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TMI Blog2019 (11) TMI 1829X X X X Extracts X X X X X X X X Extracts X X X X ..... way from the boundary of Sukhna Wildlife Sanctuary. The Survey Map of India dated 21.09.2004, demarcating the area of Sukhna Lake, is binding on the State of Punjab. The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is invalid. The environment clearance dated 17.09.2013, granted by State Level Environment Impact Assessment Authority (SEIAA) for development of the project is not in conformity with the Notification dated 14.09.2006 of Ministry of Environment and Forest (MoEF), has also been set aside. It has also been ordered that if the permission is granted by the State of Punjab in favour of the Appellant if it so desires, it may apply to Central Government for environmental clearance treating project category 'A.' 2. The Tata HDCL proposed to develop a project, namely, "CAMELOT" in the revenue estate of village-Kansal, Tehsil-Kharar, District-Mohali, State of Punjab. The total project area is 52.66 acres, out of which 41.54 acres is to be developed for group housing built-up area of 4,63,144.54 sqm. The parking facility is to be provided for 3645 ESS. The estimated population of the project ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 26.03.2012 directed the Tata HDCL to comply with the requirements of the E.P. Act and Wildlife (Protection) Act for obtaining grant of necessary clearances/sanctions/permissions from the competent authorities. 6. Sarin Memorial Legal Foundation filed Writ Petition (Civil) No. 994/2013 in this Court on 09.11.2013, Under Article 32 of the Constitution of India challenging the decision of SEIAA, Punjab dated 06.09.2013. 7. Order dated 21.08.2013 was passed by the High Court of Punjab and Haryana in which it was ordered that the project of Tata HDCL would not be affected by the orders passed on 14.03.2011 and 14.05.2012 in CWP No. 18253/2009. Sarin Memorial Legal Foundation also questioned the said order in this Court. This Court vide order dated 22.04.2014 disposed of W.P.(C) No. 994/13 and Civil Appeal No. 4848/2014 filed by Sarin Legal Memorial Foundation. The order passed by the High Court of Punjab and Haryana on 26.03.2012 was set aside. The writ petition was restored; the matters were transferred for the decision to the High Court of Delhi. 8. Municipal Area of Naya Gaon was notified on 18.10.2006 as the 'Local Planning Area' of Naya Gaon. 'Existing Land Use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect is zero kilometers from the periphery of Chandigarh. The project would destroy the wildlife sanctuary and would cause a serious threat to Sukhna Lake. The High Court had banned all construction activities in the catchment area of Sukhna Lake in C.W.P. No. 7649/2003. The project would adversely affect the environment within Chandigarh and increase noise pollution by several manifolds, which would harm the wildlife present in the adjoining Sukhna Wildlife Sanctuary. Impact of a high-rise building having 28-storeys on the edict and norms of the city of Chandigarh has not been properly considered. 13. The State of Punjab has supported the case set up by Tata HDCL, the edict of Chandigarh is not applicable in the area in question. Survey of India Map regarding the catchment area of Sukhna Lake, is not conclusive since the objections are yet to be heard. SEIAA rightly considered the application since the nearest distance of Sukhna Wildlife Sanctuary from the project boundary on the northern side is 123 meters., as per the Office Memorandum dated 02.12.2009 of MoEF. Tata HDCL has to obtain clearance from the Standing Committee of the National Board for Wildlife before starting any wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 7649/2003 (Dr. B. Singh v. Union of India). It is also not in dispute that the demarcation of boundaries of catchment area was made after carrying out a survey by Technical Experts and in due consultation with the State of Punjab, State of Haryana and U.T. Chandigarh." 15. The High Court has also referred to the joint inspection report made on 10.01.2011 by a team of the officer from different department along with Tata HDCL. The observations of the inspecting team are extracted hereinunder: 1. The nearest distance from the boundary of the project site was measured by the staff members of Forest Department of U.T. Administration Chandigarh using measuring tape at two points: i. The nearest distance of Sukhna Wildlife Sanctuary from the project boundary on northern side is 123 meters. ii. The distance of Sukhna Wildlife Sanctuary from the boundary of project area on Eastern side is 185 meters. It is clarified that a part of the catchment area of Sukhna Lake has been declared as Sukhna Wildlife Sanctuary Under Section 26-A of the Wildlife (Protection) Act, 1972 by Chandigarh Administration vide Notification No. 694-HII(4)98/4519 dated 6th March 1998 (copy enclosed). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wildlife Protection Act, 1972, in the form it was stated: "Clearance required from Standing Committee of National Wildlife Board, New Delhi being project within 10 km. from the boundaries of Sukhna Wildlife Sanctuary, as on date Eco-Sensitive Zone has not been declared around Sukhna Wildlife Sanctuary." 16. With respect to wildlife sanctuary, the High Court has made the following observations: 183. It is relevant to note that the consideration by EAC of MoEF, Government of India, was on the basis of the Tata HDCL's first application dated 25.03.2009. In the light of the stand taken by SEIAA Punjab in its counter affidavit, it is clear that no EIA Report was prepared after the submission of the revised application dated 08.05.2013 by Tata HDCL. In the revised application dated 08.05.2013, it was for the first time admitted by Tata HDCL that its proposed project is situated within the prohibited distance of 10 km. from Sukhna Wildlife Sanctuary. It was also admitted that the ariel distance from the proposed project and Sukhna Lake is 123 meters (N) and 185 meters (E). 184. xxx xxx xxx 185. Significantly, this is a case where the project in question is situated within 123 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, to an extent varying from 2 km. to 2.75 km. from the boundary of Sukhna Wildlife Sanctuary in the Union Territory of Chandigarh, for that Notification dated 18.01.2017 has been issued. The High Court has also relied on the conditions of Notification, which is extracted hereinunder: 197. ...However, after reserving the judgment in the petitions, a short affidavit dated 09.03.2017 came to be filed on behalf of U.T. Chandigarh in W.P.(C) No. 2924/2014 stating that the Central Government, Ministry of Environment, Forests and Climate Change, in exercise of the powers conferred by Section 3(2) and (3) of the Environment (Protection) Act, 1986 read with Rule 5(3) of the Environment (Protection) Rules, 1986 notified an area of 1050 hectares, to an extent varying from 2.0 kilometers to 2.75 kilometers from the boundary of Sukhna Wildlife Sanctuary in the Union Territory of Chandigarh on the side of Chandigarh as the Sukhna Wildlife Sanctuary, Eco-Sensitive Zone vide Notification dated 18.01.2017. A copy of the said Notification has also been produced, and Para 4 thereof contains the list of activities prohibited or to be regulated within Eco-sensitive Zone. "Construction Activities" h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Zonal Master Plan. 198. As could be seen from Para 4 of the above Notification, the construction activities in the Eco-sensitive Zone apart from being governed by the provisions of the Environment (Protection) Act, 1986 and the Rules made thereunder shall be regulated in the manner specified therein. Admittedly, the project in question is located at a distance of 123 meters from Sukhna Wildlife Sanctuary. Therefore, the construction of the proposed project not only requires the environmental clearance as provided under the Notification dated 14.09.2006, but it is also subject to the Regulations provided under Para 4 of the Notification dated 18.01.2017 issued by the Ministry of Environment, Forests and Climate Change. (emphasis supplied) 19. The Notification makes it clear that no new commercial construction of any kind shall be permitted within 0.5 km. from the boundary of protected area or up to the boundary of the eco-sensitive zone. Construction of all types of new buildings and houses up to a distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2 km, construction of low density (ground coverage less than half of the plot size) and low rise build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of 21-1-2002. For the present, in this case, we are not considering the correctness of this departure. That is being examined in another case separately. Be that as it may, it is evident that the States/Union Territories have not given the importance that is required to be given to most of the laws to protect environment made after Rio Declaration, 1992. 4. The Ministry is directed to give a final opportunity to all States/Union Territories to respond to its letter dated 27-5-2005. The State of Goa also is permitted to give appropriate proposal in addition to what is said to have already been sent to the Central Government. The communication sent to the States/Union Territories shall make it clear that if the proposals are not sent even now within a period of four weeks of receipt of the communication from the Ministry, this Court may have to consider passing orders for implementation of the decision that was taken on 21-1-2002, namely, Notification of the areas within 10 km of the boundaries of the sanctuaries and national parks as eco-sensitive areas with a view to conserve the forest, wildlife and environment, and having regard to the precautionary principles. If the States/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... targeted species and that too in a defined geographical area. Then, the formation of the Wildlife Board at the national level and enactment of Wildlife Act in 1972 laid the foundation of present day "wildlife conservation" era in post-independent India. Project Tiger in the 1970s and the Project Elephant in 1992-both with flagship species-attracted global attention. India then also became a member of all major international conservation treaties related to habitat, species and environment like Ramsar Convention, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention on Migratory Species, 1979; Convention on Biological Diversity, 1992, among others.** 26. The human as well as the wildlife are completely dependent upon environment for their survival. Human is completely dependent on the environment. Like the human, the wild life is also dependent on the environment for it's survival and also get effected by the environment. The relationship between the human and animal can be understood by the food-chain and food-web. The wildlife is affected by several reasons such as population, deforestation, urbanization, high number of indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner. Some attempts, however, seem to have been made by the State of Madhya Pradesh to contain the damage by imposing conditions on these fishing permits. The permissions which have been given are subject to the following conditions: (1) The identified families will be given photo identity cards on the basis of which only fishing and transport will be permitted; (2) During the rainy season (months: July to October) fishing will be totally banned; (3) During the rest of the year, entry will be permitted in the water from 12 p.m. to 4 p.m. and transport of fish will be allowed before sunset; (4) The photo identity card-holders will not be allowed to enter the National Park or the islands in the reservoir nor will they be allowed to make night halts; (5) Transport of fish will be allowed only on Totladoh-Thuepani Road from Totladoh reservoir. 15. Since all the claims in respect of the National Park area in the State of Madhya Pradesh as notified Under Section 35(1) have been taken care of, it is necessary that a final notification Under Section 35(4) is issued by the State Government as expeditiously as possible. In the case of Pradeep Krishen v. Union of India, (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust Doctrine as under: The source of modern public trust law is found in a concept that received much attention in Roman and English law -- the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties -- such as the seashore, highways, and running water -- 'perpetual use was dedicated to the public,' it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government. 25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is no longer acceptable. "Sustainable Development" is the answer. In the international sphere, "Sustainable Development" as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called "Our Common Future". The Commission was chaired by the then Prime Minister of Norway, Ms. G.H. Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and Worldwide Fund for Nature, jointly came out with a document called "Caring for the Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in the history -- deliberating and chalking out a blueprint for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a dye-house or a lime-pit, for the use of trade, in the upper part of the stream; to pollute a pond, from which another is entitled to water his cattle; to obstruct a drain; or in short to do any act in common property, that in its consequences must necessarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent Rule of gospel-morality, of 'doing to others, as we would they should do unto ourselves'. 32. In Intellectuals Forum, Tirupathi v. State of A.P. and Ors. (2006) 3 SCC 549, principle of sustainable development has been considered by this Court, which reads as under: 84. The world has reached a level of growth in the 21st century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of humanity and future generations could be ignored in the garb of economic growth or compelling human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. In the matter of enforcement of fundamental rights Under Article 21, under public law domain, the Court, in exercise of its powers Under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the "POLLUTER-PAYS PRINCIPLE" which is widely accepted as a means of pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed. 35. In Indian Council for Enviro-Legal Action v. Union of India and Ors. (1996) 5 SCC 281, this Court has made the following observations: 41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby seeking to protect the fundamental rights of the citizens is now well settled by various decisions of this Court. The primary effort of the Court, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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