What’s in a name ? – A Shakespearean observation by the Supreme Court.

Today in the matter of M.C. Mehta vs. Union of India in re: Kant Enclave Matters, the Hon’ble Supreme Court expressed that what is important is the substance of the application, not the nomenclature given to an application. The Hon’ble Supreme Court in the para 83 of its judgement, observed that it is necessary for the court to find the gist of the application and deal with it accordingly rather than paying attention to its guise. It was also observed by the Hon’ble Court that a failure to disclose material facts in the review petition vitiates the proceedings initiated by the applicant.

The matter was in regard to the environmental and ecological degradation being caused to the land situated in the Aravalli Hills by influential colonizers which appeared to be a very strong mining lobby in Haryana.

The Hon’ble Apex court enunciated that the damage caused to the Aravalli hills is irreversible and it is not only the future generations that have to pay a heavy price for this environmental degradation, but even the present generation is paying a heavy price for the environmental and ecological degradation inasmuch as there is an acute water shortage in the area as prophesied by the Central Ground Water Board. In further observed that what was once a popular tourist destination, namely, Badkal Lake has now vanished and the entire water body has become bone dry. Furthermore it was stated that the more severe consequences will be felt in the years to come.

The Hon’ble Supreme Court among other things pronounced that:

The purpose of issuing a notification under the Punjab Land Preservation Act is to ensure that in the closed area there is no activity such as cultivation, pasturing of sheep and goats, erection of buildings, herding, pasturing or retaining cattle etc. Therefore, the notification is a clear indication that such closed areas must be forest land or treated as forest land so that such objectionable non-forest activities are not carried out therein and that activities that are not normally carried out in forests are prohibited in forest land, so as to preserve and protect such forest land. A notification under the said Act does not convert land into forest land but recognizes it as such or at least requires it to be treated as such. (Para 75)

The nomenclature given to an application is of absolutely no consequence – what is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation.  (Para 83)

The failure to disclose material facts in the review petition vitiates the proceedings initiated by the applicant. (Para 110)

The correctness or validity of a notification cannot be challenged without any direct attack. A collateral attack cannot be permitted more certainly so by relying upon any other decision which has nothing to do with the facts of the case. (Para 119)

The rule of law seems to have broken down in Haryana and become the rule of men only to favour R. Kant & Co. It is painful to see such a mockery of the law and total lack of concern for the environment and ecology of the Aravalli hills. (Para 133)

The Polluter Pays Principle is a wholesome principle that has been universally accepted and also adopted and applied in our country through several decisions of this Court. (Para 143)

Those who have been conveyed land by R. Kant & Co. can be awarded a full refund of their investment along with interest at 18% per annum payable entirely by R. Kant & Co. from the date of the investment. (Para 138)

As far as persons who have been conveyed land by R. Kant and Co. and have made constructions are concerned, the course of action is to save or allow to exist constructions made in Kant Enclave pursuant to the exemption granted to the applicant (R. Kant & Co.) on 17th April, 1984 under Section 23 of the Haryana Development and Regulation of Urban Areas Act, 1975 but before 18th August, 1992 when the notification under the provisions of the PLP Act came into force. Any construction made after 18th August, 1992 is clearly illegal and contrary to law and must be demolished as recommended by the Central Empowered Committee. Therefore, the constructions made between 17th April, 1984 and 18th August, 1992 shall not be disturbed. (Para 139)

In respect of constructions made after 18th August, 1992, the State of Haryana is directed to demolish the illegal and unauthorised constructions. The demolition should be completed on or before 31st December, 2018. (Para 140)

As far as the persons, who have made constructions after 18th August, 1992 are concerned, they are entitled to a full refund of  their investment in the land along with interest at 18% per annum from the date of the investment. (Para 141)

The cost of construction has been tentatively quantified at ₹50 lakhs which would be paid to those who constructed after 18th August, 1992 and whose construction is directed to be demolished. The quantified amount would be paid, in equal proportion, by R. Kant & Co. and the Town & Country Planning Department of the State of Haryana. The quantified amount is directed to be paid on or before 31st December, 2018. If anyone who’s construction is demolished in view of the orders, is not satisfied with the quantification, that person is at liberty to proceed against R. Kant & Co. and the Town & Country Planning Department of the State of Haryana by way of a civil suit in accordance with law and with the cause of action arising as on today. (Para 142)

“R. Kant and Co.” has been further directed to deposit ₹5 crore in the Aravalli Rehabilitation Fund on or before 31stOctober, 2018 for rehabilitation of the damaged areas. (Para 143)

Copy of Judgement: Judgement 11-Sep-2018

-Tushar Kaushik

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