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Judgment
The Application filed by Mr. Rajinder Krishan Sharma, has gained access to this Tribunal under Section 14 and 15 read with Sections 18(1) of the National Tribunal Act, 2010 (for short NGT Act) whereby he seeks declaration from the Tribunal to the effect that sector road widening project of Respondent No. 8 and Respondent No. 5 is illegal and contrary to the provisions of, Environment Protection Act, 1986, Indian Forest Act 1927, Forest Conservation Act, 1980 and the Punjab Land Preservation Act of 1900. Consequential relief to injunct the Respondent No. 8 from going ahead with project and directing Respondent No. 3 to 10 to ensure that no further felling of tress is carried out is also sought.
Upon notice the respondents have entered appearance and each one of them have filed reply which are on record and the applicant have filed rejoinder to their replies. Upon completion of pleadings we have heard all the concerned parties.
They have raised contentions, which has received our serious consideration.
Before we advert to it, a brief reference to the factual matrix is necessary.
The applicant claims to be a former officer of Indian Forest Service who now claims to be engaged in environment protection and allied services for the society. Through his application he has sought direction as referred to above, on assertive contention Respondent No. 8 DLF and HUDA have undertaken a project in contravention of all the provisions of the environmental laws resulting in total destruction of the trees and impact environment adversely.
The pleadings are aplenty but for the purpose of determining the main issues following reference will be sufficient.
The substance of the contention is that the project undertaken to widen the NH 8 from the present width of 60m to 70m is not necessary and that project activity is without lawful authority as required sanctions have not been obtained. Having said so, the applicant further contradicted himself in stating that there is a connivance between Respondent No. 8 and the Forest Officers who have granted permission without proper application of mind adn arbitrarily.
We shall refer to other averments while dealing with the contentions urged, but before that we may refer to the defence taken by Respondent No. 8 through their counter reply.
While raising preliminary objection with regard to maintainability of the application, the Respondent No. 8 has referred to earlier proceeding before this Tribunal in O. A. No. 127/2013, 155/2013, 156/2013 and 120/2013 preferred by Mrs. Ranjana Jaitley, Ms. Krishna Devi, Mr. Raj Pal Yadav and Haryali Welfare Society seeking similar relief. It is further stated that the primary grievance of the applicant raised in this case is same and identical as raised for consideration in those cases. They have further referred to the issues framed by the Tribunal in those cases and finding recorded on each of those points negating the assertion and declining to pass any order with regard to the project in question.
On this factual position, it is contented that the present application is barred in law as the same issues have already been decided and concluded.
Further it is urged that Tribunal vide its order dated 01.04.2014 has held in clear term that the land in question which is used or likely to be affected by the project in question does not fall in the definition of forest land and further held that land in question is not within the domain of the Forest Act and as such the provisions of Forest Conservation Act, 1980 do not apply or are attracted. They have relied on the communication issued by the Divisional Forest Officer, Gurgaon District, Haryana, granting requisite permission on 04.04.2012 for felling of trees and the fact that the same issue was considered by the Tribunal held in favour of the project proponent and against the Applicant.
As regards HUDA is considered, the defence is identical and they have justified the project activity and hence requires no further detailed extraction of their defence. However, we shall add that the Respondent No. 8 and HUDA have conceived this project as joint venture and proceeded further to implement it.
In the circumstances, we now frame the following points for consideration:-
Whether action initiated by the applicant is sustainable in law or it is barred under the provision of Order 2 Rule 2 and Section 11 of the CPC, 1908 i.e. constructive res judicata.
Whether the applicant has succeeded in establishing that the land in question which is likely to be affected by the project is forest land.
What is the stage of the project at the time when the application was filed.
Whether there is any ill-motive or connivance in the office of the Forest Department and Respondent No. 8.
Whether the project comes within the mischief of EIA Notification 2006 or under the Forest Conservation Act, 1980 or whether it also comes within the mischief of notification issued by Ministry of Environment with regard to Aravali.
We have perused the pleadings and noticed that the project conceived by HUDA and implemented by DLF was undisputably a joint venture. It is also not in dispute that sector road was in existence and what has been undertaken is widening of the said road. The Road as it was, measured 60 m and by this project it was intented to be widened up to 78 m in Sector 55-56 in Gurgaon. Respondent No. 8 and HUDA have assertively contented that it is not a national highway but a sector road. The averments in the application is that it is at Sector 55 and 56 within which widening has been done. Therefore, on facts we notice that the area comes within the Sector 55 & 56 and it is reasonable to believe that it not a national highway. Besides, the applicant has not established that it was national highway and was a fresh road being laid which attracted the restriction of the National Forest Policy 1908 and provisions of Environment Protection Act, 1986 and rules made thereunder. On the facts, it is seen that 1055 trees were to be felled for which the Project Proponent-HUDA were before the Competent Authority, who by order passed in the month of April, 2014, has granted permission. We have also perused the letter addressed by the Divisional Conservator of Forest, who while granting permission, has recorded that the area does not come under the Forest. As regard EIA Notification 2006 is concerned, undoubtedly it applies to all project indicated therein. In the instant case, the defence of the project proponent-HUDA, is that the widening of the sector road does not come under the mischief of EIA Notification 2006. Besides, since 246 trees were transplanted during the project activity and it is also noticed that during the earlier proceedings referred to above, the Tribunal had called upon the State of Haryana to file an affidavit as to whether the disputed land forms part of the extent of 154706 hectares which includes 12,527.94 hectares, declared as forest land by the Government of Haryana.
Learned Additional Advocate General on behalf of Haryana has filed affidavit which is nothing but copy of the affidavit filed before the Hon'ble Supreme Court on earlier occasion declaring that the present land in question forming part of Sector 55 to 56 in Gurgaon is not covered under the land so declared as forest land by the said Notification. As regards Green Belt is concerned, the Government of Haryana is on record to state that the land measuring 1,54,706 hectares of land including 11513/12527.94 notified under section 4 and 5 of the Punjab Land Preservation Act, 1900, as mentioned in the affidavit filed in Hon'ble Supreme Court on 08.12.1996, excludes the land in question.
They have brought on record the proceeding in Writ Petition No. 171/1996 in the case of the Environmental Awareness Forum Vs. State of Jammu & Kashmir and Others in which case the Principal Conservator of Forest, Haryana, had declared before the court that the forest department has no jurisdiction or control of the land, except for giving permission or felling of trees on the land in question. Besides, it is not in dispute, that respondents had written to the Forest Department on 24/11/2011 and 25/11/2011 seeking permission for cutting 1080 nos. of trees including transplantation of trees in respect of upgradation of 60 meter vide road, adjacent of NH-8 in Sector 55-56 which work was awarded to DLF. The Forest Department vide its letter dated 22 March, 2012 has accorded the required permission and that has not been questioned under the provision that are available.
Further, it is noted from the undisputed fact that after granting of permission the felling of trees commenced in the year 2012 when the project was to commence. It if further brought on record that Horticulture Division of HUDA has intimated to Range Officer, Forest Department, Gurgaon on 03/07/2013 that 11,000 number of plants of various species have been planted or are being planted which are by way of afforestation at different places in the various sectors which include Sector 9A Gurgaon, Sector 31, STP plant area in Gurgaon, sector 90, 91, 92 in Gurgaon and Sector 53. The photographs of plantation were also produced by the Project Proponent- HUDA who contend that not only they felled the trees after due and valid permission in law but they have complied with the direction to plant 10 times the number of trees and accordingly 11,000 number of trees have been planted and this fact has not been disputed before us by the applicant.
Be that as it may, every aspect pleaded need not be traversed for the reason that the same issues were subject matter of consideration before this Tribunal in O.A. No. 127/2013 155/2013, 156/2013 and 120/2013 in the case of Mrs. Ranjana Jaitley, Mrs. Harsaran Bir Kaur Pandey, Mrs. Sudha Kumar, Mr. Sanjay Ahirwal & Mr. Lavneet Gyani Vs. Union of India and ors. Those matters were clubbed together and taken for consideration. We notice from the Judgment rendered by this Tribunal on 1st April, 2014 that the factual aspect pleaded by the applicant were virtually the same with grammatical variation and difference in drafting. The Tribunal having noticed that the same issues are raised for consideration in all the cases clubbed and determined points in dispute by taking relevant points into consideration.
We have perused the pleadings in this case and pleadings of parties in those cases and find merit in the contention of Respondent No. 8 and HUDA that pleadings are virtually and practically the similar issues were raised for consideration.
This Tribunal had formulated the following points in those cases.
Whether the land falling in the widening of the side/Sectoral road project in question) is a forest land?
Whether required permission for cutting of trees was taken?
Whether the residents of the NMC will be affected due to the project in question?
Whether proper permission from environmental angle was obtained by the project proponent?
Whether afforestation work has been proposed/undertaken in lieu of cutting of trees at the site of the project in question?
The Tribunal has answered all the issues in O. A. No. 127/2013, 155/2013, 156/2013 and 120/2013 against the applicants and in favour of the project proponent by the following reasons which we feel relevant to extract, it reads thus:
Issue No: 1
It has been clearly stated by the Ld. Senior Counsel for Respondents- 3, 4, 6, 7 and 10 that the project site involving widening of the side road does not fall in the forest area as informed by the State Government to the Hon'ble Supreme Court. Even though, the land in question is basically impinging on the green belt which was raised by the State Government as side road plantations for the purpose of raising green belt. However, it can be put to other uses after taking the required permission, including permission for cutting of trees. The documents filed to show that the land in question does not fall in the forest land are quite clear. We hold no reason to that the land in question does not fall within the domain of the forest land and as such the provision of the Forest Conservation Act, 1980 are not attracted as has been categorically asserted by the Ld. Sr. Counsel of the State Government. The issue is answered accordingly.
Issue No: 2
According to the project proponent all efforts were made to save the trees but certain trees which are coming on the way of alignment/widening of the said road cannot be saved and are required to be cut (about 26 trees). He has stated that efforts have been made/will be made to transplant certain trees if it is feasible and for every tree cut at least 10 trees will be planted as per the permission obtained from the Forest Department. As permission has already been obtained from the competent authority, while answering the issue in favour of the respondents, we feel it necessary to issue suitable directions for compensatory afforestation.
Issue No: 3
It has been stated by the Ld. Counsel for Applicants that about 190 families are living for the last several years in NMC and a green cover of 50 m. wide and 200 m. in length existed which the project proponent started cutting and it was pointed out by the Ld. Counsel for Applicant that a number of trees have already been illegally cut. The project proponent mentioned that as per the revised plan only 26 trees will be required to be cut in front of the NMC in the land which belongs to the Government. No tree will be cut from the land belonging to the NMC which has considerable width of green belt in front of the project in question. Due to the widening of the slip road/ sectoral road proposed to be undertaken, it is expected that the same will result in smooth flow of traffic and as such the congestion and traffic jams will be taken care of. This may result in containing air and noise pollution which would have otherwise been continued if no expansion or widening of the sectoral road have been taken due to the resultant congestion and slow movement of vehicles in the area in question.
Issue No: 4
From the various averments, documents and submissions made before us, it is quite clear that for the project in question EC is not required under the EIA notification 2006. Also no forest clearance is required under the Forest Conservation Act, 1980. The project is also far away from Sultanpur Bird Sanctuary (about 20 km) and the provision of Aravalli Notification brought by MOEF are also not attracted as the plants in question are not part of Aravalli Plantations as per the records submitted before us. However, permission is required to be taken from the Forest Department for the cutting of trees for which it was stated before us by the counsel for the respondents that no tree will be cut without taking proper permission and that afforestation work will be undertaken in lieu of the trees which are required to be removed as per the conditions stipulated by the regulatory authority. Issue answered accordingly.
Issue No. 5
It was stated by the Ld. Counsel appearing for the Applicants that HUDA has cut number of trees in different sectors and no proper afforestation work has been undertaken by the HUDA or other concerned departments which has resulted in considerable reduction of green cover in Gurgaon. According to him, the green cover left in Gurgaon is only 3.8 per cent in the year 2010 and it might have gone further down due to massive urbanisation policy of HUDA. He, further, mentioned that 3.8 per cent green cover in Gurgaon is against the State Policy of having 20 per cent green cover which is even much shorter of the requirement of 33 per cent of green cover as per the National Forest Policy. Be that as it may, there are no two opinions that there is need to have more and more greenery in the urban areas where significant concretisation/number of building structures have come up in Gurgaon making it difficult for the residents to have fresh air to breath. We, therefore, call upon the Forest Department and HUDA to make it compulsory that environmental issues right from beginning at the project planning stage itself should become the necessary component of the project so that environmental and forestry issues are addressed early and become an integral part of the project.
The concept of sustainable development is to be considered in terms of the pressing requirement of expanding infrastructure pertaining to transport sector. Urban city roads/sectoral roads are required to be expanded in order to avoid congestion and traffic jams due to increased Vehicular population and are required to be addressed by increasing the supportive and assimilating capacity of traffic movement in the area. While applying the concept of sustainable development, one has to keep in mind the "Principle of Proportionality" based on the concept of balance and there is a need to have trade-off between the development & environment. As such, we have to balance the priorities of development on the one hand and environmental problems on the other. So sustainable development should address the requirement of development that can be allowed and which can be sustained by environment with or without any significant adverse impacts, keeping in view the public interests rather than the interests of handful of persons or group of persons, according to a 'reasonable person's test'. NGT in its recent judgement in Appeal No. 12/2012 in the matter of M.P. Patil Vs. UOI & Ors. has stated as below:- "It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest.
To an extent, there is a right to development. However, even this right is not free of limitations and regulations. It is not an unfettered right so as to completely give a go by to the issues of environment. Development may be carried out to satisfy the need of a developing society but it has to be regulated so as to satisfy the requirement of preservation and nurturing of the natural recourses, which are the real assets of the society."
In the light of the above principles, we have to ensure that the widening of road project does not unduly affect the residents of nearby areas.
Traversing through the documents, affidavits, counter affidavits, and submissions made by the applicants and respondents and banking upon the Principles of Sustainable Development and recognising the need of the project in question which will serve the larger public interest by way of resulting in smoother flow of traffic, we are of the opinion that the project in question may be allowed subject to the environmental safeguard which would keep the likely adverse impacts to the bare minimum. We, therefore, feel that the following directions are required to be issued for implementation of the project without causing any significant adverse impacts on environment.
From the above finding recorded by this Tribunal, we are convinced that the present proceeding on identical issues have to be tested applying the doctrine of res judicata.
It is also material to note that the action initiated earlier in which this Tribunal has rendered judgment was an action in rem and not in personam. This proceeding is also an action in rem and not in personam as contented by the applicant.
Section 11 of CPC reads thus- 11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised' and has been heard and finally decided by such Court.
The opinion that this proceeding is hit by the principle of Res Judicata is fortified from the decision of the Hon'ble Supreme Court which needs reference. It is extracted below:-
Dr. Subramanian Swamy vs. State of Tamil nadu & Ors. Civil Appeal No. 10620 of 2013 and T. Sivaraman & 18 Ors. vs. State of Tamil Nadu & Ors. Civil Appeal No. 10622 of 2013 wherein the Hon'ble Supreme Court, in similar fact circumstances, applied the Principle of Constructive Resjudicata held thus:-
The scope of application of doctrine of res judicata is in question.
The literal meaning of "res" is "everything that may form an object of rights and includes an object, subject-matter or status" and "res judicata" literally means "a matter adjudged a thing judicially acted upon or decided; a thing or matter settled by judgments". "Res judicata pro veritate accipitur" is the full maxim which has, over the years, shrunk to mere "res judicata", which means that res judicata is accepted for truth.
The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that there 24 Page 25 be an end to law suits) and partly on the maxim "nemo debet bis vexari pro uno et eadem causa" (no man should be vexed twice over for the same cause).
Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65).
In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., AIR 1953 SC 33, this Court while dealing with the doctrine of res judicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been observed as under:
"........ the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time..... Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha 25 Page 26 include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: 'If a person though defeated at law, sue again, he should be answered, ''you were defeated formerly". This is called the plea of former judgment.'... And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law"
This Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941 explained the scope of principle of resjudicata observing as under:
"7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or 19 because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct."
A similar view has been re-iterated by this court in Daryao & Ors. v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater Cochin Development Authority v. Leelamma Valson & Ors., AIR 2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr., AIR 2005 SC 626.
The Constitution Bench of this Court in Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013, considered the issue of res judicata applicable in writ jurisdiction and held as under:
"...Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law."
This Court, while considering the binding effect of the judgment of this Court, in State of Gujarat & Anr. v. Mr. Justice R.A. Mehta (Retd.) & Ors., AIR 2013 SC 693, held:
"There can be no dispute with respect to the settled legal proposition that a judgment of this Court is binding,.....It is also correct to state that, even if a particular issue has not been agitated earlier, or a particular argument was advanced, but was not considered, the said judgment does not lose its binding effect, provided that the point with reference to which an argument is subsequently advanced, has actually been decided. The decision therefore, would not lose its authority, "merely because it was badly argued, inadequately considered or fallaciously reasoned". (Vide: Smt. Somavanti & Ors. v. The State of Punjab & Ors., AIR 1963 SC 151; Ballabhdas Mathuradas 31 Page 32 Lakhani & Ors. v. Municipal Committee, Malkapur, AIR 1970 SC 1002; Ambika Prasad Mishra v. State of U.P. & Ors., AIR 1980 SC 1762; and Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr., AIR 2002 SC 1598)."
The proposition and interpretation of Section 11 of CPC by the Hon'ble Supreme Court in following decisions, applies to the present proceedings.
These proceedings are under the provision of NGT Act and Section 14 read with section 18 is invoked. The applicants in those cases and the present applicant in this case contend that they have no personal interest but they are championing the cause of environment. Therefore, the declaration was on behalf of the society and environment which is a party in absencia. Issue raised in that case and issues raised in this case are same. Therefore the applicant comes in the catergory of "parties claiming under the same title". The finding of the Tribunal in those cases is that the project activity has commenced lawfully and felling of trees was not illegal but has sanction of law. It is further declared by the judgment in question that it was sector road widening and not national highway as contended in this case same issue has arisen.
In the circumstances the judgment passed O.A. No. 127/2013 155/2013, 156/2013 and 120/2013 is judgment in rem and not personam. The applicant has sought in this case to pass an order in rem but not in personam. Therefore, the provisions of Section11 of CPC applies and as on his own volition the applicant admits that he himself was an employee of DLF before he initiated this action. The respondent no. 8 is justified in contending the mala-fide attributed to them for the project and connivance of its officers is nothing but revengeful action to tarnish their name. We do not find reason to reject such contention, however, we do not want to go into this question as that is not the issue for our consideration. Be that as it may, this observation was necessitated as the applicant himself wanted this Tribunal to record that there was connivance between the DLF and officials of Forest Department, who granted the permission for felling 1055 trees.
For the reason discussed above we find no merit in this application.
In the circumstances, the application fails and O.A. NO. 123/2016 is rejected, with no order as to costs.