577 TATA HOUSING DEVELOPMENT COMPANY LTD. A v. AALOK JAGGA & Ors.

Judgment

13 S.C.R. 577 577 TATA HOUSING DEVELOPMENT COMPANY LTD. A v. AALOK JAGGA AND OTHERS (Civil Appeal Nos. 8398–8399 of 2019) NOVEMBER 05, 2019 [ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.] Environment Laws: Environment (Protection) Act, 1986 – Environment (Protection) Rules, 1996 – Housing project – Environment clearance – Housing project coming up within the catchment area of Sukhna Lake and at a short distance of 123 meters from Sukhna Wildlife Sanctuary – Challenge to – Held: Considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project from wildlife sanctuary, such project cannot be allowed to come up in the area – Origination of the project indicates that State of Punjab failed to act in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats – Government permitted setting up of high–rise buildings up to 92 meters in the area which was not at all permissible – Moreso, in view of the Notification issued with respect to the Sukhna wildlife sanctuary towards the side of Chandigarh Union Territory 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 and also the fact that proposal made by the Punjab Government, confining the Buffer Zone to 100 meters, was rightly not accepted by MoEF, the Government of Punjab as well as MoEF, cannot be the final arbiter in the matter – Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco–sensitive zone – Thus, the entire exercise of obtaining clearance relating to the project quashed – Doctrine of Public Trust. Environment: Environmental degradation and wildlife degeneration – Need for protection and preservation of environment, safeguarding forest and wildlife – Development and urbanization adversely affects our natural surroundings – Constitution of India – Arts. 48(A), 51(A). 577 B C D E F G H 578 SUPREME COURT REPORTS [2019] 13 S.C.R. A Dismissing the appeals, the Court HELD: 1.1 Proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab. It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters. It has also been pointed out from the respondent side that Naya Gaon forms part of the Greater Mohali Region in the State of Punjab. In the statutory, Greater Mohali Area Development Authority, Regional Plan for Greater Mohali Region in paragraph 14.3.1, it has been mentioned that no development is possible within 5 kms buffer distance from existing forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of forests distributed all over the Greater Mohali Region. These have to be conserved, and the buffer zone recommended should be protected against urban development. It is also clear that 2–2.75 km area has been ordered as eco– sensitive zone by the MoEF and the notification dated 18.1.2017 has been issued as to the adjacent area towards Chandigarh side of the Sukhna Wildlife Sanctuary. [Para 21, 23, 24] [591-F-G; 593-D-F]

1.4 The most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The climate change is impacting 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 B C D E F G H TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK JAGGA AND OTHERS 579 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. [Para 25] [593-G-H; 594-A-C]

1.5 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 industries, chemical effluents, unplanned land–use policies, and reckless use of natural resources etc. [Para 26] [594-D-E]

1.6 The Directive Principles of State Policy provide that protection and improvement of environment, safeguarding forest and wildlife have been duly enjoined upon the Government. Those principles have found statutory expression in various enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which have been enforced by this Court in various decisions. The inaction of State to constitutional and statutory duties cannot be permitted. The Court has to issue appropriate directions to fulfil the mandate. Article 51(A) provides fundamental duty to protect and preserve environment, wild life etc. [Para 27] [594-F-G]

1.7 In the facts and circumstances of the case, considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife A B C D E F G H 580 SUPREME COURT REPORTS [2019] 13 S.C.R. sanctuary, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco–sensitive zone around a Wildlife and has permitted setting up of high–rise buildings up to 92 meters in the area in question, which is not at all permissible. [Para 36] [604-C-E]

1.8 Such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Moreso, in view of the Notification issued with respect to the Sukhna wildlife sanctuary towards the side of Chandigarh Union Territory and also considering the fact that proposal made by the Punjab Government, confining the Buffer Zone to 100 meters, has rightly not been accepted by MoEF, as the Government of Punjab as well as the MoEF, cannot be the final arbiter in the matter. The Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco– sensitive zone. The entire exercise of obtaining clearance relating to the project is quashed. Such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly. The entire exercise smacks of arbitrariness on the part of Government including functionaries. [Para 37] [604-E-G] Goa Foundation v. Union of India (2011) 15 SCC 791 ; Animal and Environment Legal Defence Fund v. Union of India (1997) 3 SCC 549 : [1997] 2 SCR 728 ; M.C. Mehta v. Kamal Nath and others (1997) 1 SCC 388 : [1996] 10 Suppl. SCR 12 ; Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC 647 : [1996] 5 Suppl. SCR 241 ; Intellectuals Forum, Tirupathi v. State of A.P. and others (2006) 3 SCC 549 : [2006] 2 SCR 419 ; M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 : [2000] 1 Suppl. SCR 389 ; M.C. Mehta (Badkhal and Surajkund Lakes matter) v. Union of India and A B C D E F G H TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK JAGGA AND OTHERS 581