Holding

The Court held that the project cannot be permitted as it lies within the prohibited buffer zone, the clearances are void, and the doctrine of public trust mandates protection of the sanctuary.

Summary

The Supreme Court examined Tata Housing Development Co.'s attempt to construct a high‑rise housing project (CAMELOT) on 52.66 acres in Mohali, Punjab, which lay within 123 metres of the Sukhna Wildlife Sanctuary and inside the catchment area of Sukhna Lake. The appellants argued that the environmental clearance granted by the State Level Environment Impact Assessment Authority and the permission from the Nagar Panchayat were valid, while the respondents contended that the project violated the Environment (Protection) Act, the applicable 2016 notification on eco‑sensitive zones, and the doctrine of public trust. The Court held that the proximity of the project to the sanctuary fell well within the prohibited 0.5 km buffer and that the State of Punjab had failed to submit a compliant buffer‑zone proposal, rendering the clearances illegal. Relying on constitutional provisions (Arts. 48A, 51A) and prior jurisprudence, the Court affirmed that the public trust doctrine obliges the State to protect such ecologically sensitive areas. Consequently, the entire environmental clearance process was quashed and the appeals were dismissed.

Issues considered

Whether the housing project located 123 metres from Sukhna Wildlife Sanctuary can be permitted under the Environment (Protection) Act, 1986 and related rules.
Whether the buffer‑zone proposal submitted by the State of Punjab complies with the notification dated 18.01.2017 and the requirement of at least 1 km distance.
Whether the doctrine of public trust applies to the protection of the Sukhna Wildlife Sanctuary and its eco‑sensitive zone.
Whether the environmental clearance granted by SEIAA and the permission from the Nagar Panchayat are valid in view of the statutory and constitutional provisions.

Legislation cited

Environment (Protection) Act, 1986s. 3(1), s. 3(2)(v)
Environment (Protection) Rules, 1996s. 5(3)(d)
Punjab New Capital (Periphery) Control Act, 1952
Wildlife (Protection) Act, 1972s. 26-A, s. 5-B, s. 5-C(2)

Subjects

environmental clearancewildlife sanctuarybuffer zonepublic trust doctrineeco‑sensitive zoneconstructionSukhna Lakeconstitutional lawsustainable development

Judgment

[2019] 13 S.C.R. 577 577

TATA HOUSING DEVELOPMENT COMPANY LTD. A
v.
AALOK JAGGA AND OTHERS
(Civil Appeal Nos. 8398–8399 of 2019)
NOVEMBER 05, 2019 B
[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
Environment Laws:
Environment (Protection) Act, 1986 – Environment (Protection)
Rules, 1996 – Housing project – Environment clearance – Housing C
project coming up within the catchment area of Sukhna Lake and
at a short distance of 123 meters from Sukhna Wildlife Sanctuary –
Challenge to – Held: Considering the distance of 123 meters from
the Northern side and 183 meters from the Eastern side of the project
from wildlife sanctuary, such project cannot be allowed to come up
D
in the area – Origination of the project indicates that State of Punjab
failed to act in furtherance of Doctrine of Public Trust as 95 MLAs
were to be the recipients of the flats – Government permitted setting
up of high–rise buildings up to 92 meters in the area which was not
at all permissible – Moreso, in view of the Notification issued with
respect to the Sukhna wildlife sanctuary towards the side of E
Chandigarh Union Territory that no new commercial construction
of any kind shall be permitted within 0.5 km from the boundary of
protected area or up to the boundary of the eco–sensitive zone and
also the fact that proposal made by the Punjab Government,
confining the Buffer Zone to 100 meters, was rightly not accepted
F
by MoEF, the Government of Punjab as well as MoEF, cannot be
the final arbiter in the matter – Court has to perform its duty in
such a scenario when the authorities have failed to protect the
wildlife sanctuary eco–sensitive zone – Thus, the entire exercise of
obtaining clearance relating to the project quashed – Doctrine of
Public Trust. G
Environment: Environmental degradation and wildlife
degeneration – Need for protection and preservation of environment,
safeguarding forest and wildlife – Development and urbanization
adversely affects our natural surroundings – Constitution of
India – Arts. 48(A), 51(A). H
577
578 SUPREME COURT REPORTS [2019] 13 S.C.R.

A Dismissing the appeals, the Court
HELD: 1.1 Proposal, which was sent by the Government of
Punjab to the MoEF, to keep the Buffer Zone within 100 meters
from Sukhna Wildlife Sanctuary, had not been accepted and the
direction was issued to resubmit the proposal for at least 1 km
B Buffer Zone has not been forwarded by State of Punjab. It was
incumbent upon the State of Punjab to send a proposal to the
MoEF, as required but it appears that it has not chosen to do so
for a reason precious project concerning the MLAs is involved,
and MoEF has not accepted its proposal for keeping Buffer Zone
to 100 meters. It has also been pointed out from the respondent
C side that Naya Gaon forms part of the Greater Mohali Region in
the State of Punjab. In the statutory, Greater Mohali Area
Development Authority, Regional Plan for Greater Mohali Region
in paragraph 14.3.1, it has been mentioned that no development
is possible within 5 kms buffer distance from existing forest i.e.,
D Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are
several pockets of forests distributed all over the Greater Mohali
Region. These have to be conserved, and the buffer zone
recommended should be protected against urban development.
It is also clear that 2–2.75 km area has been ordered as eco–
sensitive zone by the MoEF and the notification dated 18.1.2017
E has been issued as to the adjacent area towards Chandigarh side
of the Sukhna Wildlife Sanctuary. [Para 21, 23, 24] [591-F-G;
593-D-F]
1.4 The most potent threat faced by the earth and human
civilization as a whole which is confronted with, today, is
F environmental degradation and wildlife degeneration. The need
to protect flora and fauna which constitutes a major portion of
our ecosystem is immediate. Development and urbanization
coming at the cost of adversely affecting our natural surroundings
will in turn impact and be the cause of human devastation as was
G seen in the 2013 floods in Uttarakhand and in 2018 in Kerala.
The climate change is impacting wildlife by disrupting the timing
of natural events. With warmer temperatures, flowering plants
are blooming earlier in the year and migratory birds are returning
from their wintering grounds earlier in the spring. Wildlife
conservation in India has a long history, dating back to the colonial
H
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK 579
JAGGA AND OTHERS

period when it was rather very restrictive to only targeted species A
and that too in a defined geographical area. Then, the formation
of the Wildlife Board at the national level and enactment of
Wildlife Act in 1972 laid the foundation of present day “wildlife
conservation” era in post–independent India. Project Tiger in
the 1970s and the Project Elephant in 1992–both with flagship
B
species–attracted global attention. India then also became a
member of all major international conservation treaties related
to habitat, species and environment like Ramsar Convention,
1971; Convention on International Trade in Endangered Species
of Wild Fauna and Flora, 1973; Convention on Migratory Species,
1979; Convention on Biological Diversity, 1992, among others. C
[Para 25] [593-G-H; 594-A-C]
1.5 The human as well as the wildlife are completely
dependent upon environment for their survival. Human is
completely dependent on the environment. Like the human, the
wild life is also dependent on the environment for it’s survival D
and also get effected by the environment. The relationship
between the human and animal can be understood by the food–
chain and food–web. The wildlife is affected by several reasons
such as population, deforestation, urbanization, high number of
industries, chemical effluents, unplanned land–use policies, and
reckless use of natural resources etc. [Para 26] [594-D-E] E

1.6 The Directive Principles of State Policy provide that
protection and improvement of environment, safeguarding forest
and wildlife have been duly enjoined upon the Government.
Those principles have found statutory expression in various
enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which F
have been enforced by this Court in various decisions. The
inaction of State to constitutional and statutory duties cannot be
permitted. The Court has to issue appropriate directions to fulfil
the mandate. Article 51(A) provides fundamental duty to protect
and preserve environment, wild life etc. [Para 27] [594-F-G] G
1.7 In the facts and circumstances of the case, considering
the distance of 123 meters from the Northern side and 183 meters
from the Eastern side of the project in question from wildlife

H
580 SUPREME COURT REPORTS [2019] 13 S.C.R.

A sanctuary, no such project can be allowed to come up in the area
in question. The State of Punjab was required to act on the basis
of Doctrine of Public Trust. It has failed to do so. The origination
of the project itself indicates that State of Punjab was not acting
in furtherance of Doctrine of Public Trust as 95 MLAs were to
be the recipients of the flats. It is clear why Government has not
B
been able to protect the eco–sensitive zone around a Wildlife
and has permitted setting up of high–rise buildings up to 92
meters in the area in question, which is not at all permissible.
[Para 36] [604-C-E]
1.8 Such projects cannot be permitted to come up within
C such a short distance from the wildlife sanctuary. Moreso, in view
of the Notification issued with respect to the Sukhna wildlife
sanctuary towards the side of Chandigarh Union Territory and
also considering the fact that proposal made by the Punjab
Government, confining the Buffer Zone to 100 meters, has rightly
D not been accepted by MoEF, as the Government of Punjab as
well as the MoEF, cannot be the final arbiter in the matter. The
Court has to perform its duty in such a scenario when the
authorities have failed to protect the wildlife sanctuary eco–
sensitive zone. The entire exercise of obtaining clearance relating
to the project is quashed. Such a scenario has emerged in the
E matter and that it involved a large number of MLAs of Punjab
Legislative Assembly. The entire exercise smacks of arbitrariness
on the part of Government including functionaries. [Para 37]
[604-E-G]
Goa Foundation v. Union of India (2011) 15 SCC
F 791 ; Animal and Environment Legal Defence Fund v.
Union of India (1997) 3 SCC 549 : [1997] 2 SCR
728 ; M.C. Mehta v. Kamal Nath and others (1997) 1
SCC 388 : [1996] 10 Suppl. SCR 12 ; Vellore Citizens’
Welfare Forum v. Union of India (1996) 5 SCC 647 :
G [1996] 5 Suppl. SCR 241 ; Intellectuals Forum, Tirupathi
v. State of A.P. and others (2006) 3 SCC 549 : [2006] 2
SCR 419 ; M.C. Mehta v. Kamal Nath (2000) 6 SCC
213 : [2000] 1 Suppl. SCR 389 ; M.C. Mehta (Badkhal
and Surajkund Lakes matter) v. Union of India and

H
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK 581
JAGGA AND OTHERS

others (1997) 3 SCC 715 : [1996] 7 Suppl. SCR 465 ; A
Indian Council for Enviro–Legal Action v. Union of
India and others (1996) 5 SCC 281 : [1996] 1 Suppl.
SCR 507 – referred to.
Case Law Reference
(2011) 15 SCC 791 referred to Para 22 B
[1997] 2 SCR 728 referred to Para 29
[1996] 10 Suppl. SCR 12 referred to Para 30
[1996] 5 Suppl. SCR 241 referred to Para 31
[2006] 2 SCR 419 referred to Para 32
C
[2000] 1 Suppl. SCR 389 referred to Para 33
[1996] 7 Suppl. SCR 465 referred to Para 34
[1996] 1 Suppl. SCR 507 referred to Para 35
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8398-
8399 of 2019. D
From the Judgment and Order 12.04.2017 of the High Court of
Delhi at New Delhi in W.P. (C) Nos. 2999 and 2924 of 2014.
Shyam Divan, Sr. Adv., Manu Nair, Neelabh Shreesh, Ms. Suvarna
Kashyap, S. S. Shroff, Advs. for the Appellant.
E
A.N.S. Nadkarni, ASG, Ashok Kumar Srivastava, P. S. Patwalia,
Puneet Bali, Sr. Advs., Pranay Ranjan, Vijay Prakash, Gurmeet Singh
Makker, Vijay Prakash, Dhruv Sheoran, Gauravjit Singh Patwalia, Ashok
K. Mahajan, Ms. Natasha Dalmia, Karan Bharihoke, Raj Kamal, Siddhant
Sharma, Aditya Soni, Navkiran Bolay, Ms. Manmeet Arora, Ms. Nidhi
Mohan Parashar, Ms. Samapika Biswal, Keshav, S. Shriram, Sangram F
S. Saron, Ms. Vandana Rani, Rahul Gupta, Shubham Bhalla, Lalit Kumar,
Advs. for the Respondents.
The Judgment of the Court was delivered by
ARUN MISHRA, J. G
1. The appellant has questioned the judgment and order dated
12.04.2017 passed by the High Court of Delhi, concerning the housing
project, on the ground that the area in question falls within the catchment
area of Sukhna Lake and is 123 meters away from the boundary of
Sukhna Wildlife Sanctuary. The Survey Map of India dated 21.09.2004,
H
582 SUPREME COURT REPORTS [2019] 13 S.C.R.

A demarcating the area of Sukhna Lake, is binding on the State of Punjab.
The permission dated 05.07.2013, granted by the Nagar Panchayat, Naya
Gaon to Tata Housing Development Company Ltd. (Tata HDCL), is
invalid. The environment clearance dated 17.09.2013, granted by State
Level Environment Impact Assessment Authority (SEIAA) for
development of the project is not in conformity with the Notification
B
dated 14.09.2006 of Ministry of Environment and Forest (MoEF), has
also been set aside. It has also been ordered that if the permission is
granted by the State of Punjab in favour of the appellant if it so desires,
it may apply to Central Government for environmental clearance treating
project category ‘A.’
C 2. The Tata HDCL proposed to develop a project, namely,
“CAMELOT” in the revenue estate of village-Kansal, Tehsil-Kharar,
District-Mohali, State of Punjab. The total project area is 52.66 acres,
out of which 41.54 acres is to be developed for group housing built-up
area of 4,63,144.54 sqm. The parking facility is to be provided for 3645
D ESS. The estimated population of the project area was about 9788. The
proposed maximum height of the building was to be 92.65 meters.
Environmental clearance was required in terms of the Notification dated
14.09.2006 issued by MoEF, which mandates prior to environmental
clearance from the Central Government or by the SEIAA. The
Notification has a statutory force having been issued under Section 3(1)
E and 3(2)(v) of the Environmental (Protection) Act, 1986 (“E.P. Act”)
read with Rule 5(3)(d) of the Environment (Protection) Rules, 1996 (“E.P.
Rules”). Tata HDCL applied for environmental clearance from SEIAA,
Punjab. The application was forwarded to the State Expert Appraisal
Committee (SEAC). In the meeting dated 06.06.2009, the committee
F awarded “gold grading” to the proposed project and recommended to
forward the project to SEIAA for grant of environmental clearance
subject to the conditions specified therein. The MoEF recommended for
environmental clearance in its meeting held on 09-10.11.2010. However,
MoEF had called a report from Northern Regional Office, Chandigarh
vide letter dated 14.10.2010 regarding the proposed project. A team of
G officers inspected the project site, and, in the report, the distance of the
housing-cum-retail project “CAMELOT” from Sukhna Wildlife Sanctuary
is found to be 123 meters on Northern side and 183 meters on the Eastern
side. Besides, the report stated that the project falls in the catchment
area of Sukhna Lake as per the Survey of India Map.
H 3. On 12.01.2011, Tata HDCL addressed a letter to MoEF stating
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK 583
JAGGA AND OTHERS [ARUN MISHRA, J.]

that the project site does not contribute to the catchment area of Sukhna A
Lake as physically the project area does not obstruct the natural flow of
water towards Sukhna Lake.
4. In the meanwhile, C.W.P. No.20425/2010 titled “Aalok Jagga
vs. Union of India and others” was filed in the High Court of Punjab and
Haryana at Chandigarh, challenging the project to be in violation of the B
provisions of Punjab New Capital (Periphery) Control Act, 1952 as well
as the E.P. Act claiming that the project lies in the eco-sensitive and
protected area, apart from falling within the catchment area of Sukhna
Lake.
5. The SEIAA sought clarification from MoEF as to whether it is
competent to consider the application since the Sukhna Wildlife Sanctuary C
is located at a distance of 123 meters from the project site as per the
report of Northern Regional Office of MoEF. The High Court vide order
dated 26.03.2012 directed the Tata HDCL to comply with the
requirements of the E.P. Act and Wildlife (Protection) Act for obtaining
grant of necessary clearances/sanctions/permissions from the competent D
authorities.
6. Sarin Memorial Legal Foundation filed Writ Petition (Civil)
No.994/2013 in this Court on 09.11.2013, under Article 32 of the
Constitution of India challenging the decision of SEIAA, Punjab dated
06.09.2013. E
7. Order dated 21.08.2013 was passed by the High Court of Punjab
and Haryana in which it was ordered that the project of Tata HDCL
would not be affected by the orders passed on 14.03.2011 and 14.05.2012
in CWP No.18253/2009. Sarin Memorial Legal Foundation also
questioned the said order in this Court. This Court vide order dated
22.04.2014 disposed of W.P.(C) No.994/13 and Civil Appeal No.4848/ F
2014 filed by Sarin Legal Memorial Foundation. The order passed by
the High Court of Punjab and Haryana on 26.03.2012 was set aside.
The writ petition was restored; the matters were transferred for the
decision to the High Court of Delhi.
8. Municipal Area of Naya Gaon was notified on 18.10.2006 as G
the ‘Local Planning Area’ of Naya Gaon. ‘Existing Land Use Plan’ and
‘Draft Master Plan’ for Nagar Panchayat Naya Gaon were prepared.
Nagar Panchayat Naya Gaon granted permission to raise the construction
to Tata HDCL on 09.04.2012. The Tata HDCL claimed, because of the
permission granted, under Section 6(2) of the Periphery Control Act,
H
584 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 1952, and the environmental clearance granted under the EP Act, that
they were entitled to proceed with the construction of the project in
question. However, the petitioners, as well as the Chandigarh
Administration, disputed the stand taken by the State of Punjab.
9. Union Territory of Chandigarh has taken the stand that the
B area falls within the catchment area of Sukhna Lake as such no
construction can be raised as per the Survey of India Map. It was adjacent
to the wildlife sanctuary, and the distance was 123 meters. There was a
violation of the Periphery Control Act, and also clearance was not granted
in terms of Notification dated 14.09.2006 of MoEF.
10. It is pointed out that under the order passed by this Court to
C specify the area as the eco-sensitive zone around wildlife sanctuary, the
State of Punjab had forwarded a proposal to the MoEF for permitting
the construction beyond 100 meters that has not been accepted by MoEF.
It is also submitted that towards the other side of the Sukhna Wildlife
Santuary Lake area of 2 km. to 2.75 km. has been declared as an eco-
D sensitive zone. The MoEF had asked the State of Punjab to send a
proposal for keeping the eco-sensitive zone within 1 km. to which the
State of Punjab has not responded for the reasons best known to it.
11. It is also the case set up that initially, the housing project was
proposed for the ‘Punjab MLA Society’ for construction of residential
E houses of MLAs of Punjab Legislature. Subsequently, the said land was
sold to M/s. Hash Builders Private Limited with an understanding that
each member of Punjab MLA Society would be allotted one flat. The
impugned environment clearance dated 17.09.2013 has also suffered
from legal malafides, and it amounts to colourable exercise of power
since about 95 MLAs of the State of Punjab are the beneficiaries of the
F proposed project.
12. In W.P.(C) No.2999/2014, it was submitted that the proposed
project for extraneous considerations is illegal. The proposed project is
located about 1500 meters from Sukhna Lake and 123 meters from the
Wildlife Sanctuary. The project is zero kilometers from the periphery of
G Chandigarh. The project would destroy the wildlife sanctuary and would
cause a serious threat to Sukhna Lake. The High Court had banned all
construction activities in the catchment area of Sukhna Lake in C.W.P.
No.7649/2003. The project would adversely affect the environment within
Chandigarh and increase noise pollution by several manifolds, which
would harm the wildlife present in the adjoining Sukhna Wildlife Sanctuary.
H
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK 585
JAGGA AND OTHERS [ARUN MISHRA, J.]

Impact of a high-rise building having 28-storeys on the edict and norms A
of the city of Chandigarh has not been properly considered.
13. The State of Punjab has supported the case set up by Tata
HDCL, the edict of Chandigarh is not applicable in the area in question.
Survey of India Map regarding the catchment area of Sukhna Lake, is
not conclusive since the objections are yet to be heard. SEIAA rightly B
considered the application since the nearest distance of Sukhna Wildlife
Sanctuary from the project boundary on the northern side is 123 meters.,
as per the Office Memorandum dated 02.12.2009 of MoEF. Tata HDCL
has to obtain clearance from the Standing Committee of the National
Board for Wildlife before starting any work on the site.
14. In the counter affidavit filed by the Union Territory of C
Chandigarh, it is submitted that the area in question falls in the catchment
area of Sukhna Lake and the heritage zone of the Capitol Complex, the
project would have a direct impact on the existence of Sukhna Lake and
the environs of Chandigarh City. The Northern side of the Chandigarh,
which is also the catchment area of Sukhna Lake, is an ecologically D
fragile area and substantial part thereof comprises of forest area that
has been declared a Wildlife Sanctuary. The Chandigarh Administration
is fully committed to saving the heritage of Chandigarh, its forest area,
wildlife sanctuaries, and preserve Sukhna Lake. The Conservator of
Forests of Chandigarh has written a letter to the Chief Architect, UT of
Chandigarh, for the inclusion of the area proposed as Wildlife Corridor E
along with the approval accorded by the Planning Commission of India
in the Master Plan of Chandigarh. It is also submitted that the project is
located within the eco-sensitive zone and 10 km. from Sukhna Wildlife
Sanctuary, thus the prior clearance from the Standing Committee of
National Board of Wildlife before seeking environmental clearance was F
required to be obtained. The High Court has passed the orders for
protection of Sukhna Lake and its catchment area that no housing,
commercial, or industrial project can be allowed on the North of the
Capitol Complex of Chandigarh. Thus, it is submitted that no construction
may be permitted to the North of the Chandigarh. The environmental
clearance has been illegally granted. There was no jurisdiction to SEIAA, G
Punjab to grant environmental clearance as the project in question is
category ‘A.’ The High Court vide order dated 14.05.2012 has also
noted that the Chandigarh Administration had adopted the Survey of
India Map as a map of the catchment area of Sukhna Lake. The order
was passed to give wide publicity to the general public that no construction H
586 SUPREME COURT REPORTS [2019] 13 S.C.R.

A is permitted in that area. In paragraph 60 of the impugned judgment, in
respect of Survey of India Map, following finding has been recorded:
“60. xxx xxx xxx
(i) The Survey of India map dated 21.09.2004 is the only
document available on record identifying and demarcating the
B catchment area of Sukhna Lake. Admittedly the said map
was prepared under the directions of the High Court of Punjab
and Haryana in CWP No.7649/2003 (Dr. B. Singh vs. Union
of India). It is also not in dispute that the demarcation of
boundaries of catchment area was made after carrying out a
survey by Technical Experts and in due consultation with the
C State of Punjab, State of Haryana and U.T. Chandigarh.”
15. The High Court has also referred to the joint inspection report
made on 10.01.2011 by a team of the officer from different department
along with Tata HDCL. The observations of the inspecting team are
extracted hereinunder:
D “1. The nearest distance from the boundary of the project site
was measured by the staff members of Forest Department of
U.T. Administration Chandigarh using measuring tape at two points:
i. The nearest distance of Sukhna Wildlife Sanctuary from the
project boundary on northern side is 123 meters.
E ii. The distance of Sukhna Wildlife Sanctuary from the boundary
of project area on Eastern side is 185 meters.
It is clarified that a part of the catchment area of Sukhna Lake
has been declared as Sukhna Wildlife Sanctuary under Section
26-A of the Wildlife (Protection) Act, 1972 by Chandigarh
F Administration vide Notification No.694-HII(4)98/4519 dated 6th
March 1998 (copy enclosed).
The Tata Housing Project falls in the jurisdiction of Nagar
Panchayat, Naya Gaon, District Mohali, State of Punjab, which is
approximately 1500 metres away from Sukhna Lake (aerial
G distance). Further, it also falls under the catchment area of Sukhna
Lake as per the Survey of India map.
2. It has been observed by the team that no construction activities
have been started by the Project authorities at site. Only wire
fencing has been done to demarcate the boundary of the acquired
land area. In addition to it, solar light posts have been raised at
H different spots of the boundary, and a site office comprising three
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK 587
JAGGA AND OTHERS [ARUN MISHRA, J.]

rooms has been constructed. It is stated by the Project Proponent A
that these offices were constructed by the Defence Services
Cooperative Housing Building Society Ltd., and the Tata Housing
Development Company has only renovated them for using as a
site office. The photographs of different locations of the sites are
attached to show that there is no construction activity at the site
B
so far.
It is also mentioned here that there are existing houses and other
constructed buildings in Kansal area, which are a part of Kansal
village in Punjab and other spontaneous construction.
During the inspection, it has been informed that any notification
declaring eco-sensitive zones has not been issued by U.T. C
Chandigarh Administration and State Government of Punjab till
date.
The report is submitted to the Ministry of Environment and Forests
for kind information and further necessary action.”
The High Court has ultimately given the finding that the project D
site is found to be a part of the area of Sukhna Lake. The permission
granted by Nagar Panchayat on 05.07.2013 to Tata HDCL has been set
aside. Verification was sought from the MoEF as Sukhna Wildlife
Sanctuary was located at a distance of 123 meters away from the
proposed project. SEAC, Punjab, considered the matter on 18.04.2013. E
Pursuant to that, Tata HDCL filed a revised application on 08.05.2013 in
Form I and Form IA. In Form I, the project was described as “Group
Housing (CAMELOT) Project” and it falls under Item 8(b) of the
Schedule. The plot area was shown as 52.66 acres, and the net plot area
(after the surrender of area for services) was shown as 46.10 acres.
The built-up area was shown as 4,63,144.54 sq.m. Concerning the F
information as to whether the proposal involves approval/clearance under
the Wildlife Protection Act, 1972, in the form it was stated:
“Clearance required from Standing Committee of National Wildlife
Board, New Delhi being project within 10 km. from the boundaries
of Sukhna Wildlife Sanctuary, as on date Eco-Sensitive Zone has G
not been declared around Sukhna Wildlife Sanctuary.”
16. With respect to wildlife sanctuary, the High Court has made
the following observations:
“183. It is relevant to note that the consideration by EAC of MoEF,
Government of India, was on the basis of the Tata HDCL’s first H
588 SUPREME COURT REPORTS [2019] 13 S.C.R.

A application dated 25.03.2009. In the light of the stand taken by
SEIAA Punjab in its counter affidavit, it is clear that no EIA Report
was prepared after the submission of the revised application dated
08.05.2013 by Tata HDCL. In the revised application dated
08.05.2013, it was for the first time admitted by Tata HDCL that
its proposed project is situated within the prohibited distance of 10
B
km. from Sukhna Wildlife Sanctuary. It was also admitted that
the ariel distance from the proposed project and Sukhna Lake is
123 meters (N) and 185 meters (E).”
184. xxx xxx xxx
C 185. Significantly, this is a case where the project in question is
situated within 123 meters from Sukhna Wildlife Sanctuary as
recorded in the Site Inspection Report dated 10.01.2011 on the
basis of the inspection of the project site conducted by a team of
officers in the presence of the representatives of Tata HDCL in
compliance with the direction of MoEF vide letter dated
D 14.10.2010. Though Tata HDCL addressed a letter dated
12.01.2011 to MoEF explaining that the project area does not
obstruct the natural flow of water towards Sukhna Lake, the
factum of location of Sukhna Wildlife Sanctuary within 123 meters
on Northern side and 183 meters on the Eastern side of the project
E was not disputed. In the light of the said admitted fact, SEIAA,
Punjab in its meeting dated 15.12.2011 decided to get a clarification
from MoEF as to whether SEIAA, Punjab is competent to consider
the application and accordingly addressed a letter to MoEF.”
17. Concerning the declaration of the Buffer Zone around Wildlife
F Sanctuary, the following facts have been noted by the High Court:
“193. Regarding the representation of UT Chandigarh dated
09.05.2013 under Section 3 of the Environment (Protection)
Act, requesting to declare a Buffer Zone up to 2 - 2.75 km. around
all sanctuaries, including Sukhna Wildlife Sanctuary, it is submitted
G by the learned Senior Counsel that the State of Punjab by its
proposal dated 18.09.2013 thought it fit to confine the Buffer Zone
to 100 meters only. It is also pointed out by the learned Senior
Counsel that so far no notification has been issued by the Central
Government under Section 3 of the Environment Protection Act.
Thus, it is sought to contend that there is no area earmarked as
H
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eco sensitive zone around the Sukhna Wildlife Sanctuary nor a A
Buffer Zone has been declared as of today.
194. xxx xxx xxx
195. It is also pointed out by Sh. Gopal Subramaniam that in fact
State of Punjab, had sent a proposal dated 18.09.2013 requesting
the Union of India/MoEF to confine the buffer zone to 100 mtrs. B
only in the context of Section 3 of Environment (Protection) Act,
1986.”
18. The High Court has noted that after reserving the matter, a
short affidavit dated 09.03.2017 has been filed on behalf of the Union
Territory, Chandigarh, stating that Ministry of Environment Forests and C
Climate Change, in exercise of the powers conferred by Section 3(2)
and 3(3) of the E.P. Act read with Rule 5(3) of the E.P. Rules has
notified an area of 1050 hectares, to an extent varying from 2 km. to
2.75 km. from the boundary of Sukhna Wildlife Sanctuary in the Union
Territory of Chandigarh, for that Notification dated 18.01.2017 has been D
issued. The High Court has also relied on the conditions of Notification,
which is extracted hereinunder:
“197…….However, after reserving the judgment in the petitions,
a short affidavit dated 09.03.2017 came to be filed on behalf of
U.T. Chandigarh in W.P.(C) No.2924/2014 stating that the Central E
Government, Ministry of Environment, Forests and Climate
Change, in exercise of the powers conferred by Section 3(2) and
(3) of the Environment (Protection) Act, 1986 read with Rule
5(3) of the Environment (Protection) Rules, 1986 notified an area
of 1050 hectares, to an extent varying from 2.0 kilometers to 2.75
kilometers from the boundary of Sukhna Wildlife Sanctuary in the F
Union Territory of Chandigarh on the side of Chandigarh as the
Sukhna Wildlife Sanctuary, Eco-Sensitive Zone vide Notification
dated 18.01.2017. A copy of the said Notification has also been
produced, and Para 4 thereof contains the list of activities prohibited
or to be regulated within Eco-sensitive Zone. “Construction G
Activities” have been included in the said list under Part B-
”Regulated Activities.” Rule 4 to the extent, it is relevant for the
present case may be extracted hereunder:
“4. list of activities prohibited or to be regulated within Eco-Sensitive
Zone. - All activities in the Eco-sensitive Zone shall be governed
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590 SUPREME COURT REPORTS [2019] 13 S.C.R.

A by the provisions of the Environment (Protection) Act, 1986 (29
of 1986) and the rules made thereunder and shall be regulated in
the manner specified in the Table below, namely:-
TABLE
A. Prohibited Activities
B
B. Regulated Activities
12. Construction activities:
No new commercial construction of any kind shall be permitted
within 0.5 kilometre (Zone-I) from the boundary of protected area
C or up to the boundary of the Eco-sensitive Zone whichever is
nearer:
Provided that, local people shall be permitted to undertake
construction in their land for their residential use, including the
activities listed in sub-paragraph (1) of paragraph 3.
D
(a) Construction of all types of new buildings and houses up to a
distance of 0.5 kilometer i.e., in the zone-I shall be prohibited;
from 0.5 kilometre to 1.25 kilometre from the boundary of Sukhna
Wildlife Sanctuary, construction of low density (ground coverage
less than half of the plot size) and low rise building (height up to
E 15 feet) can be allowed if permissible under the prescribed land
use plan of the area; any construction will have to adhere to the
Development Regulation applicable to the area and shall be
regulated as per the Eco-sensitive Zone management plan; beyond
1.25 kilometre construction of new buildings and houses shall be
regulated as per existing Chandigarh Administration Building
F
Bylaws and Architectural Control/Zoning regulation of Union
territory Administration. Construction of basement in Zone-I of
Eco-sensitive Zone shall not be allowed, however, reconstruction/
repair of building in Zone-I shall be allowed subject to the restriction
as above i.e. construction of low density (ground coverage less
G than half of the plot size) and low rise building (height upto 15
feet).
(b) The construction activity related to small scale industries not
causing pollution shall be regulated and kept at the minimum, with
the prior permission from the competent authority as per the
H applicable rules and regulations, if any.
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(c) The further construction and augmentation of civic amenities A
shall be regulated as per the Zonal Master Plan.
198. As could be seen from Para 4 of the above Notification, the
construction activities in the Eco-sensitive Zone apart from being
governed by the provisions of the Environment (Protection) Act,
1986 and the Rules made thereunder shall be regulated in the B
manner specified therein. Admittedly, the project in question is
located at a distance of 123 meters from Sukhna Wildlife
Sanctuary. Therefore, the construction of the proposed project
not only requires the environmental clearance as provided under
the Notification dated 14.09.2006, but it is also subject to the
regulations provided under Para 4 of the Notification dated C
18.01.2017 issued by the Ministry of Environment, Forests and
Climate Change.”
(emphasis supplied)
19. The Notification makes it clear that no new commercial D
construction of any kind shall be permitted within 0.5 km. from the
boundary of protected area or up to the boundary of the eco-sensitive
zone. Construction of all types of new buildings and houses up to a
distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2
km, construction of low density (ground coverage less than half of the
plot size) and low rise building about 15 feet can be permitted. E

20. Given the findings above, recorded by the High Court as to
the distance from the Wildlife Sanctuary, we have heard learned counsel
for the parties on the issue at length. Whether housing activities are
permissible within a short distance of 123 meters from Sukhna Wildlife
Sanctuary, such a project can be permitted to come up. F
21. It is not in dispute that proposal, which was sent by the
Government of Punjab to the MoEF, to keep the Buffer Zone within 100
meters from Sukhna Wildlife Sanctuary, had not been accepted and the
direction was issued to resubmit the proposal for at least 1 km Buffer
Zone has not been forwarded by State of Punjab. G
22. In Goa Foundation vs. Union of India, (2011) 15 SCC 791,
order for the purpose of protection of wildlife sanctuary and eco-sensitive
zone has been passed to following effect:

H
592 SUPREME COURT REPORTS [2019] 13 S.C.R.

A “1. The order dated 16-10-2006 refers to a Letter dated 27-5-
2005, which was addressed by the Ministry of Environment and
Forests (MoEF) to the Chief Wildlife Wardens of all States/Union
Territories requiring them to initiate measures for identification of
suitable areas and submit detailed proposals at the earliest. The
order passed on that date was that MoEF shall file an affidavit
B
stating whether the proposals received pursuant to the letter of
27-5-2005 have been referred to the Standing Committee of the
National Board for Wildlife under the Wildlife (Protection) Act,
1972 or not. It was further directed that such of the States/Union
Territories who have not responded to the letter dated 27-5-2005
C shall do the needful within four weeks of the communication of
the directions of this Court by the Ministry to them.
2. It seems that despite the letter dated 27-5-2005 and despite the
Ministry having issued reminders and also bringing to the notice
of the States/Union Territories the orders of this Court dated 16-
D 10-2006, the States/Union Territories have not responded.
However, we are told that the State of Goa alone has sent the
proposal, but that too does not appear to be in full conformity with
what was sought for in the letter dated 27-5-2005.
3. The order earlier passed on 30-1-2006 refers to the decision
E which was taken on 21-1-2002 to notify the areas within 10 km of
the boundaries of national parks and sanctuaries as eco-sensitive
areas. The letter dated 27-5-2005 is a departure from the decision
of 21-1-2002. For the present, in this case, we are not considering
the correctness of this departure. That is being examined in another
case separately. Be that as it may, it is evident that the States/
F Union Territories have not given the importance that is required
to be given to most of the laws to protect environment made after
Rio Declaration, 1992.
4. The Ministry is directed to give a final opportunity to all States/
Union Territories to respond to its letter dated 27-5-2005. The
G State of Goa also is permitted to give appropriate proposal in
addition to what is said to have already been sent to the Central
Government. The communication sent to the States/Union
Territories shall make it clear that if the proposals are not sent
even now within a period of four weeks of receipt of the
H communication from the Ministry, this Court may have to consider
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passing orders for implementation of the decision that was taken A
on 21-1-2002, namely, Notification of the areas within 10 km of
the boundaries of the sanctuaries and national parks as eco-
sensitive areas with a view to conserve the forest, wildlife and
environment, and having regard to the precautionary principles. If
the States/Union Territories now fail to respond, they would do so
B
at their own risk and peril.
5. The MoEF would also refer to the Standing Committee of the
National Board for Wildlife, under Sections 5-B and 5-C(2) of the
Wildlife (Protection) Act, the cases where environment clearance
has already been granted where activities are within 10 km zone.
C
6. List the matter after eight weeks.”
(emphasis supplied)
23. It was incumbent upon the State of Punjab to send a proposal
to the MoEF, as required but it appears that it has not chosen to do so for
a reason precious project concerning the MLAs is involved, and MoEF D
has not accepted its proposal for keeping Buffer Zone to 100 meters. It
has also been pointed out from the respondent side that Naya Gaon
forms part of the Greater Mohali Region in the State of Punjab. In the
statutory, Greater Mohali Area Development Authority, Regional Plan
for Greater Mohali Region in paragraph 14.3.1, it has been mentioned E
that no development is possible within 5 kms buffer distance from existing
forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there
are several pockets of forests distributed all over the Greater Mohali
Region. These have to be conserved, and the buffer zone recommended
should be protected against urban development.
F
24. It is also clear that 2-2.75 km area has been ordered as eco-
sensitive zone by the MoEF and the notification dated 18.1.2017 has
been issued as to the adjacent area towards Chandigarh side of the
Sukhna Wildlife Sanctuary.
25. The most potent threat faced by the earth and human
G
civilization as a whole which is confronted with, today, is environmental
degradation and wildlife degeneration. The need to protect flora and
fauna which constitutes a major portion of our ecosystem is immediate.
Development and urbanization coming at the cost of adversely affecting
our natural surroundings will in turn impact and be the cause of human
devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in H
594 SUPREME COURT REPORTS [2019] 13 S.C.R.

A Kerala. The climate change is impacting wildlife by disrupting the timing
of natural events. With warmer temperatures, flowering plants are
blooming earlier in the year and migratory birds are returning from their
wintering grounds earlier in the spring.* Wildlife conservation in India
has a long history, dating back to the colonial period when it was rather
very restrictive to only targeted species and that too in a defined
B
geographical area. Then, the formation of the Wildlife Board at the national
level and enactment of Wildlife Act in 1972 laid the foundation of present
day “wildlife conservation” era in post-independent India. Project Tiger
in the 1970s and the Project Elephant in 1992–both with flagship species–
attracted global attention. India then also became a member of all major
C international conservation treaties related to habitat, species and
environment like Ramsar Convention, 1971; Convention on International
Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention
on Migratory Species, 1979; Convention on Biological Diversity, 1992,
among others.**
D 26. The human as well as the wildlife are completely dependent
upon environment for their survival. Human is completely dependent on
the environment. Like the human, the wild life is also dependent on the
environment for it’s survival and also get effected by the environment.
The relationship between the human and animal can be understood by
the food-chain and food-web. The wildlife is affected by several reasons
E such as population, deforestation, urbanization, high number of industries,
chemical effluents, unplanned land-use policies, and reckless use of natural
resources etc.
27. The Directive Principles of State Policy provide that protection
and improvement of environment, safeguarding forest and wildlife have
F been duly enjoined upon the Government. Those principles have found
statutory expression in various enactments i.e., Wildlife (Protection) Act,
E.P. Act etc., which have been enforced by this Court in various decisions.
The inaction of State to constitutional and statutory duties cannot be
permitted. The Court has to issue appropriate directions to fulfil the
G mandate. Article 51(A) provides fundamental duty to protect and preserve
environment, wild life etc.

* Source : https://www.nwf.org/Educational-Resources/Wildlife-Guide/Understanding-
Conservation.
** Source : Down to Earth, Wildlife convservation in India : are we really serious ? Article
H by A.K. Ghosh dated 19.9.2018.
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK 595
JAGGA AND OTHERS [ARUN MISHRA, J.]

28. Articles 48(A) and 51(A)(g) of the Constitution of India reads A
as under:
“48A. 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. B
51A. Fundamental duties.- It shall be the duty of every citizen
of India-
(g) to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living
creatures;” C

29. In Animal and Environment Legal Defence Fund v. Union
of India, (1997) 3 SCC 549, the Court in order to protect wildlife, forest,
tiger reserve, fragile ecology, dealt with public trust doctrine thus:
“11. Therefore, while every attempt must be made to preserve D
the fragile ecology of the forest area, and protect the Tiger Reserve,
the right of the tribals formerly living in the area to keep body and
soul together must also receive proper consideration. Undoubtedly,
every effort should be made to ensure that the tribals, when
resettled, are in a position to earn their livelihood. In the present
case it would have been far more desirable, had the tribals been E
provided with other suitable fishing areas outside the National
Park or had been given land for cultivation. Totladoh dam where
fishing is permitted is in the heart of the National Park area. There
are other parts of the reservoir which extend to the borders of the
National Park. We are not in a position to say whether these F
outlying parts of the reservoir are accessible or whether they are
suitable for fishing, in the absence of any material being placed
before us by the State of Madhya Pradesh or by the petitioner.
Some attempts, however, seem to have been made by the State
of Madhya Pradesh to contain the damage by imposing conditions
on these fishing permits. The permissions which have been given G
are subject to the following conditions:
(1) The identified families will be given photo identity cards on
the basis of which only fishing and transport will be permitted;

H
596 SUPREME COURT REPORTS [2019] 13 S.C.R.

A (2) During the rainy season (months: July to October) fishing
will be totally banned;
(3) During the rest of the year, entry will be permitted in the
water from 12 p.m. to 4 p.m. and transport of fish will be allowed
before sunset;
B (4) The photo identity card-holders will not be allowed to enter
the National Park or the islands in the reservoir nor will they be
allowed to make night halts;
(5) Transport of fish will be allowed only on Totladoh-Thuepani
Road from Totladoh reservoir.
C
15. Since all the claims in respect of the National Park area in the
State of Madhya Pradesh as notified under Section 35(1) have
been taken care of, it is necessary that a final notification under
Section 35(4) is issued by the State Government as expeditiously
as possible. In the case of Pradeep Krishen v. Union of India,
D (1996) 8 SCC 599, this Court had pointed out that the total forest
cover in our country is far less than the ideal minimum of 1/3rd of
the total land. We cannot, therefore, afford any further shrinkage
in the forest cover in our country. If one of the reasons for this
shrinkage is the entry of villagers and tribals living in and around
E the sanctuaries and the National Park there can be no doubt that
urgent steps must be taken to prevent any destruction or damage
to the environment, the flora and fauna and wildlife in those areas.
The State Government is, therefore, expected to act with a sense
of urgency in matters enjoined by Article 48-A of the Constitution
keeping in mind the duty enshrined in Article 51-A(g). We,
F therefore, direct that the State Government of the State of Madhya
Pradesh shall expeditiously issue the final notification under Section
35(4) of the Wild Life (Protection) Act, 1972 in respect of the
area of the Pench National Park falling within the State of Madhya
Pradesh.”
G 30. The Doctrine of Public Trust has been considered by this
Court in M.C. Mehta vs. Kamal Nath and others, (1997) 1 SCC 388.
This Court has made the following observations:
“24. The ancient Roman Empire developed a legal theory known
as the “Doctrine of the Public Trust.” It was founded on the ideas
H that certain common properties such as rivers, seashore, forests
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and the air were held by Government in trusteeship for the free A
and unimpeded use of the general public. Our contemporary
concern about “the environment” bear a very close conceptual
relationship to this legal doctrine. Under the Roman law these
resources were either owned by no one (res nullious) or by every
one in common (res communious). Under the English common
B
law, however, the Sovereign could own these resources, but the
ownership was limited in nature, the Crown could not grant these
properties to private owners if the effect was to interfere with the
public interests in navigation or fishing. Resources that were
suitable for these uses were deemed to be held in trust by the
Crown for the benefit of the public. Joseph L. Sax, Professor of C
Law, University of Michigan — proponent of the Modern Public
Trust Doctrine — in an erudite article “Public Trust Doctrine in
Natural Resource Law : Effective Judicial Intervention”,
Michigan Law Review, Vol. 68, Part 1 p. 473, has given the
historical background of the Public Trust Doctrine as under:
D
“The source of modern public trust law is found in a concept
that received much attention in Roman and English law — the
nature of property rights in rivers, the sea, and the seashore.
That history has been given considerable attention in the legal
literature, need not be repeated in detail here. But two points
should be emphasized. First, certain interests, such as navigation E
and fishing, were sought to be preserved for the benefit of the
public; accordingly, property used for those purposes was
distinguished from general public property which the sovereign
could routinely grant to private owners. Second, while it was
understood that in certain common properties — such as the F
seashore, highways, and running water — ‘perpetual use was
dedicated to the public,’ it has never been clear whether the
public had an enforceable right to prevent infringement of those
interests. Although the State apparently did protect public uses,
no evidence is available that public rights could be legally
asserted against a recalcitrant government.” G

25. The Public Trust Doctrine primarily rests on the principle that
certain resources like air, sea, waters, and the forests have such a
great importance to the people as a whole that it would be wholly
unjustified to make them a subject of private ownership. The said
resources being a gift of nature, they should be made freely H
598 SUPREME COURT REPORTS [2019] 13 S.C.R.

A available to everyone irrespective of the status in life. The doctrine
enjoins upon the Government to protect the resources for the
enjoyment of the general public rather than to permit their use for
private ownership or commercial purposes. According to Professor
Sax, the Public Trust Doctrine imposes the following restrictions
on governmental authority:
B
33. It is no doubt correct that the public trust doctrine under the
English common law extended only to certain traditional uses such
as navigation, commerce, and fishing. But the American Courts
in recent cases have expanded the concept of the public trust
doctrine. The observations of the Supreme Court of California in
C Mono Lake case, 33 Cal 3d 419, clearly show the judicial concern
in protecting all ecologically important lands, for example,
freshwater, wetlands, or riparian forests. The observations of the
Court in Mono Lake case to the effect that the protection of
ecological values is among the purposes of public trust may give
D rise to an argument that the ecology and the environment protection
is a relevant factor to determine which lands, waters or airs are
protected by the public trust doctrine. The Courts in United States
are finally beginning to adopt this reasoning and are expanding
the public trust to encompass new types of lands and waters. In
Phillips Petroleum Co. v. Mississippi, 108 SCT 791 (1988), the
E United States Supreme Court upheld Mississippi’s extension of
public trust doctrine to lands underlying non-navigable tidal areas.
The majority judgment adopted ecological concepts to determine
which lands can be considered tidelands. Phillips Petroleum case
assumes importance because the Supreme Court expanded the
F public trust doctrine to identify the tidelands not on commercial
considerations but on ecological concepts. We see no reason why
the public trust doctrine should not be expanded to include all
ecosystems operating in our natural resources.”
31. In Vellore Citizens’ Welfare Forum v. Union of India, (1996)
G 5 SCC 647, the Court considered the concept of sustainable development
thus:
“10. The traditional concept that development and ecology are
opposed to each other is no longer acceptable. “Sustainable
Development” is the answer. In the international sphere,
H “Sustainable Development” as a concept came to be known for
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the first time in the Stockholm Declaration of 1972. Thereafter, in A
1987 the concept was given a definite shape by the World
Commission on Environment and Development in its report called
“Our Common Future”. The Commission was chaired by the then
Prime Minister of Norway, Ms G.H. Brundtland and as such the
report is popularly known as “Brundtland Report”. In 1991 the
B
World Conservation Union, United Nations Environment
Programme and Worldwide Fund for Nature, jointly came out
with a document called “Caring for the Earth” which is a strategy
for sustainable living. Finally, came the Earth Summit held in June
1992 at Rio which saw the largest gathering of world leaders
ever in the history — deliberating and chalking out a blueprint for C
the survival of the planet. Among the tangible achievements of
the Rio Conference was the signing of two conventions, one on
biological diversity and another on climate change. These
conventions were signed by 153 nations. The delegates also
approved by consensus three non-binding documents namely, a
D
Statement on Forestry Principles, a declaration of principles on
environmental policy and development initiatives and Agenda 21,
a programme of action into the next century in areas like poverty,
population and pollution. During the two decades from Stockholm
to Rio “Sustainable Development” has come to be accepted as a
viable concept to eradicate poverty and improve the quality of E
human life while living within the carrying capacity of the supporting
ecosystems. “Sustainable Development” as defined by the
Brundtland Report means “Development that meets the needs of
the present without compromising the ability of the future
generations to meet their own needs”. We have no hesitation in
F
holding that “Sustainable Development” as a balancing concept
between ecology and development has been accepted as a part
of the customary international law though its salient features have
yet to be finalised by the international law jurists.
16. The constitutional and statutory provisions protect a person’s
right to fresh air, clean water and pollution-free environment, but G
the source of the right is the inalienable common law right of
clean environment. It would be useful to quote a paragraph from
Blackstone’s commentaries on the Laws of England
(Commentaries on the Laws of England of Sir William
Blackstone) Vol. III, fourth edition published in 1876. Chapter H
600 SUPREME COURT REPORTS [2019] 13 S.C.R.

A XIII, “Of Nuisance” depicts the law on the subject in the following
words:
“Also, if a person keeps his hogs, or other noisome animals,
or allows filth to accumulate on his premises, so near the house
of another, that the stench incommodes him and makes the air
B unwholesome, this is an injurious nuisance, as it tends to deprive
him of the use and benefit of his house. A like injury is, if one’s
neighbour sets up and exercises any offensive trade; as a
tanner’s, a tallow-chandler’s, or the like; for though these are
lawful and necessary trades, yet they should be exercised in
remote places; for the rule is, ‘sic utere tuo, ut alienum non
C leadas’; this therefore is an actionable nuisance. And on a similar
principle a constant ringing of bells in one’s immediate
neighbourhood may be a nuisance.
… With regard to other corporeal hereditaments; it is a
nuisance to stop or divert water that used to run to another’s
D meadow or mill; to corrupt or poison a watercourse, by erecting
a dye-house or a lime-pit, for the use of trade, in the upper part
of the stream; to pollute a pond, from which another is entitled
to water his cattle; to obstruct a drain; or in short to do any act
in common property, that in its consequences must necessarily
tend to the prejudice of one’s neighbour. So closely does the
E
law of England enforce that excellent rule of gospel-morality,
of ‘doing to others, as we would they should do unto
ourselves’.””
32. In Intellectuals Forum, Tirupathi vs. State of A.P. and others,
(2006) 3 SCC 549, principle of sustainable development has been
F considered by this Court, which reads as under:
“84. The world has reached a level of growth in the 21st century
as never before envisaged. While the crisis of economic growth
is still on, the key question which often arises and the courts are
asked to adjudicate upon is whether economic growth can
G supersede the concern for environmental protection and whether
sustainable development which can be achieved only by way of
protecting the environment and conserving the natural resources
for the benefit of humanity and future generations could be ignored
in the garb of economic growth or compelling human necessity.
The growth and development process are terms without any
H
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK 601
JAGGA AND OTHERS [ARUN MISHRA, J.]

content, without an inkling as to the substance of their end results. A
This inevitably leads us to the conception of growth and
development, which sustains from one generation to the next in
order to secure “our common future.” In pursuit of development,
focus has to be on sustainability of development, and policies
towards that end have to be earnestly formulated and sincerely
B
observed. As Prof. Weiss puts it, “conservation, however, always
takes a back seat in times of economic stress”. It is now an
accepted social principle that all human beings have a fundamental
right to a healthy environment, commensurate with their well-
being, coupled with a corresponding duty of ensuring that resources
are conserved and preserved in such a way that present as well C
as the future generations are aware of them equally.”
33. In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, the Court
evolved polluter pays principle and observed:
“8. Apart from the above statutes and the rules made thereunder,
Article 48-A of the Constitution provides that the State shall D
endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country. One of the
fundamental duties of every citizen as set out in Article 51-A(g)
is to protect and improve the natural environment, including forests,
lakes, rivers and wildlife and to have compassion for living
creatures. These two articles have to be considered in the light of E
Article 21 of the Constitution which provides that no person shall
be deprived of his life and liberty except in accordance with the
procedure established by law. Any disturbance of the basic
environment elements, namely air, water and soil, which are
necessary for “life”, would be hazardous to “life” within the F
meaning of Article 21 of the Constitution.
9. In the matter of enforcement of rights under Article 21 of the
Constitution, this Court, besides enforcing the provisions of the
Acts referred to above, has also given effect to fundamental rights
under Articles 14 and 21 of the Constitution and has held that if
G
those rights are violated by disturbing the environment, it can award
damages not only for the restoration of the ecological balance,
but also for the victims who have suffered due to that disturbance.
In order to protect “life”, in order to protect “environment” and in
order to protect “air, water and soil” from pollution, this Court,
through its various judgments has given effect to the rights available, H
602 SUPREME COURT REPORTS [2019] 13 S.C.R.

A to the citizens and persons alike, under Article 21 of the
Constitution. The judgment for removal of hazardous and obnoxious
industries from the residential areas, the directions for closure of
certain hazardous industries, the directions for closure of
slaughterhouse and its relocation, the various directions issued for
the protection of the Ridge area in Delhi, the directions for setting
B
up effluent treatment plants to the industries located in Delhi, the
directions to tanneries etc., are all judgments which seek to protect
the environment.
10. In the matter of enforcement of fundamental rights under
Article 21, under public law domain, the Court, in exercise of its
C powers under Article 32 of the Constitution, has awarded damages
against those who have been responsible for disturbing the
ecological balance either by running the industries or any other
activity which has the effect of causing pollution in the environment.
The Court while awarding damages also enforces the
D “POLLUTER-PAYS PRINCIPLE” which is widely accepted as
a means of paying for the cost of pollution and control. To put in
other words, the wrongdoer, the polluter, is under an obligation to
make good the damage caused to the environment.”
34. In M.C. Mehta (Badkhal and Surajkund Lakes matter) vs.
Union of India and others, (1997) 3 SCC 715, this Court had observed:
E
“6. Mr. Shanti Bhushan, learned Senior Advocate, appearing for
some of the builders had vehemently contended that banning
construction within one km radius from Badkhal and Surajkund is
arbitrary. According to him, it is not based on technical reasons.
He has referred to the directions issued by the Government of
F India under the Environment Protection Act and has contended
that the construction can at the most be banned within 200 to 500
metres as was done by the Government of India in the coastal
areas. He has also contended that restriction on construction only
in the areas surrounding Surajkund and Badkhal lakes is hit by
Article 14 of the Constitution of India as it is not being extended
G
to other lakes in the country. We do not agree with Mr. Shanti
Bhushan. The functioning of ecosystems and the status of
environment cannot be the same in the country. Preventive
measures have to be taken, keeping in view the carrying capacity
of the ecosystems operating in the environmental surroundings
H under consideration. Badkhal and Surajkund lakes are popular
TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOK 603
JAGGA AND OTHERS [ARUN MISHRA, J.]

tourist resorts almost next door to the capital city of Delhi. We A
have on record the Inspection Report in respect of these lakes by
the National Environmental Engineering Research Institute
(NEERI) dated 20-4-1996, indicating the surroundings, geological
features, land use, and soil types and archaeological significance
of the areas surrounding the lakes. According to the report,
B
Surajkund lake impounds water from rain and natural springs.
Badkhal Lake is an impoundment formed due to the construction
of an earthen dam. The catchment areas of these lakes are shown
in a figure attached with the report. The land use and soil types,
as explained in the report, show that the Badkhal Lake and
Surajkund are monsoon-fed water bodies. The natural drainage C
pattern of the surrounding hill areas feed these water bodies during
rainy season. Large-scale construction in the vicinity of these tourist
resorts may disturb the rainwater drains, which in turn may badly
affect the water level as well as the water quality of these water
bodies. It may also cause disturbance to the aquifers which are
D
the source of ground water. The hydrology of the area may also
be disturbed.”
35. In Indian Council for Enviro-Legal Action vs. Union of
India and others, (1996) 5 SCC 281, this Court has made the following
observations:
“41. With rapid industrialisation taking place, there is an increasing E
threat to the maintenance of the ecological balance. The general
public is becoming aware of the need to protect environment.
Even though laws have been passed for the protection of
environment, the enforcement of the same has been tardy, to say
the least. With the governmental authorities not showing any F
concern with the enforcement of the said Acts, and with the
development taking place for personal gains at the expense of
environment and with disregard of the mandatory provisions of
law, some public-spirited persons have been initiating public interest
litigations. The legal position relating to the exercise of jurisdiction
by the courts for preventing environmental degradation and thereby G
seeking to protect the fundamental rights of the citizens is now
well settled by various decisions of this Court. The primary effort
of the Court, while dealing with the environmental-related issues,
is to see that the enforcement agencies, whether it be the State or
any other authority, take effective steps for the enforcement of H
604 SUPREME COURT REPORTS [2019] 13 S.C.R.

A the laws. The courts, in a way, act as the guardian of the people’s
fundamental rights, but in regard to many technical matters, the
courts may not be fully equipped. Perforce, it has to rely on outside
agencies for reports and recommendations whereupon orders have
been passed from time to time. Even though it is not the function
of the Court to see the day-to-day enforcement of the law, that
B
being the function of the Executive, but because of the non-
functioning of the enforcement agencies, the courts as of necessity
have had to pass orders directing the enforcement agencies to
implement the law.”
36. In the aforesaid facts and circumstances of the case,
C considering the distance of 123 meters from the Northern side and 183
meters from the Eastern side of the project in question from wildlife
sanctuary, in our opinion, no such project can be allowed to come up in
the area in question. The State of Punjab was required to act on the
basis of Doctrine of Public Trust. It has failed to do so. The origination
D of the project itself indicates that State of Punjab was not acting in
furtherance of Doctrine of Public Trust as 95 MLAs were to be the
recipients of the flats. It is clear why Government has not been able to
protect the eco-sensitive zone around a Wildlife and has permitted setting
up of high-rise buildings up to 92 meters in the area in question, which is
not at all permissible.
E 37. Resultantly, we hold that such projects cannot be permitted to
come up within such a short distance from the wildlife sanctuary. Moreso,
in view of the Notification issued with respect to the Sukhna wildlife
sanctuary towards the side of Chandigarh Union Territory and also
considering the fact that proposal made by the Punjab Government,
F confining the Buffer Zone to 100 meters, has rightly not been accepted
by MoEF, as the Government of Punjab as well as the MoEF, cannot be
the final arbiter in the matter. The Court has to perform its duty in such
a scenario when the authorities have failed to protect the wildlife sanctuary
eco-sensitive zone. The entire exercise of obtaining clearance relating
to the project is quashed. We regret that such a scenario has emerged
G in the matter and that it involved a large number of MLAs of Punjab
Legislative Assembly. The entire exercise smacks of arbitrariness on
the part of Government including functionaries.
Thus, we dismiss the appeals with the directions mentioned above.

H Nidhi Jain Appeals dismissed.