TaxTMI 
TaxTMI 
2019 (11) TMI 1829
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....ment area of Sukhna Lake and is 123 meters away 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 E....
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.... Regional Office of MoEF. The High Court vide order 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 'Loc....
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....m Sukhna Lake and 123 meters from the Wildlife Sanctuary. The project 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....
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....ap was prepared under the directions of the High Court of Punjab and Haryana in CWP 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, 19....
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....10 acres. The built-up area was shown as 4,63,144.54 sq.m. Concerning the information as to whether the proposal involves approval/clearance under the 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 pro....
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....hat Ministry of Environment Forests and Climate Change, in exercise of the powers conferred by Section 3(2) and 3(3) of the E.P. Act read with Rule 5(3) of the E.P. Rules has notified an area of 1050 hectares, 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 Notificat....
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....dustries not causing pollution shall be regulated and kept at the minimum, with the prior permission from the competent authority as per the applicable Rules and Regulations, if any. (c) The further construction and augmentation of civic amenities shall be regulated as per 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 protec....
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.... what was sought for in the letter dated 27-5-2005. 3. The order earlier passed on 30-1-2006 refers to the decision which was taken on 21-1-2002 to notify the areas within 10 km of the boundaries of national parks and sanctuaries as eco-sensitive areas. The letter dated 27-5-2005 is a departure from the decision 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 pass....
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....ing wildlife by disrupting the timing of natural events. With warmer temperatures, flowering plants are blooming earlier in the year and migratory birds are returning from their wintering grounds earlier in the spring.* Wildlife conservation in India has a long history, dating back to the colonial period when it was rather very restrictive to only 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 en....
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....ere fishing is permitted is in the heart of the National Park area. There are other parts of the reservoir which extend to the borders of the National Park. We are not in a position to say whether these outlying parts of the reservoir are accessible or whether they are suitable for fishing, in the absence of any material being placed before us by the State of Madhya Pradesh or by the 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) ....
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....r fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan -- proponent of the Modern Public Trust Doctrine -- in an erudite Article "Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol. 68, Part 1 p. 473, has given the historical background of the Public 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 -- ....
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....doctrine to identify the tidelands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources. 31. In Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647, the Court considered the concept of sustainable development thus: 10. The traditional concept that development and ecology are opposed to each other 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. Fin....
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....ul and necessary trades, yet they should be exercised in remote places; for the Rule is, 'sic utere tuo, ut alienum non laedas'; this therefore is an actionable nuisance. And on a similar principle a constant ringing of bells in one's immediate neighbourhood may be a nuisance. ... With regard to other corporeal hereditaments; it is a nuisance to stop or divert water that used to run to another's meadow or mill; to corrupt or poison a watercourse, by erecting 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 cent....
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....nforcement 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 environme....
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.... an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types, as explained in the report, show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large-scale construction in the vicinity of these tourist resorts may disturb the rainwater drains, which in turn may badly affect the water level as well as the water quality of these water bodies. 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 ....