words “any other

sufficient reason” as meaning a reason sufficient on grounds at least

analogous to those specified immediately previously. Such an

interpretation excludes from the power of review conferred the course taken

by the second and third Division Bench, composed of Wilberforce, J., and

Scott Smith, J., and by Wilberforce, J., and LeRossignol, J., respectively.

The result is that the judgments given by these two Division Benches ought

23

to be set aside, and that of the Bench of the Chief Court composed of Scott

Smith, J., and Leslie Jones, J., restored, so that the suit will stand dismissed.

The respondent-plaintiffs must pay the costs here and in the Courts below.”

(emphasis supplied)

Discovery of New Matter or Evidence

 State of W.B. v. Kamal Sengupta, (2008) 8 SCC 612

“21. At this stage it is apposite to observe that where a review is sought on

the ground of discovery of new matter or evidence, such matter or evidence

must be relevant and must be of such a character that if the same had been

produced, it might have altered the judgment. In other words, mere discovery

of new or important matter or evidence is not sufficient ground for review ex

debito justitiae. Not only this, the party seeking review has also to show that

such additional matter or evidence was not within its knowledge and even

after the exercise of due diligence, the same could not be produced before

the court earlier.

22. The term “mistake or error apparent” by its very connotation signifies an

error which is evident per se from the record of the case and does not require

detailed examination, scrutiny and elucidation either of the facts or the legal

position. If an error is not self-evident and detection thereof requires long

debate and process of reasoning, it cannot be treated as an error apparent on

the face of the record for the purpose of Order 47 Rule 1 CPC or Section

22(3)(f) of the Act. To put it differently an order or decision or judgment

cannot be corrected merely because it is erroneous in law or on the ground

that a different view could have been taken by the court/tribunal on a point

of fact or law. In any case, while exercising the power of review, the

court/tribunal concerned cannot sit in appeal over its judgment/decision.”

An Order can be reviewed only on the prescribed grounds mentioned in

Order XLVII Rule 1 of the CPC 1908

 Shri Ram Sahu v. Vinod Kumar Rawat, (2021) 13 SCC 1

“10. To appreciate the scope of review, it would be proper for this Court to

discuss the object and ambit of Section 114CPC as the same is a substantive

provision for review when a person considering himself aggrieved either by

24

a decree or by an order of court from which appeal is allowed but no appeal

is preferred or where there is no provision for appeal against an order and

decree, may apply for review of the decree or order as the case may be in the

court, which may order or pass the decree. From the bare reading of

Section 114CPC, it appears that the said substantive power of review

under Section 114CPC has not laid down any condition as the condition

precedent in exercise of power of review nor the said section imposed

any prohibition on the court for exercising its power to review its

decision. However, an order can be reviewed by a court only on the

prescribed grounds mentioned in Order 47 Rule 1CPC, which has been

elaborately discussed hereinabove. An application for review is more

restricted than that of an appeal and the court of review has limited

jurisdiction as to the definite limit mentioned in Order 47 Rule 1CPC

itself. The powers of review cannot be exercised as an inherent power

nor can an appellate power be exercised in the guise of power of review.”

(emphasis supplied)

Evidence cannot be Reappreciated in Review

 Kerala SEB v. Hitech Electrothermics & Hydropower Ltd., (2005) 6

SCC 651

“10. This Court has referred to several documents on record and also

considered the documentary evidence brought on record. This Court on a

consideration of the evidence on record concluded that the respondent had

been denied power supply by the Board in appropriate time which prevented

the respondent from starting the commercial production by 31-12-1996. This

is a finding of fact recorded by this Court on the basis of the appreciation of

evidence produced before the Court. In a review petition it is not open to

this Court to reappreciate the evidence and reach a different conclusion,

even if that is possible. Learned counsel for the Board at best sought to

impress us that the correspondence exchanged between the parties did not

support the conclusion reached by this Court. We are afraid such a

submission cannot be permitted to be advanced in a review petition. The

appreciation of evidence on record is fully within the domain of the

appellate court. If on appreciation of the evidence produced, the court

records a finding of fact and reaches a conclusion, that conclusion

cannot be assailed in a review petition unless it is shown that there is an

error apparent on the face of the record or for some reason akin thereto.

It has not been contended before us that there is any error apparent on the

25

face of the record. To permit the review petitioner to argue on a question

of appreciation of evidence would amount to converting a review

petition into an appeal in disguise.”

(emphasis supplied)

UNDERSTANDING OF THE FOREST: A CONSTITUTIONAL

PERSPECTIVE

25. Article 48A of the Constitution of India, 1950 imposes a clear mandate upon

the State as a Directive Principle of State Policy, while Article 51A(g)

correspondingly casts a duty upon a citizen to protect and improve the natural

environment including forests, lakes, rivers and wildlife and to have

compassion for fellow living creatures. These two provisions qua a forest

ought to be understood in light of Articles 14, 19 and 21 of the Constitution

of India, 1950. We say so, as they represent the collective conscience of the

Constitution. If the continued existence and protection of forests is in the

interest of humanity, various species and nature, then there can be no other

interpretation than to read the constitutional ethos into these provisions.

26. Part III and Part IV of the Constitution are like two wheels of a chariot,

complementing each other in their commitment to a social change and

development. They form the core of nation building and a progressive

society.

26

PRECEDENTS

Relevance of Directive Principles of State Policy

 Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295

“4. In India, as elsewhere in the world, uncontrolled growth and the

consequent environmental deterioration are fast assuming menacing

proportions and all Indian cities are afflicted with this problem. The once

Imperial City of Calcutta is no exception. The question raised in the present

case is whether the Government of West Bengal has shown such lack of

awareness of the problem of environment in making an allotment of land for

the construction of a Five Star Hotel at the expense of the zoological garden

that it warrants interference by this Court? Obviously, if the government is

alive to the various considerations requiring thought and deliberation and has

arrived at a conscious decision after taking them into account, it may not be

for this Court to interfere in the absence of mala fides. On the other hand, if

relevant considerations are not borne in mind and irrelevant considerations

influence the decision, the court may interfere in order to prevent a likelihood

of prejudice to the public. Whenever a problem of ecology is brought

before the court, the court is bound to bear in mind Article 48-A of the

Constitution, the Directive Principle which enjoins that “the State shall

endeavour to protect and improve the environment and to safeguard the

forests and wild life of the country”, and Article 51-A(g) which

proclaims it to be the fundamental duty of every citizen of India “to

protect and improve the natural environment including forests, lakes,

rivers and wild life, and to have compassion for living creatures”. When

the court is called upon to give effect to the Directive Principle and the

fundamental duty, the court is not to shrug its shoulders and say that

priorities are a matter of policy and so it is a matter for the policy-

making authority. The least that the court may do is to examine whether

appropriate considerations are borne in mind and irrelevancies

excluded. In appropriate cases, the court may go further, but how much

further must depend on the circumstances of the case. The court may

always give necessary directions. However the court will not attempt to

nicely balance relevant considerations. When the question involves the

nice balancing of relevant considerations, the court may feel justified in

resigning itself to acceptance of the decision of the concerned authority.

We may now proceed to examine the facts of the present case.”

(emphasis supplied)

27

Article 48A and 51A To Be Considered in Light of Article 21 of the

Constitution of India, 1950

 M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213

“8. Apart from the above statutes and the rules made thereunder, Article 48-

A of the Constitution provides that the State shall endeavour to protect and

improve the environment and to safeguard the forests and wildlife of the

country. One of the fundamental duties of every citizen as set out in Article

51-A(g) is to protect and improve the natural environment, including forests,

lakes, rivers and wildlife and to have compassion for living creatures. These

two articles have to be considered in the light of Article 21 of the

Constitution which provides that no person shall be deprived of his life

and liberty except in accordance with the procedure established by law.

Any disturbance of the basic environment elements, namely air, water

and soil, which are necessary for “life”, would be hazardous to “life”

within the meaning of Article 21 of the Constitution.

9. In the matter of enforcement of rights under Article 21 of the

Constitution, this Court, besides enforcing the provisions of the Acts

referred to above, has also given effect to fundamental rights under

Articles 14 and 21 of the Constitution and has held that if those rights

are violated by disturbing the environment, it can award damages not

only for the restoration of the ecological balance, but also for the victims

who have suffered due to that disturbance. In order to protect “life”, in

order to protect “environment” and in order to protect “air, water and

soil” from pollution, this Court, through its various judgments has given

effect to the rights available, to the citizens and persons alike, under

Article 21 of the Constitution. The judgment for removal of hazardous and

obnoxious industries from the residential areas, the directions for closure of

certain hazardous industries, the directions for closure of slaughterhouse and

its relocation, the various directions issued for the protection of the Ridge

area in Delhi, the directions for setting up effluent treatment plants to the

industries located in Delhi, the directions to tanneries etc., are all judgments

which seek to protect the environment.”

(emphasis supplied)

Article 48A And 51A Must guide the Interpretation of Laws

 Pradeep Krishen v. Union of India, (1996) 8 SCC 599

“15. Now as pointed out earlier, since Parliament had no power to make laws

for the States except as provided by Articles 249 and 250 of the Constitution,

28

the States were required to pass resolutions under Article 252(1) to enable

Parliament to enact the law. After as many as 11 States passed resolutions to

that effect, the Act came to be enacted to provide for the protection of wild

animals and birds and for matters connected therewith or ancillary or

incidental thereto. Even Articles 48-A and 51-A(g) inserted in the

Constitution by the 42nd Amendment oblige the State and the citizen,

respectively, to protect and improve the natural environment and to

safeguard the forest and wildlife of the country. The statutory as well as

the constitutional message is therefore loud and clear and it is this

message which we must constantly keep in focus while dealing with

issues and matters concerning the environment and the forest area as

well as wildlife within those forests. This objective must guide us in

interpreting the laws dealing with these matters and our interpretation

must, unless the expression or the context conveys otherwise, subserve

and advance the aforementioned constitutional objectives. With this

approach in mind we may now proceed to deal with the contentions urged

by parties.”

(emphasis supplied)

ENVIRONMENT

Section 2 of the Environment (Protection) Act, 1986

“2. Definitions.—In this Act, unless the context otherwise requires,—

(a) ‘environment’ includes water, air and land and the inter-relationship

which exists among and between water, air and land, and human beings,

other living creatures, plants, micro-organism and property;”

27. The word “environment” shall not be understood from a narrow perspective.

Albert Einstein once observed “environment is everything that is not me”. In

our considered view, the environment would include both animate and

inanimate. One cannot segregate these two segments, which are broadly

differentiated only for the ease of human understanding.

29

WHY WE NEED FORESTS ?

“Man is the most insane species. He worships an invisible God

and destroys a visible Nature, unaware that this Nature he’s

destroying is this God he’s worshiping.”

Hubert Reeves.

Canadian astrophysicist

28. Human beings indulge themselves in selective amnesia when it comes to

fathom the significance of forests. It is the forests which give life to the Earth

by replacing carbon dioxide with oxygen, thereby providing a hospitable

environment for the steady growth of diverse life forms. It’s the spirit of the

forest that moves the Earth. History shall not be understood from the

jaundiced eyes of humans but through the prism of the environment, the forest

in particular.

29. Forests not only provide for and facilitate the sustenance of life, but they also

continue to protect and foster it. They continue to tackle the ever-increasing

carbon dioxide emissions produced by humans in the name of development,

while striving to sustain all species. Despite the unblemished, selfless and

motherly service rendered by forests, man in his folly continues with their

destruction, unmindful of the fact that he is inadvertently destroying himself.

30. Consequent to the advent of agriculture, man has destroyed a significant

portion of forests at his own peril. Forests serve the Earth in a myriad of ways

ranging from regulating carbon emissions, aiding in soil conservation and

30

regulating the water cycle. Water being a life source, its availability for all life

forms is heavily dependent upon the aquifers created by forests. Forests also

play a pivotal role in controlling pollution, which significantly affects the

underprivileged, violating their right to equality under Article 14 of the

Constitution of India, 1950. It is the vulnerable sections of the society who

would be most affected by the depletion of forests, considering the fact that

the more affluent sections of society have better access to resources as

compared to them. Therefore, the protection of forests is in the interest of

mankind, even assuming that the other factors can be ignored.

Municipal Corpn. of Greater Mumbai v. Ankita Sinha, (2022) 13 SCC

401

“XI. Environmental Justice and Environmental Equity

75. The conceptual frameworks of environmental justice and equity should

merit consideration vis-à-vis NGT's domain and how its functioning and

decisions can have wide implications in socio-economic dimensions of

people at large. The concept of environmental justice is a trifecta of

distributive justice, procedural justice and justice as recognition. [

Schlosberg D., Defining Environmental Justice : Theories, Movements,

and Nature (Oxford University Press 2009).] Environmental equity as a

developing concept has focused on the disproportionate implications of

environmental harms on the economically or socially marginalised

groups. The concerns of human rights and environmental degradation

overlap under this umbrella term, to highlight the human element, apart

from economic and environmental ramifications. Environmental equity

thus stands to ensure a balanced distribution of environmental risks as

well as protections, including application of sustainable development

principles.

76. Voicing concerns about the disproportionate harm for the poor segments,

Lois J. Schiffer [then Assistant Attorney General, Environment and Natural

Resources Division (“ENRD”), US Department of Justice] and Timothy J.

Dowling (then Attorney at ENRD) in their Reflections on the Role of the

31

Courts in Environmental Law, wrote the following evocative passage on the

concept of environmental justice:

“Environmental justice, which focuses on whether minorities and low-

income people bear a disproportionate burden of exposure to

environmental harms and any resulting health effects. In the past ten to

fifteen years, this issue has crystallized a grass-roots movement that

combines civil rights issues with environmental issues, with a goal of

achieving “environmental justice” or “environmental equity”, which is

understood to mean the fair distribution of environmental risks and

protection from environmental harms.” [ Schiffer, L.J. & Dowling, T.J.

(1997), “Reflections on the Role of the Courts in Environmental Law”,

27(2) Environmental Law 327-342.]

77. There is also a need to focus on the interconnection between principles

of procedural justice and distributive justice. The concern is to create a

system which is affirmative enough to balance the disproportionate wielding

of power between polluters and affected people:

“Environmental justice starts with distributive justice, or more accurately,

distributive injustice. The rich and powerful derive the most benefit while

suffering the least harm from environmentally harmful activities; conversely,

the poor and minorities derive the least benefit but suffer the most harm.

Further, those who benefit cause harm to the places where people “live,

work, play, and go to school”, whereas the people who reside there do little

or nothing to harm their community.” [ Jeff Todd, “A ‘Sense of Equity’ in

Environmental Justice Litigation”, 44 Harv Envtl L Rev 169, 193 (2020).]

78. When substantive justice is elusive for a large segment, disengaging with

substantive rights at the very altar, for a perceived procedural lacuna, would

surely bring in a process, which furthers inequality, both economic and

social. An “equal footing” conception may not therefore be feasible to

adequately address the asymmetrical relationship between the polluters and

those affected by their actions. Instead, a recognition of the historical

experience of marginalised classes of persons while accessing and

effectively using the legal system, will allow for necessary appreciation of

social realities and balancing the arm of justice.

xxx xxx xxx

80. In the backdrop of the above weighty concerns, this Court should

advert to what Schiffer and Dowling have stated on the “Blindfold of

Lady Justice”, which symbolises “the ideal of administering equal justice

to everyone who comes to our courts, regardless of race, creed, or

economic class”. [ Schiffer, L.J. & Dowling, T.J. (1997), “Reflections on

the Role of the Courts in Environmental Law”, 27(2) Environmental

32

Law 327-342.] The relevance of this concept is particularly apposite

when we consider the inability of most marginalised communities, to

access the legal machinery.”

(emphasis supplied)

NEED FOR A CHANGE: FROM ANTHROPOCENTRIC TO

ECOCENTRIC

31. There is a crying need for a change in our approach. Man being an enlightened

species, is expected to act as a trustee of the Earth. It is his duty to ensure the

preservation of the ecosystem and to continuously endeavour towards the

protection of air, water and land. It is not his right to destroy the habitat of

other species but his duty to protect them from further peril. A right to enjoy

cannot be restricted to any specific group, and so also to human beings. The

time has come for mankind to live sustainably and respect the rights of rivers,

lakes, beaches, estuaries, ridges, trees, mountains, seas and air. It is imperative

to do so as there is always a constant threat to forests due to the ever-

increasing population. Man is bound by nature’s law. Therefore, the need

of the hour is to transform from an anthropocentric approach to ecocentric

approach which will encompass a wider perspective in the interest of the

environment. Dr. Susana Borras in her paper titled “New Transitions from

Human Rights to the Environment to the Rights of Nature” published in

33

Transnational Environmental Law, Volume 5, Issue 1, April 2016 has

reflected on the rights of nature (p. 114),

“A new approach is emerging, however: the recognition of the rights of

nature, which implies a holistic approach to all life and all ecosystems. In

recent years, a series of normative precedents have surfaced, which

recognize that nature has certain rights as a legal subject and holder of

rights. These precedents potentially contribute not merely a greater

sensitivity to the environment, but a thorough reorientation about how

to protect the Earth as the centre of life.

From this perspective, known as ‘biocentrism’, nature is not an object

of protection but a subject with fundamental rights, such as the rights

to exist, to survive, and to persist and regenerate vital cycles. The

implication of this recognition is that human beings have the legal authority

and responsibility to enforce these rights on behalf of nature in that rights of

nature become an essential element for the sustainability and the

survivability of human societies. This concept is based on the recognition

that humans, as but one part of life on earth, must live within their ecological

limits rather than see themselves as the purpose of environmental protection,

as the ‘anthropocentric’ approach proposes. Humans are trustees of the

Earth rather than being mere stewards. The idea is based on the

proposition that ecosystems of air, water, land, and atmosphere are a

public trust and should be preserved and protected as habitat for all

natural beings and natural communities.”

(emphasis supplied)

 T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277

“17. Environmental justice could be achieved only if we drift away from the

principle of anthropocentric to ecocentric. Many of our principles like

sustainable development, polluter-pays principle, intergenerational equity

have their roots in anthropocentric principles. Anthropocentrism is always

human interest focussed and that non-human has only instrumental value to

humans. In other words, humans take precedence and human responsibilities

to non-human based benefits to humans. Ecocentrism is nature-centred

where humans are part of nature and non-humans have intrinsic value. In

other words, human interest does not take automatic precedence and humans

have obligations to non-humans independently of human interest.

Ecocentrism is therefore life-centred, nature-centred where nature includes

both humans and non-humans. The National Wildlife Action Plan 2002-2012

34

and the Centrally Sponsored Integrated Development of Wildlife Habitats

Scheme, 2009 are centred on the principle of ecocentrism.”

The concept of natural rights theory is being evolved, which encapsulates

recognizing and acknowledging the rights of nature. As stated, such a right is

meant for the benefit of nature, inclusive of all species, both present and

future. The concept of trusteeship and inter-generational equity ought to be

understood from this perspective, as any deviation would cause not only

degradation of the environment but also serious inequality between different

species as well as amongst them. The idea is to recognize the importance of

forests qua the society as their significance has to be seen in the light of their

effect on the Earth.

Christopher D. Stone: Should Trees Have Standing? – Toward Legal

Rights For Natural Objects, Southern California Law Review, 45 (1972)

(pp. 464, 473, 474, 476),

“It is not inevitable, nor is it wise, that natural objects should have no rights

to seek redress on their own behalf. It is no answer to say that streams and

forests cannot have standing because streams and forests cannot speak.

Corporations cannot speak either; nor can states, estates, infants,

incompetents, municipalities or universities…

…If the environment is not to get lost in the shuffle, we would do well, I

think, to adopt the guardianship approach as an additional safeguard,

conceptualizing major natural objects as holders of their own rights, raisable

by the court-appointed guardian.

…There is also a good case to be made for taking into account harm to the

environment-in its own right. As indicated above, the traditional way of

deciding whether to issue injunctions in lawsuits affecting the environment,

at least where communal property is involved, has been to strike some sort

of balance regarding the economic hardships on human beings….

35

…Why should the environment be of importance only indirectly, as lost

profits to someone else? Why not throw into the balance the cost to the

environment?

…the lost environmental "values" of which we are now speaking are by

definition over and above those that the market is prepared to bid for: they

are priceless.

One possible measure of damages, suggested earlier, would be the cost of

making the environment whole, just as, when a man is injured in an

automobile accident, we impose upon the responsible party the injured man's

medical expenses…”

32. Similarly, the concept of sustainable development is to be understood from an

ecocentric approach. First and foremost, it is the environment that needs to be

sustained, while the anthropogenic development must follow later. T.N.

Godavarman Thirumulpad (87) v. Union of India, (2006) 1 SCC 1

“38. Forest sustainability is an integral part of forest management and

policy that also has a unique dominating feature and calls for forest

owners and society to make a long-term (50 years or longer)

commitment to manage forests for future generations. One of the

viewpoints for sustaining forest is a naturally functioning forest

ecosystem. This viewpoint takes the man and nature relationship to the

point of endorsing, to the extent possible, the notion of letting the forest

develop and process without significant human intervention. A strong

adoption of the naturalistic value system that whatever nature does is

better than what humans do, this is almost the “nature dominates man”

perspective. Parks and natural reserve creations; non-intervention in insect,

disease and fire process; and reduction of human activities are typical policy

situations. This viewpoint has been endorsed by the 1988 Forest Policy of

the Government of India.”

(emphasis supplied)

36

ECONOMIC CONSIDERATIONS

33. Wealth of a country has to be seen not only from the perspective of mere

revenue, augmented through its industries and business activities. Rather, it

has to be seen by giving due importance to its natural wealth which actually

contributes much more than the other factors. As discussed, forests play a

pivotal role in reducing carbon emissions in the atmosphere created by human

activities. A substantial value needs to be attached to the contribution of

forests.

34. Professor Wahlen in her paper titled “Opportunities for making the invisible

visible: Towards an improved understanding of the economic contributions of

NTFPs”, published in the Journal of Forest Policy and Economics, Volume

84, November 2017, has considered the implications on forest governance

management and policy arguing that Sustainable Development Goals (SDGs)

offer an opportunity to increase attention on the non-cash contributions of

forests and turn this invisible contribution into a visible one. These “invisible

services” rendered by forests ought to be given due credit. Depletion and

disappearance of forests would ultimately lead to a massive extinction of

organisms. Appreciation of this fact shall come from the point of view of a

species rather than through the prism of a State or a nation. Regulation of

temperature and prevention of water depletion is the primary role of forests.

37

Destroying forests would lead to the depletion and destruction of our life

source. It would lead to extreme droughts, rainfall would become scarce and

even if it pours, there would not be any means for its natural storage. The

concept of forests acting as a major sink of carbon dioxide has to be

appreciated and encouraged. Destruction of forests also affects pollination

and would ultimately impact the food chain.

35. A difference of one and half degree Celsius in temperature saves the global

economy tens of trillions of dollars. We must realise that carbon emissions

not only come from industrial activities but also agriculture. Such functions

are to be valued for assessing forest wealth. The concept of carbon credit in

carbon market is indeed a reality. With the need for imposing restrictions

towards carbon emissions, the concept of carbon markets has come into being.

Emissions of carbon dioxide worldwide, need to be seen holistically, as

emissions from each nation ultimately disperses into the atmosphere. Thus,

a country with excess forest cover would be in a position to sell its excess

carbon credit to the one in deficit. This in turn underlines the significance of

forests in contributing to the financial wealth of a country. From the economic

perspective we wish to quote the report of the Ministry of Environment and

Forests, Government of India titled “India’s Forest and Tree Cover:

38

Contribution as a Carbon Sink” (August 2009), as an aid to assess the

valuation of forests in the Indian context,

“Over the last two decades, progressive national forestry legislations and

policies in India aimed at conservation and sustainable management of

forests have reversed deforestation and have transformed India’s forests into

a significant net sink of CO2 . From 1995 to 2005, the carbon stocks stored

in our forests and trees have increased from 6,245 million tonnes (mt) to

6,662 mt, registering an annual increment of 38 mt of carbon or 138 mt

of CO2 equivalent.

Mitigation Service by India’s Forest and Tree Cover

India’s forests serve as a major sink of CO2 . Our estimates show that the

annual CO2 removals by India’s forest and tree cover is enough to neutralize

11.25 % of India’s total GHG emissions (CO2 equivalent) at 1994 levels, the

most recent year for which comparable data is available for developing

countries based on their respective National Communications (NATCOMs)

to the United Nations Framework Convention on Climate Change

(UNFCCC) . This is equivalent to offsetting 100% emissions from all energy

in residential and transport sectors; or 40% of total emissions from the

agriculture sector. Clearly, India’s forest and tree cover is serving as a

major mode of carbon mitigation for India and the world.

Value of Mitigation

Putting a conservative value of US$ 5 per tonne of CO2 locked in our

forests, this huge sink of about 24,000 mt of CO2 is worth US$ 120b, or

Rs 6,00,000 crores. Incremental carbon under scenario three will add a

value of around US$ 1.2b, or Rs 6,000 crores every year to India’s

treasury of forest sink, assuming a value of US$ 7 per tonne.”

(emphasis supplied)

A recent report of the Reserve Bank of India presents a very disturbing

scenario. The report clearly suggests the enormous potential impact of climate

change on the society, leading to serious job losses in every sector. Therefore,

the adverse effect will be on the future of the nation as a whole, as against an

identifiable group.

39

“Report on Currency and Finance; Towards a Greener Cleaner India”,

published by the Reserve Bank of India, (2022-2023), (pp. 45, 47),

“4. Macroeconomic Impact of Climate Change in India

xxx xxx xxx

II.32 India, along with countries such as Brazil and Mexico, face high risk

of reduction in economic growth, if global warming raises temperature by 2

degree Celsius as against 1.5 degree Celsius (IPCC, 2018). Climate change

manifested through rising temperature and changing patterns of

monsoon rainfall in India could cost the economy 2.8 per cent of its GDP

and depress the living standards of nearly half of its population by 2050

(Mani et al., 2018). India could lose anywhere around 3 per cent to 10

per cent of its GDP annually by 2100 due to climate change (Kompas et

al., 2018; Picciariello et al., 2021) in the absence of adequate mitigation

policies. Furthermore, Indian agriculture (along with construction

activity) as well as industry are particularly vulnerable to labour

productivity losses caused by heat related stress (Somnathan et al.,

2021). India could account for 34 million of the projected 80 million

global job losses from heat stress associated productivity decline by 2030

(World Bank, 2022). Further, up to 4.5 per cent of India’s GDP could be

at risk by 2030 owing to lost labour hours from extreme heat and

humidity conditions. Moreover, heatwaves could also last 25 times longer,

i.e., rise in severity, by 2036-2065 if current rate of carbon emissions is not

contained (CMCC, 2021). These estimates, thus, underscore the importance

of timely adoption and faster implementation of climate mitigation policies

to reduce the adverse impact on the Indian economy.”

(emphasis supplied)

One way of dealing with this situation is preserving the existing forests, while

making an endeavour to enhance its cover. An understanding from the

economic and social perspective would be the best approach.

36. The concept of “Green Accounting” in evaluating a nation’s wealth, including

its natural assets, would extend enormous benefits which are both tangible and

40

intangible. There are numerous resources that are being tapped from the

forests. Therefore, what is required is a comprehensive approach.

37. We shall conclude our discussion with a quote from the book “Top Soil and

Civilization” by Tom Dale and Vernon Gill Carter, published by the

University of Oklahoma Press, (1955)

“Man, whether civilised or savage, is a child of nature — he is not the master

of nature. He must conform his actions to certain natural laws if he is to

maintain his dominance over his environment. When he tries to circumvent

the laws of nature, he usually destroys the natural environment that sustains

him. And when his environment deteriorates rapidly, his civilisation

declines...”

APPROACH OF THE COURT

38. This Court has repeatedly reiterated the approach required to be adopted by

the courts where the onus is on the violator to prove that there is no

environmental degradation. There is a constitutional duty enjoined upon

every court to protect and preserve the environment. Courts will have to

apply the principle of parens patriae in light of the constitutional mandate

enshrined in Articles 48A, 51A, 21, 14 and 19 of the Constitution of India,

1950. Therefore, the burden of proof lies on a developer or industrialist and

also on the State in a given case to prove that there is no such degradation.

39. Not being an adversarial litigation, the court shall utilise all possible

resources, including scientific inventions, in its endeavour to preserve the

environment. While adopting an ecocentric approach, the concept of inter-

41

related existence has to be kept in mind. A narrow or pedantic approach should

be avoided. While considering the economic benefits, the invisible value and

benefits provided by the forests shall also be factored into. There has to be

an inclusive approach, which should be society centric, meaning thereby that

all species should co-exist with minimum collateral damage. The effort is to

minimise the damage to the environment, even in a case where the need for

human development is indispensable. While having a pragmatic and

practical approach, courts will have to weigh in the relevant factors and thus,

perform a balancing act.

PRECEDENTS

Uncertainty of Science and Burden of Proof

 A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718

“36. We shall next elaborate the new concept of burden of proof referred

to in the Vellore case [(1996) 5 SCC 647] at p. 658. In that case, Kuldip

Singh, J. stated as follows: (SCC p. 658, para 11)

“(iii) The ‘onus of proof’ is on the actor or the developer/industrialist

to show that his action is environmentally benign.”

37. It is to be noticed that while the inadequacies of science have led to

the “precautionary principle”, the said “precautionary principle” in its

turn, has led to the special principle of burden of proof in environmental

cases where burden as to the absence of injurious effect of the actions

proposed, — is placed on those who want to change the status quo

[Wynne, Uncertainty and Environmental Learning, 2 Global Envtl.

Change 111 (1992) at p. 123]. This is often termed as a reversal of the

42

burden of proof, because otherwise in environmental cases, those

opposing the change would be compelled to shoulder the evidentiary

burden, a procedure which is not fair. Therefore, it is necessary that the

party attempting to preserve the status quo by maintaining a less

polluted state should not carry the burden of proof and the party who

wants to alter it, must bear this burden. [See James M. Olson: “Shifting

the Burden of Proof”, 20 Envtl. Law, p. 891 at p. 898 (1990).] [Quoted in

Vol. 22 (1998), Harv. Env. Law Review, p. 509 at pp. 519, 550.]

xxx xxx xxx

39. It is also explained that if the environmental risks being run by regulatory

inaction are in some way “uncertain but non-negligible”, then regulatory action

is justified. This will lead to the question as to what is the “non-negligible risk”.

In such a situation, the burden of proof is to be placed on those attempting

to alter the status quo. They are to discharge this burden by showing the

absence of a “reasonable ecological or medical concern”. That is the

required standard of proof. The result would be that if insufficient evidence

is presented by them to alleviate concern about the level of uncertainty,

then the presumption should operate in favour of environmental

protection. Such a presumption has been applied in Ashburton

Acclimatisation Society v. Federated Farmers of New Zealand [(1988) 1

NZLR 78] . The required standard now is that the risk of harm to the

environment or to human health is to be decided in public interest,

according to a “reasonable persons” test. [See Charmian Barton:

Precautionary Principle in Australia (Vol. 22) (1998) Harv. Env. L. Rev., p.

509 at p. 549.]”

(emphasis supplied)

Approach of the Court: High Degree of Judicial Scrutiny on Any Action

of Government

 Intellectuals Forum v. State of A.P., (2006) 3 SCC 549

“Public trust doctrine

76. The Supreme Court of California, in National Audubon Society v.

Superior Court of Alpine Country [33 Cali 419] also known as Mono Lake

case [33 Cali 419] summed up the substance of the doctrine. The Court said:

43

“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.”

(emphasis supplied)

 Narinder Singh and Ors. v. Divesh Bhutani and Ors., 2022 SCC OnLine

SC 899

“THE APPROACH OF THE COURT IN INTERPRETING THE

LAWS RELATING TO FORESTS AND THE ENVIRONMENT

25. While interpreting the laws relating to forests, the Courts will be

guided by the following considerations:

44

i. Under Clause (a) Article 48A forming a part of Chapter IV

containing the Directive Principles of State Policy, it is the

obligation of the State to protect and improve the environment

and to safeguard the forests;

ii. Under Clause (g) of Article 51A of the Constitution, it is a

fundamental duty of every citizen to protect and preserve the

natural environment, including forests, rivers, lakes and

wildlife etc.;

iii. Article 21 of the Constitution confers a fundamental right on

the individuals to live in a pollution-free environment. Forests

are, in a sense, lungs which generate oxygen for the survival of

human beings. The forests play a very important role in our

ecosystem to prevent pollution. The presence of forests is

necessary for enabling the citizens to enjoy their right to live in

a pollution-free environment;

iv. It is well settled that the Public Trust Doctrine is a part of our

jurisprudence. Under the said doctrine, the State is a trustee of

natural resources, such as sea shores, running waters, forests

etc. The public at large is the beneficiary of these natural

resources. The State being a trustee of natural resources is

under a legal duty to protect the natural resources. The public

trust doctrine is a tool for exerting long-established public

rights over short-term public rights and private gains;

v. Precautionary principle has been accepted as a part of the law

of the land. A conjoint reading of Articles 21, 48A and 51-A(g)

of the Constitution of India will show that the State is under a

mandate to protect and improve the environment and

safeguard the forests. The precautionary principle requires the

Government to anticipate, prevent and remedy or eradicate the

causes of environmental degradation including to act sternly

against the violators;

vi. While interpreting and applying the laws relating to the

environment, the principle of sustainable development must be

borne in mind. In the case of Rajeev Suri v. Delhi Development

Authority and Ors. [(2022) 11 SCC 1], a Bench of this Court to

which one of us is a party (A.M. Khanwilkar, J.) has very succinctly

dealt with the concept of sustainable development. Paragraphs 507

and 508 of the said decision reads thus:

“507. The principle of sustainable development and

precautionary principle need to be understood in a proper

45

context. The expression “sustainable development”

incorporates a wide meaning within its fold. It

contemplates that development ought to be sustainable

with the idea of preservation of natural environment for

present and future generations. It would not be without

significance to note that sustainable development is

indeed a principle of development - it posits controlled

development. The primary requirement underlying this

principle is to ensure that every development work is

sustainable; and this requirement of sustainability

demands that the first attempt of every agency enforcing

environmental Rule of law in the country ought to be to

alleviate environmental concerns by proper mitigating

measures. The future generations have an equal stake in

the environment and development. They are as much

entitled to a developed society as they are to an

environmentally secure society. By Declaration on the

Right to Development, 1986, the United Nations has given

express recognition to a right to development. Article 1 of

the Declaration defines this right as:

“1. The right to development is an inalienable

human right by virtue of which every human

person and all peoples are entitled to participate in,

contribute to, and enjoy economic, social, cultural

and political development, in which all human

rights and fundamental freedoms can be fully

realized.”

508. The right to development, thus, is intrinsically

connected to the preservance of a dignified life. It is not

limited to the idea of infrastructural development, rather,

it entails human development as the basis of all

development. The jurisprudence in environmental matters

must acknowledge that there is immense interdependence

between right to development and right to natural

environment. In International Law and Sustainable

Development, Arjun Sengupta in the chapter

“Implementing the Right to Development” notes thus:

“… Two rights are interdependent if the level of

enjoyment of one is dependent on the level of

enjoyment of the other…”

46

vii. Even ‘environmental rule of law’ has a role to play. This Court

in the case of Citizens for Green Doon v. Union of India and

Ors. 2021 SCC OnLine SC 1243 has dealt with another

important issue of lack of consistent and uniform standards for

analysing the impact of development projects. This Court

observed that the principle of sustainable development may

create differing and arbitrary metrics depending on the nature

of individual projects. Therefore, this Court advocated and

accepted the need to apply and adopt the standard of

‘environmental Rule of law’. Paragraph 40 of the said decision

reads thus:

“40. A cogent remedy to this problem is to adopt the

standard of the ‘environmental Rule of law’ to test

governance decisions under which developmental

projects are approved. In its 2015 Issue Brief titled

“Environmental Rule of Law : Critical to Sustainable

Development”, the United Nations Environment

Programme has recommended the adoption of such an

approach in the following terms:

“Environmental rule of law integrates the critical

environmental needs with the essential elements of

the rule of law, and provides the basis for

reforming environmental governance. It prioritizes

environmental sustainability by connecting it with

fundamental rights and obligations. It implicitly

reflects universal moral values and ethical norms

of behaviour, and it provides a foundation for

environmental rights and obligations. Without

environmental rule of law and the enforcement of

legal rights and obligations, environmental

governance may be arbitrary, that is, discretionary,

subjective, and unpredictable.”

(emphasis supplied)

Forest Constitute A National Asset

 Amarnath Shrine, In re, (2013) 3 SCC 247

“19. Where it is the bounden duty of the State to protect the above rights of

the citizen in discharge of its constitutional obligation in the larger public

interest, there the law also casts a duty upon the State to ensure due

47

protection to the forests and environment of the country. Forests in India

are an important part of the environment. They constitute a national

asset. We may, at this stage, refer to the concept of inter-generational

equity, which has been treated to be an integral part of Article 21 of the

Constitution of India. The courts have applied this doctrine of

sustainable development and precautionary principle to the cases where

development is necessary, but certainly not at the cost of environment.

The courts are expected to drive a balance between the two. In other

words, the onerous duty lies upon the State to ensure protection of

environment and forests on the one hand as well as to undertake

necessary development with due regard to the fundamental rights and

values.”

(emphasis supplied)

Environmental Rule of Law

 H.P. Bus-Stand Management & Development Authority v. Central

Empowered Committee, (2021) 4 SCC 309

“I.1. Environmental rule of law

xxx xxx xxx

“49. The environmental rule of law, at a certain level, is a facet of the concept

of the rule of law. But it includes specific features that are unique to

environmental governance, features which are sui generis. The

environmental rule of law seeks to create essential tools — conceptual,

procedural and institutional to bring structure to the discourse on

environmental protection. It does so to enhance our understanding of

environmental challenges — of how they have been shaped by humanity's

interface with nature in the past, how they continue to be affected by its

engagement with nature in the present and the prospects for the future, if we

were not to radically alter the course of destruction which humanity's actions

have charted. The environmental rule of law 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. The

environmental rule of law seeks a unified understanding of these concepts.

There are significant linkages between concepts such as sustainable

48

development, the polluter pays principle and the trust doctrine. The universe

of nature is indivisible and integrated. The state of the environment in one

part of the earth affects and is fundamentally affected by what occurs in

another part. Every element of the environment shares a symbiotic

relationship with the others. It is this inseparable bond and connect which

the environmental rule of law seeks to explore and understand in order to

find solutions to the pressing problems which threaten the existence of

humanity. The environmental rule of law is founded on the need to

understand the consequences of our actions going beyond local, State and

national boundaries. The rise in the oceans threatens not just maritime

communities. The rise in temperatures, dilution of glaciers and growing

desertification have consequences which go beyond the communities and

creatures whose habitats are threatened. They affect the future survival of the

entire eco-system. The environmental rule of law attempts to weave an

understanding of the connections in the natural environment which make the

issue of survival a unified challenge which confronts human societies

everywhere. It seeks to build on experiential learnings of the past to

formulate principles which must become the building pillars of

environmental regulation in the present and future. The environmental rule

of law recognises the overlap between and seeks to amalgamate scientific

learning, legal principle and policy intervention. Significantly, it brings

attention to the rules, processes and norms followed by institutions which

provide regulatory governance on the environment. In doing so, it fosters a

regime of open, accountable and transparent decision making on concerns of

the environment. It fosters the importance of participatory governance — of

the value in giving a voice to those who are most affected by environmental

policies and public projects. The structural design of the environmental rule

of law composes of substantive, procedural and institutional elements. The

tools of analysis go beyond legal concepts. The result of the framework is

more than just the sum total of its parts. Together, the elements which it

embodies aspire to safeguard the bounties of nature against existential

threats. For it is founded on the universal recognition that the future of

human existence depends on how we conserve, protect and regenerate the

environment today.

xxx xxx xxx

54. In an article in Georgetown Environmental Law Review (2020), Arnold

Kreilhuber and Angela Kariuki explain the manner in which the

environmental rule of law seeks to resolve this imbroglio [ Arnold

Kreilhuber and Angela Kariuki, “Environmental Rule of Law in the Context

of Sustainable Development”, 32 Georgetown Environmental Law Review

591 (2020).] :

49

“One of the main distinctions between environmental rule of law and

other areas of law is the need to make decisions to protect human health

and the environment in the face of uncertainty and data gaps. Instead of

being paralyzed into inaction, careful documentation of the state of

knowledge and uncertainties allows the regulated community,

stakeholders, and other institutions to more fully understand why certain

decisions were made.”

The point, therefore, is simply this — the environmental rule of law calls

on us, as Judges, to marshal the knowledge emerging from the record,

limited though it may sometimes be, to respond in a stern and decisive

fashion to violations of environmental law. We cannot be stupefied into

inaction by not having access to complete details about the manner in

which an environmental law violation has occurred or its full

implications. Instead, the framework, acknowledging the imperfect

world that we inhabit, provides a roadmap to deal with environmental

law violations, an absence of clear evidence of consequences

notwithstanding.”

(emphasis supplied)

Role of Courts

 H.P. Bus-Stand Management & Development Authority (Supra)

“I.2. Role of courts in ensuring environmental protection

56. In a recent decision of this Court in BDA v. Sudhakar Hegde [(2020)

15 SCC 63] , this Court, speaking through one of us (D.Y. Chandrachud, J.)

held : (SCC pp. 112-13, paras 94-95)

“94. The adversarial system is, by its nature, rights based. In the

quest for justice, it is not uncommon to postulate a winning side

and a losing side. In matters of the environment and

development however, there is no trade-off between the two. The

protection of the environment is an inherent component of

development and growth. …

Professor Corker draws attention to the idea that the

environmental protection goes beyond lawsuits. Where the State

and statutory bodies fail in their duty to comply with the

regulatory framework for the protection of the environment, the

courts, acting on actions brought by public-spirited individuals

are called to invalidate such actions. …

50

95. The protection of the environment is premised not only on

the active role of courts, but also on robust institutional

frameworks within which every stakeholder complies with its

duty to ensure sustainable development. A framework of

environmental governance committed to the rule of law requires

a regime which has effective, accountable and transparent

institutions. Equally important is responsive, inclusive,

participatory and representative decision-making.

Environmental governance is founded on the rule of law and

emerges from the values of our Constitution. Where the health

of the environment is key to preserving the right to life as a

constitutionally recognised value under Article 21 of the

Constitution, proper structures for environmental decision-

making find expression in the guarantee against arbitrary action

and the affirmative duty of fair treatment under Article 14 of the

Constitution. Sustainable development is premised not merely

on the redressal of the failure of democratic institutions in the

protection of the environment, but ensuring that such failures do

not take place.”

xxx xxx xxx

58. The UNEP Report (supra) also goes on to note [ UNEP, “Environmental

Rule of Law First Global Report” (January 2019), p. 213.] :

“Courts and tribunals must be able to grant meaningful legal

remedies in order to resolve disputes and enforce environmental

laws. As shown in Figure 5.12, legal remedies are the actions, such

as fines, jail time, and injunctions, that courts and tribunals are

empowered to order. For environmental laws to have their desired

effect and for there to be adequate incentives for compliance with

environmental laws, the remedies must both redress the past

environmental harm and deter future harm.”

59. In its Global Judicial Handbook on Environmental Constitutionalism,

the UNEP has further noted [UNEP, Global Judicial Handbook on

Environmental Constitutionalism (3rd Edn., 2019), p. 7.] :

“Courts matter. They are essential to the rule of law. Without courts,

laws can be disregarded, executive officials left unchecked, and

people left without recourse. And the environment and the human

connection to it can suffer. Judges stand in the breach.”

51

60. The above discussion puts into perspective our decision in the present

appeals, through which we shall confirm the directions given by NGT in its

impugned judgment [T.N. Godavarman Thirumulpad v. Union of India, 2016

SCC OnLine NGT 1196] . The role of courts and tribunals cannot be

overstated in ensuring that the “shield” of the “rule of law” can be used

as a facilitative instrument in ensuring compliance with environmental

regulations.”

(emphasis supplied)

FACTUAL BACKGROUND

40. Between the years 1950-1959, a revision of survey and settlement of village

Kompally took place. It was concluded on 17.11.1960. An application was

stated to have been filed by Respondent No. 1 (Original Plaintiff), invoking

Section 87 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317

F. (hereinafter referred to as “A.P. Land Revenue Act, 1317 F.”), seeking

rectification of survey error. It was so filed on the premise that the Plaintiff

actually owned the suit land. The suit land consists of 106.34 Acres and the

Schedule reads thus – Village Kompally, District Warangal, Survey Number

171/3 to 171/7 admeasuring 106.34 Acres. This application did not surface for

nearly a decade and a half, for the reasons known to the Plaintiff.

41. A notification being Gazette No. 85-B was published in the Andhra Pradesh

Gazette on 11.11.1971 by the State Government, under Section 15 of the A.P.

Forest Act, declaring the land, which was part of the earlier proceedings of

52

the revenue department dated 17.11.1960, as reserved forest. It was done on

the premise that the lands were forest lands and, therefore, they were

accordingly declared as reserved forest.

42. Rather strangely, the application so filed by the Plaintiff was rejected by the

Revenue Authority only on 10.01.1975. The revision filed by him was

allowed by remitting the matter to the Joint Collector. Suffice it is to state

that despite the findings rendered, neither the Forest Department nor the

Forest Settlement Officer was arrayed as a party to these proceedings before

the revenue department. It is also seen that the order of the Revenue

Authority and the Revisional Authority were passed much after the

declaration under Section 15 of the A.P. Forest Act, vesting the lands in the

State by giving them the status of a reserved forest.

43. On 07.07.1981, the Joint Collector, Warangal allowed the application of the

Plaintiff. Realising that the said order will not give the Plaintiff benefit of

any sort, he filed an application before the Government seeking denotification

of the land declared as reserved forest', which was rightly dismissed on

01.09.1984.

44. A suit was filed by the Plaintiff on 23.04.1985 in OS No. 56 of 1985 on the

file of I Additional Sub-Judge, Warangal seeking a declaration of title and

permanent injunction. In the said suit the Defendant no. 1 was the District

53

Collector representing the Revenue Department with the Defendant no. 2,

Forest Officer representing the Forest Department. Quite surprisingly,

neither the Forest Settlement Officer nor the State of Andhra Pradesh, Forest

Department was made a party defendant. The trial court while granting title

to the plaintiff declined the incidental relief of injunction.

45. On appeal, the High Court, by giving adequate reasons reversed the said

finding of the trial court qua the declaration, and confirmed the findings on

injunction by dismissing the suit in toto. Ultimately, it was held that the suit

property is forest land. The proceedings concluded under the A.P. Forest

Act, though not specifically challenged, and that too without the proper and

necessary parties, were found to be just and proper.

46. The trial court and the High Court in first appeal have given factual findings

against the plaintiff. Only two witnesses were examined, one on each side.

The trial court took note of the fact that there is material evidence to show that

the suit land is a part of the reserved forest. The plaintiff was not at all in

possession of the suit land. The suit was also held as barred under Section 5

of the A.P. Forest Act.

47. The High Court, being the final court of fact and law, went ahead and held

that the plaintiff had miserably failed to show his title to the suit property.

The Plaintiff did not have any personal knowledge about the manner of his

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succession to the suit property. Even as per his own evidence, he is not the

absolute owner of the suit property, being a co-owner. The documents relied

on by him, more particularly the decision of the revenue authorities, do not

establish both title and possession. A detailed discussion was made on the

effect of Section 15 and 16 of the A.P. Forest Act, along with the documents

marked on behalf of defendants. It took note of the fact that though a portion

of the property was sold as per the evidence of the Plaintiff, there is no proof.

48. Immediately after the judgment of the High Court dated 20.07.2018, a review

was filed on behalf of the plaintiff on 18.11.2018. Shockingly, Defendant

No. 1, who filed a common written statement along with the Defendant No. 2

and, thus, took a stand that the suit property is a forest land which becomes

part of a reserved forest area, in line with the stand taken by the Defendant

No. 3, who was impleaded pending the first appeal, constituted a committee

on 12.07.2019 on an application said to have been filed by the Plaintiff in the

year 2017, which was obviously pending the first appeal.

49. More surprisingly, the District Forest Officer did not appear before the

Committee and based upon a report submitted, it was held that the suit

property is required to be excluded in favour of the plaintiff. This was done

despite the fact that the District Collector, who was a party to the suit, took a

specific stand, and in view of the judgment which attained finality, that the

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suit land is forest land, the District Collector has got no jurisdiction at all to

deal with it in any manner especially in the light of Section 15 and 16 of the

A.P. Forest Act. We do not wish to say anything more on this, though

wisdom has dawned upon defendants again, as could be seen from the

affidavit filed by the State before this Court reiterating the original stand.

50. The aforesaid decision was taken by the District Collector after the judgment

of the First Appellate Court. It was accordingly marked as a court exhibit in

the review. Thereafter, it was taken up for hearing and disposed of on

19.03.2021. The Learned Judge who delivered an elaborate judgment in the

first appeal was transferred to Andhra Pradesh on establishment of the High

Court at Amravati. The review came to be filed before another Learned Judge.

The impugned order was passed in the purported exercise of the power of

review, by virtually reversing all the findings rendered in the appeal, while

placing reliance upon evidence which on the face of it was inadmissible and,

therefore, void from its inception, rendered by an authority which had

absolutely no jurisdiction at all.

51. While doing so, the High Court in review jurisdiction once again reconsidered

the evidence produced by the Defendants. In the process, the High Court

fixed a heavy onus on the Defendants ignoring the fact that on the earlier

occasion the Plaintiff had miserably failed to prove his title. Incidentally, it

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was held that Section 5 of the A.P. Forest Act which speaks about the bar of

a suit can only be applied during the pendency of proceedings under the A.P.

Forest Act and not thereafter. Despite no challenge either to the proceedings

under the A.P. Forest Act and that too in the absence of proper and necessary

parties, an adverse inference was drawn by taking note of the statement made

by DW-1 who was only a Forest Officer and, therefore, not having any direct

connection with the action taken. Various admissions made by the plaintiff

in his deposition were conveniently ignored. The High Court went on to

criticize the conflicting stand taken by two wings of the State while ignoring

the fact that Defendant No. 1 had absolutely no say.

SUBMISSIONS OF THE APPELLANTS

52. Ms. Aishwarya Bhati, Learned Additional Solicitor General, appearing for the

appellants, submitted that the Forest Conservation Act, 1980 defines a forest

which is inclusive of all types of forests. The extensive inclusion would take

in its sweep even the private forests. Revenue records do not confer title.

The High Court clearly exceeded its jurisdiction in review by entertaining a

re-hearing and virtually acted as an appellate court. The Respondents did not

satisfy the court on the title, which finding has not been touched.

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SUBMISSIONS OF THE RESPONDENTS

53. Mr. Neeraj Kishan Kaul, Learned Senior Counsel appearing for the

respondents, vehemently contended that the proceedings before the Forest

Settlement Officer have become final. Even the trial court has held that the

plaintiff had title. Once title is proved, possession has to follow. As there

is an error apparent on the face of record, the power of review has been

exercised correctly. The finding that Section 5 of the A.P. Forest Act, has

got no application is correct, as there is no attempt to interdict the proceedings.

As there is no apparent perversity, this Court need not interfere with the

impugned order.

DISCUSSION

54. We have already recorded the facts in detail. It is a classic case where the

officials of the State who are expected to protect and preserve the forests in

discharge of their public duties clearly abdicated their role. We are at a loss

to understand as to how the High Court could interfere by placing reliance

upon evidence produced after the decree, at the instance of a party which

succeeded along with the contesting defendant, particularly in the light of the

finding that the land is forest land which has become part of reserved forest.

55. There is a distinct lack of jurisdiction on two counts – one is with respect to

an attempt made to circumvent the decree and, the second is in acting without

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jurisdiction. The land belongs to the Forest Department and therefore,

Defendant No. 1 had absolutely no role in dealing with it in any manner.

Proceeding under the A.P. Land Revenue Act, 1317 F. has got no relevancy

or connection with a concluded proceeding under the A. P. Forest Act. The

proceeding under the A. P. Forest Act was concluded on 11.11.1971.

Thereafter, without any jurisdiction, an order was passed under Section 87 of

the A.P. Land Revenue Act, 1317 F.

56. The High Court on the earlier occasion had given a clear finding that even at

the time of declaration under the A.P. Land Revenue Act, 1317 F, these lands

were not shown as private lands by the defendant, among other factual

findings. It is indeed very strange that the High Court which is expected to

act within the statutory limitation went beyond and graciously gifted the forest

land to a private person who could not prove his title. While disposing of the

first appeal, the High Court exercised its power under Order XLI Rule 22 of

the CPC 1908 for partly reversing the trial court decree. Even otherwise,

there were concurrent findings in so far as dismissal of the suit for injunction

is concerned. In our considered view, the High Court showed utmost interest

and benevolence in allowing the review by setting aside the well merited

judgment in the appeal by replacing its views in all material aspects.

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57. Let us alternatively examine the question of maintainability of a suit for the

relief of declaration. The suit filed is not maintainable as the plaintiff has not

challenged the proceedings under Section 15 of A. P. Forest Act. These have

become final and conclusive in view of the express declaration provided under

the statute in Section 16 of A. P. Forest Act. Rather, the plaintiff filed an

application for denotification before the Government which was rejected.

Neither the State Government, which rejected the said application, nor the

Forest Settlement Officer has been made as party defendants in the suit, with

the State arrayed as respondent represented by the Principal Secretary, Forest

Department, at a later stage in the appeal. Though, the Forest Officer of the

Forest Department may be an interested party, the authority who otherwise

could answer is the Forest Settlement Officer. He is the one who concluded

the proceedings. In any case, the said exercise is irrelevant as the Plaintiff

could not prove his title nor does there lie any relevance to the action taken

under the A.P. Land Revenue Act, 1317 F. Furthermore, there is no specific

challenge to the concluded proceedings under the A. P. Forest Act. The

Plaintiff has merely asked for declaration of title and permanent injunction

restraining the Defendants from interfering with possession.

58. We, thus, conclude that the impugned judgment does not stand the legal

scrutiny as it is ridden with both factual and legal errors.

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59. Accordingly, the appeal stands allowed. The impugned judgment stands set

aside by restoring the judgement rendered in A.S. No. 145 of 1994. We

consider it appropriate to impose cost of Rs. 5,00,000/- each on appellants and

respondents to be paid to the National Legal Services Authority (NALSA)

within a period of two months from the date of this judgment. The appellant

State is free to enquire into the lapses committed by the officers in filing

collusive affidavits before the competent court, and recover the same from

those officers who are responsible for facilitating and filing incorrect

affidavits in the ongoing proceedings. The Contempt Case No. 624 of 2021

pending before the High Court is directed to be closed. I.A. No.65196/2021 is

dismissed. All other pending applications stand closed.

..………………………..J.

(M. M. SUNDRESH )

…………………………. .J.

(S. V. N. BHATTI)

New Delhi,

April 18, 2024