REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5109 OF 2019

Jitendra Singh ..... Appellants(s)

                 VERSUS

Ministry of Environment & Ors.  .....Respondents(s)

JUDGMENT

SURYA KANT, J.

1. The instant statutory appeal has been preferred under Section

22 of the National Green Tribunal Act, 2010 (hereinafter “NGT Act”)

against the order dated  06.03.2019 of the Principal  Bench of the

National Green Tribunal (“NGT”), whereby appellant’s grievance

against allotment of local  ponds to  private industrialists  has  been

dismissed summarily without any adjudication of the lis or merits, but

merely on the basis of an affidavit filed by Respondent No. 5 (Greater

Noida Industrial Development Authority – hereinafter “GNIDA”)

claiming that it was developing bigger alternative water­bodies.

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FACTUAL BACKGROUND

2. The  appellant is  a  permanent resident  of village  Saini, tehsil

Dadri,  of  district  Gautam Budh Nagar,  which falls in the  National

Capital Region. He claims to be a socially­active lawyer dedicated to

bettering the lives of  his co­villagers  and  alleges that the  Original

Application before the NGT was triggered when around 18.01.2017 the

agents of a private entity (Respondent No. 6 ­ M/s Sharp Enterprises

Pvt.  Ltd. ­  hereinafter “Sharp”)  using excavataors  and  other  heavy

machinery attempted to  forcibly  takeover possession of  a  ‘common­

pond’, which had been in use by local villagers for a century. This was

objected to by the villagers, and the appellant subsequently made a

complaint on 25.01.2017 to various authorities including the District

Collector. Pointing out revenue records which elucidate the commons­

status of the ponds, he sought directions to restrain Sharp and its

agents. However, there was no action on his representation for more

than 10 days, leading to another attempt by Sharp at dispossession,

compelling the  appellant to seek  police  help.  A few  days later,  he

submitted  another representation  to the  Collector,  but to  no  avail.

Aggrieved, he was left with no recourse but to approach the NGT by

way of an Original Application under Section 14 (read with Sections 15

and 18) of the NGT Act for adjudication of these environmental issues.

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3. Before the Tribunal, appellant contended that large tracts of his

village (but not the impugned water­bodies) had been acquired under

the Land Acquisition Act, 1894 ostensibly for industrial development

by GNIDA. Subsequently, these acquired lands (including some local

ponds) had been leased to private industrialists, including Sharp in

2012. Using revenue records obtained under the UP Consolidation of

Holdings Act, appellant showed that Khasra Nos. 552 (1140 sq meters)

and 490 (8470 sq meters) were ‘pokhar’ (pond) and Khasra Nos. 522

(1620 sq meters)  and 676  (9804 sq metres)  were ‘rajwaha’ (canal).

Highlighting   that the water bodies were vested in the Gram Sabhas

per Section 117 of the UP Zamindari Abolition and Land Reforms Act,

1950, he contended that such land had neither been acquired, nor

resumed and hence there was no power with GNIDA to transfer the

same to Sharp. He further claimed to have discovered other similar

illegal allotments of water bodies by GNIDA to other third­parties.

4.  The appellant urged that neither the mandatory environmental

clearances under the Environmental (Protection) Act, 1984 had been

obtained by  the industrialists  nor the  statutory  authorities  applied

their mind that the project would negatively impact the environment

and human health. Laying support on the Ramsar Convention and

Rule 4 of the Wetland (Conservation and Management) Rules, 2010

which prohibited reclamation of wetlands, setting up or expansion of

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industries, permanent construction or any other activity with

potentially  adverse effects on ecosystem,  he sought cancellation  of

such illegal allotments and protection of water­bodies.

5. During pendency of the proceedings, GNIDA’s representatives

started  filing  up certain  ponds and started developing an alternate

area  (1.25 times bigger)  as  a new waterbody  to  save the allotment

made in favour of Sharp (as admitted in an additional affidavit filed

before the NGT on 15.01.2019 by GNIDA).

6. Over the course of proceedings, the appellant was permitted to

amend his prayers in the Original Application to enable challenge to

all illegalities concerning village commons. No rejoinder or additional

affidavit  was filed by any respondent against  the amended Original

Application.  

7. The NGT vide its brief impugned order dated 06.03.2019 took

note of this representation of constructing alternate pond and

abruptly  concluded that  appellant’s  substantial  grievance had been

redressed. It accordingly dismissed his application, without venturing

into the merits or the lis of the dispute.

CONTENTIONS OF PARTIES

8. This summary dismissal by the NGT has been challenged before

us. Appellant raises grievance against the manner in which the NGT,

without  even  looking at the  sweep of  his  prayers,  disposed off the

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mater before it, merely on the strength of a proposed affidavit (which

was actually filed only on 12.03.2019, post adjudication of the

application by the NGT and without any advance copy to the

appellant).  He further protests the haste with which his application

was disposed of and how the reluctance by the NGT to conduct even a

proper enquiry has resulted in conferrment of illegal benefits to third­

parties, at the cost to the environment and local residents.  

9.  The appellant contends that the disputed pond is situated near

the Aravali hills which are in an arid zone with a low­water table. He

demonstrated how the existing sparse flaura and fauna in the region

was hence unlikely to survive elsewhere. Highlighting the unchecked

urbanisation and construction of concrete jungles in the ecologically

sensitive area, the appellant alleged that Respondent­authorities were

in  active  connivance  with industrialists  and real  estate  companies,

were negligently discharging their duties. This, he contended, violated

public trust and consequently the right to a wholesome environment

guaranteed under Article 21 of the Constitution. Interpreting Article

48A and Article 51­A(g) to place a duty on the State to protect the

environment, including lakes and water­bodies, the appellant has

sought intervention of this Court to save and restore the local ponds.  

10. Per contra, learned Counsel for GNIDA (Respondent No. 5)

placed reliance on a Government Order dated 03.06.2016, which he

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claimed permitted destruction of existing ponds and allotment of

filled­up land to third­parties in certain extraordinary circumstances,

with the stipulation that 25%­larger alternate water­bodies be

developed elsewhere. Further, he questioned recording of Khasra Nos.

552 and 490 as  ‘pokhar’ in revenue record, contending that  it  was

merely ‘slightly low lying land’ over which some water would get

accumulated during rainy season. There was statedly no water on the

pond­land since the past year, showing that it was merely ordinary in

nature. Even if ‘pokhar’, Khasra Nos. 552 was only 1140 sq. meters in

size,  which constituted a miniscule portion  (only 1.4%) of  the total

allotted plot of 80,900 sq. meters. It was also explained that no other

‘pokhar’ had been included and Khasra No. 490 had not been allotted

to Sharp. GNIDA also put forth a contrary allegation that the appellant

was, in fact, aggrieved by non­disbursement of compensation and had

set up the entire dispute as a rouse to stall development of the area so

that he could instead use it for his private purpose of cattle grazing.  

11. Sharp  (Respondent No.  6)  has averred that  the disputed  land

was no longer vested in the Gram Sabha as the UP Zamindari

Abolition and Land Reforms Act, 1950 had been repealed by the UP

Revenue Code, 2006. This new Code specified that title of all lands

including lakes, ponds, tanks, streams and nallas vest in the State

Government. Through Section 59 of the Code, the land was merely

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entrusted to the Gram Panchayat,  and the State retained power to

alter such entrustment at any time.  It  claimed to have paid Rs 25

crores as sale consideration for leasehold rights over acquired areas

and is allegedly suffering as a result of litigation­induced delays.

ANALYSIS & FINDINGS

12. At  the outset,  we must note,  that  the respondents have been

unable to demonstrate how the 2016 Government Order can be made

applicable retrospectively, the possession having been given to Sharp

in 2012. Notwithstanding this, no case of the present instance being

an extraordinary circumstance (hence permitting recourse to the

exceptional provisions of the Government Order) has been made before

us either. Further, argument that Khasra No. 552 is a ‘slightly­sloped

seasonal  rainfall­catchment area’  and not a  ‘pond’, is  creative but

without merit. Photographs have been placed on record by the

appellant showing that there is substantial water in the pond, which

has not been controverted. Further,  revenue records maintained by

the Revenue Department themselves show that the land was ‘pokhar’.

It is hence not open for the authorities to contradict and plead against

the record without any scientific or empirical support, for such

categorisation had been made by them in the past. Further,  it was

conceded by respondent­authorities during arguments that  Khasra

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No. 490 was also recorded as ‘pokhar’ in revenue records and that it

too had been integrated in the industrial development project.   

13. Additionally, it is clear that repeal of the UP Zamindari Abolition

and Land Reforms Act,  1950 and vesting  of  such ponds  and  local

areas in the State by Section 57 of the UP Revenue Code, 2006 would

not  by itself either  change the  nature  of land contrary to revenue

record nor will defeat the long­established rights of the local people on

commons. Such a proposition had unequivocally been laid down in

Chigurupati Venkata Subbayya v. Palaguda Anjayya1, where this

Court negatived a contention that communal rights in the suit­land

stood abolished per Section 3 of the Estates Abolition Act, 1948 for it

provided that estates, including communal lands, would stand

transferred to the Government free from any encombrance.  Further, it

was  held that even explicit destruction of all rights and interests

created by the principal or landholders, would not apply to community

rights as such rights originated elsewhere.  

14. Given that Section 22 of the NGT Act, 2010 specifies that the

nature of the appeal  shall  be akin to  a second appeal  as specified

under Section 100 of the Code of  Civil  Procedure,  1908, we would

restrict our deliberation to a singular substantive question of law. That

is, whether it is permissible for the State to alienate common water­

1 (1972) 1 SCC 521.

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bodies for industrial activities, under the guise of providing

alternatives?

15. In  Hinch Lal Tiwari v. Kamala Devi2, this Court settled that

‘ponds’ were a public utility meant for common use and held that they

could not be allotted or commercialised.  It  had refused to give any

weight to similar arguments of the pond having become levelled, with

merely some portion getting covered during rainy season by water.

Importantly, it emphasised that:

“13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities  i.e.  Respondents  11  to  13,  having noticed  that  a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non­abadi sites.”

16. This Court reiterated in Jagpal Singh v. State of Punjab3 and

noted that since time immemorial, certain common lands had vested

in village communities for collective benefit. Except in exceptional

circumstances when used exclusively for the downtrodden, these

lands were inalienable. It was observed that such protections,

2 (2001) 6 SCC 496. 3 (2011) 11 SCC 396.

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however, remained on paper, and since Independence powerful people

and a corrupt system had appropriated these lands for personal

aggrandisement. Pointing out the harms in allowing such

misappropriation, the Court noted an urgent public interest in

stopping such misdeeds. Further, various directions were issued for

eviction of illegal occupants and restoration of the common land to

villagers. It was explicitly specified that “long duration of such illegal

occupation or huge expenditure in making constructions thereon” cannot

be a “justification for condoning this illegal act or for regularising the

illegal possession”.

17. It is uncontroverted, in the present case, that the Government

Order dated 03.06.2016 was a consequence of the afore­cited

judgment in  Jagpal Singh. Curiously, however, Clause 5 of the

Government Order carves an exception of “huge projects/works” (albeit

in extraordinary circumstances) to Jagpal Singh’s  strict principle of

non­alienation of common water­bodies. It is clear that such ground of

exception doesn’t  fall  under the  limited class of  grants to “landless

labourers or  members of the Scheduled Castes/Scheduled Tribes,  or

where there is already a school, dispensary or other public utility on the

land”. Such industrial  activities without any rationale classification,

unlike the narrow class exempted, do not serve a social public

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purpose or benefit the local people, and thus will be hit by the

inalienability bar.  

18. Even otherwise, the action of the respondent­authorities

contravenes their Constitutional obligations. Article 48­A of the

Constitution casts a duty on the State to “endeavour to protect and

improve the environment and to safeguard the forests and wild life of

the country”, and Article 51­A(g) expects every citizen to perform his

fundamental duty to “protect and improve the natural environment”. A

perusal of our Constitutional scheme and judicial development of

environmental  law further shows that all  persons have a right to a

healthy environment. It would be gainsaid that the State is nothing

but a collective embodiment of citizens, and hence collective duties of

citizens can constructively be imposed on the State. Such an

interpretation of the Constitution has also been adopted in MC Mehta

v. Union of India4 wherein this Court mandated the State to ensure

mandatory environemental education to all school students in

pursuance of the fundamental duties ensrined in Article 51­A(g):

“24.  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

4 (1988) 1 SCC 471.

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to teach atleast for one hour in a week lessons relating to the protection and the improvement of the natural environment including forests, lakes, rivers and wildlife in 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 for 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.”

19. There remains therefore no doubt that it is the responsibility of

the respondents to ensure the protection and integrity of the

environment, especially one which is a source for livelihood for rural

population and life for local flaura and fauna.  

20. Protection of such village­commons is essential to safeguard the

fundamental right guaranteed by Article 21 of our Constitution. These

common areas are the lifeline of village communities, and often

sustain various chores and provide resources necessary for life.

Waterbodies, specifically, are an important source of fishery and much

needed potable water. Many areas of this country perennially face a

water crisis and access to drinking water is woefully inadequate for

most  Indians.  Allowing such  invaluable community resources to be

taken over by a few is hence grossly illegal.  

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21. The respondents’ scheme of allowing destruction of existing

water bodies and providing for replacements, exhibits a mechanical

application of environmental protection. Although it might be possible

to superficially replicate a waterbody elsewhere, however, there is no

guarantee that the adverse effect of destroying the earlier one would

be offset. Destroying the lake at Khasra Nos. 552 and 490, for

example, would kill the vegetation around it and would prevent

seepage of groundwater which would affect the already low water­table

in the area. The people living around the lake would be compelled to

travel all the way to the alternative site, in this case allegedly almost 3

kms away. Many animals and marine organisms present in the earlier

site would perish, and wouldn’t  resuscitate by merely  filling a hole

with water elsewhere. Further, the soil quality and other factors at the

alternate site might not be conducive to growth of the same flora, and

the local environment would be altered permanently. The respondents’

reduction of the complex and cascading effects of extinguishing

natural water­bodies into mere numbers and their attempt to justify

the same through replacement by geographically larger artificial water­

bodies, fails to capture the spirit of the Constitutional scheme and is,

therefore, impermissible.

22. Hence, it is clear that schemes which extinguish local

waterbodies albeit with alternatives, as provided in the 2016

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Government Order by the State of UP, are violative of Constitutional

principles and are liable to be struck down.  

23. For the reasons stated above, we allow the appeal and set aside

the  impugned order passed by the NGT. The allotment of  all  water

bodies (both ponds and canals), including Khasra Nos. 552 and 490 to

Respondent No. 6, or any other similar third party  in village Saini,

tehsil Dadari, district Gautam Budh Nagar is held to be illegal and the

same is hereby quashed. Since this Court has on 15.07.2019 already

directed the parties to maintain status quo, Respondent Nos. 1 to 5

shall restore, maintain and protect the subject­water bodies in village

Saini.  Respondents  are further  directed to remove all obstructions

from the catchment area through which natural water accumulates in

the village ponds, all within a period of three months.

………………………….. J.    (ARUN MISHRA)

………..…………………...J. (SURYA KANT)

NEW DELHI DATED : 25.11.2019

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