Supreme Court Upholds NGT Order: Illegal Hotel Demolition in Himachal Pradesh Forest Land (12 January 2021)

Introduction

Date of the Judgment: 12 January 2021
Citation: Not Available
Judges: Dr. Dhananjaya Y Chandrachud, J, Indu Malhotra, J, and Indira Banerjee, J. The judgment was authored by Dr. Dhananjaya Y Chandrachud, J.

Can a statutory body misuse permissions granted for specific purposes to construct unauthorized structures on forest land? The Supreme Court of India addressed this critical question in a recent case concerning the construction of a hotel within a bus stand complex in Himachal Pradesh. This case highlights the importance of adhering to environmental laws and the consequences of their violation. The Supreme Court upheld the National Green Tribunal’s (NGT) order to demolish the illegally constructed hotel, emphasizing the need to protect forest land and adhere to environmental regulations.

Case Background

The case revolves around a bus stand complex in McLeod Ganj, Himachal Pradesh. Initially, the Union Ministry of Environment and Forests (MOEF) granted permission to divert 0.093 hectares of forest land for a parking space in 1997 and later, 0.48 hectares for a bus stand in 2001. The Himachal Pradesh Bus Stand Management and Development Authority (HPBSM&DA), the appellant, was established in 2000 to manage bus stand construction. In 2006, the land was leased to the appellant for 99 years. The appellant then decided to construct a Bus Stand-cum-Parking Complex on a Build-Operate-Transfer (BOT) basis, which included a hotel and commercial complex, which was awarded to the second respondent.

The second respondent began construction in 2005 without the necessary approvals from the Town and Country Planning (TCP) Department. Despite notices to halt construction, the second respondent continued. In 2007, the MOEF rejected the State of Himachal Pradesh’s proposal to change the land use to include the hotel. The Central Empowered Committee (CEC) intervened, directing a halt to construction due to violations of the Forest Act. The construction was completed by 7 July 2008.

Timeline:

Legal Framework

The core of this case involves the interpretation and application of the Forest (Conservation) Act, 1980. Section 2 of the Forest Act restricts the use of forest land for non-forest purposes without prior approval from the Central Government. The Act states:

“2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose. — Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing—
(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.
Explanation. — For the purposes of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for —
(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;
(b) any purpose other than reafforestation,
but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.”

The Supreme Court emphasized that this provision mandates strict compliance and that the construction of the Hotel-cum-Restaurant structure was a clear violation of this provision. The court also considered the Himachal Pradesh Bus Stand Management and Development Authority Act, 1999, particularly Section 14(3)(e), which empowers the authority to establish hotels and restaurants at or near bus stands. However, the court found that this provision did not override the requirements of the Forest Act.

Arguments

Appellant (HPBSM&DA) Submissions:

• The land was legitimately provided for a bus stand and parking, which are “non-forest purposes.”
• The hotel was added to make the project commercially viable.
• There was no secrecy in awarding the project to the second respondent.
• Section 14(3)(e) of the HP Bus Stands Act allowed for hotels and restaurants near bus stands.
• No further consent was needed from MOEF as the land was already diverted for “non-forest purposes.”
• The hotel was an incidental and ancillary facility sanctioned by the clearances already granted.

Second Respondent Submissions:

• The project included the hotel to make it commercially viable.
• The additional floors were constructed due to soil conditions.
• The project was transparent, and the land will revert to the state.
• No forest land was encroached upon beyond what was permitted.
• The District and Sessions Judge ignored the public nature of the project.
• The NGT should have directed the Central Government to consider ex-post facto clearance.
• The CEC report was prepared without proper hearing.
• The appellant represented that all necessary permissions had been obtained.

State of Himachal Pradesh Submissions:

• The Bus Stand Complex had all necessary permissions.
• The project was constructed lawfully and without undue benefits.
• The project was constructed in accordance with approved plans.
• Consent for the hotel was not separately sought as the diversion for “non-forest purposes” was deemed sufficient.
• This was a procedural lapse, not illegality.
• Demolishing the structure would cause environmental damage due to debris disposal.

CEC Submissions:

• The forest land was only for a bus stand and parking.
• The hotel was constructed without prior permission.
• The second respondent started construction without TCP approval.
• MOEF rejected the request to extend the use of forest land for anything other than a bus stand and parking.

Sixth and Seventh Respondents Submissions:

• The de-reservation of forest land for the hotel was in violation of Section 2(i) of the Forest Act.
• The actions of the appellant and second respondent violated the “environmental rule of law.”
• The entire complex was constructed without TCP permissions.

MOEF Submissions:

• Accepted the report of the District and Sessions Judge in its entirety.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following substantial questions of law:

1. Whether the Tribunal has failed to appreciate that the land which is subject matter of the appeal had already been diverted for non – forest use under Section 2 of the Forest (Conservation) Act, 1980?
2. Whether the Tribunal failed to consider properly the effect of Section 14 of the Himachal Pradesh Bus Stand Management and Development Authority Act, 1999 which empowers the authority to establish and maintain hotels and restaurants at or near bus stands?
3. Whether the Tribunal exceeded its jurisdiction in holding that alleged violations of the Himachal Pradesh Town and Country Planning Act, 1977 are made out even though the said enactment is absent in the Schedule I of enactments attached to the National Green Tribunal Act?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court upheld the NGT’s order, emphasizing that the construction of the Hotel-cum-Restaurant structure was illegal and a violation of the Forest Act. The court rejected the arguments of the appellant and the second respondent, stating that the permissions granted were specific to a parking space and a bus stand, and did not extend to the construction of a hotel or commercial structure. The court also clarified that Section 14 of the HP Bus Stand Act could not override the requirements of the Forest Act.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the blatant disregard for environmental laws and the deliberate violation of the Forest Act. The court emphasized the importance of the “environmental rule of law,” which requires strict adherence to environmental regulations and the protection of natural resources. The court also highlighted the connivance of state actors in allowing the illegal construction to proceed, which further solidified the need for strict action.

The court considered alternative interpretations but rejected them, emphasizing that the Forest Act mandates strict compliance. The court’s decision was based on the need to uphold environmental laws and prevent further degradation of forest land. The court also noted that a lack of scientific certainty is no ground to imperil the environment.

The court’s reasoning was as follows:

• The permissions granted by MOEF were specific to a parking space and a bus stand, not a hotel or commercial structure.
• The construction of the Hotel-cum-Restaurant structure was a clear violation of Section 2 of the Forest Act.
• The actions of the appellant and the second respondent demonstrated a disregard for environmental laws.
• The court cannot endorse illegal construction, regardless of economic benefits.
• The environmental rule of law requires strict adherence to regulations and the protection of natural resources.
• The court also noted that a lack of scientific certainty is no ground to imperil the environment.

The court did not find any minority opinions in the judgment.

The court quoted the following from the judgment:

• “The construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex is illegal and constitutes a brazen violation of law.”
• “The provisions of Section 2 mandate strict and punctilious compliance. Mere substantial compliance is not enough.”
• “Whatever else the environmental rule of law may mean, it surely means that construction of this sort cannot receive our endorsement, no matter what its economic benefits may be. A lack of scientific certainty is no ground to imperil the environment.”

Key Takeaways

• Construction on forest land requires strict adherence to the Forest (Conservation) Act, 1980.
• Permissions granted for specific purposes cannot be misused to construct unauthorized structures.
• The “environmental rule of law” mandates that environmental regulations must be strictly followed.
• Statutory bodies must act within the bounds of the law, and their actions are subject to scrutiny.
• The courts play a crucial role in ensuring environmental protection and compliance with regulations.
• Lack of scientific certainty is no ground to imperil the environment.
• The precautionary principle is a key element in environmental jurisprudence.
• The case sets a precedent for strict enforcement of environmental laws.

Directions

The Supreme Court directed the following:

• The demolition of the Hotel-cum-Restaurant structure in the Bus Stand Complex must commence within two weeks from the date of the judgment.
• The structure must be demolished by the second respondent within one month thereafter.
• In case of default, the Chief Conservator of Forest and the administration of district Dharamshala will demolish the structure and recover the costs as arrears of land revenue from the second respondent.
• The State of Himachal Pradesh and the second respondent can use the parking space and the bus stand in accordance with the orders issued by the MOEF, i.e., only for parking of cars and buses.

Specific Amendments Analysis

No specific amendments were discussed in the judgment.

Development of Law

The ratio decidendi of this case is that the Forest (Conservation) Act, 1980 mandates strict compliance, and permissions granted for specific purposes cannot be misused to construct unauthorized structures on forest land. The court emphasized that the “environmental rule of law” requires adherence to regulations and the protection of natural resources. This judgment reinforces the precautionary principle and the active role of courts in environmental protection. There is no change in the previous position of law, but it reinforces the importance of following environmental laws.

Conclusion

The Supreme Court’s judgment in the Himachal Pradesh Bus Stand Management case is a significant victory for environmental law. The court upheld the NGT’s order to demolish the illegally constructed hotel, emphasizing the importance of adhering to environmental regulations and protecting forest land. The judgment serves as a strong message that violations of environmental laws will not be tolerated and that statutory bodies must act within the bounds of the law. The court’s decision reinforces the precautionary principle and the active role of courts in environmental protection.

Category

• Environmental Law
  • Forest (Conservation) Act
• Supreme Court Judgments
• National Green Tribunal (NGT)