Society for Preservation of Kasauli and its Environs vs State of Himachal Pradesh and Others

Bhawani Singh, J.—Society for preservation of Kasauli and its Environs is a registered Society of members from Kasauli, Garkhal, Kuthar and Dharampur with Shri B.K. Nehru as its President Shri S. C. Prashar, who has filed the present petition on authorisation by the Executive Committee of the Society, is the Honorary Secretary. The petition has been Bled by way of public interest litigation for reasons being recorded in this judgment.

The Petitioner has stated that Himalayan Range on the Northern boundary of India, is the most recent tallest mountain range providing protection to Indian Continent from the North and regulating the time to time rainfalls and source for perennial Rivers, namely, Ganges, Yamuna, Brahmaputra, Satluj, Ravi, Vyas, Chinav and many other smaller rivers. It has also been responsible for the growth of splended green forests of numerous species and flowers of different varieties and significant herbs, shrubs and sub-soil minerals.

Small Town of Kasauli is known for calm, clean and beautiful surroundings located in Shivalik hills with height of six thousand feet from sea-level Historically, in Seventeenth Century some Rajput families migrated from Rewari and settled in village Kasul which ultimately became the present Kasauli Town. Sometime prior to 1840, Army fixed it a suitable location for troops and with the passage of time, certain important buildings were constructed here. To this, some land was gifted by Raja of Baghat in 1842 and Cantonment of Kasauli, was established, Thereafter, some villages were acquired from Ranas of Beja and Baghat against cash payment. It grew into a small city catering to the requirement of the Army and some civilians Famous Pasteur Institute by Dr. Semple was opened in 1905, presently known as Central Research Institute and produces twenty-five types of vaccines.

The Petitioner complains that this town is now in danger on account of erratic, irrational and uncontrolled construction of housing complexes The landscape has been stripped bare of its verdant cover, Today, the green cover has been reduced to 10% from 80% which existed some decades ago. Reckless construction, careless disposal of debris has disturbed the eco-plans of the area, reducing the consciousness for environmental protection to nothingness. The United Nations Conference on World Environment held in Stockholm in June 1972 has been able to spread awareness towards this area, which has been threatened by numerous causes of environmental degradation thereby putting the very existence of human life in danger of annihilation. Understanding the seriousness of the problem, Constitution of India was amended providing for Article 48A envisaging that the State shall endeavour to protect and improve the environment and safeguard the forests and the wild-life of the country. Article 51A imposes duty on every citizen to protect and improve the natural environment including forests, lakes, rivers, wild life and to have compassion for living creatures. United Nations Conference at Stockholm between June 5 to 16, 1972 was participated by the Indian Prime Minister, and it took the following decision:

Man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social, and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man''s environment, the natural and the manmade, are essential to his well being and to the enjoyment of basic human rights-even the right to life itself.

The protection and improvement of the human environment is a major issue which affects the well being of people and economic development throughout the world ; it is the urgent desire of the people of the whole world and the duty of all governments.

Man has constantly to sum up experience and go on discovering, inventing, creating and advancing. In our time man''s capability to transform his surroundings, if used wisely, can bring to all people the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment. We see around us growing dangerous levels of pollution in water AIR, earth and living beings; major and undesirable disturbances to the ecological balance of the biosphere; destruction and depletion of irreplaceable resources ; and gross deficiencies harmful to the physical, mental and social health of man, in the manmade environment ; particularly in the living and working environment.

A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environ mental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life arid well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life. What is needed is an enthusiastic but good state of mind and intense but orderly work For the purpose of attaining freedom in the world of nature, man must use knowledge to build in collaboration with nature a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace arid of world-wide economic and social development

To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common in many fields, by their values and the sum of their actions, will shape the world environment of the future. Local and National Governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions. International co-operation is also needed in order to raise resources to support the developing countries carrying out their responsibilities in this field. A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive co-operation among nations and action by international organisations in the common interest. The Conference calls upon the Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their prosperity:

The proclamation also contained certain common convictions of the participant nations and made certain recommendations on development and environment. The common convictions stated, include the conviction that the discharge of toxic substances or of other substances and the release of heat in such quantities or concentrations as to exceed the capacity of environment to render them harmless must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems, that States shall take all possible steps to prevent pollution of the seas so that hazards to human health, harm to living resources and marine life, damage to the amenities or interference with other legitimate uses of seas is avoided that the environmental policies would enhance and not adversely affect the present and future development potential of developing countries, that science and technology as part of their contribution to economic and social development must be applied with identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind, that States have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other States or areas beyond the limit of national jurisdiction, that it will be essential in all cases to consider the systems of values prevalling in each country and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost and that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. These are only some of the statements of principles proclaimed by the Stockholm Conference (Vide Lal''s Commentaries on Water and Air Pollution Laws (2nd edn ) page 6-7).

Realising the importance of the prevention and control of pollution of water for human existence, Parliament has passed the Water (Preservation & Control of Pollution) Act, 1974. It provides for the prevention and control of water pollution maintaining and restoring its wholesomeness It provides for the constitution of Boards with adequate powers to deal with the various aspects of the matter The Act was passed pursuant to the resolution passed by the Legislature of the States like Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir under Article 252 of the Constitution seeking a regulation of the matter by Parliamentary Legislation State of Himachal Pradesh is one of the States adopting it. Resultantly, Central Board and State Boards have been established with functions describe in Sections 16 and 17 thereof.

The Environment (Protection) Act, 1986 has also been brought into force from November 19, 1986. It empowers the Central Government to take all such measures as it deems necessary and expedient for the purpose of protecting and improving the quality of environment preventing, controlling and abating environmental pollution. ''Environment'' includes water AIR and laud. They are relatable to living and non-living creatures vitally effected by its pollution. Under the Environment (Protection) Act, 1986, direction can be issued to any person, Officer or Authority to comply with the directions that may be issued by the Central Government and that failure to do so, direction for closure, prohibition or regulation of the industry, operation or process or regulation of supply of electricity, water or any other service can be resorted to.

Until 1972, the general awareness of mankind towards the importance of environment for its well-being, was at low key for lack of education, tendency of people to cope with the existing situations, lack of proper legislation on the subjects and non-participation of Courts in such matters through judicial process. With the passage of time, the awareness amongst the people started growing. They realised that the poor classes of persons may be fundamentally vulnerable to pollution hazards, but its effect on other higher classes of society would not be eliminated altogether since it is the whole atmosphere which is ultimately effected by the ill-effects of such hazards, Series of national and international functions took place in this field. The United Nations General Assembly adopted on October 29, 1982 the "World Charter for Nature". It declares that:

(a) Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients.

(b) Civilisation is rooted in nature, which has shaped human culture and influenced all artistic and scientific achievement, and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation.

Environmentalist took cognizance of the shape of hazards to come to effect the humanity They devised ways and means to educate the masses, compelling the nations to realise the importance of these hazards and invited people to join them in their determination to protect the humanity from these results The subject was studied, analysed and shaped into various aspects and legislations were enacted to deal with the recalcitrant polluters, they be of water AIR, vehicles, roads, forests, rivers etc. etc.

Reference to the article of Sunder Lai Bahuguna published in the Tribune of 1979 points out that only 4% of the world''s population inhabits the mountains, they cover 10% area of the earth. Besides the hills, 40% of the population inhabiting foot-hills is directly effected by whatever happens in the hills. The report has also emphasised that the problem of saving the Himalayas is neither regional nor a problem of single State. It is certainly not the problem of the hills alone. Government of India has been called upon to ban the activities like felling of green trees for commercial purposes, use of explosives disturbing the fragile eco-system, commission for studying the Himalayan problem and preparing suitable development plan for the regional and environmental protection has been suggested, and views of eminent personalities throwing light on the subject have been pointedly stressed and vulnerability of certain areas undertaken. The Petitioner has further stated that the Parliament has also passed the Forest (Conservation) Act, 1980, providing for conservation of forests and other matters connected therewith or ancillary thereto It points out that the de-forestation caused ecological imbalances leading to environmental deterioration De-forestation leading to wide-ranging consequences, has been recognised and measures for checking it suggested, in order to regulate the forests and the forest-land for non-forest purposes.

Air (Prevention and Control of Pollution) Act, 1981 has also been enacted to control the air pollution which affect mankind to the greatest extent. With the passage of time, the forest-cover of land has minimised considerably resulting in flash floods, land erosion, swelling rivers, washing fields, destroying valuables year after year, thereby compelling huge spending in re-capturing the lost items preventing necessary spendings on developmental activities. Accordingly, ''forest'' has been taken to the concurrent list from the State list enabling the Central Government to deal with the matter covering the whole nation uniformly. National Forest Policy, 1952 is also a step for the protection and regulation of forest wealth. The town of Kasauli is also surrounded by Beja Forests which had been declared a protected forest by the then Chief Commissioner from February 25, 1952 in exercise of powers conferred by Section 32 of the Indian Forest Act, 1927.

The Himachal Pradesh Tenancy and Land Reforms Act, 1972 prohibits transfer of land including sales in execution of decree by a Civil Court or for recovery of arrears of land revenue by way of sale, gift, exchange, lease, mortgage with possession or creation of a tenancy in favour of a person who is not an agriculturist It has also been provided that no Registrar or Sub-Registrar, appointed under the Indian Registration Act, 1908, would register the transfer of land which is in contravention of Sub-section (1) of Section 118 of the Act and also provided that such transfers shall be void ab initio and the land involved In such transfer would, together with structures, buildings or attachments, if any, vest in the State free from all encumbrances. The exceptions cover only certain categories. The object behind the prohibition against transfer of land is that the local inhabitants or agriculturists are not exploited by the outsiders-the economically advantaged class does not take undue advantage of the economically depressed class and agriculturists of the State by purchase of their small holdings.

The Himachal Pradesh Town and Country Planning Act, 1977 provides for the planned use of land. It makes provisions for the preparation of development plans and structural plans so that town planning schemes are processed properly through the Town and Country Development Authority. This Act provides for regional plan, planning and development plans, existing land use maps, procedure for purchase of land, land use, sectoral plan dealing with control of developmental use of land, the various functions of the Town and Country Development Authority and the power of the State Government giving directions etc. etc. By amendment, Section 15A has been provided for freezing of land use pending preparation of existing land use map u/s 15 for a period not exceeding three years. A duly approved scheme, prepared in accordance with the provisions of the Town and Country Planning Act, is a legitimate attempt on the part of the Government It will also ensure quiet place, free of dust and din where children can run about and the aged and the infirm can rest, breathe fresh air and enjoy beauty of nature, These provisions are meant to guarantee a quiet and healthy atmosphere to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid. Reference to United States Supreme Court observations in Village of Belle Terre v. Bruce Boraas, L. Ed p, 804: US 9, has been made wherein it has been observed that:

The police power is not confined to elimination of filth, stench and unhealthy places It is ample to lay out zones from family values, youth values and the blessings of quiet seclusion and clean air make the area a sanctuary for people.

That under the Himachal Pradesh Co-operative Societies Act, 1968, unless a person is resident in the State for a minimum period of six months, he cannot be a member of the Society. Rule II (c)of the H.P. Co-operative Societies Rules prescribes that no person, shall be eligible for admission as member of the Society if he is not a resident of the area of the operation of the Society for the last six months. The Town of Kasauliean be divided into two segments, namely, (i) Cantonment area governed by the Cantonment Act in the matter of developmental, regulations and control. The physical boundaries are marked by pillars installed and duly numbered. Apart from sub-roads, where vehicular traffic is either prohibited or not possible, the Upper and Lower Malls are the arterial roads serving motorised transport. There has been nominal development/buildings activity in the cantonment area since it is controlled by different rules and regulations. Additional buildings have, for all practical purposes, been constructed by Defence Authorities. Traffic on the two main roads is also controlled and regulated by the Army Authorities through the Cantonment Board under the Ministry of Defence, (ii) The land around the Cantonment area falling in Kasauli Tehsil is classified mainly as agricultural land as per the Revenue record maintained by the State of Himachal Pradesh.

The commercial exploitation of the area started in the middle of 1980. It gathered an alarming momentum in 1990 onwards. Since the construction activities were controlled and regulated within the Cantonment area, the entire pressure was on lands falling outside it. It was started by big builders by purchasing lands from the local agriculturists in violation of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. With an intention to scuttle these provisions, Co-operative Societies were constituted in violation of the Himachal Pradesh Co-operative Societies Act and the Rules. The manner and size of construction has been most haphazard and damaging to the soil, forests and environment. It was under the continued initiative of the citizens of Kasauli that the State issued notification on October 17, 1991 u/s 13 of the Town and Country Planning Act declaring the area of one kilometre on both sides of the three roads leading out of Kasauli, as planning area (Annexure PB). Pursuant to this notification, Tehsildar, Kasauli issued circular (Annexure PB-2/A) dated November 13, 1991 for the information of all concerned that certain Patwar Circles had come under the purview of Town and Country Planning and no person would carry out any construction activity without seeking prior permission of the Town and Country Planning Department. The list of villages effected by the notification, was also made available with the Patwari Halqua. The existing land use map of the State Plan Area had not been published u/s 15 of the Act. The State inserted Section 15A in the Town and Country Planning Act and then issued notification dated August 31, 1992 (Annexure PC) freezing existing land use of Kasauli Planning Area for a period of three years, but inspite of the issuance of this notification, illegal construction continued unabated. These activities of the builders were brought to the notice of the authorities including the Divisional Commissioner, Deputy Commissioner, Solan and the Town and Country. Planning Department. However, no significant action was taken to arrest the on-going devastation. It threatened those who had chosen to live in this peaceful town. It has also threatened security of defence installations existing there.

The fake Societies and commercial exploitators reaching the edge of the Cantonment limits, put enormous pressure on the narrow roads of the town. "Hill Crest Homes" on the Lower Mall planned a ten-storeyed structure on pillars in utter violation of the H.P. Town and Country Planning Act, there is every likelihood of the collapse of the building since the fragile Shivalik Hill is an earth-quake prone area. It is being constructed under the garb of New Kasauli Co-operative House, Building Society, Lower Mall Kasauli These conditions existing in and around Kasauli were brought to the notice of the State by Shri B. S. Grewal by communication of August 5, 1991 to the Chief Secretary of the State. ''In reply to this communication, the Chief Secretary stated in his letter dated September 4, 1991 that the freezing of land use in the area to prevent unwanted construction was under contemplation of the State Government (Annexure PE), Again, Shri B.S. Grewal sent another communication to the Chief Secretary on October 22, 1991 again highlighting the haphazard growth of Kasauli Town and it was desired that the State Government should stop the exploitation of the precious environment before it was too late. Names of those violating the place were also mentioned (Annexure PF).

By communication of December 12, 1991, Shri S. C. Prashar drew the attention of Naib-Tehsildar to various provisions of the Town and Country Planning Act and the manner in which the construction was being carried out by "Hill Crest Homes" on Lower Mall, New Block of "Snawar View" on Dharampur-Kasauli Road (Annexure PC). Another letter dated December 31, 1991 was addressed to Shri K.K. Sharma, Naib-Tehsildar, Kasauli by Shri S.C. Prashar indicating the same problem (Annexure PH).

Shri B.K. Nehru, President of the Petitioner Society also apprised the Minister of State for Environment and Forests, Government of India about the deteriorating eco-plans of Kasauli Town through his letter of January 3, 1992 (Annexure PI). It was also pointed out that the land purchased by the builders was in contravention of law prohibiting land sale to non-Himachal is through ''Benami'' purchases/transactions. Shri B.K. Nehru also wrote to the Chief of Army Staff, General S. F. Rodrigues on January 21, 1992 (Annexure PJ). The reply to this letter is dated January 24, 1992 (Annexure PK). Similarly, Shri B.K. Nehru wrote to the Chief Minister of Himachal Pradesh Shri Shanta Kumar on February 24, 1992 suggesting amendment to Section 13 of the Town and Country Planning Act and to the existing notification defining Kasauli Planning Area to include all areas within one kilometre on all sides of the boundaries of Kasauli Cantonment (Annexure PL),

Shri B. S. Grewal also wrote to the Chief Minister of Himachal Pradesh about the State of Kasauli and the Chief Minister''s reply is dated March 9, 1992. In it, it has been pointed but that certain steps had been initiated to protect the beautiful environment in and around Kasauli (Annexure PM). Shri B.K. Nehru also wrote to the Defence Secretary, Government of India on February 25, 1992 highlighting the threat to the security of defence installations, in case the construction activities in and around Kasauli were left unchecked. It-was desired that Section 286 of the Cantonment Act be made applicable to area extending to one kilometre from the existing boundaries of the Cantonment and that movement of material through the Cantonment roads for all commercial construction activities be prohibited. The reply from the Defence Secretary dated March 20, 1992 was also received (Annexure PO).

Shri B. S. Grewal also received a communication from Secretary (Department of Local Self Government and Town and Country Planning) to the Government of Himachal Pradesh on July 6, 1992 pointing out the steps taken by it to protect the environment in and around Kasauli (Annexure PQ). Shri B.K. Nehru also addressed a letter to the Chief Minister on October 23, 1992 requesting for the implementation of various laws in view of the haphazard construction activities in and around Kasauli (Annexure PR). Another letter was written to the Advisor to the Governor of Himachal Pradesh (Annexure PS) Reply dated April 17, 1992 was received from the Advisor to the Governor (Annexure PT). The Secretary of the Petitioner also sent representation to the Governor of Himachal Pradesh on May 18, 1993 (Annexure PU).

This unplanned and unchecked growth of concrete structures around the Cantonment area was noticed by the Hindustan Times on April 24, 1992 giving comprehensive account of the whole problem effecting the people living in the Cantonment and the Army Authorities (Annexure PV). The Daily Tribune also highlighted it in edition of March 2, 1993 (Annexure PW), The Times of India dated April 26, 1992 (Annexure PX).

The Petitioner laments that despite the issuance of the existing land use of Kasauli Planning Area, illegal construction is being carried out in utter violation of mandatory provisions of the H.P. Town and Country Planning Act mainly by "Hill Crest Homes", "Prop. New Kasauli House Building Society Ltd." Lower Mall, Kasauli; "Sanawar Resoits (P) Ltd." near Sanawar village on State Highway from Kasauli to Dharampur ; "Pine Grove School" near Sanawar village on State Highway, project of Shri Harcharan Singh ; "Punjab Hotel, Chandigarh" near village Gusan; "Astra Estates (P) Ltd, E-?, Defence Colony, New Delhi" near village Manoon on Kasauli Parwanoo Road via Jangeshu ; and "Gagan Resorts (P) Ltd." three kms on the same road. The structures lack even the basic facilities of sewerage, water and electricity thereby further aggravating the adverse affect on the eco system of the town These Housing Co-operative Societies have been floated by Real Estate Builders in violation of the H.P. Co-operative Societies Act and the Rules framed thereunder. They are indulging in the construction of flats to be sold to outsiders Despite the amendment to the H.P. Tenancy and Land Reforms Act, 1972, the house builders are purchasing the agricultural land front the small farmers in violation of the Act, most of the transactions taking place under General Power of Attorney or pledge of land to the buyer against loan which, if not paid by a specified date, ownership vesting in the outsider. The construction is not only destroying the beauty of the area, but also polluting the environment all around.

Concrete structures are becoming eye-sore in calm and cool atmosphere of the area. Forests are being denuded recklessly in order to undertake the construction activities. Water sources are being finished. Principles laid down in Articles 48A and 51A of the Constitution violated with impunity. Wildlife threatened to its very existence, The provisions of Water (Prevention and Control of Pollution) Act, 1974 ; Air (Prevention and Control of Pollution) Act, 1981 ; and the Environment (Protection) Act, 1986 violated consciously. The Central and State, Governments have not been able to check all such activities despite numerous representations to them, though, it is the duty of the State to see that the laws made by it are implemented in letter and spirit and that every citizen has'' got Fundamental Right to have pollution-free water AIR and other living conditions guaranteed by Article 21 of the Constitution, but nothing substantial has been done. There is no explanation why it has failed to check all these activities all through. In these circumstances, it is pointed out that there is no other way to deal with the problem except to approach this Court for the reliefs mentioned in the petition.

Shri B. S. Chauhan, Additional Secretary (Town and Country Planning Department) to the Government of Himachal Pradesh has filed reply affidavit on behalf of Respondent Nos. 1 to 7 and 18. It has been admitted that Kasauli Town is a calm, clean and beautiful station at a height of six thousand feet from the sea-level.

26 The provisions of the Himachal Pradesh Town and Country Planning Act, 1977 have been enforced by constituting Kasauli Planning Area keeping in view its beauty and calmness through Annexure PB to the petition with a view to check haphazard and unplanned construction In Kasauli Planning Area, Within Kasauli Town, green cover has not been allowed to be dwindled down, rather, more area has been brought under plantation to increase the green cover,- therefore, it cannot be said that the green cover has come down from 80% to 10%. Reckless construction and careless disposal of debris disturbing the eco-plan of the town has not been pointed out by giving specific instances. Massive efforts are being made to conserve the soil and to increase the afforestation in and around Kasauli Town. Various provisions of the Constitution on the subject have been admitted and it has been stated that the replying Respondent has sincere concern for improving the environment of Kasauli Planning Area. In order to achieve these objects, the State Forest Department has plan of afforestation, soil-conservation and wild-life preservation and protection in the area The Department of Forest Farming and Environmental Conservation is managing and protecting the existing forest cover outside Kasauli Cantonment area. Degraded forest areas are being planted to replenish the existing forest sources for human and wild-life. The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 have been fully enforced in the State and the provisions of the Motor Vehicles Act, 1988 are being followed. The provisions of the Forest (Conservation) Act, 1980 are applicable to, such lands which have been notified as Reserve and Protected Foreits and in such areas the mandatory provisions are applied where assigning of such land for non-forestry purposes are involved, prior Central Government approval for diversion is sought in accordance with the provisions of this Act.

Fellings in Government forests is controlled under the approved working plan and in private areas, according to ten-year felling programme formulated under the H.P. Land Preservation Act, 1978 and the Rules thereunder. The Cantonment forests are worked according to the working scheme prepared by the local Divisional Forest Officer. Measures have been taken for afforestation and soil-conservation and for preserving the existing natural resources. State Forest Policy has been adopted in the State according to which about 60% of the total geographical area of the State is to be brought under tree cover through various forestry development schemes by 2000 A. D. within the available resources. The Himachal Pradesh Ceiling on Land Holdings Act, 1972 has been enacted with a view to fix a ceiling on land holdings and to allot surplus land to the landless and other persons belonging to the weaker sections of the society. The Himachal Pradesh Village Common Lands (Vesting and Utilisation) Act, 1974 has been enacted for the proper management of "Shamlat" lands vested in the state and make grants out of it to landless and other eligible persons and those belonging to the weaker sections of the Society.

Roads in the State are always constructed on scientific guidelines laid down by the IRC and proper protection and drainage is provided to preserve the eco-system of the area. To ensure it, opinion of the State Geologist and the Engineering-Ecologist is sought where any disturbance to the existing forest is anticipated. In order to stablise the hill slopes after cutting of the road, plantation is resorted to so that damage to the, forest is avoided as far as possible. According to the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, Co-operative Societies have been exempted from securing permission of the State Government for purchasing land. Proviso to Sub-section (2) of Sections 118 of the Act empowers the State Government to grant permission to non- agriculturists in accordance with the procedure laid down in Rule 38 and Rule 38-A framed under the Act. . Provisions of the H.P. Town and Country Planning Act, 1977 were enforced in Kasauli Town by constituting Kasauli Planning Area u/s 13(1) of the Act on October 17, 1991. The existing land use was thereafter frozen u/s 15A(1) of the Act for a period of three years on August 31, 1992. It has been admitted that the purpose of invoking the provisions of the Town and Country Planning Act, 1977 is to plan and control the development activities of the planned area.

The Co-operative Societies are exempted from seeking permission of the State Government, therefore, no violation of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 and the Rules framed thereunder is committed so far as Co-operative Societies are concerned However, action against the persons who have violated the provisions of Section 118 of the Act is being taken under the relevant provisions of the law in the area in question. Similarly, violation of the Town and Country Planning Act, 1977 is being dealt with under the relevant provisions of the Act around the periphery of the Cantonment area. Notices have been issued to the defaulters for unauthorised constructions.

The New Kasauli Co-operative House Building Society with its headquarter at Kasauli, was organised in January, 1991. It was registered by the Assistant Registrar, Co-operative Societies, Solan on March 12, 1991 in accordance with the provisions of H.P. Co-operative Societies Act, 1968 and the Rules framed thereunder As per, registration record, Government employees and employees of the Kasauli Club and others were the promotee members of the Society at the time of its registration. The Society has been organised with a view to carry out construction activities for the benefits of its members. It has been denied that this Society is fake one. The Society has been organised after fulfilling all the coda! formalities required under the H.P. Co-operative Societies Act, 1968. As per Revenue record, the Society has not purchased any land in the close vicinity of the Contonment area. Kasauli town is situated over synclinal ridge consisting of good sandstone with lesser contents of shale/ clay. These formations in the geological literature have been referred as Kasauli Formations. As per ISI Seismic Zoning Map, Kasauli, including Shimla and other parts of Himachal Pradesh, falls in Zone No. V. Multi- storeyed buildings have been constructed and are being constructed by adopting preventive measures and other safety measures in similarly situated places all over the world. Sandstone Has good engineering geological properties such as compressive strength, absorption ratio etc. and can safely take load of multi-storeyed buildings. Notice has been issued to the "Hill Crest Homes" for unauthorised construction at Kasauli

No planning permission for any type of change of land use is being given by the Director, Town and Country Planning Department in the area where land use has been frozen vide notification dated August 31, 1992. Notices have been issued to all the parties mentioned in Para 57 (1) by the Town and Country Planning Department for unauthorised construction. As per undertaking given by the President of the Society, none of the members of the Society is real estate builder. It has been organised by Government employees/employees of the Club etc. for their own benefit and the flats are meant for the members of the Society as per provisions of the Bye Laws of the Society.

Under the provisions of Land Preservation Act, the owners of the private areas can fell five trees of ''Chil'' conifer species without the permission of the Forest Department for their domestic use in a year, but no illicit felling was done so far as the, forest land is concerned. Various communications sent by the Petitioner have been admitted and it has been added that actions were initiated by the Town arid Country Planning Department for violation of the various provisions of the Town and Country Planning Act by issuing notices to various parties. No illicit felling has been done in the protected forest of Kasauli. Violators have been prosecuted for committing breach of provisions of the Water (Prevention and Control of Pollution) Act, 1981, enforced in the State. Any one violating the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 can be dealt with suitably under this Act and the land purchased in violation of the same, vested in the State Government after following the procedure prescribed under it and the Rules framed under the Act. Section 118 of the Act provides for safeguarding the interest of the agriculturists.

Ministry of Environment and Forests, Government of India (Respondent No. 10) has filed the reply through its Conservator of Forests (Central), Northern . Region, Chandigarh. It has been stated that the Central Government has delegated powers to the State authorities for performance of different functions under the Environment (Protection) Act, 1986 through Notification No. 152 (E), dated February 10, 1988 (Annexure RA). An Institution named G.B. Pant Institute of Himalayan Environment and Development has been established at Almora, being funded by the Ministry of Environment. This Institute has opened its Unit at Kullu in Himachal Pradesh recently, therefore, the Ministry of Environment and Forests is fully concerned about the Himalayan environment. It is funding various afforestation projects/schemes, wild-life projects/schemes, waste land development projects, integrated watershed management, policy guidelines, training and education of Forest Officers etc. for the implementation of the various Acts and Rules.

34 Relating to National Forest Policy, it has been stated that the National Forest Policy of 1952 has been reviewed and revised by the National Forest Policy of 1988 by Ministry of Environment and Forests. Road construction in hills needs adoption of preventive measures to contain rolling of debris on down-hill side and preservation of land-slides on uphill side. By following guidelines for road construction in the hills as per the report of the Task Force of the Planning Commission for the study of eco-development in the Himalayan region and by using techniques developed by the Central Road Research Institute. No violation of Forest (Conservation) Act, 1980 has come to its notice nor reported by the State Government

The State Pollution Control Board, Shimla (Respondent No. 8) has also filed reply in this case. It has been stated that M/s. Hill Crest Homes Care of New Kasauli House Building Society has not applied for the grant of consent which is mandatory u/s 25 of the Water (Prevention and Control of Pollution) Act, 1974 and local bodies including House Building Societies are also required to obtain the consent of the Board under Sections 25/26 of this Act to operate and outlet discharge of sewerage The Water (Prevention and Control of Pollution) Act, 1974 as well as the Air (Prevention and Control of Pollution) Act, 1981 have been fully enforced in the State and defaulting Units have been prosecuted for committing breach of these Acts. In Kasauli area, there are only three, industries, namely, Central Research Institute which has applied for the grant of consent recently, this Institute has installed its own effluent treatment plant and the Board has given directions to modify the said plant in accordance with the approved design of the plant and action is being taken by the Central Research Institute ; M/s, Mohan Meakins Distillery has also set up its own effluent treatment plant ; third industry of M/s. Purewal Watch Factory, though not a water based Unit, yet it has been granted consent by the Board. Apart from these industries, recently hotel industry was brought under the Pollution Control Acts. The following hotels exist at Kasauli:

1 M/s. Alasia Hotel Kasauli,

M/s. Anchal Hotel, Kasauli,

M/s. Maurice Hotel, Kasauli,

M/s. M.M. Guest House, Kasauli,

M/s. Kalyan Hotel, Kasauli,

M/s. R. Maldieves, Hotel,

M/s. Gian Hotel, Kasauli.

All the hotel owners have been asked to obtain consent of the Pollution Control Board.

So far as smoke emitting from the chimneys of the factories at Kasauli and Parwanoo is concerned, the Board, with the help of Central Pollution Control Board, has set up two National Ambient Air Quality Monitoring Stations at Parwanoo for monitoring the pollution created by the smoke emission from these Units/industries. It is being done regularly and action taken against those whose emission is above the limits prescribed by the Board by initiating legal proceedings. However, there is no adverse environmental effect of units at Parwanoo on Kasauli area being far away. Parwanoo industrial area has 58 industrial units. The complex has about 22 major water polluting units and about 21 air polluting units. Initially, the industries were reluctant to provide waste water treatment plants Units, namely, M/s. Premier Electroplating Works, Gabriels India Ltd. ; M/s. Kamla Dial and Devices ; M/s Sterling Platers ; M/s. Surya Lab. ; M/s. Amar Roller Flour Mills were prosecuted under the Pollution Control Acts. After persuation, all the industries are now equipped with suitable ET Ps/air pollution control measures. The area has some of excellent treatment/pollution control systems and are serving as model to other treatment plants and air pollution control equipments are constantly upgraded and industries are advised to recycle the waste, minimise the waste and compliance of this has already been made. Therefore, every effort is being made to implement the Pollution Control Acts.

The Cantonment Board, Kasauli (Respondent No. 17) has in its reply stated that the area falling under the Cantonment Board is marked by posting pillars and numbering the same. A barrier has been affixed on the road wherefrom the Cantonment Area starts. The construction work falling within this area has to be sanctioned by the Executive Officer. Sanction is accorded as per rules and after considering the same on merits. Minimum construction has been allowed as admitted by the Petitioner The Petitioner has also admitted that the Cantonment Board is not causing any erosion to lands under its jurisdiction. Houses and roads are repaired in order to maintain the beauty of the town. The traffic is being controlled at places in order to check the pollution caused by road traffic. Trees are not permitted to be cut down unless they become dangerous to the public Latest amenities are being provided to the public. Recently, the sewerage system has been laid down for the convenience of the people. The Cantonment area is clean and beautiful and has been maintained very well by the Board. The Cantonment area is pollution-free since there is minimum construction activity in it.

M/s. Hill Crest Homes (Respondent No. 11) has stated that the Society has been registered u/s 4 of the Himachal Pradesh Co-operative Societies Act, 1968 with the following objects contained in its Bye Laws. They are:

The object of the society shall be:

(i) To purchase, take on long lease or acquire by exchange or otherwise land for construction of housing colonies.

(ii) To construct, hire or acquire buildings for the individual and collective benefit of the members.

(iii) To sell or to exchange house sites with members, rent out or lease buildings for common use, surrender or accept surrender of houses or house sites.

(iv) To purchase and sell to members requisite material for construction and repair of houses.

(v) To establish and carry sanitary, social, educational and recreational activities for the benefit of the members.

(vi) To raise funds, and to give loans to members of the construction of houses by themselves or on their behalf.

(vii) To prescribe house plans,

(viii) To undertake measures to spread knowledge of co-operative principles and practices.

(ix) To undertake such other activities as are conducive to the attainment of the above objects.

The objects would indicate that the Society has been constituted and registered for the purpose of purchasing and acquiring land for construction of houses and housing colonies and further to sell house sites or constructed houses to members or to effect transfers in terms of the provisions of the Transfer of Property Act. Application for the registration of this Society was moved on December 1, 1990. It was accepted on March 12, 1991 with Registration No. 559 of 1991. The area of operation has been confined by the authorities to the town of Kasauli and village Garkhal. It is within the scope of registration of the Society by the Department of Co-operation that the negotiation for the acquisition of site for the construction was undertaken. The purchase is valid in law and does not fall within any restriction under the H.P. Tenancy and Land Reforms Act, 1972. The housing colonies are located in village Garkhal beyond the Cantonment area of Kasauli. It was inspected by the Deputy Registrar Co-operative Societies who accepted and approved the purchase of land as valid and also permitted the construction of housing colony planned by the replying Respondent. Various complaints were made against it by people challenging the legality and objects of the Society. The matter was examined through the good offices of the Governor of Himachal Pradesh but the registration, objects and purposes of the Society were found legal and valid.

The replying Respondent had supplied detailed particulars of each member of the Society to the Assistant Registrar, Co-operative Societies, Solan, who exercises immediate supervision over it. No member proposed to be added to the Society has been found by the authorities against the provisions of Co-operative Societies Act since most of the members of the Society are permanent residents of the State of Himachal Pradesh belonging to Garkhal and Kasauli and most of them are agriculturists. Besides the permanent residents, all other members are originally residents of the area of Kasauli and Garkhal. The records and funds of the Society have been examined and audited pursuant to the directions of the Co-operative Department Government of Himachal Pradesh and last audit is of May 10, 1993 (Annexure R-11/2-T);

After the investigation was conducted through the good offices of the Governor of Himachal Pradesh, the Financial Commissioner-cum-Secretary to the Government of Himachal Pradesh, Town and Country Planning Department, issued a communication dated July 21, 1993 directing the Revenue Authorities to effect the registration of the purchase of the site of M/s Hill Crest Homes without payment of stamp duty and registration fee (Annexure R-11/2). The Society is following other directions contained in this letter. So far as directive to building plan is concerned, the same has already been submitted. The land of the Society falls in Khasra No. 419 of village Garkhal. It measures 5 Bighas 12 Biswas only, Though the area falls beyond the limits of Kasauli Cantonment, yet the Cantonment Authorities were aware of the construction activities carried on by the Society. It was with the prior permission of the Cantonment Board that the Society had been transporting construction material through the roads falling within the Cantonment area.

The Petitioner got published various news items in the National Press stating, inter alia, that the Society has violated the norms and Bye Laws prescribed by the Cantonment Board and the construction of Hill Crest Homes would interfere in the net work of the Defence Authorities. These allegations were merely in the nature of obstacles devised by the members of the Petitioner to stall the project of the replying Respondent. However, the Defence Authorities clarified that the construction of Hill Crest Homes was not within the area of Cantonment Board and, therefore, the provisions of the Cantonment Act, Rules and Bye Laws were not applicable to this construction. It was further stated that the construction of Hill Crest Homes did not in any manner interfere with the communication net work of the Defence Authorities. One such newspaper report appeared in the Times of India of June 17, 1993 (Annexure R-11/3). Communication (Annexure R-11/4) makes two things abundantly clear, namely, that the construction of the Hill Crest Homes was in the full view and notice of the Cantonment Board and that the construction commenced as far back as April, 1991.

Another communication (Annexure R-11/5) dated October, 14, 1991 would also indicate that the Director of Defence Estate, Western Command examined the transportation of materials by the Society on the road falling within the Cantonment area and found that no objection could be raised against such transport on the ground that although the roads were within the Cantonment Board yet being a public road, it was impermissible to deny the right of way, though effective restrictions could be imposed. After the receipt of letter dated October 14, 1991, the Society, had been using the Lower Mall regularly for the transport of construction material to the site of Hill Crest Homes. Since the site of Hill Crest Homes falls outside the Cantonment Board, Kasauli, the provisions of the Cantonment Act, Rules and Regulations framed thereunder, are not applicable to the construction activities of the Society, some restriction could be imposed under the H.P. Town and Country Planning Act, 1977, but no restriction was ever imposed on it under this Act. Although Kasauli planning area has been constituted vide Notification dated October 17, 1991, yet no existing land use map has been prepared in terms of Section 15 and consequently, the freezing of land use cannot be implied by the issuance of Notification dated October 17, 1991.

The site on which Hill Crest Homes is being constructed, falls outside the limits of one kilometre prescribed in the Notification of October 17, 1991, a fact acknowledged by the Petitioner in communication of January 24, 1992 (Annexure PL). Since the Society had commenced construction in April 1991, the preparation of existing land use map after the issuance of the notification dated October 17, 1991 would not effect the Society since continuance of the construction by it would not amount change of user of land, etc. etc.

The amendment to the Town and Country Planning Act by Section 15A was effected by Notification dated August 31, 1992 published in the Rajpatra dated September 19, 1992. Perusal of the amendment would indicate that the State Government has been vested with authority of freezing the user of land even prior to the preparation of existing land use map u/s 15 subject to a determination by the State" Government that the change of the use of land would cause problems specified in Sub-clauses (a) and (b) of Section 15A(1). Without being in possession of any information, the State Government issued Notification dated August 31, 1992 ordering the freezing of the existing use of land of Kasauli Planning Area from August 31, 1992 for a period of three years. This Notification did not in any way effect the activities of the Society because the user of the site of Hill Crest Homes was started in April, 1991 when the construction of the building by the Society was commenced. The aforesaid user has not been altered by the Society till date The Notification, however, does not restrict any development or construction activities when the user continued to be the same.

46 The Society has adopted measures, by spending substantial amounts, to ensure that its construction activities would not cause any of the impairments mentioned in the Notification of May 2, 1992.

Before embarking upon the construction activities, the Society obtained Engineering-cum-Geological experts opinion from recognised agencies in March, 1991. Plans for the construction activities were prepared In terms of recommendations made on the basis of experts'' opinion sought in that behalf. The entire plan of the construction was accordingly forwarded to the Director, Town and Country Planning Department, Shimla (Annexure R-11/9) and when no reply was received, the State Town Planner was personally contacted who informed the Society that there was no objection whatsoever in respect of the construction activities by the Society at the site. Though, the construction had been started, the Society was keen to have another opinion in respect of the viability of the project, geological survey was conducted by the agency after effecting tests at the site in question and gave its opinion in writing. For the aforesaid purpose, Dr. M. S. Ghuman, Professor and Head, Department of Civil Engineering Punjab, Engineering College Chandigarh was contacted who affirmed the viability of the project and authenticated that none of the impairments mentioned in the Notification dated May 2, 1992 would be occasioned as a result of the construction by the Society. In view of the extreme slope at the site, it is impossible to do agriculture and graze animals, therefore, the construction by the Society has not in any manner impaired agricultural activities nor grazing of animals. There has not been illegal felling of trees at the site. Only six trees of small sizes were felled by the previous owners with the permission of competent authority.

Although the Society did not require any permission for the construction of the building complex when the project was started in April 1991, yet it continued to have communications with the Town and Country Planning Department in respect of its construction activities. Though for a long time no response was received to Society''s letter of March 28, 1991, yet a ''No Objection Certificate'' for its construction activities was issued to the Society on July 23, 1992 (Annexure R-11/11) Despite this, the Petitioner tried to create all kinds of impediments in the working of the Society resulting in the issuance of numerous orders against it from time to time and ultimately, the matter went to the level of the Government of Himachal Pradesh resulting in the issuance of communication dated July 22, 1992 (Annexure R-11/12) stating that the construction activities of the Society were always in the knowledge of the Town and Country Planning Department which had not till then raised any kind of objection against the construction by the Society. In response to the direction contained in letter dated July 22, 1992, the Society brought to the notice of the Department that it had already submitted its plan and, therefore, the same should be examined for finalisation Additional plans were submitted for the sake of convenience of the Directorate. The last communication addressed to the Society by the Town and Country Planning Department is dated July 28, 1992 (Annexure R-l 1/13) showing that the activities of the Society were well within the framework of law and restrictions imposed were based on the directions of this Court in this case.

It is now well settled proposition of law that a public interest litigation is not maintainable where the personal interests of the litigating Petitioners are involved. The Petitioner has moved the present petition for claim of personal exclusive right to the city of Kasauli to the exclusion of all others who might like to create home for themselves in the location. All the Panchayats falling within the jurisdiction of the planning area constituted vide Notification dated October 17, 1991 and all trade unions of towns Garkhal, Kasauli and Dharampur have resolved that the construction activities conducted by Respondent Nos. 11 to 16 and others in the area were in their interest and betterment. These would not only create job opportunities for them but also promote additional business prospects and develop the area in a positive way. Consequently, public interest litigation is wholly unsustainable in the background of the absolute majority compared to the limited minority of twenty odd members of the Petitioner, majority of whom live in palatial establishments in the city of Kasauli and adjoining areas that too for duration of two months in a full year.

There are numerous disputed questions of facts which cannot be decided in a writ petition. It also suffers from delay and laches. The facts of this case disclose that construction activities by Respondents No. 11 to 16 commenced on or before April 1991. These were knawa to the Petitioner since it had made numerous representations from time to time. But it did not approach any Court of competent jurisdiction and allowed Respondents No. 11 to 16 to continue the construction activities which have been done at substantial expenses. The answering Respondent has till date spent over Rs. 70 lacs on its construction activities in addition to the cost of land and its development. It is near completion. The other Respondents have since completed the construction and their complexes have been habitated for over a year. The Society is also estopped from agitating the matter after having acquiesced the same all through.

The Petitioner is constituted by selected Indian citizens who can conveniently be described ''rich'' and the ''elite'' of this country. It comprises of less than thirty members most of them own palatial bungalows either in Kasauli or Garkhal or Kuthar or in Dharampur. These bungalows are their summer resorts and they do not want anybody else to enjoy the same resort by owning flats/buildings either near them or in the vicinity around them. The President of the Petitioner has never stayed in Kasauli for more than two months in a calendar year. The Petitioner does not constitute locals therefore, it does not represent their views.

The factum of the beauty of the Himalayan Range is well-known and acknowledged. Its preservation is paramount importance and consideration. It is submitted that civilisation must necessarily have its effect on environment as it is an universal truth that no civilisation in the entire world progressed/developed without affecting the environment. ''Progress of civilisation and pollution in environment go side by side'' and arc supplementary to each other Mo civilisation can be conceived without any pollution. Environment have necessarily to be preserved for the benefit of human race, but it cannot be extended whereby the progress of the society is either obliterated or hampered. Military installations, telecommunications, net-works, electrical transmission and housing with its infrastructure, must necessarily be permitted to mingle with the scenario of modern technologies in the march towards the next century for shelter on every human head is not of lesser importance or significance than the presence of good environment. Therefore, balance must be struck between the environment and the human needs. In this respect, Kasauli town is not in any danger of erretic urbanisation or uncontrolled construction of housing complexes. Although the area in respect of which the instant public interest litigation has been instituted, relates to four towns - Kasauli, Garkhal, Kuthar and Dharampur, the Petitioner has been able to name only construction agencies constructing nearly one housing complex, one of them being a school. These complexes cannot, by any stretch of imagination, lead the Petitioner to feel amazed as to attract the sympathy of the Press and the judicial process.

The allegations with respect to land scape, green cover, felling of trees, disposal of debris are incorrect. Each of the construction agency has some system of disposal of waste material. The Society has its own sewerage system in the form of septic tanks. The reference of various national and international conferences does not make any significant impact since the civilisation has travelled at a greater speed and progress. Similarly, reference to Articles 48A and 51A of the Constitution may be important but these provisions by themselves do not lead to any conclusion intended to be drawn by the Petitioner The Petitioner has failed to indicate any violation of the provisions of the various Acts touching the environmental pollution. The Society is conscious of the provisions of these Acts, its activities are being guided by these statutory provisions, there has not been any violation of any of these statutes. Similarly, it has not been specifically pointed out how the Society has violated the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and the Himachal Pradesh Town and Country Planning Act, 1977. It has also been submitted that certain members of the Petitioner have renovated/constructed residential buildings within the Cantonment area on account of their influence. This has been done to "Fairview" owned by the Petitioner''s President.

The Notification of August 31, 1992 did not effect the construction activities of the Society since user of the site of Hill Crest Homes was started in April 1991 when the construction of the building was commenced. The aforesaid user has not been altered by the Society till date. The Notification does not restrict any development or construction activities when the user continued to be the same. There is no communication to the Society from the Defence Authorities that the construction would in any way hamper its installations or pose a security threat to it. The statement that the Shivalik Hill is on earthquake prone area, is totally false. The Society which is constructing a terraced and not a storeyed-building, has got the necessary geological tests qua rock and earth strata done from the recognised agencies and the construction was commenced only after ascertaining the stability of the hill structure at and around the site of Hill Crest Homes. The fact that the Central Government has constructed a 200 ft. Television Tower and the Central Research Institute and the Air Force have multi-storeyed massive buildings within the short distance from each other, demonstrate that the strata of entire Kasauli area is solid and no instance of earthquake damage was felt in the region in the recent past

The Society has been registered under the Himachal Pradesh Co-operative Societies Act, 1968 as, such was entitled to purchase land under the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. It has taken all steps to preserve the environment and there is no specific complaint against it.

M/s. Pine Grove School, Sanawar (Respondent No. 13) has denied all the allegations against it. It has been stated that land measuring 18 Bighas comprised in Khasra Nos. 16/33, 126/112 and 127/112 as per Jamabandi for 1990 of Mauza Mangoti, Tehsil Kasauli was owned by Sant Sadhu Ram. Through his Will dated December 24, 1984 (Annexure R-13) he transferred his property in favour of Amarjyot Singh. Then, after his death on March 31, 1991, Amarjyot Singh inherited the estate of Sant Sadhu Ram. The Will was challenged in the Civil Court at Solan which upheld it on December 8, 1992.

The construction work of the school complex started in 1984 which finds mention in the Will of Sant Sadhu Ram also. The school complex has been constructed at the cost of about Rs 16 1acs audit started functioning on March 4, 1991. Admission to it was advertised through admission notice in newspapers, the Sunday Observer of November 25, 1990 and the Punjab Kesari of November 10, 1990. Most of the construction had been completed before the notification was issued by the H.P. Town and Country Planning Department on October 17, 1991 by which the area come under the Planning Area The Notification freezing the land user under the H.P. Town and Country Planning Act was in fact issued on August 31, 1992. The Pine Grove School has been set up in the salubrious climate and sylvan surroundings of the Shivalik Hills with the object of developing the physical, mental, moral and spiritual facts of the children so as to make them good citizens ; to prove for and promote all round complete and balanced development of the child ; to built up character on the foundations of discipline, loyalty to the nation, esprit-de-corps, sense of justice, fairplay, honesty, integrity and social service ; to prove for adequate, ample and suitable games, hobbies and other co-curricular activities ; to give personal guidance and individual attention to each student by maintaining a small class strength and excellent teacher-pupil ratio etc. etc

The school started in March 1991 after seven years of construction activity It is a day and residential school with 157 students on its rolls from Kindergarten to VII Class Initially it was started upto IV Class and then a class was added every year. The school has also admitted day-scholars from the less fortunate sections of the society. It also gives scholarships and free-ships to the needy and poor and provides for other facilities necessary at this level

Various senior functionaries have been visiting the school including the then Revenue Minister on October 15, 1991, the then Education Minister on October 31, 1991, Mr. Justice I.S. Tiwaua, the then Acting Chief Justice of Punjab and Haryana High Court in August, 1991, and Mr Justice S.S. Sandhawalia, former Chief Justice, giving good impressions about the functions of the school in the visitors'' book.

The school is located on a total area of 18 Bighas but the construction area of the school is less than one Bigha, so it would be-clear that only 5% of the total land has been constructed while the rest is covered with trees, vegetable gardens, orchards, plantation, playground, lawns and parking lot. There is great awareness of need for environment protection and all steps have been taken to preserve the same during the construction of the building. No tree has been cut during the construction. There is a fully developed fruit orchard on part of the 18 Bighas which is tended to by the students during gardening classes and many other activities of similar nature have been kept in view during this development. This school is away from Kasauli Town, therefore, most of the grievances of the Petitioner do not apply in the case of the replying Respondent. Water connection is available from the Government though there is natural spring in the land of the school also. The land over which this school has been built, has not been purchased. It has been inherited from a person who is a bona fide Himachali and agriculturist, as a result of inheritance through Will upheld by Senior Sub-Judge, Solan in Case No. 490-1989 dated April 8, 1992, since implemented by the Revenue. Authorities.

The first notification of the H, P. Town and Country Planning Department was issued in October 1991 but the school had started functioning in March 1991 and the building had already come up by October/November 1990, therefore, the notification does not apply to this school. It has provided sanitation and sewerage facilities. It was inspected by the District Health Officer, Solan in 1991 who certified that the school is fit as per health and sanitation point of view. The school is in the service of society with no profit motive Expansion is needed for more classes, laboratories, playgrounds, hostels facilities etc. etc. It is to provide calm, cool and free atmosphere to the students and facility of education to the children of those who want to educate their children in this kind of atmosphere and those who cannot possibly get admission in other schools located nearby.

The first annual function of the school was held on October 31, 1991 on which occasion the Inaugural Souvenir-cum-Magazine 1991 of the school was issued, participated by many eminent persons reflected in the photographs. It is not effecting the environment in and around Kasauli or in the area in view of its setting and the nature of construction and care for the maintenance of existing trees and plantation of more trees of various species. Therefore, the replying Respondent has not violated any provisions of the H. P, Town and Country Planning Act. The transfer of land in favour of Shri Amarjyot Singh is not in violation of the H.P. Tenancy and Land Reforms Act, 1972. Shri Amarjyot Singh, the owner of the land and the Principal of the School, is an agriculturist within the meaning of the H.P. Tenancy and Land Reforms Act, 1972. He entered into an agreement dated April 6, 1993 with Chander Mohan for a consideration of Rs. 52,500 out of which Rs. 12,500 has already been paid on April 6, 1993, Rs. 10,000 were paid through Cheque No. 804538 dated April 6, 1993, therefore, the replying Respondent is entitled to have the sale deed registered to make more land available for expanding the school complex. He being an agriculturist, no restriction can be placed on him for purchasing more land. Certain important wings of the school are already under construction and in case the same is not carried on and completed, the development of the school and the children will hamper seriously.

Baikunth Resorts Pvt. Ltd. (Respondent No. 19) has been impleaded by order dated August 19, 1993 through Civil Miscellaneous Petition No. 2482 of 1993. Though it was directed to file reply, yet no separate reply has been filed by it. However, the case of this Respondent is projected in the impleadment application itself.

It has been stated that it is a private limited Company incorporated under the Companies Act, 1956 through incorporation certificate of December 10, 1991 with Shri Rana Iqbal Singh Jolly as Managing Director and Principal Officer of the Company The Company has been incorporated for the purpose of setting up Holiday Resorts etc. at various places. For this purpose the Company decided Jo acquire land in Kasauli in Himachal Pradesh. The site was selected by the Comany in village Chhabbal at a distance of about 8, Kms from Kasauli. It entered into negotiation with owners of land and ultimately purchased 8:17 Bighas of land in this village in accordance with the, provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. The permission was granted in October 1992 (Annexure RD/1). The sale deed was executed on December 1, 1992 (Annexure RE). Permission was sought from all concerned departments for carrying out the construction at the site for the establishment of Hotel. The State Pollution Control Board also granted permission on March 3, 1992 (Annexure RF) Tourism Department also considered the case and recommended it oil May 18, 1992 by issuing'' essentiality certificate (Annexure RG). The Executive Engineer, H.P. Public Works Department, Kasauli issued No Objection Certificate on May 27, 1992 (Annexure RH). The Power Availability Certificate was given by Chief Engineer (Commercial), HPSEB (Annexure RJ). The case of the Company was also recommended by the Tourism'' Department to the Department of Industries (Annexure R.K./1),

The Company raised considerable amount of loan and started the work at the site for the construction of approach road to the site where the hotel is intended to be constructed Half of the work of the toad was completed when communication of August 5, 1993 was issued by the Tehsildar, Kasauli intimating the restraint order passed by this Courts.

The Petitioner''s allegations do not apply to the case of the replying Respondent since it has complied with the requirement of law rules and regulations at every step, Nothing was done secretly. The hotel is being constructed far away from Kasauli Bus Stand towards Jagjit Nagar, Further more, it would not cause damage to ecology or environment.

Certain Gram Panchayats, other bodies and persons of Kasauli Cantonment Area applied for being made parties to the case. However, by order of August 19, .1993 in Civil Miscellaneous Petition No. 2483 of 1993, they were permitted to intervene in the matter and file a common written submission supported by affidavit within a period of four weeks. They have opposed the Petitioner''s case. Through their reply, filed on the affidavit of Krishan Murthy son of late Shri Des Raj, Chemist and General Merchant, Kasauli, Member, Cantonment Board, Kasauli, they have said that the Members of the Petitioner have their roots in Punjab, Haryana, Delhi and Chandigarh etc. etc. They have their houses at Kasauli for spending a few weeks or months during summer season. They have no vital interest in the development of local economy, local interest- social or commercial. They never cared or rendered any service of medical care, education care or social service in the locality. Their only interest is to live lonely for which purpose they have constructed palatial buildings against bye laws and Cantonment Board Act, 1924 and are interested in following the British traditions of exclusiveness. The pretext to save the so called environment of Kasauli is only to exclude the local residents and keep themselves aloof and use their palatial resorts exclusively for themselves without caring for the local needs and the development of the local economy. This is a legacy which the ex-bureaucrats have inherited from Britishers. They have acquired the properties by questionable means. Mrs B.K. Nehru got the Mess of Air Force Station vacated only four years back due to the influence of her husband Shri B.K. Nehru and had renovated the same by doing additions and structural alterations without the prior permission u/s 179 of the Cantonment Board Act, 1924. Mr S.C. Prashar has constructed a huge palatial building at village Garkhal ten years back by cutting full hill side and by felling several forest trees as would be apparent from the photographs enclosed. The house is surrounded by thick forest growth of trees and for the construction felling of many trees was undertaken without the permission of the competent authorities.

Mr. B. S. Grewal, ICS (retired) has also a palatial building on the land measuring 12 Bighas. He renovated the same without the sanction of the Cantonment Board and also sold some part of it against the rules and litigation is still going on (Annexures RX-1 and RX-2). The members of the Petitioner being influential persons, are controlling the media and have created much hue and cry in the Daily Tribune with circulation in and around Himachal Pradesh, Punjab, Haryana and Chandigarh. Certain selected persons have been pointed out making allegations against them without any basis, though all these units are coming up strictly in accordance with law and in tune with the ecology and environment. The area is fit for construction since it has very less forest growth and while making constructions, forest trees are not being cut or damaged.

The object of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 is that the local population should have opportunity to utilise the land for their benefits and outsiders are not permitted to encroach upon the rights of the sons of the soil. Here the position is otherwise. The Petitioner having acquired palatial buildings for their own use, want to prevent the common men from having roofs over their heads. In the meeting of the elected members of the Cantonment Board, Kasauli, Senior citizens and Shri Satpal Kamboj, held on May 4, 1993 with the Governor of Himachal Pradesh, Kasauli was identified as tourist attraction area. The State is concentrating on the development of tourism industry in view of political situation in Jammu and Kashmir. Similarly, the areas around Kasauli have been identified for tourist resorts and developed for the purpose by construction of Guest Houses, Resorts, Health Centres, Water Sports, Farm Houses, Cretches, Libraries, Golf Courses, Ice Skating, Skings etc. etc.. The Cantonment Board has also resolved through resolution No. 255" in its meeting held on November 18, 1992 to support the provision for Rope Way of M/s. K. K. Ropeway from Jabli to Indian Air Force area of Kasauli, and by resolution No. 33 dated July 9, 1993 the Cantonment Board has condemned the action of the Petitioner (Annexure RX-3). This area has nothing to do with the flow of rivers like Ganges, Yamuna, Brahmaputra, Satluj, Ravi, Vyas, Chenab and many other forming tributories thereof since it is not even a catchment, area of any of them. There are no forests in this area except in a few pockets thereof. It may be that Kasauli had been an exclusive place for Military and a few others for many years and no attention was paid for the general requirements of the local people. It is a Cantonment area covered by the Cantonment Board Act, 1924, therefore, if any construction or repair is carried out, prior permission of the Board has to be obtained. It is, however, denied that this town is in danger because of erratic, irrational and uncontrolled construction of housing complexes. It is denied that the green cover today is about 10% of the area while some decades ago it was about 80%. The trees, wherever existing, are being maintained property. Human requirement has also been taken into consideration alongwith the environment and the Government has taken correct steps to maintain the ecology and taken note of the provisions of Article 21 of the Constitution of India to give proper living conditions to the people and also to see that the economic welfare of the people is also developed. It is in tune with the provisions of Article 21 of the Constitution of India and also in consonance with the Directive Policy under Articles 41, 42, 43, 46 and 47 thereof. The State has to maintain balance between the environment and require merits for human needs. The Petitioner cannot insist that the State should endeavour to protect their self interest for the enjoyment of their holidays rather than the upliftment of the social and economic development of the sons of the soil Except for Gagan Resort, all the buildings were started much before the Town and Country Planning Act was applied to this town and the land use frozen. Many of the buildings are on completion stage. The State Government did not think it proper to enforce the Act in the area as there was need for the construction of houses for the domestic use by the rural people. However, it was under the pressure exercised by the members of the Petitioner that the land use has been frozen in the area from September 1992 After declaring it tourist area, construction activities for receiving inflow of tourists is inevitable It is wrong to say that only big builders have undertaken this exercise If any one has violated the provisions of any Act or rules, the State Government is free to take action. The Daily Tribune lias raised so much hue and cry since Shri B.K. Nehru, President of the Petitioner-Society, is a trustee of the Tribune Trust.

AH other averments in the petition have, as a matter of fact, been disputed and denied by the replying Respondents.

M/s. Gagan Resorts Pvt. Ltd. (Respondent No. 16) is a Company with registered office at village Katha in Tehsil Nalagarh. It has been established primarily for the purpose of carrying on trade and business of hotel and Resorts etc. as provided in the, Memorandum and Articles of the Company and the Slate Government is holding out as well as offering incentives and other bent/its to the intended entrepreneurs interested in setting up hotel industry in the State.

Geeta Ram and Ghanshyarn Singh were owners of land measuring 22 Bighas 14 Biswas at Shiloda Kalan, Had Bast No. 46/957 in Khewat/ Khatauni No. 6 Min/9 Min, Khasra No. 10 as per Jamabandi for the year 1988-89. The replying Respondent entered into an agreement with these persons for sale of land measuring 3 Bighas comprised in Khasra No. 10/1 (Annexure R-16/A) Price of Rs. 5 05 lacs was paid to the sellers from time to time by means of cheques except a sum of Rs. 5,000 paid in cash towards the part payment of the agreed sale transaction. After the execution of the agreement, the answering Respondent came in physical possession of the land to which substantial improvements have been made since then, by engaging the services of experts. By now, more than Ps. 12 lacs stand invested in the project reflected in the balance-sheet. Since the land could not be purchased in Himachal Pradesh without permission of the Government, permission was sought through proper channel. Loan of Rs. 1.16 crore was sought from the Financial Corporation and State Industrial Development Corporation, a sum of Rs. 60 lacs and Rs. 56 lacs were sanctioned by these Institutions (Annexures R-16/B and R-16/C). H. P., State Electricity Board was also approached for sanctioning the requisite supply for the hotel and Power Availability Certificate was issued and the replying Respondent was called upon to deposit the Balance Advance Consumption Deposit Rs. 4080 were deposited besides load consumption fee of Rs. 1020 against receipt (Annexure R-16/D) for grant of temporary connection. This sanction was cancelled for non-supply of certain documents by the Respondent for reasons beyond its control. It has approval from the Himachal Pradesh Industries Department, Tourism Department, H.P. State Pollution Control Board and the Public Works Department.

72 The State Government accorded necessary permission through letter dated January 13, 1992, valid for a period of 180 days (Annexure R-16/I). The permission from the Town and Country Planning Organisation is awaited since it has not taken any decision. The Sub-Registrar, Kasauli was approached for the registration of sale deed but he desired No Objection Certificate/permission from the Town and Country Planning Organisation before doing the needful, hence the sale deed could not be registered within the time stipulated in the permission order (Annexure R-16/I), After the expiry of this period, extension was sought for purchasing the land which has been granted but the matter is pending for want of permission from the Town and Country Planning Organisation. Further, extension was sought from the Government, however, the same has been declined (Annexure R-16/N). Representation (Annexure R-16/O) has been sent in this behalf but no decision has been taken thereon by this time. The replying Respondent is a bona fide entrepreneur interested in the establishment of hotel industry against substantial investments, Public interest litigation is not maintainable where the personal interest of the litigating person are involved The Petitioner has claimed personal/exclusive rights to the City of Kasauli to the exclusion of all others who may like to create vocations for themselves in the location. Otherwise, Panchayats and many other persons arc interested in the development of the area so that job opportunity for them and additional business for others become available. The Petitioner-Society has only a few members and majority is opposed to the claim being set up by the Petitioner. The petition deserves to be dismissed since disputed questions are involved in it and it also suffers from delay and laches. It should have approached the authorities quickly. By now, the replying Respondent has spent lacs of rupees in the development of the land etc.

Like Respondent No. 11, this Respondent further submits that the Petitioner comprises of certain selected citizens, may be described as ''rich and elite'' of this country They have their palatial bungalows either in Kasauli or in Gaskhal or in Kuthar or in Dharampur as Summer Resorts and they do not want anybody else to have resorts by owning flats/buildings and to have business over there or around it. The allegations about the environment degradation have been disputed and it has been stated that development is more important. It has further been stated that the answering Respondent will have its own sewerage system and pollution-free atmosphere. No damage to ecology and the environment would be done. Other averments of the replying Respondent are more or less the same which have been set up by other Respondents, more particularly, Respondent No. II.

M/s. Sanawar Resorts (P) Limited (Respondent No. 12) has stated that there is no cause of action against it and the Petitioner is estopped to file this petition on account of its own acts, deeds, conduct, lapses, admission and omissions. The land owners of the area cannot be prevented from utilising their land according to their requirements since the State Government has not taken any decision in regard to the land use in Kasauli though the Act may have been enforced from 1991, land use has neither been planned nor sanctioned. Public interest litigation does not lie against the replying Respondent since it has not been committed any wrongful act. Irvinder Singh Chadha, one of the partners, is an Engineer. After doing his degree in Engineering, with a view to earn his livelihood, he purchased land measuring 1 Bigha 15 Biswas in 1973 at Kasauli for doing Mushroom Farming in the name of Binrjy Farming, outside the Cantonment area He continued this work till 1988. He also purchased plots of land measuring 2.17 Bighas, 1.17 Bigha and 3 5 Bighas at Sanawar with a view to construct his residential houses and accommodation for running his Mushroom Unit. Since this Unit could not succeed, he shifted his business from Kasauli to Tauda as Mushroom Farming Consultant. The replying Respondent is himself in favour of good environment. It was on account of this interest that he had shifted his business, from Punjab to Kasauli to do Mushroom Farming. He has planted more than 500 fruit and non-fruit plants over his plots and in the surrounding areas, Ho is not involved in any reckless and careless construction nor he has in any way disturbed the ecology of the area. He has neither cut nor damaged any tree within the area under his control. He constructed the residential house and stores to do the Mushroom Farming in 1980 while Notification under the H.P. Town and Country Planning Act, 1977 was issued on October 17, 1991. Thereafter, he constructed three storeyed residential complex consisting of six sets and this construction was completed by the end of 1990. This construction was started in the month of July 1990. Since at that time provisions of the H.P. Town and Country Planning Act were not in force, no permission was required and the construction is at a distance of 6 kms from Kasauli Bus Stand.

The replying Respondent states that further construction shall not be carried on except with the prior permission of the State Government and the local authorities. Since the past construction was started before the commencement of the H.P. Town and Country Planning Act, 1977, the allegation levelled in the writ petition are not applicable to the replying Respondent. Moreover, it is being done through qualified and registered Architect "Parveen Kaushal and Associates, Chandigarh".

Investments of more than Rs. 10 lacs on Sanawar Resorts has been made. The relying Respondent is not a builder nor will he start any new construction without prior permission of the local authorities The replying Respondent is an agriculturist of Himachal Pradesh and he has not indulged in the construction work for selling flats. However, he has every right to utilise his land for the purpose of earning his livelihood.

All other allegations contained in the petition against the replying Respondent, have been denied by this Respondent.

M/s. Astra Estates (P) Ltd. (Respondent No. 15) has stated that the construction of Tourist Resort Complex has been undertaken at village Manon on behalf of Baba Sarabjot Singh Bedi, son of Madhu Sudan Singh Bedi, Una, H.P. Baba Sarabjot Singh is an agriculturist owning considerable agricultural property under his cultivation in District Una and is, therefore, an agriculturist of Himachal Pradesh and does not require permission u/s 118 of the H.P. Tenancy and Land Reforms Act, 1972 Baba Sarabjot Singh purchased two plots of land from Prem Singh, son of Shri Jeet Singh bearing Khasra No. 228 and Khasra No. 229 in village Shilog-Khurd, Tehsil Kasauli vide two sale deeds registered On June 15, 1990. Thereafter, Sarabjot Singh Bedi entered into an agreement dated June 30, 1990 with the Respondent-Company for construction of a Tourist Resort on the aforesaid land (Annexure R-I5/A). This deed of agreement demonstrates that in fact the aforesaid Tourist; Resort is being constructed only for Baba Sarabjot Singh Bedi who has agreed to share the profits and also to reimburse the Company the cost of the construction.

Pursuant to the agreement (Annexure R-l 5/A), the construction of the Tourist complex commenced in the month of October 1990 and a telephone connection was installed in October, 1990, consequent to the demand note of Telecommunication Department dated October 12, 1990 (Annexure R-15/B). Water connention and electricity connection were also given to the Company during March, 1991 (Annexure R-15/C). As stated, the construction was started before the application of the provisions of the Town and Country Planning Act in the area which would be clear from notice received from the Collector, Solan dated February 19, 1992 under the provisions of the H.P. Roadside Land Control Act, 1968 (Annexure R-15/D) and notice dated February 17, 1992 by the Town and Country Planner, Parwanoo (Annexure R-15/E-1). A notice dated January 9, 1992 was also received from the Assistant Engineer, Kasauli Sub- Division, H.P. Public Works Department (Annexure R-15/F). Another notice dated May 25, 1991 was received from Tehsildar Kasauli asking the Company to explain under what capacity the construction was being carried out (Annexure R-15/G), The area falls outside Kasauli Cantonment Board, therefore, the provisions of the Cantonment Act, rules and regulations do not apply to the construction activities of the replying Respondent.

For the present, as many as six cottages have been completed and foundations of four cottages have been laid and the area has been levelled. There is proposal for construction of 30 double-storeyed cottages. While making the construction, not a single tree of any dimension has been felled. Rather, trees were coming in the way of approach to the resort which has been constructed in such a way that the trees are left unharmed and they will continue to grow as would be seen from the photograph (Annexure R-15/I). No restrictions were placed in respect of the construction activities of the Company under the Town and Country Planning Act since the area came under the purview of the Act for the first time through notification of October 17, 1991 published in the Rajpatra on January 11, 1992. The freezing of land use was done only on August 31, 1992 in terms of amended provisions of Section 15A of the Act. The Company had converted the land use much before August 31, 1992, therefore, it has not violated any law, rule or regulation. No specific violation of any Act, rule or regulation has been pointed out against the Company which has its own system of disposal of waste material, water supply and sewerage in the form of septic tanks.

Through preliminary objection, it has been asserted that the Petitioner''s members are non-residents of Kasauli having their roots outside. They spend only a few weeks or months during summer season at Kasauli in their palatial houses constructed or renovated in violation of the Cantonment Board Act and the rules and regulations made thereunder, intending to live exclusively in the Town and excluded others to have their houses and other developmental activities in and around Kasauli. They have influenced the authorities and undertaken construction and renovation activities from time to time. It is on account of their personal interest to live in the town to the exclusion of others that the present petition has been brought in order to prevent the development of the town and the area surrounding it. The construction activity in the town is strictly controlled by Section 179 of the Cantonment Board Act, 1924 and there is no violation of these provisions in any case and the allegation of haphazard construction is without any basis. Similarly, the allegation that the green cover has come down to ten per cent from eighty per cent existing some decades ago, is also wrong. Most of the area in and around Kasauli is barren with only a few patches of forest here and there which have been maintained properly and no damage to it has been done by the construction activities

It has been denied that commercial exploitation of the area has been undertaken by the big builders to the exploitation of the local by the construction of huge complexes causing damage to the environment and ecology The replying Respondent is not a Construction Company. The project has been undertaken since the owner of the land is an agriculturist of Himachal Pradesh and the Tourist Resort is in consonance with the policy promoting tourism in the State. There has not been violation of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 Revenue Authorities have dropped the proceedings against it after being satisfied that the owner of the land and building is an agriculturist of Himachal Pradesh. It has also been denied that Kasauli area is earthquake prone, there are many multi-storeyed buildings of Telecommunication, Army and Central Research Institute existing here with no damage to ecplogy and environment, therefore, no objection can possibly be raised against the construction being undertaken by the replying Respondent.

Other averments of the replying Respondent are similar to those filed jointly by the Panchayats, bodies arid other persons on the affidavit of Shri Krishan Murthy, Chemist and General Merchant, Kasauli, Member Cantonment Board, dated August 22, 1993.

Smt. Ranbir Kaur Kang (Respondent No. 20) and S. Navreet Singh Kang (Respondent No. 21) have been impleaded by order dated August 19, 1993, through Civil Miscellaneous Applications No 2484 of 1993 and 2485 of 1993. Though they were directed to file their replies within a period of four weeks, yet they have not done so. However, their claim can be seen from their applications for impleadment. They have stated that they wanted to build a house in village Kafal-Ka-Hara in Tehsil Kasauli and settle there. Since they were non-agriculturists of Himachal Pradesh, permission was sought from the State Government under the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. This application was routed through the Deputy Commissioner, Solan, who before recommending the same to the Commissioner, Shimla Division, obtained the concurrence/clearance from various departments including the Town and Country Planning Department. The matter was ultimately referred to the State Government for the requisite permission. After considering the various reports, permission was granted by letters No. Rev. 2F/10/113/93 dated July 17, 1993 (Annexure Y/l) and Rev. 2F/10/110/93 dated June 29, 1993 (Annexure X/1). Since the replying Respondents have sought the permission in accordance with law and in order to settle at this place because of disturbed conditions in Punjab, there is no lack of bona fide on their part. The permission is only for land measuring 10 biswas each Respondent. In these circumstances, the allegations of the Petitioner do not apply for the case of the replying Respondents.

Ministry of Defence (Respondent No. 9) has not filed any reply despite number of opportunities given to it, although it has serious grievance about the haphazard construction in Kasauli posing serious threat to defence installations there.

Shri J. S. Khehar contended that the petition deserves to be dismissed since the cause, being pleaded by the Petitioner, is not entertainable by way of public interest litigation. According to the learned Counsel, the Petitioner comprises of a few persons of Kasauli and around it, therefore, it cannot initiate the litigation by way of public interest on behalf of the general public interested in the development of the area. Reference to various local Panchayats, bodies and other inhabitants of the area was made to highlight the point. Shri Khehar further contended that the President, Secretary and a few other Members of the Petitioner belong to elite bureaucratic class wanting to live in seclusion to the exclusion of others. They have palatial houses for themselves bat do not like others to build houses and in order to achieve this object, they had been influencing the State Government and others by writing communications one after the other calling for stoppage of construction and elimination of all others by setting up the bogy of environment and ecology In these circumstances, the standing of the Petitioner has to be seen before entertaining a petition of this nature and in case its standing is taken into consideration, the petition be dismissed. Placing reliance on Krishna Swami Vs. Union of India and another, it was contended that the Petitioner has no locus standi to file the present petition in the absence of persons really effected by the construction activities going on in the area.

Before we examine this contention, we may refer to the stand of the State Government and Respondent No. 19. Shri Indar Singh, learned Advocate General submitted that the importance of this case is unquestionable since it concerns everybody-present as well as the future generation. It is a matter over which every one of us should ponder and decide the future action. It is not a litigation interpartes. Realising the importance of the matter, Constitution amendments in Articles 48A and 51A were carried out. It shows the concern of the nation to the ecology and environment. Any guidance that may be given by this Court in the judgment, would be implemented in the State as it would be beneficial to all. Those who are opposing it, are wrong since it wilt affect them and their children as well It is not a question how this matter has been brought to the notice of the Court by any one It could be initiated by the Court of its own. All people of Kasauli should have come forward to agitate it. It is misplaced argument that it is not a public interest litigation. If residents of Kasauli will not bring it to the notice of Court, who will do it ? The Petitioner is vitally interested in it. The members of the Petitioner want to have free atmosphere over there. They have right to it irrespective of the period of their stay at this place. A few Panchayats who are opposing it, have exceeded their jurisdiction in doing so. They are not realising that this is a national problem.

The State Government is making strenuous efforts to maintain ecology and environment and in order to achieve it, all laws relating to it are being pressed into service vigorously and effectively. Wherever default is found committed, it would be dealt with. The enquiry report has suggested some cases where violation has been committed. Action in that behalf would be taken in accordance with law.

Shri H. S. Mattewal submitted that he has no objection against the maintainability of the petition in the present form This kind of litigation should be encouraged for a general cause. However, this Court may not interfere in the present case since the Petitioner has not specifically pointed out the violation of any law nor has the Respondent done anything affecting the environment and ecology of the area or acted contrary to the existing laws on the subject. The Enquiry Committee of the State Government has also not found anything against it.

We are unable to appreciate or accept the submission of Shri Khehar, The petition has been filed by Society for Preservation of Kasauli and its Environs (Regd.). It is a Registered Society with object to maintain the environment and ecology of the area. Its membership is not confined to Kasauli, rather, it extends to areas adjoining It. Shri B.K. Nehru is the President of the Society. He had held the high offices of Indian Ambassador to United States of America, Governor to the States of Jammu and Kashmir and Gujarat etc. etc. The Secretary of the Society is stated to be a former Income Tax Commissioner, Punjab. There is one more Member whose name is predominant in numerous communications and was very often discussed by the learned Counsel for the parties, he is Shri B. S. Grewal, a former I.C.S. Officer They all have their houses in Kasauli and area nearby it. Simply because they have been ex-bureaucrats and live in their so-called palatial houses for some duration in a year, does not mean that they have no locus standi to initiate the present litigation seeking prevention of degradation in ecology and environment of the area. They are enlightened citizens and have every right to live in an atmosphere of peace and breathe fresh air and move about in a calm and serene atmosphere under Article 21 of the Constitution of India. This atmosphere of Kasauli may have prompted them to have their houses there. Looking at the mass hazardous construction activities in and around Kasauli, they had been in touch with the Government impressing upon it to plan this area properly, so that degradation of the environment and ecology could be avoided in addition to the violation of other statutory provisions relating to the transactions between the locals and the outsiders, more particularly, the colonisers. The environment and ecology is a matter which concerns everyone, therefore, the locus standi of the Petitioner, in our considered opinion, is beyond doubt.

The requirement of locus standi of a party in a private litigation may not be relaxable but it is not so in public interest litigation seeking a right of general nature for the common benefit of the public. The allegation that the Petitioner is agitating a private grievance through the present litigation, is not correct. By now, the apex Court has widely enlarged the scope of this kind of litigation by relaxing and liberalising the rule of standing relating to matters of general public interest and violation of Fundamental Rights and other statutory provisions initiated through public spirited persons. We do not propose to deal with all the decisions of the Supreme Court on this question. We would like to refer to the recent decision of the Supreme Court reported in Janata Dal Vs. H.S. Chowdhary and Others, since it has taken to consideration almost all the past decisions on the subject. It defines public interest litigation, role of Judiciary, the standing of the party initiating it, its subject-matter and the relief awardable, etc. etc. We may quote paragraphs 56, 58, 61 to 67, 74 and 75:

The seed of the concept of PIL were initially shown in India by Krishna Iyer, J. in 1976 (without assigning the terminology) in The Mumbai Kamgar Sabha, Bombay Vs. Abdulbhai Faizullabhai and Others, he while disposing an industrial dispute in regard to the payment of bonus, has observed (para 7 of AIR):

Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shrot-comings. Even Article 226, viewed on wider perspective, may be amendable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher Courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law.

In Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others Vs. Union of India (UOI) and Others, the terminology "public interest litigation" was used. In that decision, Krishna Iyer, J. delivering his opinion for Bhagwati, J. (as the learned Chief Justice then was) and himself used the expression ''epistolary'' jurisdiction. However, this rule on gaining momentum day by day, burgeoned more and more expanding its branches in the cosmos of PIL and took its root firmly in the Indian Judiciary and fully blossomed with fragrant smell in S.P. Gupta Vs. President of India and Others,

The traditional syntax of law in regard to locus standi for a (sic) judicial redress, sought by an individual person or detri (sic) class or identifiable group of persons, is available only to that person or class or group of persons who has or haye suffered a legal injury by reasons of violation of his or their legal right or a right legally protected, the invasion of which gives rise to actionability within the categories of law. In a private action, the litigation is bipolar ; two opposed parties are locked in a confrontational controversy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings being brought by the persons in whom the right personally inhere or their legally constituted representatives who are thus obviously most competent to commence the litigation.

In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper ; since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularis of Roman Law whereby any citizen could bring such an action in respect of a public delict.

It will be befitting to recall the observation of this Court in People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, which reads thus (para 9 of AIR):

But the traditional rule of standing which confines access to the judicial process only to those to who in legal injury is caused or legal wrong is done has now been jettisoned by this Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo Saxon system of jurisprudence have been broken and a new dimension has been given to the doctrine of locus standi which has revolutionised the whole concept of access to justice in a way not know before to the western system of jurisprudence.... it is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may become easily available to the lowly and the lost.

R.S. Pathak, J. (as the learned Chief Justice then was) while agreeing with the directions proposed by Bhagwati, J. (as the learned Chief Justice then was) in Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, para 56), expressed his view stating, "In public interest litigation, the role held by Court is more assertive than in traditional actions.

M.N. Venkatachaliah, J. speaking for the Bench in Sheela Barse Vs. Union of India (UOI) and Others, has brought out the distinction between private litigation and public interest litigation in the following words (para 6 of AIR):

In a public interest litigation, unlike traditional dispute resolution mechanism, there is no determination or adjudication of individual rights. While in the ordinary conventional adjudications the party structure is merely bipolar and the controversy pertains to the determination of the legal consequences of past events and the remedy is essentially linked to and limited by the logic of the array of the parties, in a public interest action the proceedings cut across and transcend these traditional forms and inhibitions. The compulsion for the judicial innovation of the technique of a public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State... The dispute is not comparable to one between private parties with the result there is no recognition of the status of a dominus litis for any individual or group of individuals to determine the course or destination of the proceedings, except to the extent recognised and permitted by the Court. The "right" of those who bring the action on behalf of the others must necessarily be subordinate to the "interests" of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of Government action in relation to the constitutional or statutory rights of segments or society and in certain circumstances the conduct of Government policies. Necessarily, both the party structure and the matters in controversy are sprawling and amorphous, to be defined and adjusted or readjusted as the case may be, ad hoc, according as the exigencies of the emerging siutations. The proceedings do not partake of pre-determined private law litigation models but are exogemusly determined by variations of the theme.

Though we have, in our country, recognised a departure from the strict rule of locus standi as applicable to a person in private action and broadened and liberalised the rule of standing and thereby permitted a member of the public, having no personal gain or oblique motive to approach the Court for enforcement of the constitutional or legal rights of socially or economically disadvantaged persons who on account of their poverty or total ignorance of their fundamental rights are unable to enter the portals of the Courts for judicial redress, yet no precise and inflexible working definition has been evolved in respect of locus standi of an individual seeking judicial remedy and various activities in the field of PIL Probably, some reservation and diversity of approach to the philosophy of PIL amount some of the Judges of this Court as reflected from the various decisions of this Court, is one of the reasons for this Court finding it difficult to evolve a consistent jurisprudence in the field of PIL. True, in defining the rule of locus standi no ''right litmus test'' can be applied since the broad contours of PIL are still developing apace seemingly with divergent views on several aspects of the concept of this newly developed law and discovered jurisdiction leading to a rapid transformation of judicial activism with a far-reaching change both in the nature and form of the judicial process.

In this context, it would be quite relevant to recite the observations made by Bhagwati, J. (as the learned Chief Justice then was) in S.P. Gupta Vs. President of India and Others, , reading thus:

Today a vast revolution is taking place in the judicial process; the threate of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new, strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public-spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal rights have been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief.

So far as the newly invented concept of PIL in Indian legal system is concerned, we can be proud of saying that there is a tremendous development and dynamic progress in the cosmos of PIL in spue of multiple criticism levelled against the various aspects of PIL, The melioration of the philosophy of PIL is demonstrably radiated by the long line of decisions, a few of which we will presently refer to.

This Court in Sunil Batra Vs. Delhi Administration and Others etc., , has accepted a letter written to the Supreme Court by one Sunil Batra, a prisoner from tihar Jail, Delhi complaining that the Jail Warder had subjected another prisoner serving life term in the same jail to inhuman torture. This Court treated that letter as a writ petition and by an elaborate judgment allowed the petition and issued certain directions inclusive of one for taking suitable action against the erring official to the Ministry of Home Affairs and all State Governments on the ground that Prison Justice has pervasive relevance, thereby enlarging the scope of habeas corpus by making it available to a prisoner not only for seeking his liberty but also for the enforcement of a constitutional right to which he was entitled to even while in confinement.

It is clear from para 75 of this decision that the apex Court approved the principle it had laid down earlier in cases like: Kurukshetra University and Another Vs. State of Haryana and Another, ; Sunil Batra Vs. Delhi Administration and Others etc., ; Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association Vs. Union of India (UOI) and Others, ; National Textile Workers'' Union and Others Vs. P.R. Ramakrishnan and Others, ;D.S. Nakara v. Union of India AIR 1983 SC 130 ; Dr. Upendra Baxi (I) Vs. State of Uttar Pradesh and Another, ; Mrs. Veena Sethi Vs. State of Bihar and Others, ; Dr. P. Nalla Thampy Thera Vs. Union of India (UOI) and Others, ; A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, ; Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802 ; Rural Litigation and Entitlement Kendra, Dehradun and Others Vs. State of U.P. and Others, ; Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, and Ramsharan Autyanuprasi and another Vs. Union of India and others, .

In para 87, it has been held that:

From the above pronouncements, it emerges that this summit Court has widely enlarged the scope of PIL by relaxing and liberalising the rule of standing by treating letters or petitions sent by any person or association complaining violation of any fundamental rights and also entertaining writ petitions filed under Article 32 of the Constitution by public spirited and policy oriented activist persons or journalists or of any organisation rejecting serious challenges made with regard to the maintainability of such petitions rendered many virtuosic pronouncements and issued manifold directions to the Central and the State Governments, all local and other authorities within the territory of India or under the control of the Government of India for the betterment of the public at large in many fields in conformity with constitutional prescriptions of what constitutes the good life in a socially just democracy. The newly invented proposition of law laid down by many learned Judges of this Court in the arena of PIL irrefutably and manifestly establish that our dynamic motivism in the field of PIL is by no means less than those of other activist judicial systems in other part of the world.

Then, the following observations from S. P. Gupta''s case (supra) have been quoted with approval (para 90 p. 915):

...any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objectives.

The note of caution while entertaining this kind of litigation, has also been recorded by the learned Judge which is noticeable from paras 96 and 97, wherein it has been held that:

While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that Courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.

In S.P. Gupta Vs. President of India and Others, Bhagwati, J. emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigation. He has also left the following note of caution:

But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain political objective ...

Further, the note of caution in State of Himachal Pradesh Vs. A Parent of a Student of Medical College, Simla and Others, ; Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, and AIR 1991 420 (SC) has been recorded. M. Krishna Swami''s case (supra) does not apply to the present case. This decision turns upon its own facts. It does not deter from the principle of standing in the field of public interest litigation laid down by the Court in the decisions on this question

It can, therefore, be said that the locus standi of the Petitioner in agitating a public cause is to be broadly constructed and the petition examined accordingly. After carefully considering the standing of the Petitioner, in the light of the subject-matter, we have no doubt about the genuineness of the cause being agitated by the Petitioner through this petition and all the allegations against the Petitioner have no substance.

It was next contended that the Petitioner is estopped from challenging the action of the Respondents that too at this late stage. This contention has no substance and is liable to be rejected The Petitioner had been agitating the matter quite seriously and consistently. Numerous communications were exchanged with the relevant authorities, importance of the matter was highlighted and replies were, received. Ultimately, when it found that the State was not in a position to see the implementation of its laws effectively and the degradation of ecology and environment touching ugly heights, violation of statutory provisions becoming rampant, they filed the present petition. The construction activities are still going on. The grievance of the Petitioner has not ended. It is subsisting and if violations are not checked, they are likely to assume uncontrolablc and alarming proportions. These Respondents can neither claim estoppel against the Petitioner nor against the State, if their activities are in breach of the statutory provisions and causing damage to ecology and environment. No estoppel, can be claimed against statutory provisions. [See Gujarat State Financial Corporation Vs. Lotus Hotels Pvt. Ltd., ; Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., and Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, .

The doctrine of promissory estoppel has been summarised by the apex Court in para 14 of Godfrey''s case (supra) where it has been held that:

Of course we must make it clear, and that is also laid down in Motilal Sugar Mills case AIR 1978 SC 621, (supra), that there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government of public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to, carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory, estoppel being an equitable doctrine, it must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or, public authority to the promise or representation made by it, the Court would not raise ah equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mill''s case (supra) and we find ourselves wholly in agreement with what has been said in that decision on this point.

The principle laid down by the apex Court in State of Madhya Pradesh and Others Vs. Orient Paper Mills Ltd., is indisputable. The Respondent made feeble attempt to submit that hotels were being constructed in and around Kasauli keeping in view the policy of the State Government to develop Tourism. Assuming that the State Government declared this to be its policy but there had not been any declaration nor could there be any to the extent that the entrepreneurs would be at liberty to undertake the activity at any place they like, in any manner they like, commit any breach of the statutory provisions and annihilate environment and ecology. There could not be such a declaration nor any assurance of that kind either by the State Government or by any its Officers. No such assurance or declaration was pointed out to us by the learned Counsel during the course of the submissions.

It was also asserted that the petition not only involves disputed facts but also complicated questions of law and facts requiring evidence, therefore, the petition deserves dismissal. Assistance was sought from D.L.F. Housing Construction (P) Ltd. Vs. Delhi Municipal Corpn. and Others, If we look at the facts of this case, they are undoubtedly complicated and tricky. Therefore, in the light of the facts of this case, the apex Court held that in such a case, relief could not be granted. If the Court can proceed with the matter and allow the relief(s), it can do so in the facts and circumstances of the case before it. The apex Court decision does not lay down that even if Court can grant some of the many reliefs claimed, the petition should be dismissed as a whole thereby preventing the party even from claiming those reliefs which can be allowed to it without any difficulty.

Shri Rajiv Sharma, learned Counsel for the Petitioner, forcefully contended that Respondent No. 11 and other builders have purchased the lands in violation of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 which prohibits the transfer of agricultural land in favour of non-agriculturists and any transfer in violation of this provision, is void. The learned Counsel urged that contextual interpretation should be given to this provision and restricted definition to Societies, banks and other financial institutions, so that the intention of the Legislature prohibiting the transfer of agricultuial land in favour of non-agriculturists is realised. Non-agriculturist Societies, banks and other financial institutions; cannot be permitted to take the benefit of Sub-section (2) (f) of Section 118 of the Act. In case they intend to purchase agricultural land, they will have to seek the permission of the State Government u/s 118(2)(i) of the Act. If this interpretation is not given, the legislative intent of preventing the scarce agricultural land going into the hands of moneyed people Would; be completely annihilated since small land-owners would be prompted to part with their small holdings by the rich people at a low cost minimising the land available for doing agriculture in the State. In of der- to avoid the provisions of Sub-section (2) (i) of Section 118 of the Act, unscrupulous people, by giving fake residential addresses, would form/register Co-operative Societies and enter into land purchase transaction with the agriculturists,

In support of the contention that contextual interpretation should be given to the provision, Shri Rajiv Sharma placed strong reliance on large number of decisions like: M. Pentiah and Others Vs. Muddala Veeramallappa and Others, ; Maunsel H. Olins and Anr. (1975) All ER 16 ; Carew and Company Ltd. Vs. Union of India (UOI), ;Farrell v. Alexander (1976) 2 AER ; Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, ; K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another, ; Sanjeev Coke Manufacturing Company Vs. Bharat Coking Coal Limited and Another, ; Bhag Mal Vs. Ch. Parbhu Ram and Others, ; Commissioner of Income Tax, Bangalore Vs. J.H. Gotla, Yadagiri, ; Girdhari Lal and Sons Vs. Balbir Nath Mathur and Others, ; State of Tamil Nadu Vs. Kodaikanal Motor Union (P) Ltd., ; Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others, ; Utkal Contractors and Joinery Pvt. Ltd. and Others Vs. State of Orissa and Others, ; Tinsukhia Electric Supply Co. Ltd. Vs. State of Assam and others, and Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, .

These submissions have been opposed not only by the State but also by other Respondents Learned Advocate General contended that persons qualified under Rule 11 of the Himachal Pradesh Co-operative Societies Rules, 1971 can form Co-operative, Society and purchase the land. Such a Co-operative Society falls under Sub-section (2) (f) of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. Same is the case of a bank and they are not required to seek the permission of the State Government for purchasing the land. .

Shri J. S. Khehar submitted that Respondent No. 11 is qualified to enter into land transaction under Sub-section (2) (f) of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 being a Co-operative Society. The Society has been registered under the Co-operative Societies Act and its members are qualified under the Rules made thereunder.

Section 118 consists of two parts, the first relates to the agriculturists and the second to non-agriculturists A Co-operative Society and a bank have been permitted to purchase land. Limited definition cannot be given to Society nor contextual definition to the provision. All kinds of Societies have been exempted. In case the Legislature wanted to limit the exemption in favour of agricultural Co-operative Society, banks and financial institutions of similar description, it could expressly make such a provision. Therefore, the limitations sought to be placed by the Petitioner would mean adding something or reading something to the provision which is not there nor intended by the Legislature. Literal and functional interpretation has to be given and similar interpretation is required for interpreting Sections 113 and 118 of the Act.

The learned Advocate General, Shri Chhabil Dass, Shri J. S.. Khehar, Shri Kapil Dev Sood and Shri Arun Kumar Goel brought to our notice decisions like: Kanai Lal Sur Vs. Paramnidhi Sadhukhan, ; Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, ; Management Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. Vs. S.S. Railway Workers'' Union, ; Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, ; P.K. Unni Vs. Nirmala Industries and others [OVERRULED], ; Union of India and another Vs. Deoki Nandan Aggarwal, and Nelson Motis Vs. Union of India and another, .

We need not deal with all the decisions cited by the two sides, It would be appropriate to deal with some of them explaining the respective stands of the parties since the principles explained in the two sets of the decisions are well settled, however, their application depends on the facts and circumstances of each case. Before referring to them, it would be appropriate to reproduce Sections 113 and 118 of the H.P. Tenancy and Land Reforms Act, 1972.

Bar of transfer of ownership right-(1) No land in respect of which proprietary rights have been acquired under this Chapter shall be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights:

Provided that nothing in-Sub-section (1) shall apply to the transfer of land made for a productive purpose with the prior permission of the State Government in a prescribed manner:

Provided further that nothing in this Sub-section shall apply to the land mortgaged with the Co-operative Societies established under the Himachal Pradesh Co-operative Societies Act, 1968 (3 of 1969) or with a bank.

(2) Any transfer of land made in contravention of Sub-section (1) shall be void and no registering authority shall register any document evidencing such transfer under the Indian Registration Act, 1908.

(1) Notwithstanding anything to the contrary contained in any law, contract agreement, custom or usage for the time being in force, but save as otherwise provided in the Chapter, on transfer of land (including sales in execution of a civil court or for recovery of arrears of land revenue), by way of sale, gift, exchange, lease, mortgage, with possession or creation of a tenancy shall be valid in favour of a persdn who is not an agriculturist.

(2) Nothing in Sub-section (1) shall be deemed to prohibit the transfer of land by any person in favour of-

(a) a landless labourer; or

(b) a landless person belonging to a scheduled caste or a scheduled tribe; or

(c) a village artisan ; or

(d) a landless person carrying on an allied pursuit; or

(e) the State Government ; or

(f) a co-operative society or a bank ; or

(g) a person who has become non-agriculturist on account of the acquisition of his land for any public purpose under the Land Acquisition Act, 1894 (1 of 1894) ; or

(h) a non-agriculturist who purchases or intends to purchase land for the construction of a house or shop, or purchase a built-up house or shop, from the Himachal Pradesh State Housing Board, established under the Himachal Pradesh Housing Board Act, 1972 (10 of 1972) or from the Development Authority constituted under the Himachal Pradesh Town and Country Planning Act, 1977 (12 of 1977) or from any other statutory corporation set up under any State or Central enactment ; or

(i) a non-agriculturist with the permission of State Government for the purpose that may be prescribed:

Provided that a person who is a non-agriculturist but purchases land with the permission of the State Government under Clause (1) of this Sub-section shall irrespective of such permission, continue to be a non-agriculturist for the purposes of this Act:

Provided further that a non-agriculturist in whose case permission to purchase land is granted by the State Government, shall put the land to such use for which the permission has been granted, within a period of two years or a further such period, not exceeding one year, as may be granted by the State Government, to be counted from the day on which the deed covering the sale of the land is registered and if he fails to do so, the land so purchased by him shall vest in the State Government free from all encumbrances.

(3) No Registrar or the Sub-Registrar appointed under the Indian Registration Act, 1908 (16 of 1908) shall register any document pertaining to a transfer of land which is in contravention to Sub-section (1) and such transfer shall be void ab initio and the land involved in such transfer, if made in contravention of Sub-section (1), shall, together with structures, buildings or other attachments, if any, vest in the State Government free from all encumbrances:

Provided that the Registrar or the Sub-Registrar may register any transfer-

(i) where the lease is made in relation to a part or whole of a building ; or

(ii) where the mortgage is made for procuring the loans for construction or improvements over the land either from the Government or from any other financial institution constituted or established under any law for the time being in force or recognised by the State Government.

(4) It shall be lawful for the State Government to make use of the land which is vested or may be vested in it under Sub-section (2) or Sub-section (3) for such purposes as it may deem fit to do so.

Explanation -For the purpose of this section, the expression "land" shall include-

(i) land the classification of which as changed or has been caused to be changed to "Gair-mumkin", "Gair-mumkin Makan" or any other Gair-mumkin land by whatever name called, during the past five years countable from the date of entry in the revenue records to this effect ;

(ii) land recorded as "Gair-mumkin", "Gair-mumkin Makan" or any other "Gair-mumkin" land by whatever name called in the revenue records, except constructed area which is not subservieut to agriculture ; and

(iii) land which is a site of a building in a town or a village and is occupied or let out not for agricultural purposes or purposes subservient to agriculture.

(5) Savings -Notwithstanding anything contained in this Act, any transfer of land, situate within the territorial jurisdiction of a municipal corporation, municipal committee or a notified area committee, for any of the purposes, ie. for the construction of a dwelling house, a shop or a commercial establishment or office or industrial unit, made before the day on which the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 1987 is published in the official Gazette after its assent, shall be deemed always to have been made in accordance with the law as if Sub-section (2) of Section 118 of the Principal Act had not been amended by Section 4 of this Act

In Utkal Contractors and Joinery Pvt. Ltd. and Others Vs. State of Orissa and Others, it has been observed in para 9 that:

In considering the rival submissions of the learned Counsel and in defining and construing the area and the content of the Act and its provisions, it is necessary to make certain general observations regarding the interpretation of statutes. A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute ? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something. Parliament does not legislate where no legislation is called for Parliament cannot, be assumed to legislate for the sake of legislation ; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily. Again, while the words of an enactment are important, the context is no less important, For instance:

...the fact that general words are used in a statute is not in itself a conclusive reason why every case falling literally within them should be governed by that statute, and the context of an Act may well indicate that wide or general words should be given a restrictive meaning. (Halsbury 4th Edn,, Vol. 44 page 874)

In Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, , the apex Court held that (para 54, pp. 240-241):

Now, it is undoubtedly true that where the language of an enactment is plain and clear upon its face and by itself susceptible to only one meaning, then ordinarily that meaning would have to be given by the Court. In such a case the task of interpretation can hardly be said to arise. But language at best is an imperfect medium of expression and a variety of significations may aften lie in a word or expression. It has, therefore, been said that the words of a statute must be understood in the sense which the legislature has in view and their meaning must be found not so much in a strictly grammatical or etymological propriety of language, nor in its popular use, as in the subject or the occasion on which they are used and the object to be attained. It was said by Mr. Justice Holmes in felicitous language in Towne v. Eisner, that "a word is not a crystal, transparent and unchanged ; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used." The words used in a statute cannot be read in isolation: their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context. And when I use the word ''context'', I mean it in its widest sense "as including not only other enacting provisions of the same statute but its preamble, the existing state of the law, other statutes in pari materia and the mischief which-the statute was intended to remedy". The context is of the greatest importance in the interpretation of the words used in a statute. "It is quite true", pointed out Judge learned Hand in Helvering v. Gregory, "that as the articulation of a statute increases, the room for interpretation must contract ; but the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create". Again, it must be remembered that though the words used are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writiug, be it a statute, or contract, or anything else, it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that a statute always has some purpose or object to accomplish, whose sympathetic and imaginative discovery, is the surest guide to its meaning. The literal construction should not obsess the Court, because it has only prima facie preference, the real object of interpretation being to find out the true intent of the law maker and that can be done only by reading the statute as an organic whole, with each part throwing light on the other and bearing in mind the rule in Heydon''s case which requires four things to be "discerned and considered" in arriving at the real meaning: (1) what was the law before the Act was passed ; (2) what was the mischief or defect for which the law had not provided ; (3) what remedy Parliament has appointed ; and (4) the reason of the remedy. There is also another rule of interpretation which is equally well settled and which seems to follow as a necessary corollary, namely, where the words, according to their literal meaning "produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification", the Court would be justified in "putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear". Vide River Wear Commissioners v. Adamson. It is in the light of these principles of interpretation that I must proceed to consider what is the true meaning and effect of Clause (1) of Article 222: whether it permits transfer of a Judge from one High Court to another, irrespective of his consent.

In Bhag Mal Vs. Ch. Parbhu Ram and Others, the apex Court said in para 31 that:

A statutory provision must be so construed, if it is possible, that absurdity and mischief may be avoided. Where the plain and literal interpretation of a statutory provision produces a manifestly absurd and unjust result, the Court might modify the language used by the Legislature or even do some violence to it so as to achieve the obvious intention of the Legislature and produce a rational construction and just result. See in this connection the observations of Bhagwati, J. in the case of K.P. Varghese v. income tax Officer, Ernakulam

In K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another, it has been held that (para 6 p. 180):

The primary objection against the literal construction of Section 52, Sub-section (2) is that it leads to manifestly unreasonable and absurd consequences. It is true that the consequences of a suggested construction cannot alter the meaning of a statutory provision but it can certainly help to fix its meaning. It is a well-recognised rule of construction that a statutory provision must be so construed, if possible, that absurdity and mischief may be avoided. There are many situations where the construction suggested on behalf of the Revenue would lead to a wholly unreasonable result which could never have been intended by the legislature... It is now a well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could nevei have been intended by the legislature, the Court may modify the language used by the legislature or even ''do some violence'' to it, so as to achieve the obvious intention of the legislature and produce a rational construction (vide Luke v. Inland Revenue Commissioner) The Court may also in such a case read into the statutory provision a condition which, though not expressed, is implicit as constituting the basic assumption underlying the statutory provision....

It would be important to refer to paras 6 to 9 of Girdhari Lal and Sons Vs. Balbir Nath Mathur and Others, , in which Chinnappa Reddy, J., speaking for the Court said that:

It may be worthwhile to restate and explain at this stage certain well-known principles of interpretation of statutes: Words are but mere vehicles of thought. They are meant to express or convey one''s thoughts. Generally a person''s words and thoughts are concidental. No problem arises then, but, not infrequently, they are not.. It is common experience with most men, that occasionally there are no adequate words to express some of their thoughts. Words which very nearly express the thoughts may be found but not words with which will express precisely. There is then a great fumbling for words. Long-winded explanations and, in conversation, even gestures are resorted to. Ambiguous words and words which unwittingly convey more than one meaning are used. Where different interpretations are likely to be put on words and a question arises what an individual meant when he used certain words, he may be asked to explain himself and he may do so and say that he meant one thing and not the other. But if it is the legislature that has expressed itself by making the laws and difficulties arise in interpreting what the legislature has said, a legislature cannot be asked to sit to resolve those difficulties. The legislatures, unlike individuals, cannot come forward to explain themselves as often as difficulties of interpretation arise. So the task of interpreting the laws by finding out what the legislature meant is allotted to the courts. Now, if one person puts into words the thoughts of another (as the draftsman) puts into words the thoughts of the legislature) and a third person (the court) is to find out what they meant, more difficulties are bound to crop up. The draftsman may not have caught the spirit of the legislation at all; the words used by him may not adequately convey what is meant to be conveyed ; the words may be ambiguous ; they may be words capable of being differently understood by different persons. How are the courts to set about the task of resolving difficulties of interpretation of the laws ? The foremost task of a court, as we conceive it, in the interpretation of statutes, is to find out the intention of the legislature. Of course, where words are clear and unambiguous no question of construction may arise. Such words ordinarily speak for themselves. Since the words must have spoken as clearly to legislators as to judges, it may be safely presumed that the legislature intended what the words plainly say. This is the real basis of the so-called golden rule of construction that where the words of statutes are plain and unambiguous effect must be given to them. A court should give effect to plain words, not because there is any charm or magic in the plainness of such words but because plain words may be expected to convey plainly the intention of the legislature to others as well as judges Intention of the legislature and not the words" is paramount. Even where the words of statutes appear to be prima facie clear and unambiguous it may sometimes be possible that the plain meaning of the words does not convey and may even defeat the intention of the legislature ; in such cases there is no reason why the true intention of the legislature, if it can be determined, clearly by ether means, should not be given effect. Words are meant to serve and not to govern and we are not to add the tyranny of words to the other tyrannies of the world.

Parliamentary intention may be gathered from several sources. First, of course, it must be gathered from the statute itself, next from the preamble to the statute, next from the Statement of Objects and Reasons, thereafter from parliamentary debates, reports of committees and commissions which preceded the legislation and finally from all legitimate and admissible sources from where there may be light. Regard nuist be had to legislative history too.

Once parliamentary intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the court to give the statute a purposeful or a functional interpretation. This is what is meant when, for example, it is said that measures aimed at social amelioration should receive liberal or beneficent construction Again, the words of a statute may not be designed to meet the several uncontemplated forensic situations that may arise. The draftsman may have designed his words to meet what Lord Simon of Glaisdale calls the ''primaiy situation''. It will then become necessary for the court to impute an intention to Parliament in regard to ''secondary situations'', Such ''secondary intention! may be imputed in relation to a secondary situation so as to best serve the same purpose as the primary statutory intention does in relation to a primary situation.

So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary.

In State of Tamil Nadu Vs. Kodaikanal Motor Union (P) Ltd., , it has been said that (para 17 p. 100):

g 17. The courts must always seek to find out the intention of the legislature Though the courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity As Judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whosa imaginative discovery is judicial craftsmanship We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should'' not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye ''some'' violence to language is permissible. (See At. P. Varghese v. ITO and Luke v. Inland Revenue Commissioners).

In Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others, , it has been said that (para 33 p. 450):

Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the court construed the ejspi ession ''prize chit'' in Srinivasa and we find no reason to depart from the court''s construction.

In para 46 of Commissioner of Income Tax, Bangalore Vs. J.H. Gotla, Yadagiri, Mukharji, J. (as he then was) said that:

Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. It is necessary to remember that language is at best an imperfect instrument for the expression of human intention. It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning.

In Management Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. Vs. S.S. Railway Workers'' Union, it has been observed that (para 6, p. 518):

But the intention of the legislature, as observed by Lord Watson in Salomon v. A. Salomon and Co. Ltd. (1987) AC 22 at p. 28, "is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact". It is well settled that the meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation and the primary duty of a court is to find the natural meaning of the words used in the context in which they occur, that context including any other phrase in the Act which may throw light on the sense in which the makers of the Act used the words in dispute. In R. v. Wimbledon Justices 1953 (1) QB 380, Lord Goddard said: "Although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there ...." Similarly, in R. v. Mansel Jones (1889) 23 QBD 29, Lord Coleridge said that it was the business of the courts to see what Parliament had said, instead of reading into an Act what ought to have been said So too, in Latham v. Lafone (1887) 2 EX 115 at p. 121, Martin B. said: "I think the proper rule for construing this statute is to adhere to its words strictly ; and it is my strong belief that, by reasoning on long-drawn inferences and remote consequences, the courts have pronounced many judgments affecting debts and actions in a manner that the persons who originated and prepared the Act never dreamed of". In the light of these principles we ought, therefore, to give a literal meaning to the language used by the Parliament unless the language is ambiguous or its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act.

In Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, , it has been observed that (para 55 p. 2358):

Now, it is undoubtedly true that where the language of an enactment is plain and clear upon its face and by itself susceptible to only- one meaning, then ordinarily that meaning would have to be piven by the court. In such a case the task of interpretation can hardly be said to arise. But language at best is an imperfect medium of expression and a variety of significations may often lie in a word of expression. It has, therefore, been said that the words of a statute must be understood in the sense which the legislature has in view and their meaning must be found not so much in a strictly grammatical or etymological propriety of language, nor in its popular use, as in the subject or the occasion on which they are used and the object to be attained. It was said by Mr. Justice Holmes in felicitous language in Towne v. Eisner (1917) 245 US 418, that "a word is not a crystal, transparent and unchanged ; it is the skin of a living thought and may vary greatly in colour and content according to the circumstanoes and the time in which it is used". The words used in a statute cannot be read in isolation ; their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context. And when I use the Word ''context'', I mean it in its widest sense "as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia and the mischief which-the statute was intended to remedy". The context is of the greatest importance in the interpretation of the words used in a statute. "It is quite true", pointed out by Judge learned Hand in Helvering v. Gregory 69 F 2d 809, "that as the articulation of a statute increases, the room for interpretation must contract ; but the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which, all appear, and which all collectively create". Again, it must be remembered that though the words used are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing, be it a statute, a contract, or anything else, it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary ; but to remember that a statute always has some purpose or object to accomplish whose sympathatic and imaginative discovery is the surest guide to its meaning The literal construction should not obsess the Court because it has only prima facie preference, the real object of interpretation being to find out the true intent of the law maker and that can be done only by reading the statute as an organic whole, with each part throwing light on the other and bearing in mind the rule in Heydor''s case (1854) 16 ER 637, which requires four things to be "discerned and considered" in arriving at the real meaning: (1) what was the law before the Act was passed ; (2) what was the mischief or defect for which the law had not provided ; (3) what remedy Parliament has appointed ; and (4) the reason of the remedy There is also another rule of interpretation which is equally well settled and which seems to follow as a necessary eorolary, namely, where'' the words, according to their literal meaning "produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification", the Court would be justified in "putting on them some other signification, which, though lesser proper, is one which the Court thinks the words will bear". Vide River War Commrs v. Adamson (1877) 2 AC 743, It is in the light of these principles of interpretation that I must proceed to consider what is the true meaning and effect of Clause (1) of Article 222: Whether it permits transfer of a Judge from one High Court to another, irrespective of his consent.

In P.K. Unni Vs. Nirmala Industries and others [OVERRULED], , it has been said in Para 11 that:

The words of the statutes being clear, explicit and unambiguous, there is no scope to have recourse to external aid for their construction....

Further, it has been said in paras 14 and 15 that:

The Court must indeed proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said: See Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, Assuming there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. "No case can be found to authorise any court to alter a word so as to produce a cause omissus": Per Lord Halsbury, Mersey Docks v. Henderson (188) 13 App Cas 595, 602. "We cannot aid the legislature''s defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there": Crawford v. Spooner (1846) 6 Moore PC 1, 8, 9.

Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the Court can, of course, adopt a construction which will carry out the obvious intention of the legislature. In doing so "a judge must not alter the material of which the Act is woven, but he can and should iron out the creases": Per Denning, L.J., as he then was, Seaford Court Estates v. Asher (1949) 2 AELR 155 at 164. See the observation of Sarkar, J. in if M. Pentiah and Others Vs. Muddala Veeramallappa and Others, .

In Nelson Motis Vs. Union of India and another, , it has been said in para 8 that ;

The language of Sub-rule (4) of Rule 10 is absolutely clear and does not permit any artificial rule of interpretation to be applied. It-is well established that if the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning, irrespective of consequences. The language of the sub-rule here is precise and unambiguous and therefore, has to be understood in the natural and ordinary sense. As was observed in innumerable cases in India and in England, the expression used in the statute alone declares the intent of the legislature. In the words used by this Court in State of Uttar Pradesh Vs. Dr. Vijay Anand Maharaj, , when the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the act speaks for itself. Reference was also made in the reported judgment to Maxwell stating:

The construction must not, of course be strained to include cases plainly omitted from the natural meaning of the words.

The comparison of the language with that of Sub-rule (3) re-inforces the conclusion that Sub-rule (4) has to be understood in the natural sense. It will be observed that in Sub-rule (3) the reference is to "a Government servant under suspension" while the words "under suspension", is omitted in Sub-rule (4). Also the Sub-rule (3) directs lhat on the order of punishment being set aside, "the order of his suspension shall be deemed to have continued in force" but in Sub-rule (4) it has been said that "the Government servant shall be deemed to have been placed under suspension". The departure made by the author in the language of Sub-rule (4) from that of Sub-rule (3) is conscious and there is no scope for attributing the artificial and strained meaning thereto. In the circumstances it is not permissible to read down the provisions as suggested. We, therefore, hold that as a result of Sub-rule (4) a Government servant, though not earlier under suspension, shall also be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, provided of course, that the other conditions mentioned therein are satisfied.

In Kanai Lal Sur Vs. Paramnidhi Sadhukhan, , it has been said in para 6 that it must be borne in mind that the first and primary rule of construction is that the intention of the legislature must be found in the words used by the Legislature itself, If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words aie capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction.

After referring to the important decisions of the appex Court dealing with the cardinal principles for statutory interpretation, we revert back to examine the contention raised by the learned Counsel for the parties pertaining to Sections 113 and 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, We disagree with the submission raised by Shri Rajiv Shaima that contextual interpretation must be adopted to discover the intention of the Legislature that Co-operative Society, Bank or other financial institutions mean only those which are agricultural in content, scope and operation and in case they do not answer this description, they are outside the scope of Section 118(2)(f) of the Act and Clause (i) of Sub-clause (2) of Section 118 becomes applicable.

The Himachal Pradesh Tenancy and Land Reforms Act, 1972 aims at unifying the different tenancy and land reform laws that were applicable in old Himachal Pradesh and the area merged in it as a result of reorganisation of the State of Punjab, It is a legislation on tenancy and land reforms. It provides, inter alia, for the abolition of intermediaries on land and bring the tillers of the land in direct contact with the State ; resumption of land by the landowners from their non-occupancy tenants for self cultivation ; regulates relationship between landowners and tenants ; protection to members of Armed Forces and other persons requiring protection such as minors and widows and those incapable of cultivating land personally due to infirmities; placing of restrictions on transfer of land in favour of non-agriculturists.

Section 2(2) defines "agriculturists" to mean a person who cultivates land personally in an estate situated in Himachal Pradesh. It may be by one''s own account or by one''s own labour or by the labour of, any member of one''s family or under the personal supervision of oneself or any member of one''s family by hired labour or by servant on wages payable in cash. Incase of a joint family, the land shall be deemed to have been cultivated personally if it is cultivated by any member of such family.

Bank has been defined as under:

Bank" has the same meaning as assigned to it in the Himachal Pradesh Agricultural Credit Operation and Miscellaneous Provisions (Banks) Act, 1972, where it has been defined as under:

(i) a banking company as defined in the Banking Regulation Act, 1949 (10 of 1949);

(ii) the State Bank of India constituted under State Bank of India Act, 1955 (23 of 1955);

(iii) a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959) ;

(iv) a corresponding new bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) ;

(v) any banking institution notified by the Central Government u/s 51 of the Banking Regulation Act, 1949 (10 of 1949) ;

(vi) the Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963 (10 of 1963);

(vii) the Agro-Industries Corporation as defined in Sub-section (c);

(viii) the Agricultural Finance Corporation Limited, a Company incorporated under the Companies Act, 1956 (1 of 1956) ; and

(ix) any other financial institution notified by the State Government in the official Gazette as a bank for the purpose of this Act.

The reason for placing restrictions on the transfer of land in favour of non-agriculturists in the Act was to avoid concentration of wealth in the hands of non-agriculturists moneyed-class. Agricultural land in Himachal Pradesh is very limited in view of mountainous terrain and in case it is allowed to pass indiscriminately into the hands of this class by sheer strength of money power, utilising the same through remote control by use of black money in agriculture sector and avoid payment of tax, the small land holdings of the poor people of the State would vanish and the object of the land reforms legislation becoming totally inconsequential and purposeless. In order to check this problem, particularly in rural areas, the transfer of land in favour of non-agriculturists was, therefore, prohibited. Exception has been created in favour of certain classes described in Sub-section (2) of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.

Basing his contention on two decisions, namely, Lingappa Pochanna Appelwar Vs. State of Maharashtra and Another, and P. Rami Reddy and Others Vs. State of Andhra Pradesh and Others, , Shri Rajiv Sharma wanted Co-operative Societies, Banks and other financial institutions to have agricultural complexion for securing transfer of agricultural land.

We entertain no doubt that for enacting Sub-section (1) of Section 118, the intention of the Legislature was to prohibit the transfer of agricultural land in favour of non-agriculturists for reasons recorded hereinabove, however, this intention cannot be used for interpreting Section 118(2)(f). The language of Section 118 is quite plain and unambiguous. As it stands, no word can possibly be added to it nor taken out of it, therefore, it is susceptible to only one interpretation, namely, literal interpretation understandable in natural and ordinary sense. In case the Legislature had intended to prohibit transfer of agricultural land in favour of Co-operative Societies, banks and other financial institutions, it could do so while enacting the legislation initially or while the same was subjected to amendment at a later stage making the provision as in P. Rami Reddy''s case (supra).

Proviso (ii) to Sub-section (3) of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 cannot be utilised to give sustenance to the submissions of the Petitioner since it is relatable to the registration of a transfer-document. In view of the aforesaid conclusion, it is not necessary to examine the contention of Shri J. S. Khehar that similar meaning has to be given to Sections 113 and 118 of the Act. Even otherwise, Section 113 is not at all in issue in this case.

Shri Rajiv Sharma contended that members of the Society are not residents of the area of operation of the Society for the last six months nor was their financial stability ascertained as required by law The registration has taken place haphazardly and casually. The Respondent''s counsel states that most of the members of the Society are living in Kasauli and surrounding area for the past six months and their financial condition is satisfactory.

We notice that the area of operation of the Society is Kasauli and Garkhal Most of its members are stated to be residents of these two places. The contention that most of its members are outsiders and have described themselves to be residents of Kasauli and Garkhal simply to garb the land and construct flats for sale for outsiders through ''Benami'' transactions, cannot be answered at present for lack of adequate and satisfactory material, despite statement by Shri J. S. Khehar that the aims and objects of the Society are to construct the flats for its members, therefore, they are to be sold to them and none else and the Society has been registered by the competent authority.

It appears that the Society has been registered without caring to know whether it would be a limited or unlimited Society and whether the financial stability of the members is satisfactory. No record was placed before us on these two questions. Further, in case the flats are intended to be constructed for the members, Bye Laws provide for the realisation of the total cost from the members. This has not been done though amount more than Rs. 75 lacs is stated to have been spent by this time. Where from this amount has come, who has contributed it, there is no evidence. The Society started the construction even before becoming owner of the land by registering the sale deed which has not been done till date. All these questions arc to be enquired into since their determination is important for, the application of notification of August 31, 1992 (Annexure PC).

We may not have agreed with the contention of Shri Rajiv Sharma on the interpretation of Section 118(2)(f) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, however, the apprehensions entertained by him have great substance in the sense that the transfer of agricultural land in favour of non-agriculturists prohibited by Sub-section (1) of Section 118, can be secured by forming Co-operative Societies by influential moneyed-class We have held that the Legislature prohibited the transfer of land through various modes described in Sub-section (1) of Section 118 so that limited agricultural holdings of the landowners are not purchased by moneyed-class at throw-away prices and do away with the agricultural economy of the State since numerous rich people started purchasing land for raising orchards in these lands by utilising bjack money and managing these orchards through remote control. At that stage, it did not strike to the Legislature that the same result would be achieved by these people by forming Co-operative Societies or it did not consider the question since this kind of situation was not anticipated front a Co-operative Society. Now, it has become a normal trend, moving at an alarming speed. Numerous Societies have been formed by moneyed -class and to claim benefit of exemption under Sub-section (2) of Section 118 and avoid not only Sub-section (1) of Section 118 but also Proviso (i) of Sub-section (2) of Section 118 of the Act. Shady land deals appear to have been resorted to ; huge concrete multi-storey complexes are being constructed with sole purpose of earning huge profits by entering in ''Benami'' transactions with similarly placed moneyed-class. Therefore, time for taking immediate action has come so that this evil trend is arrested. Appropriate amendments to relevant laws including in the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and the Himachal Pradesh Co-operative Societies Act, 1968 have to be made so that the object which was there for enacting Sub-section (1) of Section 118, is achieved in other categories of cases falling under Sub-section (2) of Section 118 of the Act as well. Formation of spurious Societies/Companies/ Partnerships etc. should be prohibited and not allowed to purchase agricultural land. Others who have no intention to construct the houses for their own living, should also be treated similarly. In all cases, the permission for buying agricultural land should be accorded by the State Government under Proviso (i) of Sub-section (2) of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972.

Next, it was contended that the Respondents resorted to construction activities without seeking permission of the Himachal Pradesh Town and Country Planning Department. The State Government has constituted the Kasauli Planning Area u/s 13 of the Act with a definite limit through notification of October 17, 1991 (Annexure-PB) and by virtue of communication dated November 13, 1991 (Annexure PB/2-A), the general public has been informed of it and prohibited from constructing anything without the prior approval of the Town and Country Planning Department. It has also been stated that violators can be proceeded against in accordance with law. By notification of August 31, 1992 (Annexure-PC), issued uhder Section 15A of the Himachal Pradesh Town and Country Planning Act, 1977, the Governor of Himachal Pradesh has been pleased to freeze the existing land use of Kasauli Planning Area from the date of this notification for a period of three years. However, the builders have continued their construction activities making them liable under the Act. Referring to M/s. Hill Crest Homes (Respondent No. 11), it was contended that the construction was started without becoming owner of the land from the veador since no registration had taken place before the construction was started. The authorities did not make any efforts to stop it, rather, it was not only sleeping over the matter but also released certain communications thereby aiding in the illegal activities of the Respondent.

These submissions are not acceptable to the Respondents. The Respondents have stated that the construction was started before the commencement of notification dated August 31, 1992 freezing the existing land use of Kasauli Planning Area from the date of this notification for a period of three years, therefore, they could not be prevented from continuing the construction by the concerned Department.

M/s. Hill Crest Homes (Respondent No. 11) also contended that despite the fact that approval of the Town and Country Planning Department was not necessary for continuing the construction, however, it was sought and when it did not come within a period of six months, as per provision of Section 31(5) it would be deemed to have been granted. Similarly, construction plans were submitted to this Department but no response relating to it was received though the Department had allowed it to continue the construction. The Town and Country Planning Department has not said anywhere in the reply that the Respondents committed breach of the various provisions of this Act. Since no breach of any provision has been committed, neither the Department nor this Court can stop it. The replying Respondent had intimated the Government that it would be constructing this complex. Society was registered by the Government. The intended construction was duly advertised through various newspapers. Geological survey was conducted through two agencies. The land over which the construction has been done, can neither be used for grazing nor for agriculture. Permission from the Forest Department was sought for felling a few trees by the owners. Plans were prepetred and weie sent to the Government on March 21, 1991 as required by Section 31 of the Himachal Pradesh Town and Country Planning Act (Annexure R-11/9), though it was not necessary.

The Himachal Pradesh Town and Country Planning Act, 1977 (Act No. 12 of 1977) has been enacted to make provisions for planning, development and use of land ; to make better provision for the preparation of development plans and sectoral plans with a view to ensure town planning schemes are made in a proper manner and their execution is made effective ; to constitute the Town and Country Development Authority for proper implementation of town and country development plan ; to provide for development and administration of special areas through the Special Area Development Authority ; to make provision for the compulsory acquisition of land required for the purpose of the development plans and for purposes connected with the matters aforesaid,

Chapter IV deals with the planning areas and development plans. Planning area is constituted by notification by the State Government. Development plans are prepared by the Director u/s 14 thereof. Section 15 deals with the existing land use maps to be prepared by the Director to be finalised after receiving and deciding objections from persons concerned,

Section 15A is intended to be used whenever the State Government, after constituting planning area u/s 13 but before ths publication of existing land use map u/s 15, is satisfied that in any planning area or part thereof, the change of land use or any building operation therein is likely to cause injurious disturbance of the surface or any land or soil, or is considered detrimental to the preservation of the soil, prevention of land slides or protection against erosion ; or is likely to make it difficult to plan and develop the area in question in accordance with the provisions of the Act may by notification published in the official Gazette, freeze the existing land use for a period not exceeding three years The effect of this notification would be that no person shall change the use of any land or carry out any development of land other than the change for the purpose of agrsculture, without the permission of the Director ; and no local authority or Officer or other authority shall, notwithstanding anything contained in any other law for the time being in force, grant permission for the change in use of land without the written permission of the Director. The permission, if any granted by the Director, would be subject to such conditions and restrictions as may be imposed in this behalf by the State Government. The State Government has issued this notification on August 31, 1992 (Annexure-PC) and it has been made applicable from the date of the issue of this notification for a period of three years.

According to the replying Respondent, any land use resorted to before the application of this notification, would be good use and the notification would not be applicable to it,

Section 31 envisages that the Director, on receipt of application, shall either grant permission unconditionally or grant it subject to such conditions as may be deemed necessary under the circumstances or refuse the same. Every order granting permission subject to conditions, or refusing permission shall state the grounds for imposing such conditions or for such refusal, Sub-section (5) of Section 31 enjoins that in case the Director does not communicate his decision whether he grant or refuse permission to the Applicant within six months from the date of receipt of his application, such permission shall be deemed to have been granted to the Applicant on the date immediately following the date of expiry of six months. In computing the period of six months, the period in between the date of requisitioning any further information of the documents from the Applicant and the date of receipt of such information or documents from the Applicant shall be excluded.

Section 32 makes provisions for appeal against the decision of the Director by the Applicant aggrieved of his order. Section 33 deals with revisional power of the State Government, The permission granted, lapses on completion of one year unless the Director, on application by the Applicant, extends the same from year to year but the total period will not exceed three years from the date on which the permission was initially granted. However, the Act does not prohibit making of fresh application.

Section 39 provides for the power directing the delinquent to remove the unauthorised development. It is extracted as under:

(1) Where any development has been carried out as indicated in Section 38 the Director may, within five years of such development, serve on the owner a notice requiring him, within such period being not less than one month and not exceeding three months as may be specified therein from the date of service of the notice-

(a) in cases specified in Clause (a) or (c) of Section 38 to restore the land to its condition existing before the said development took place ;

(b) in cases specified in Clause (b) or (d) of Section 38 to secure compliance with the conditions or with the permission as modified:

Provided that where the notice requires the discontinuance of any use of land, it shall be served on the occupier also.

(2) In particular, such notice may, for purpose of Sub-section (1), require-

(a) the demolition or alteration of any building or works,

(b) the carrying out on land of any building or other operations, or

(c) the discontinuance any use of land.

(3) Any person aggrieved by such notice may, within fifteen days of the receipt of the notice and in the manner prescribed, apply to the Director for permission for retention of the land of any building or works or for the continuance of any use of the land, to which the notice relates and till the time the application is disposed of, the notice shall stand withdrawn.

(4) The foregoing provisions of this chapter shall, so far as may be applicable, apply to an application under Sub-section (3).

(5) If the permission applied for is granted the notice shall stand withdrawn, but if the permission applied for is not granted the notice, shall stand, or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other parts of the land, as the case may be ; and thereupon the owner shall be required to take steps specified in the notice under Sub-section (1) as respects to such other buildings, works or part of the land.

(6) If within the period specified in the notice or within the same period after the disposal of the application, the notice or so much of it as stands is not complied with, the Director may,-

(a) prosecute the owner for not complying with the notice and whether the notice requires the discontinuance of any use of land, any other person also who uses the land or causes or permits the land to be used in contravention of the notice, and

(b) where the notice required the demolition or any alteration of any building or works or carrying out of any building or other operations itself, cause the restorations of the land to its condition before the development took place and secure compliance with the condition of the permission or with the permission as modified by taking such steps as the Director may consider necessary, including demolition or alteration of any building or works or carrying out of any building or other operations, and recover the amount of any expenses incurred by him in this behalf from the owner as arrears of land revenue.

(7) Any person prosecuted under Clause (a) of Sub-section (6) shall, on conviction be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, and in the case of a continuing offence with further fine which may extend to two hundred and fifty rupees for every day during which the offence continues, after conviction for the first commission of the offence.

The important thing to be determined, therefore, is whether the Respondents had started the constructions before the issuance of the notification dated August 31, 1992 or thereafter. The letter of S. C. Prashar dated December 12, 1991 (Annexure PG) indicates that the construction had been started by ''M/s. Hill Crest Homes'' on the Lower Mall, ''Sanawar View'' on Dharampur Kasauli road and ''Astra'' on Parwanoo road. Similar letter dated December 31, 1991 (Annexure PH) by S.C. Prashar also points out construction by ''Hill Crest Homes'' and second block of ''Sanawar View'', at the site of ''Astra Project''. Apart from two blocks, there existed no construction. Letter of Shri B.K. Nehru to the Chief Minister of Himachal Pradesh dated October 23, 1992 simply points out that ''M/s. Hill Crest Homes'' were continuing with the construction despite freezing of land use by notification dated August 31, 1992 This construction is confirmed by the letter of Shri P. P. Shrivastav, Advisor to the Governor, dated April 17, 1993 and inspection report of the Society dated May 10, 1993 (Annexure R-11/l-T), But the Respondents can take advantage of the situation provided land deals, formation of Societies/Companies/ Associations/Parnerships/Power of Attorneys formed by them are found bona fide and legal, therefore, the defence being pressed into service, will arise for examination after recording finding on them by the competent authorities.

So far as M/s. Pine Grove School, Sanawar (Respondent No. 13) is concerned, its case is that the school started functioning from March 1991. By this time, many important buildings had been constructed and a few others were under construction. There is no change of land use after August 31, 1992, therefore, it may be permitted to complete the buildings under construction. In case, further expansion is necessary, prior permission would be sought from the Town and Country Planning Department and other authorities.

The Enquiry Committee has found that no mutation in favour of this Respondent has been attested since a case for violation of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 is pending before the Collector. As the matter is pending before the Collector, we do not think it appropriate to examine this aspect of the matter. Similar is our view in case of M/s. Astra Estate (P) Ltd. (Respondent No. 15) as this matter is also pending before the Collector for violation of the provisions of Section 118 of the Act, as pointed out by the Enquiry Committee. However, it is hoped that the matter would be dealt with in accordance with law.

It was submitted by learned Counsel appearing fdr M/s. Sanawar Resorts (P) Ltd. (Respondent No. 12) that the construction carried Out by it pertains to the period before the issuance of the notification dated August 31, 1992 and for future necessary permission from the relevant authorities of the State Government would be taken. For lack of proper material against this Respondent, we are not in a position to say anything about the illegality of its action The State will enquire how and in what circumstances the construction was carried out without being noticed by the relevant Departments. The ecological and environmental aspects of the matter in all cases would be dealt with separately.

M/s. Gagan Resorts (P) Ltd. (Respondent No. 16), M/s. Baikunth Resorts Ltd. (Respondent No. 19), Smt. Ranbir Singh Rang (Respondent No. 20) and Shri Navreet Singh Kang (Respondent No. 21) have permission from the State Government though they have not started the construction in view of the stay order by this Court.

So far as M/s. Hill Crest Homes (Respondent No. 11) is concerned, the land over which the construction has been started, is not as yet owned by this Respondent. Sale agreement against payment of some advance amount has been executed and no sale deed appears to have been registered between the parties. The State Government has not examined whether the Society has been registered legally and whether it could start the construction, even before becoming owner of the land in question by registration of the sale deed This fact is highlighted in the inspection report of Shri D.S. Chauhan, Assistant Registrar, Cooperative Societies, District Solan, dated May 10, 1993 (Annexure R-11/1-T) It says that the construction had been started before the issuance of the notification of August 31, 1992 and upto May 10, 1993, approximately nine storeys had been completed and pillars were being constructed for the tenth floor for which iron angles had been fixed. But this will become relevant after inquiring the legality of registration and non-registration of sale deed.

Now, we proceed to examine the ecological and environmental aspects of the case.

Article 48A of the Directive Principles of State Policy provides that:

48-A. Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

By the same amendment (Constitution 42 Amendment Act, 1976), 51-A was also enacted providing for fundamental duties under Part IV-A to the Constitution. 51-A (g) provides that:

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

This Constitutional amendment recognises the importance of environment and in order to protect and improve the same, safeguarding of forests, wild life, lakes and rivers has to be there.

Multi-faceted Article 21 recognises the right to a healthy environment. The right to life comprehends, inter alia, right to environment, right to health care and the right to an adequate health delivery system. Environmental rights have received recognition, beyond national parameters. It is a global concern and human right. While nature should be preserved, protected and nourished, exploitation of natural resources is necessary for the sustenance of the human race. But, such exploitation must be check-mated at the point where it causes environmental degradation. [See Bangalore Medical Trust v. B. S. Muddappa and Ors. (1991) SCC 54 ; T. Damodhar Rao and Others Vs. The Special Officer, Municipal Corporation of Hyderabad and Others, ; Environmental and Ecological Protection Samity v. The Executive Engineer and three Ors. ILR 1991 (3) Ker 125 and D.D. Vyas and others Vs. Ghaziabad Development Authority, Ghaziabad and another, .

In AIR 1991 420 (SC) , K.N. Singh, J. speaking for the Court said: (para 7 p. 424)

Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the apex Court. It provides for an extraordinary procedure to safeguard the Fundamental Rights of a citizen Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be determined to the quality of life. A petition under Article 32 for the pre vention of pollution is maintainable at the instance of affected persoas or even by a group of sociai workers or journalists. But recourse to proceeding under Article 32 of the Constitution should be taken by a person genuinely interested in the protection of society on behalf of the community Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32, are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine Petitioners from this Court. Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law A person invoking the jurisdiction of this Court under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation, see Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, ; Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, ; Ramsharan Autyanuprasi v. Union of India (1989) Supp 117 SCC 251 and Chhetriya Pardushan Mukti Sangharsh Samiti Vs. State of U.P. and others,

(Emphasis supplied)

We have found that with a view to promote environment and ecology, numerous legislations have been enacted. Some of them are the Environment Protection Act, 1986 ; the Air (Prevention and Control of Pollution) Act, 1981 ; the Forest (Conservation) Act, 1980 ; the Water (Prevention and Control of Pollution) Act, 1974 ; and the H.P. Transfer of Land (Regulation) Act, 1968. By now, the apex Court has dealt with the problem of ecology and environment in large number of decisions interpreting various provisions of these legislations highlighting the importance of the subject, making time to time directions to authorities to act in the matter seeking expert opinions on typical scientific aspects touching the questions coming before it in these cases. We proceed to take note of these decisions.

In Rural Litigation and Entitlement Kendra Vs. State of U. P., , the importance of the forests in the maintenance of environment has been clearly pointed out, We may refer to many important paragraphs of this decision in this regard. In para 19 Ranganath Misra, J, (as he then was) observed thus:

Kalidas, the greatest of the Indian poets, sang the praises of the Himalayas in ''Meghadoot'' by describing it as the loftiest mountain on earth''s surface located on the north of the country. The Himalayan ranges apart from operating as a natural seal on the northern border against intruders, have influenced the climate, culture, ecology and environment of the subcontinent. These are the ranges from where originate several perennial rivers like the Ganges and the Yamuna. These two rivers which mingle at Allahabad and later flow into the Bay of Bengal as one river have built up what is known as the Gangetic belt- the most fertile part of India. The legendary tradition of our culture is deeply associated with these two rivers. Apart from providing succour to millions of people who inhabit this belt, Yamuna is said to have provided the backdrop of Krishna Leela. The catchment area of this river is spread over the Mussoorie Hills-otherwise known as the Doon Valley with which we are concerned....

About the importance of forests, many paragraphs in this judgment have been denoted. We may relevantly quote them since it was vehemently argued by the parties before us, one stating that the forest wealth in the area is being destroyed recklessly for undertaking construction activities, the other opposing it. Paras 24 to 30, 32 and 35 of the judgment may now be referred to extensively:

It is time to turn to the contention relating to forests. Air and water are the most indispensable gifts of Nature for preservation of life. Abundant sunshine together with adequate rain keeps Nature''s generating force at work. Human habitations all through the ages have thrived on river banks and in close proximity of water sources. Forests have natural growth of herbs which provide cure for diseases. Our ancestors knew that trees were friends of mankind and forests were necessary for human existence and civilization to thrive. It is these forests that provided shelter for the .''rishis'' and accommodated the ancient ''gurukulas''. They too provided food and sport for our forefathers living in the State of Nature. That is why there is copious reference to forests in the Vedas and the ancient literature of ours. In ancient times trees were worshipped as gods and prayers for upkeep of forests were offered to the Divine. In the Atharva Veda (5.30 6) it has been said:

Man''s paradise is on earth ;

This living world is the beloved place of all ;

It has the blessings of Nature''s bounties ;

Live in a lovely spirit.

In due course civilization developed and men came to live away from forests. Yet the human community depended heavily upon the forests which caused rains and provided timber, fruits, herbs and sports With sufficient sunshine and water there was luxuriant growth of forests in the tropical and semi-tropical zones all over the globe. Then came the age of science and outburst of human population, Man required more of space for living as also for cultivation as well as more of timber. In that pursuit the forests were cleared and exploitation was arbitrary and excessive ; the deep forests were depleted ; consequently rainfall got reduced ; soil erosion took place. The earth crust was washed away and places like Cherapunji in Assam which used to receive an average annual rainfall of 500 inches suffered occasional drought.

Scientists came to realise that forests play a vital role in maintaining the balance of the ecologieal system. They came to know that forests preserve the soil and heavy humus acts as a porous reservoir for retaining water and gradually releasing it in a sustained flow. The trees in the forests draw water from the bowels of the earth and release the same into the atmosphere by �he process of transpiration and the same is received back by way of rain as a result of condensation of clouds formed out of the atmospheric moisture. Forests thus help the cycle to be completed. Trees are responsible to purify the air by releasing oxygen into the atmosphere through the process of photosynthesis. It has, therefore, been rightly said that there is a balance on earth between air, water, soil and plant. Forests hold up the mountains, cushion the rains and they discipline the rivers and control the floods. They sustain the springs ; they break the winds ; they foster the bulks ; they keep the air cool and clean. Forests also prevent erosion by wind and water and preserve the carpet of the soil.

In the second half of the 19th century felling of trees came to be regulated. In 1858, the Department of Forestry was set up and in 1864 the first Inspector General of Forests was appointed. In the following year the first Indian Forest Act came into the statute book to be followed by another Act in 1878 and yet another in 1927 which is still in force providing measures of regulation. This Act has been amended in the various States and presently reference shall be made to the relevant amendments in Uttar Pradesh.

Laying the railway track and providing sleepers therefore required clearing of forest areas and cutting down of trees. During the Second World War Indian forests were very badly moulded for various defence purposes. By the time India became independent it had about 2 per cent of the earth''s land area, 1 per cent of productive forest area, 15 per cent of world''s population and 10 per cent of world''s animal life-a situation indicative of the fact that there was acute deficit of forest area. The Government of India declared its National Forest Policy in 1952 which laid down that forests should occupy 33 per cent of the land surface as against 23 per cent then. Attention was intended to be bestowed for expansion of forests in each of the Five Year Plans that followed with a view to rehabilitating the forests. The demand occasioned by the growing population and the spread of economic development and consequent demand of timber as raw material as also fuel led to excessive exploitation of the forests and consequent clearing of forest areas notwithstanding the declared National Forest Policy.

It is interesting to note that the national per capita average of forest area works out to 0.11 hectare as against an international average of 1.5 hectare. Statewise, Arunachal Pradesh as per capita forest of 8.21 hectares which is the maximum and Haryana has the minimum being 0.01 hectare (figures based on Census Report of 1981 and the report of the Central Forestry Commission). While some of the advanced countries like Australia, Canada, Germany, Japan and United States have forest cover of higher area, on account of want of regulation and appropriate care and attention, this unhappy situation has arisen in India.

The Birla Institute of Scientific Research in its Report on Social Forestry in India: Problems and Prospects (1986 Reprint) has indicated:

The treeless expanse of land provides an environment least conducive to healthy living. Tree leaves recharge the atmosphere with life giving oxygen, take away excess carbon dioxide and transmit moisture to the atmosphere by way of transpiration. It is estimated that one hectare of woodland consumes 3.7 tonnes of carbon dioxide and gives out 2 tonnes of oxygen per year. Denied these beneficial processes, life becomes lead heavy. A tree-covered environment is much healthier to live and work in. Amongst the immediately perceptible effects of loss of vegetative protection are soil erosion, floods and droughts. If trees and other vegetations are present, they bear the brunt of winds, heat, cold and rain water first in their crowns and foliage. The soil remains covered by humus, decomposing litter and freshly fallen leaves which protect it from direct action of the adverse natural forces. In a wooded area the flow of rain water gets regulated through the leaves and the spongy material overlying the soil ; but in a barren, unprotected surface the raindrops hit the soil directly and the water flows torrentially, dislodging the carrying with it the soil particles which have taken hundreds of years to form. This results in disastrous floods in lower areas causing damage to life and property. Fast running water also causes landslides and other calamities en route. With all the rain water having run away in the form of floods, the land surface loses its resilience to drier spells and severe droughts are caused. The removal of soil by water produces (sic reduced) fertility and the productive capacity of the uplands to a considerable degree.

It is estimated that nearly 6,000 million tonnes of soil is washed away every year in floods. With that go 6.0 million tonnes of nutrients-more than the amounts that is applied in the form of fertiliser.

"Forest" was initially a State subject covered by entry 19 in List 11 of the Seventh Schedule. In 1976, under the 42nd Amendment the entry was deleted and entry 17-A in the Concurrent List was inserted. The change from the State List to the Concurrent List was brought about following the realisation of the Central Goverriment that forests were of national importance and should be placed in the Concurrent List to enable the Central Government to deal with the matter. The same amendment of the Constitution brought in Article 48A in Part IV providing thus:

The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.

Article 51A in Part IV-A of the Constitution inserted by the same amendment provided a set of fundamental duties and Clause (g) runs thus:

It shall be the duty of every citizen of India-

x x x

(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.

1972 marks a watershed in the history of environmental management so far as India is concerned. The National Committee of Environment and Planning and Co-ordination was set up and various steps were taken to implement the recommendations already made and to be made thereafter. The National Commission on Agriculture in 1976 noticed the inadequate implementation of the 1952 National Forest Policy and proposed the following amendments:

(i) Provision for prior approval of the Central Government before taking steps for dereservation or diversion of forest land to non-forest use.

(ii) Preventing and evicting encroachment of forest lands.

(iii) Safeguarding against monoculture practices in raising forest plantations so that preservation of habitates for natural flora and fauna is ensured.

(iv) Encouraging large scale industrial plantation to foster growth of forest industries.

As noticed earlier notwithstanding the regulatory provisions in the Forest Act of 1927 and the Government''s National Forest Policy of 1952, forests generally got rapidly depleted. To meet this alarming situation the Forest (Conservation) Ordinance of 1980 was promulgated by the President and the Ordinance was followed by the Forest (Conservation) Act of 1980. The Statement of Objects and Reasons, as far as relevant, point out:

Deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation had been taking place on a large scale in the country and it had caused widespread concern.

With a view to checking further deforestation the President promulgated on Oct. .25, 1980, the Forest (Conservation) Ordinance, 1980. The Ordinance made the prior approval of the Central Government necessary for dereservation of forests and for use of forest land for non-forest purposes. The Ordinance also provided for the constitution of an advisory committee to advise the Central Government with regard to grant of such approval.

Section 2 of the Act which is relevant provides:

Notwithstanding anything coatained 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.

Explanation.-For the purpose of this section non-forest purpose means breaking up or clearing of any forest land or portion thereof for any purpose other than reafforestation.

Thus the power which was vested in the State Government u/s 27 of the Indian Forest Act of 1927 or any other law containing a similar provision is now exercisable subject to prior approval of the Central Government

In M.C. Mehta Vs. Union of India and others, , Chief Justice Ranganath Misra (as he then was) said in paras 3, 4, 13 and 14 that ;

The problem of environmental pollution is global in an increasingly small world and concerns all countries irrespective of their size, level of development or ideology. Notwithstanding political division of the world into national units, the oceanic world is an interconnected whole ; and winds that below over the countries are also one. Pollution is capable of moving from continent to continent. If USSR carries out a nuclear test, the fall-out may be carried by the winds to any part of the world and such fall-out of irresponsible disposal of radioactive waste from a remote energy plant in one country may turn out to have greater adverse effect on the neighbouring countries thin the danger of a fullfledged water. Informed public mind is already agitated over the polluting effect of Gulf War and the common concern of the entire homosapieh race is obsessed by the apprehension of acid rain, toxic effect on the seas and even on the atmosphere.

The awareness of interaction of man with his environment is of recent origin. The Declaration of the United Nations Conference on the Human Environment held in Stockholm in June 1972 stated:

Man is both creature arid moulder of his environment, which gives him physical substance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man''s environment, the natural and the manmade, are essential to his well-being and to the enjoyment of the basis human rights -even the right of life itself.

Principle No. 1 of the same Declaration went on to say:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations....

Law alone also cannot help in restoring a balance in the biospheric disturbance. Nor can funds help effectively. The situation requires a clear perception and imaginative planning. It also requires sustained effort and result oriented strategic action. Campaign for general awakening of the people using automobiles of different classifications and among the people inhabiting the capital is indispensable preliminary. All persons using automobiles should have a fair knowledge of the baneful effect on the community including those who use such vehicles on account of the emission from such vehicles. Until that is done in an effective way the appropriate attitude would not develop and co-operation for reducing pollution would not emerge.

A brief extract from the journal entitled Environmental Policy and Law (Vol. 18, Nos. 1-2 Spring 1988) published from North Holland describes the problem thus:

It became clear that all these measures are not themselves sufficient to come to grips with the problem of air pollution caused by road traffic. In every one of the towns and cities, the problem of air pollution from motor vehicle traffic is a considerable one, and it was more or less generally apparent that present norms for motor vehicle exhausts are not adequate so as to achieve the necessary reductions in a rapid space of time. In fact, the problem is, in part, on the increase. This is not only true of private cars, especially diesel powered vehicles, but also of commercial vehicles. ...

Despite the legal and other restrictions mentioned above, which hamper the towns and cities involved in pursuing effective policies aimed at limiting motor vehicle exhausts, some interesting strategies have been thought up which have either led to improvements in themselves or at least stimulated attitudes towards environmental pplicies. For example, in formulating their regulations in the event of smog, both Munich and Berlin offered positive stimulus for the purchase of vehicles fitted with catalytic converters. As far as city-owned motor vehicles are concerned, some authorities have pursued a deliberate policy of purchasing those automobiles with improved exhaust systems''.

The question came before the apex Court again in Tarun Bharat Sangh, Alwar Vs. Union of India and others, , through public interest litigation. M. N. Venkatachaliah, J. approved the earlier judgment of the Court reported in State of Bihar Vs. Murad Ali Khan and Others, , and referred to paras 8 and 10 thereof extensively in para 11 of his Lordship''s judgment. We refer to it, which says that:

Indeed, referring to the high purpose of the measures for protection of environment and ecology, this Court said: (SCC pp. 660-61, paras.8 and 13)

The State to which the ecological Imbalance and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate, has been a great and urgent necessity for the survival of humanity and these laws reflect a last ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks to mankind that go with the deterioration of environment. The tragedy of the predicament of the civilised man is that ''Every source from which man has increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot foresee. In his foreword to. International Wild Life Law, H. R. H. Prince Philip, the Duke of Edinburgh said:

Many people seem to think that the conservation of nature is simply a matter of kind to animals and enjoying walks in the countryside. Sadly, perhaps, it is a great deal more complicated than that.... As usual with all legal systems, the crucial requirement is for the terms of the conventions to be widely accepted and rapidly implemented. Regretfully progress in this direction is proving disastrously slow....

''Environmentalists'' conception of the ecological balance in nature is based on the fundamental concept that nature is ''a series of complex biotic communities of which a man is an interdependent part'' and that it should not be given to a part to trespass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the "civilised man" operating directly through excessive commercial hunting or, more disastrously, indirectly through invading or destroying natural habitats.

Then, referring to the standing of the Petitioner, it has been said in para 12 that:

This litigation should not be treated as the usual adversarial litigation Petitioners are acting in aid of a purpose high on the national agenda. Petitioner''s concern for the environment, ecology and the wild life should be shared by the Government. No oblique motives are even suggested to the Petitioner''s motivation in this litigation. It is of utmost importance that the law sought to be effectuated through these notifications should be enforced strictly....

(See also M.L. Sud and Ors. v. Union of India and Ors., 1992 Supp 2 SCC 123

In M.C. Mehta Vs. Union of India (UOI) and Others, it has been observed that (paras 2 and 4):

Water is the most important of the elements of nature. River valleys have been the cradles of civilization, from the beginning of the world, Aryan civilization grew around the town and villages on the banks of the river Ganga. Varanasi which is one of the cities on the banks of the river Ganga is considered to be one of the oldest human settlements in the world. It is the popular belief that the river Ganga is the purifier of all but we are now led to the situation that action has to be taken to prevent the pollution of the water of the river Ganga since we have reached a stage that any further pollution of the river water is likely to lead to a catastrophe. There are today large towns inhabitated by millions of people on the banks of the river Ganga. There are also large industries on its banks. Sewage of the towns and cities on the banks of the river and the trade effluents of the factories and other industries are continuously being discharged into the river. It is the complaint of the Petitioner that neither the Government nor the people are giving adequate attention to stop the pollution of the river Ganga. Steps have, therefore, to be taken for the purpose of protecting the cleanliness of the stream in the river Ganga, which is in fact the life sustainer of a large part of the northern India.

Before proceeding to consider the facts of this case it is necessary to state a few words about the importance of and need for protecting our environment. Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51A of the Constitution imposes as one of the fundamental duties on every citizen the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. The proclamation adopted by the United Nations-Conference on the Human Environment which took place at Stockholm from June 5 to 16, 1972 and in which the Indian delegation led by the Prime Minister of India took a leading role runs thus:

Man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform, his environment in countless ways and on an unprecedented scale. Both aspects of man''s environment, the natural and the manmade, are essential to his well being and to the enjoyment of basic human rights-even the right to life itself.

The protection and improvement of the human environment is a major issue which affects the well being of peoples and economic development throughout the world ; it is the urgent desire of the peoples of the whole world and the duty of all Governments.

Man has constantly to sum up experience and go on discovering, inventing, creating and advancing. In out time man''s capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment. We see around us growing evidence of manmade harm in many regions of the earth; dangerous levels of pollution in water AIR, earth and living beings ; major and undesirable disturbances to the ecological balance of the biosphere ; destruction and depletion of irreplaceable resources ; and gross deficiencies harmful to the physical, mental and social, health of man, in the manmade environment ; particularly in the living and working environment.

A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life. What is needed is an enthusiastic but calm state of mind and intense but orderly work. For the purpose of attaining freedom in the world of nature, man must use knowledge to build in collaboration with nature a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of world-wide economic and social development.

To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environment of the future. Local and National Governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions. International co-operation is also needed in order to raise resources to support the developing countries carrying out their responsibilities in this field. A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive co-operation among nations and action by international organisations in the common interest. The Conference calls upon the Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity.

The proclamation also contained certain common convictions of the participant nations and made certain recommendations on development and environment. The common convictions stated include the conviction that the discharge of toxic substances or of other substances and the release of heat in such quantities or concentrations as to exceed the capacity of environment to render them harmless must be halted in order to ensure that serious or irreversible damage is not inflicted upon eco-systeins, that States shall take all possible steps to prevent pollution of the seas so that hazards to human health, harm to living resources and marine life, damage to the amenities or interference with other legitimate uses of seas is avoided that the environmental policies would enhance and not adversely affect the present and future development potential of developing countries, that science and technology as part of their contributions to economic and social development must be applied with identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind, that States have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other States or areas beyond the limit of national jurisdiction, that it will be essential in all cases to consider the systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost and that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. These are only some of the statements of principles proclaimed by the Stockholm Conference. (Vide Lai''s Commentaries on Water and Air Pollution Laws (2nd Edn.) pages 6-7).

In M.C. Mehta Vs. Union of India (UOI) and Others, , the apex Court has held in para 24 that:

Having regard to the grave consequences of the pollution of water and air and the need for protecting and improving the natural environment which is considered to be one of the fundamental duties under the Constitution (vide Clause (g) of Article 51A of the Constitution) we are of the view that it is the duty of the Central Government to direct all the educational institutions throughout India to teach at least for one hour in a week lessons relating to the protection and the improvement of the natural environment including forests, lakes, rivers and wildlife iq the first ten classes The Central Government shall get text books written for the said purpose and distribute them to the educational institutions free of cost. Children should be taught about the need of maintaining cleanliness commencing with the cleanliness of the house both inside and outside, and of the streets in which they live. Clean surroundings lead to healthy body and healthy mind. Training of teachers who teach this subject by the introduction of short term courses for such training shall also be considered. This should be done throughout India.

(See also Kinkri Devi and Another Vs. State of Himachal Pradesh and Others, and Kinkri Devi and Anr. v. State of H.P. and Ors. 1993(1) Sim LC .185).

In Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, the apex Court said in paras 3 and 4 that:

Today society''s interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity. Industrialisation, urbanisation, explosion of population, over-exploitation of resources, depletion of traditional sources of energy and raw materials and the search for new sources of energy and raw materials, the disruption of natural ecological balances, the destruction of a multitude of animal and plant species for economic reasons and sometimes for no good reason at all are factors which have contributed to environmental deterioration. While the scientific and technological progress of man has invested him with immense power over nature, it has also resulted in the unthinking use of the power, encroaching endlessly on nature. If man is able to transform deserts into oasis, he is also leaving behind deserts in the place of oasis. In the last century, a great German materialist philosopher warned mankind: "Let us not, however, flatter ourselves over much on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in tbe first place brings about the results we expected, but in the second and third place it has quite different, unforeseen effect which only too often cancel the first". Ecologists are of the opinion that the most important ecological and social problem is the wide spread disappearance all over the world of certain species of living organisms. Biologists forecast the extinction of animal and plant species on a scale that is incomparably greater than their extinction over the course of millions of years. It is said that over half the species which became extinct over the last 2,000 years did so after 1900. The International Association for the Protection of Nature and Natural Resources calculates that now, on average, one species or sub-species is lost every year. It is said that approximately 1,000 bird and animal species are facing extinction at present. So it is that the environmental question has become urgent and it has to be properly understood and squarely met-by man. Nature and history, it has been said, are two competent parts of the environment in which we live, move and prove ourselves.

In India, as elsewhere in the world, uncontrolled growth and the consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem, The once Imperial, City of Calcutta is no exception. The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court. Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48A of'' the Constitution, Directive Principle which enjoins that "the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country", and Article 51A(g) which proclaims it to be the fundamental duty of every citizen of India ".''to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures". When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded In appropriate cases, the Court may go further, but how much further must depend on the circumstances of the case. The Court may always give necessary directions. However the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority....

(Emphasis supplied)

In case we appreciate the submissions projected by Shri J. S. Khehar in the background of the decisions aforesaid, we have no other option except to reject them straightway. The contention that development in the form of constructions resorted to by the Respondents should be placed as at higher pedestrial as compared to ecology and environment, is highly exaggerated and against the constitutional requirements. One cannot conceive human development by destruction of environment and ecology in its various facets. In case it is not protected, time will come when human race will face serious repercussions in its existence. Proper environment is the first requirement of human civilization and growth. It is a national goal and Constitution casts duty on everyone to protect it. Forests are important for maintaining ecology and environment, so is the land. Water is most essential not only for human existence but also for other living and non-living objects. Planting of trees, maintaining of forests, saving of rivers from hazardous substances, cleaning of air from polluting units and dangerous gasses is the requirement of the day.

To allow development at the cost of environment and ecology would, therefore, be most hazardous to the State and the Nation in particular and the world in general. In such a situation, it is the duty of the Court to examine such matters to the extent possible at the instance of citizens who genuinely complain about these violations by polluters and also highlight the inaction by the relevant departments and seek appropriate direction for the maintenance of environment and ecology.

In L.K. Koolwal Vs. State of Rajasthan and Others, the Court said that:

... It is a happy sign that the citizens of Jaipur, through the present Petitioner Mr. K. L, Koolwal has moved to this Court in the matter of sanitation of Jaipur city. Good number of affidavits have been filed by the citizens of Jaipur relating to each of the locality referred to in the writ petition to show that the sanitation problem is acute in Jaipur which is hazardous to the life of the citizens of Jaipur....

Article 51A of the Constitution has been inserted in the Constitution has been inserted in the Constitution of India vide 42nd Amendment in 1976. We can call Article 51A ordinarily as the duty of the citizens, but in fact it is the right of the citizens as it creates the right in favour of the citizens to move to the Court to see that the State performs its duties faithfully and the obligatory and primary duties are performed in accordance with the law of the land. Omissions or commissions are brought to the notice of the Court by the citizen and thus, Article 51A aives a right to the citizen to move the Court for the enforcement of the duty cast on State, instrumentalities, agencies, deoartments, local bodies and statutory authorities created under the particular law of the State. It provides particularly under Clause (g) that the State and its instrumentalities and agencies should strive to protect and prove the natural environment

The members of the Petitioner in the present case, we are told, are well-placed citizens of the area and the contention that they are actually by personal interests, is absolutely wrong Professor Jamal H. Ansari, Department of Physical Planning, School of Planning and Architecture, New Delhi has aptly said in his article''''Norms and Special Standards for Development of Hill Districts" that:

The distinctly different physiographic features of hill area, as compared to the plains, call for special approaches for their planning and development. These approaches, like those for any other area, should be essentially suited to the peculiar characteristics and needs of the area. . Dictated by geographical location, physiographic features, altitude, climate, and geological history, hill areas have their own associated disposition of resources, settlement pattern and socio-cultural and economic environment. They are ecologically fragile and need to be handled very sensibly and sensitively at the time of formulating strategy for their economic progress and overall development.

Various social, economic and physical infrastructure inputs have to be provided to initiate development process in any area. But in hill areas such inputs have to be provided with extreme care so as not to upset their ecological balance. Moreover, the pattern and structure of settlements in hill areas are such that they pose an entirely different set of challenges to the task of extending infrastructure, facilities and amenities for improving auality of life. The cost implications, whether of providing shelter infrastructure or services, are also such that an entirely new set of norms and standards are called for while thinking about development in hill areas.

The hill areas are presently characterized by backwardness, inspite of being rich in resources such as water, power, minerals, forest produces, and a climate (in certain altitude zones) which is conducive for pursuit of various economic activities such as horticulture, sheep rearing for wool production, facilitation of tourism, tapping of non-conventional energy sources, promotion of industrial enterprises requiring dust free environment, and a host of forward and backward linked activities. What has been lacking is a coherent policy which will address specifically to the essential development requirements of hill areas. To start with, an approximate policy has to be evolved for the development of infrastructure and for that purpose a viable set of norms and standards needs to be adopted.

Shri J. S. Khehar contended that development of tourism in the State is the declared policy of the State Government. Many incentives compelling entrepreneurs to start tourist complexes in the State have been provided. The initiative of the entrepreneurs in this case is a step in that direction There may be no dispute with respect to the initiative of the State Government for the development of tourism in the State for raising its revenue, but we may caution it by observing that development of tourism at the cost of environment and ecology would be most disastrous to it and the nation ultimately. The physical development of a particular area from tourism point of view must be the result of thorough examination of the project, its requirement for tourism and its impact on environment and ecology. There cannot be full freedom to deal with the land in the State and start construction haphazardly, cut trees recklessly, play with fragile soil, wantonly pollute the water and atmosphere for the purpose of adding some amount to the State revenue. Look at certain places like Kasauli, Kullu, Manali, Dalhousie and Shimla. These beautiful places have now been turned into slums. Now there is acute derth of space, trees, water, electricity, sewerage and other necessary requirements. These places should not have been allowed to be exploited recklessly. Rather, in case the State intended to upgrade tourism, it should have investigated altogether new places and developed them for the facility of tourists. Kasauli is a very small hill station, initially meant to accommodate a few civilians and a small Army Unit. It could provide facilities only to them and accommodate a few more. Today, mass construction has started coming up right from the boundary of the Cantonment Area. For lack of adequate water and sewerage facilities, the plight of the town and its citizens can be easily comprehended. The day has come when the whole area is going to turn into slum, devoid of all basic amenities. The result is obvious. The environment and ecology have been seriously threatened.

During the course of submissions learned Counsel appearing for the builders pointed that they have and they would plant trees on the left- out areas. Our attention was drawn to the species of trees planted by them. They are not the trees which would contain the soil erosion, since they are of very light varieties. Similarly, it was pointed out that they have their own sewerage system and natural water within the area, besides, that is being provided by the Irrigation and Public Health Department of the State. This is not enough. The sewerage system is inadequate for huge buildings/flats/complexes under construction. They soon would overflow and cause environmental degradation in the area.

The learned Advocate General submitted that all the relevant departments have already started examining all cases of ''Benami'' transactions and undergoing constructions. The Government has also appointed a Committee to go into the matter, report of which pertaining to Kasauli, has been filed in this Court. Further action in the matter would be taken in accordance with law and directions of this Court.

Mrs. Shyama Dogra, learned Counsel for Respondent No. 8, submitted that action against many industries in the. State has already been initiated. It is under contemplation against hotliers committing breach of pollution laws and violating environment and ecology of the area. Although the affidavits filed in this case by the Government and other Boards have not specifically pointed out any remissness on their parts, yet; as a matter of fact, the state of affairs pointed out by the Petitioner discloses that mass construction has been undertaken in the area in a haphazard manner throwing to winds all laws applicable in the matter. In case proper vigilance had been exercised, destruction of area, trees, environment and ecology could have been avoided. However, we notice that numerous notices have been issued to various violators by the respective departments against various persons contemplating action against them.

Shri J.S Khehar contended that this Court cannot make enquiry into the matter nor summon the Government records to find out flaws nor issue directions to the State Government and other Boards since the matter pertains to the Executive and Legislative arena.

We proceed to examine the question whether this Court can interfere in the matter and if so, to what exent and the nature thereof. Learned Counsel for the parties placed certain decisions for our consideration on this question.

In State of Himachal Pradesh Vs. A Parent of a Student of Medical College, Simla and Others, it has been observed that (para 4, p. 913):

.... The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging, for otherwise it is difficult to see why, after the clear and categorical statement by the Chief Secretary on behalf of the State Government that the Government will introduce legislation if found necessary and so advised, the Division Bench should have proceeded to again give the same direction. This the Division Bench was clearly not entitled to do. It is entirely a matter for the executive branch of the Government to decide whether or not to Introduce any particular legislation. Of course, any member of the legislature can also introduce legislation but the Court certainly cannot mandate the executive or any member of the legislature to initiate legislation, howsoever necessary or desirable the Court may consider it to be. This is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution. If the executive is not carrying out any duty laid upon it by the Constitution or the law, the Court can certainly require the executive to carry out such duty and this is precisely what the Court does when if entertains public interest litigation. Where the Court finds, on being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and the underprivileged continue to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the Court certainly can find must intervene and compel the Executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realise their social and economic rights. When the Court passes any orders in public inferest litigation, the Court does so not with a view to mocking at legislative or executive authority in a spirit of confrontation but with a view to enforcing the Constitution and the law, because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out faithfully and no one should go away with a feeling that the constitution and the law are meant only fir the benefit of a fortunate few and have no meaning for the large numbers of half clad, half hungry people of this country. That is a feeling which should never be allowed to grow. But at the same time the Court cannot usurp the functions assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law making activities of the executive and the legislature...

(Emphasis ours)

In State of Himachal Pradesh and Another Vs. Umed Ram Sharma and Others, it has been observed in paras 27, 29, 39 and 40 that:

In the instant case, administrative action or administrative inaction is being sought to be reviewed. Read in the background of the directive principles as contained in Article 38(2) of the" Constitution access to life should be for the hillman an obligation of the State but it is primarily within the domain of the legislature and the executive to decide the priority as well as to determine the urgency. Judicial review of the administrative action or inaction where there is an obligation for action should be with caution and not in haste.

In the instant case there has been at the highest a slow application of energy in the action by the executive. By the process of judicial review, if the High Court activises or energises executive action, it should do so cautiously. Remedial action in public interest must be with caution and within limits. Reading down the order in the manner we have indicated, in our opinion, the High Court has not transgressed the limits of its power.

Affirmative action in the form of some remedial measure, in public interest, in the background of the constitutional aspirations as enshrined in Article 38 read with Articles 19 and 21 of the Constitution by means of judicial directions in cases of executive inaction or slow action is permissible within the limits. The way we read the High Court''s order with the clarification indicated does not transgress that limits.

It is necessary to bear in mind that interference with the administration cannot be meticulous in our constitutional system of separation of power. It is not necessary to express our opinion in this case whether our Constitution is truly based on Montesquien system of separation of power. We accept the position that Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. See the observations of Krishna Iyer, J. in Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others Vs. Union of India (UOI) and Others, . It is, however, neither possible nor desirable to define for all purposes that parameter. Judicial review of administrative action depends upon the facts and circumstances of each case. Its dimension is never closed and must remain flexible. But in this case the order of the High Court in the light we have read it, does not exceed that parameter.

(Emphasis ours)

In Asif Hameed and others Vs. State of Jammu and Kashmir and Others, , the apex Court observed in para 19 that:

When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and fuctions assigned under the constitution and if not, the court strike-down the" action. While doing so the court must remain within its self imposed limits. The court sits in judgment on the action of a co-ordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.

In Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, , the observations of the Supreme Court in paras 13, 14 and 15 may be relevantly stated:

But the question then arises as to what is the power which may be exercised by the Supreme Court when it is moved by an "appropriate" proceedings for enforcement of a fundamental right. The only provision made by the Constitution makers in this behalf is to be found in Clause (2) of Article 32 which confers power on the Supreme Court "to issue directions or orders of writs including writs in the nature of habeas corpus, mandamus,prohibition, quo warrantoand certiorari, whichever may be appropriate, for enforcement of any of the fundamental rights. It will be seen that the power conferred by Clause (2) of Article 32 is in the widest terms. It is not confined to issuing the high prerogative writs of habeas corpus, mandamus, prohibition certiorari and quo warranto, which are hedged in by strict conditions differing from one writ to another and which to quote the words spoken by Lord Atkin in United Australia Ltd. v. Barclays Bank Ltd. (1941) AC 1, in another context often "stand in the path of justice clanking their medieval chains". But it is much wider and includes within its matrix, power to issue any directions, orders or writs which may be appropriate for enforcement of the fundamental right in question and this is made amply clear by the inclusive clause which refers to in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is not only the high prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ. This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the Constitution makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. The Constitution makers clearly intended that the Supreme Court should have the amplest power to issue whatever direction, order or writ may be appropriate in a given case for enforcement of a fundamental right. But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ ? That is a matter on which the Constitution is silent and advisedly so, becaues the Constitution makers never intended to fetter the discretion of the Supreme Court to evolve a procedure appropriate in the circumstances of a given case for the purpose of enabling it to exercise its power of enforcing a fundamental right. Neither Clause (2) of Article 32 nor any other provision of the Constitution requires that any particular procedure shall be followed by the Supreme Court in exercising its power to issue an appropriate direction, order or writ. The purpose for which the power to issue an appropriate direction, order or writ is conferred on the Supreme Court is to secure enforcement of a fundamental right and obviously therefore, whatever procedure is necessary for fulfilment of that purpose must be permissible to the Supreme Court. It is not at all obligatory that an adversarial procedure, where each party produces his own evidence tested by cross-examination by the other side and the Judge sits like an umpire -and decides the case only on the basis of such material as may be produced before him by both parties, must be followed in a proceeding under Article 32 for enforcement of a fundamental right. In fact there is no such constitutional compulsion enacted in Clause (2) of Article 32 or in any other part of the Constitution. It is only because we have been following the adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule that it has become a part of our conscious as well as sub-conscious thinking that every judicial proceeding must be cast in the mould of adversaria! procedure and that justice cannot be done unless the adversarial procedure is adopted. But it may be noted that there is nothing sacrosanct about the adversarial procedure and in fact it is not followed in many other countries where the civil system of law prevails. The adversarial procedure with evidence led by either party and tested by cross-examination by the other party and the judge playing a passive role has become a part of our legal system because it is embodied in the CPC and the Indian Evidence Act. But these statutes obviously have no application where a new jurisdiction is created in the Supreme Court for enforcement of a fundamental right. We do not think we would be justified in imposing any restriction on the power of the Supreme Court to adopt such procedure as it thinks fit in exercise of its new jurisdiction, by engrafting adversarial procedure on it, when the Constitution makers have deliberately chosen not to insist on any such requirement and instead, left it open to the Supreme Court to follow such procedure as it thinks appropriate for the purpose of securing the end for which the power is conferred, namely, enforcement of a fundamental right. The adversarial procedure has, in fact, come in for a lot of criticism even in the country of its origin, and there is an increasing tendency even in that country to depart from its strict norms. Lord Devlin speaking of the English judicial system said: "If our methods were as antiquated as our legal methods, we should be a bankrupt country". And Foster Q. C. observed: "I think the whole English system is non-sense. I would go to the root of it-the civil case between two private parties is a mimic battle....conducted according to rules of evidence." There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can sometimes lead to injustice, particularly where the parties are not evenly balanced in social or economic strength. Where one of the parties to a litigation belongs to a poor and deprived section of "the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the Court Therefore, when the poor come before the Court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the Court for the purpose of securing enforcement of their fundamental rights. It must be remembered that the problems of the poor which are now coming before the Court are qualitatively different from those which have hitherto occupied the attention of the Court and they need a different kind of lawyering skill and a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the Constitution. We have there fore to abandon the laizzez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies for purpose of making fundamental rights meaningful for the large masses of people. And this is clearly permissible on the language of Clause (I) of Article 32 because the Constitution makers while enacting that clause have deliberately and advisedly not used any words'' restricting the power of the Court to adopt any procedure which it considers appropriate in the circumstances of a given case for enforcing a fundamental right. It is true that the adoption of this non-traditional approach is not likely to find easy acceptance from the generality of lawyers because their minds are conditioned by constant association with the existing system of administration of justice which has become ingrained in them as a result of long years of familiarity and experience and become part of their mental make-up and habit and they would therefore always have an unconscious predilection for the prevailing system of administration of justice. But if we want the fundamental rights to become a living reality and the Supreme Court to become a real sentinel on the qui vive, we must free ourselves from the shackles of outdated and outmoded assumptions and bring to bear on the subject fresh outlook and original unconventional thinking

Now it is obvious that the poor and the disadvantaged cannot possibly produce relevant material before the Court in support of their case and equally where an action is brought on their behalf by a citizen acting pro bono publico, it would be almost impossible for him to gather the relevant material and place it before the Court, What is the Supreme Court to do in such a case ? Would the Supreme Couit not be failing in discharge of its constitutional duty of enforcing a fundamental right if it refuses to intervene because the Petitioner belonging to the underprivileged segment of society or a public spirited citizen espousing his cause is unable to produce the relevant material before the Court. If the Supreme Court were to adopt a passive approach and decline to intervene in such a ease because relevant material has not been produced before it by the party seeking its intervention, the fundamental rights would remain merely a teasing illusion so far as the poor and disadvantaged sections of the community are concerned. It is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gatbeiing facts and data in regard to a complaint of breach of a fundamental right made on behalf of the weaker sections of the society. The report of the commissioner would furnish prima facie evidence of the facts and data gathered by the'' commissioner and that is why the Supreme Court is careful to appoint a responsible person as commissioner to make an inquiry or investigation into the facts relating to the complaint. It is interesting to note that in the past the Supreme Court has appointed sometimes a District Magistrate, sometimes a District Judge, sometimes a professor of law, sometimes a journalist, sometimes an officer of the Court and sometimes an advocate practising in the Court'', for the purpose of carrying out an inquiry or investigation and making report to the Court because the commissioner appointed by the Court must be a responsible person who enjoys the confidence of the Court and who is expected to carry out his assignment objectively and impartially without any predilection or prejudice. Once the report of the commissioner is received, copies of it would be supplied to the parties so that either party, if it wants to dispute any of the facts or data stated in the Report, may do so by filing an affidavit and the Court then consider the report of the commissioner and the affidavits which may have been filed and proceed to adjudicate upon the issue arising in the writ petition. It would be entirely for the Court to consider what weight to attach to the facts and data stated in the report of the commissioner and to what extent to act upon such facts and data But it would not be correct to say that the report of the commissioner has no evidentiary value at all, since the statements made in it are not tested by cross examination. To accept this contention would be to introduce the adversarial procedure in a proceeding where in the given situation, it is totally inapposite The learned Additional Solicitor General and Mr. Phadke relied on Order XXVI of the CPC and Order XLVI of the Supreme Court Rules, 1966 for the purpose of contending that a commission can be appointed by the Supreme Court only for the purpose of examining witnesses, making legal investigations and examining accounts and the Supreme Court has no power to appoint a commission for making an inquiry or investigation into facts relating to a complaint of violation of a fundamental right in a proceeding under Article 32. Now it is true that Order XLVI of the Supreme Court Rules, 1966 makes the provisions of Order XXVI of the Code of Civil Procedure, except Rules 13, 14, 19, 20, 21 and 22 applicable to the Supreme Court and lays down the procedure for an application for issue of a commission, but Order XXVI is not exhaustive and does not detract from the inherent power of the Supreme Court to appoint a commission, if the appointment of such commission is found necessary for the purpose of securing enforcement of a fundamental right in exercise of its constitutional jurisdiction under Article 32, Order XLVI of the Supreme Court Rules, 1966 cannot in any way militate against the power of the Supreme Court under Article 32 and in fact Rule 6 of Order XLVII of the Supreme Court Rules, 1966 provides that nothing in those Rules "shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice". We cannot therefore accept the contention of the learned Additional Solicitor General and Mr, Phadke that the Court acted beyond its power in appointing M/s. Ashok Srivastava and Ashok Panda as commissioners in the first instance and Dr. Patwardhan as commissioner at a subsequent stage for the purpose of making an inquiry into the conditions of workmen employed in the stone quarries. The Petitioner in the writ petition specifically alleged violation of the fundamental right of the workmen employed in the stone quarries under Articles 21 and 23 and it was therefore necessary for the Court to appoint these commissioners for the purpose of inquiring into the facts related to this complaint. The report of M/s. Ashok Srivastava and Ashok Panda as also the report of Dr. Patwardhan were clearly documents having evidentiary value and they fur nished prima facie evidence of the facts and data stated in those reports. Of course, as we have stated above, it will be for us to consider what weight we should attach to the facts and data contained in these reports in the light of the various affidavits filed in the proceedings.

We may point out that what he have said above in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terms as the jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Article 226. In fact, the jurisdiction of the High Courts under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently as vigorously as fundamental rights.

(Emphasis ours)

In Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, , it has been held in paras 2, 3 and 4 that:

A hundred and thirty-two years ago, in 1854, ''the wise Indian Chief of Seattle replied to the offer of ''the great White Chief in Washington'' to buy their land. The reply is profound. It is beautiful. It is timeless. It contains the wisdom of the ages. It is the first ever and the most understanding statement on environment. It is worth quoting. To abridge it OF to quote extracts from it is to destroy its beauty. You cannot scratch a painting end not diminish its beauty. We will quote the whole of it:

...How can you buy or sell the sky, the warmth of the land ? The idea is strange to us.

If we do not own the freshness of the air and the sparkle of the water, how can you buy thent ?

Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man.

The white man''s dead forget the country of their birth when they go to walk among the stars, Our dead never forget this beautiful earth, for it is the mother of the red man. We are part of the earth and it is part of us. The perfumed flowers are our sisters ; the horse, the great eaegle, these are our brothers. The rocky crests, the juices in the meadows, the body heat of the pony, and man-all belong to the same family.

So, when the Great Chief in Washington sends word and he wishes to buy our land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves. He will be our father and we will be his children. So we will consider your offer to buy our land. But it will not be easy. For this land is sacred to us.

This shining water moves in the streams and rivers is not just water but the blood of our ancestors. If we sell you land, you must remember that it is sacred, and you must teach your children that it is sacred and that it is sacred and that each ghostly refletion in the clear water of the lakes tells of events and memories in the life of my people. The water''s murmur is the voice of my father''s father.

The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and feed out children. If we sell you our land you must remember, and teach your children, that the rivers arc our brothers and yours and you must henceforth give the kiudness you would give any brother.

We know that the white man does not understand our ways, One portion of land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs The earth is not his brother but his enemy, and when he has conquered it, he moves on He leaves his father''s graves behind, and he does not care.

He kidnaps the earth from his children. His father''s grave and his children''s birth-right are forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads. His appetitute will devour the earth and leave behind only a desert.

I do pot know. Our ways are different from your ways. The sight of our cities paints the eyes of the red man. But perhaps it is because, the red man is a savage and does not understand.

There is no quet place in the white man!s cities. No place to hear the unfurling of leaves in spring or the rustle of an insect''s wings. But perhaps it is because I am a savage and do not understand. The clatter only seems to insult the ears. And what is there in life if a man cannot hear the lonely cry of the whippoor will or the arguments of the frogs around a pond at night ? I am a red roan and do not understand. The Indian prefers the soft sound of the wind darting over the face of a pond, and the smell of the wind itself, cleansed by a mid-day rain, or scented with the pinon pine.

The air is precious to the red man, for all things share the same breath-the beast, the tree, the man, they all share the same breath. The white man does not seem to notice the air he breathes. Like a man lying for many days, he is numb to the stench. But if we sell you our land, you must remember that the air is precious to us that the air shares is spirit with all the life it supports. The wind that gave our grandfather his-first breath also receives the last sigh. And if we sell you our land, you must keep it apart and sacred as a place where even the white man can go to taste the wind that is sweetened by the meadow''s flowers.

So we will consider your offer to buy our land. If we decide to accept, I will make one condition. The white man must treat the beasts of this land as his brothers.

I am a savage and I do not understand any other way to have seen a thousand rotting buffaloes on the prairie, left by the white man who shot them from a passing train. I am a savage and I do not understand how the smoking iron horse can be more important than the buffalo that we kill only to stay alive.

What is man without the beasts ? If all the beasts were gone, man would die from a great loneliness of spirit. For whatever happens to the beasts soon happens to man. All things are connected

You must teach your children that the ground beneath their feet is the ashes of our grand-fathers. So that they will respect the land. Tell your children that the earth is rich with the lives of our kin. Teach your children what we have taught our children, that the earth is our mother. Whatever befalls the earth befalls the sons of the earth. If man spit upon the ground, they spit upon themselves.

This we know: The earth does not belong to man ; man belongs to the earth. This we know: All things are connected like the blood which unites one family. All things are connected.

Whatever befalls the earth befalls the sons of the earth. Man did not weave the web of life ; he is merely a strand in it. Whatever he does to the web he does to himself.

Even the white man, whose God Walks and talks with him lis friend to friend cannot be exempt from the common destiny. We may be brothers after all. We shall see. One thing we know, which the white man may one day discover -our God is the same God. You may think now that, you own Him as you wish to own our land ; but you cannot. He is the God of man, and His compassion is equal for the red man and the white. This earth is precious to Him, and to-harm the earth is to heap contempt on its Creator. The white too shall pass ; perhaps sooner than all other tribes. Contaminate your bed and you will one night suffocate in'' your own waste,

But in your perishing you will shine brightly, fired by the strength of the God who brought you this land and for some special purpose gave you dominion over this land and over the red man That destiny is a mystery to us, for we do not understand when the wild buffalo are all slaughtered, the wild horses are tamed, the secret corners of the forest heavy with scent of many men and the view of the ripe hills blotted by talking wires. Where is the thicket ? Gone. Where is the eagle ? Gone. The end of living and the beginning of survival.

Today Society''s interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity Industrialisation, urbanisation, explosion of population, over-exploitation of resources, depletion of traditional sources of energy and raw materials and the search for new sources of energy and raw materials, the disruption of natural ecological balances, the destruction of a multitude of animal and plant species for economic reasons and sometimes for no good reason at all are factors which have contributed to environmental deterioration. While the scientific and technological progress of man has invested him with immense power over nature. It has also resulted in the unthinking use of the power, encroaching endlessly on nature. If man is able to transform deserts into oasis, he is also leaving behind deserts in the place of oasis. In the last century, a great German materialist philosopher warned mankind: "Let us not, however, flatter ourselves over much on account of our human victories over nature. For each such victory nature takes revenge on us. Each victory, it is true, in the first place brings about the results we expected, but in the second and third places it has quite different, unforeseen effects which only too often cancel the first". Ecologists are of the opinion that the most important ecological and social problem is the wide-spread disappearance all over the world of certain species of living organisms. Biologists forecast the extinction of animal and plant species on a scale that is incomparably greater than their extinction over the course of millions of years It is said that over half the species which became extinct over the last 2,000 yeais did so after 1900. The International Association for the Protection of Nature and Natural Resources calculates that now, on average, one species or subspecies is lost every year. It is said that approximately 1,000 bird and animal species are facing extinction at present. So it is that the environmental question has become urgent and it has to be properly understood and squarely met by man. Nature and history, it has been said are two component pasts of the environment in which we live, move and prove ourselves.

In India, as elsewhere in the world, uncontrolled growth and the consequent environmental deterioration are fast assuming menacing proportions and all Indian cities are afflicted with this problem The once Imperial City of Calcutta is no exception. The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an allotment of land for the construction of a Five Si ar Hotel and the expense of the zoological garden that it warrants interference by this Court. Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48A of the Constitution, Directive Principle which enjoins that "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country", and Article 51A(g) which proclaims it to be the fundamental duty of-every citizen of India "to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures", When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded In appropriate cases, the Court may go further, but how much further must depend on the circumstances of the case The Court may always give necessary directions. However, the Court will not attempt to nicely balance relevant considesations. When the question involves the nice balancing of relevant considerations, the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority. We may now proceed to examine the facts of the present case.

(Emphasis supplied)

In I.T.C. Ltd. and Others Vs. State of Karnataka and Others, , it has been held in paras 192 and 195 that:

For the purpose of how the Court can mould its directions in order to give relief in a particular situation, we may refer to the nature of directions given by the American Supreme Court, in abolishing racial discrimination and the judicial efforts made with attending difficulties, and how the Supreme Court of America formulated by trial and error the process of making the relief effective to the discussions in Corwin''s The Constitution and What It Means Today, 14th Edn., pages 504-511.

Courts of today cannot and do not any longer remain passive with the negative attitude, merely striking down a law or preventing something being done. "Thou shall not do''t" used to be the previous form of remedy encouraged by courts. But the new attitude is towards positive affirmative actions, directing people or authorities concerned that "thou shall do''t" in this manner. While it is true that if a law is bad, the Court must strike it down, if the law by and in its true perspective of a social purpose if implemented in a particular manner could be valid, then the Court can and should ensure that implementation should be done in such particular manner and give directions to that effect. In the instant case the High Court having found, with which finding we are in agreement, that basically and essentially the fee was justified on the theory of quid pro quo, the Court was entitled to give positive direction in the manner the money should be spent.

From the aforesaid comprehensive enunciation of decisions, it is absolutely plain that the Couit is duty bound to entertain a petition of this nature and award relief to the Petitioner. This duty flows from Articles 48A, 51A and 21 of the Constitution of India. It is also inherent in the jurisdiction of this Court exercisable under Article 226. While examining such cases, the competing claims for the enforcement of numerous laws dealing with ecology and environment, have to be balanced with the exploitation of natural resources. The claim of a citizen for enjoyment of healthy environment, free from pollution, stems out of Article 21. If the exploitation of natural resources is necessary for the sustenance of human race, its haphazard exploitation beyond a particular point is more disastrous to it. Primacy has to be given to environment and ecology on which human race primarily exists. The exploitation of natural resources should be to the extent that it does not cause environmental degradation. Reckless felling of tress, tampering with the fragile soil, release of toxic elements, flow of night-soil etc have caused immense harm to ecology and environment. Deforestation have depleted water sources. Lack of water affects eco-system to the greatest extent. Fragile soil is washed away causing scars to the land which are becoming eye-sores to the citizens. The apex Court has pointedly suggested the establishment of Environmental Courts on a regional basis to deal this problem. [See M.C. Mehta and Another Vs. Union of India (UOI) and Others,

Numerous legislations, some of which have been pointed out in the preceding part of the judgment, have been enacted to protect environment against degradation. Through judicial process directions have been issued by the Courts resulting in a perceptible improvement in the enforcement of these laws, This is not enough. We have been told that the biggest problem of the law enforcing departments is the lack of adequate staff to deal with the problem. Unscrupulous persons take advantage of these deficiencies and violate these laws with masterly devices and take shelter by raising technical pleas The submission has some substance in it, If the Government is genuinely keen to preserve ecology and environment and wants to enforce its laws effectively, it must provide adequate staff to man these departments so that prompt and effective steps are taken by them against the violators. We have found that the Petitioner had been pointing out to the State, its departments and the Boards to take action against the builders since a long time, but no prompt action was taken in this regard with the result that serious damage to the soil, forests and ecology appears to have been done. We refer to the observations of the apex Court in para 6 in Pratibha Co-operative Housing Society Ltd. and another Vs. State of Maharashtra and others, . It reads as under:

6 It is an admitted position that six floors have been completely demolished and a part of seventh floor has also been demolished. It was pointed out by Mr K.K. Singhvi, learned Counsel for the Corporation that the tendency of raising unlawful constructions by the builders in violation of the rules and regulations of the Corporation was rampant in the City of Bombay and the Municipal Corporation with its limited sources was finding it difficult to curb such activities We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. The violation of F Sl in the present case was not a minor one but was to an extent of more than 24,000 sq ft. Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of FSI and the order for demolition of eight floors had attained finality right upto this Court The order for demolition of eight floors has been substantially carried out and we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated November 13, 19