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Full Case Details
- The instant statutory appeal has been preferred under Section 22 of the National
Green Tribunal Act, 2010 (hereinafter “NGT Act”) against the order dated 06.03.2019
of the Principal Bench of the National Green Tribunal (“NGT”), whereby appellant’s
grievance against allotment of local ponds to private industrialists has been dismissed
summarily without any adjudication of the lis or merits, but merely on the basis of an
affidavit filed by Respondent No. 5 (Greater Noida Industrial Development Authority
– hereinafter “GNIDA”) claiming that it was developing bigger alternative
waterbodies. - The appellant is a permanent resident of village Saini, tehsil Dadri, of district
Gautam Budh Nagar, which falls in the National Capital Region. He claims to be a
sociallyactive lawyer dedicated to bettering the lives of his covillagers and alleges that
the Original Application before the NGT was triggered when around 18.01.2017 the
agents of a private entity (Respondent No. 6 M/s Sharp Enterprises Pvt. Ltd.
Hereinafter “Sharp”) using excavataors and other heavy machinery attempted to
forcibly takeover possession of a ‘commonpond’, which had been in use by local
villagers for a century. This was objected to by the villagers, and the appellant
subsequently made a complaint on 25.01.2017 to various authorities including the
District Collector. Pointing out revenue records which elucidate the commonsstatus of
the ponds, he sought directions to restrain Sharp and its agents. However, there was
no action on his representation for more than 10 days, leading to another attempt by
Sharp at dispossession, compelling the appellant to seek police help. A few days later,
he submitted another representation to the Collector, but to no avail. Aggrieved, he
was left with no recourse but to approach the NGT by way of an Original Application
under Section 14 (read with Sections 15 and 18) of the NGT Act for adjudication of
these environmental issues. - Before the Tribunal, appellant contended that large tracts of his village (but not the
impugned waterbodies) had been acquired under the Land Acquisition Act, 1894
ostensibly for industrial development by GNIDA. Subsequently, these acquired lands
(including some local ponds) had been leased to private industrialists, including Sharp
in 2012. Using revenue records obtained under the UP Consolidation of Holdings Act,
appellant showed that Khasra Nos. 552 (1140 sq meters) and 490 (8470 sq meters)
were ‘pokhar’ (pond) and Khasra Nos. 522 (1620 sq meters) and 676 (9804 sq metres)
were ‘rajwaha’ (canal). Highlighting that the water bodies were vested in the Gram
Sabhas per Section 117 of the UP Zamindari Abolition and Land Reforms Act, 1950,
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he contended that such land had neither been acquired, nor resumed and hence there
was no power with GNIDA to transfer the same to Sharp. He further claimed to have
discovered other similar illegal allotments of water bodies by GNIDA to other
thirdparties. - The appellant urged that neither the mandatory environmental clearances under the
Environmental (Protection) Act, 1984 had been obtained by the industrialists nor the
statutory authorities applied their mind that the project would negatively impact the
environment and human health. Laying support on the Ramsar Convention and Rule 4
of the Wetland (Conservation and Management) Rules, 2010 which prohibited
reclamation of wetlands, setting up or expansion of industries, permanent construction
or any other activity with potentially adverse effects on ecosystem, he sought
cancellation of such illegal allotments and protection of waterbodies. - At the outset, we must note, that the respondents have been unable to demonstrate
how the 2016 Government Order can be made applicable retrospectively, the
possession having been given to Sharp in 2012. Notwithstanding this, no case of the
present instance being an extraordinary circumstance (hence permitting recourse to
the exceptional provisions of the Government Order) has been made before us either.
Further, argument that Khasra No. 552 is a ‘slightlysloped seasonal rainfallcatchment
area’ and not a ‘pond’, is creative but without merit. Photographs have been placed on
record by the appellant showing that there is substantial water in the pond, which has
not been controverted. Further, revenue records maintained by the Revenue
Department themselves show that the land was ‘pokhar’. It is hence not open for the
authorities to contradict and plead against the record without any scientific or
empirical support, for such categorisation had been made by them in the past. Further,
it was conceded by respondentauthorities during arguments that Khasra No. 490 was
also recorded as ‘pokhar’ in revenue records and that it too had been integrated in the
industrial development project. - Additionally, it is clear that repeal of the UP Zamindari Abolition and Land
Reforms Act, 1950 and vesting of such ponds and local areas in the State by Section
57 of the UP Revenue Code, 2006 would not by itself either change the nature of land
contrary to revenue record nor will defeat the longestablished rights of the local
people on commons. Such a proposition had unequivocally been laid down in
Chigurupati Venkata Subbayya v. Palaguda Anjayya1 (1972) 1 SCC 521), where this
Court negatived a contention that communal rights in the suitland stood abolished per
Section 3 of the Estates Abolition Act, 1948 for it provided that estates, including
communal lands, would stand transferred to the Government free from any
encombrance. Further, it was held that even explicit destruction of all rights and
interests created by the principal or landholders, would not apply to community rights
as such rights originated elsewhere.
93 - Given that Section 22 of the NGT Act, 2010 specifies that the nature of the appeal
shall be akin to a second appeal as specified under Section 100 of the Code of Civil
Procedure, 1908, we would restrict our deliberation to a singular substantive question
of law. That is, whether it is permissible for the State to alienate common water
bodies for industrial activities, under the guise of providing alternatives? - In Hinch Lal Tiwari v. Kamala Devi [(2001) 6 SCC 496], this Court settled that
‘ponds’ were a public utility meant for common use and held that they could not be
allotted or commercialised. It had refused to give any weight to similar arguments of
the pond having become levelled, with merely some portion getting covered during
rainy season by water. Importantly, it emphasised that:
“13. It is important to notice that the material resources of the community like
forests, tanks, ponds, hillock, mountain etc. are nature’s bounty. They maintain
delicate ecological balance. They need to be protected for a proper and healthy
environment which enables people to enjoy a quality life which is the essence of
the guaranteed right under Article 21 of the Constitution. The Government,
including the Revenue Authorities i.e. Respondents 11 to 13, having noticed
that a pond is falling in disuse, should have bestowed their attention to develop
the same which would, on one hand, have prevented ecological disaster and on
the other provided better environment for the benefit of the public at large. Such
vigil is the best protection against knavish attempts to seek allotment in
nonabadi sites.” - This Court reiterated in Jagpal Singh v. State of Punjab [(2011) 11 SCC 396] and
noted that since time immemorial, certain common lands had vested in village
communities for collective benefit. Except in exceptional circumstances when used
exclusively for the downtrodden, these lands were inalienable. It was observed that
such protections, however, remained on paper, and since Independence powerful
people and a corrupt system had appropriated these lands for personal
aggrandisement. Pointing out the harms in allowing such misappropriation, the Court
noted an urgent public interest in stopping such misdeeds. Further, various directions
were issued for eviction of illegal occupants and restoration of the common land to
villagers. It was explicitly specified that “long duration of such illegal occupation or
huge expenditure in making constructions thereon” cannot be a “justification for
condoning this illegal act or for regularising the illegal possession”. - It is uncontroverted, in the present case, that the Government Order dated
03.06.2016 was a consequence of the aforecited judgment in Jagpal Singh. Curiously,
however, Clause 5 of the Government Order carves an exception of “huge
projects/works” (albeit in extraordinary circumstances) to Jagpal Singh’s strict
principle of nonalienation of common waterbodies. It is clear that such ground of
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exception doesn’t fall under the limited class of grants to “landless labourers or
members of the Scheduled Castes/Scheduled Tribes, or where there is already a
school, dispensary or other public utility on the land”. Such industrial activities
without any rationale classification, unlike the narrow class exempted, do not serve a
social public purpose or benefit the local people, and thus will be hit by the
inalienability bar. - Protection of such villagecommons is essential to safeguard the fundamental right
guaranteed by Article 21 of our Constitution. These common areas are the lifeline of
village communities, and often sustain various chores and provide resources
necessary for life. Waterbodies, specifically, are an important source of fishery and
much needed potable water. Many areas of this country perennially face a water crisis
and access to drinking water is woefully inadequate for most Indians. Allowing such
invaluable community resources to be taken over by a few is hence grossly illegal. 21.
The respondents’ scheme of allowing destruction of existing water bodies and
providing for replacements, exhibits a mechanical application of environmental
protection. Although it might be possible to superficially replicate a waterbody
elsewhere, however, there is no guarantee that the adverse effect of destroying the
earlier one would be offset. Destroying the lake at Khasra Nos. 552 and 490, for
example, would kill the vegetation around it and would prevent seepage of
groundwater which would affect the already low watertable in the area. The people
living around the lake would be compelled to travel all the way to the alternative site,
in this case allegedly almost 3 kms away. Many animals and marine organisms
present in the earlier site would perish, and wouldn’t resuscitate by merely filling a
hole with water elsewhere. Further, the soil quality and other factors at the alternate
site might not be conducive to growth of the same flora, and the local environment
would be altered permanently. The respondents’ reduction of the complex and
cascading effects of extinguishing natural waterbodies into mere numbers and their
attempt to justify the same through replacement by geographically larger artificial
waterbodies, fails to capture the spirit of the Constitutional scheme and is, therefore,
impermissible. - Hence, it is clear that schemes which extinguish local waterbodies albeit with
alternatives, as provided in the 2016 Government Order by the State of UP, are
violative of Constitutional principles and are liable to be struck down. - For the reasons stated above, we allow the appeal and set aside the impugned
order passed by the NGT. The allotment of all water bodies (both ponds and canals),
including Khasra Nos. 552 and 490 to Respondent No. 6, or any other similar third
party in village Saini, tehsil Dadari, district Gautam Budh Nagar is held to be illegal
and the same is hereby quashed. Since this Court has on 15.07.2019 already directed
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the parties to maintain status quo, Respondent Nos. 1 to 5 shall restore, maintain and
protect the subjectwater bodies in village Saini. Respondents are further directed to
remove all obstructions from the catchment area through which natural water
accumulates in the village ponds, all within a period of three months.
