DASHMESH EDUCATIONAL SOCIETY Vs. PUNJAB URBAN DEVE.AUTHORITY & ORS.
Forest (Conservation) Act, 1980 with Amendments Made in 1988
Punjab New Capital Periphery Control Act, 1952
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 4684 - 4685 of 2005, Judgment Date: Mar 25, 2015
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.4684-4685 OF 2005
DASHMESH EDUCATIONAL SOCIETY ...APPELLANT(S)
VERSUS
PUNJAB URBAN DEVELOPMENT
AUTHORITY & ORS. ...RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION (C) No.19226 of 2013
&
SPECIAL LEAVE PETITION (C) No.20235 of 2013
JUDGMENT
RANJAN GOGOI, J.
1. The plaintiff in civil Suit No.65 of 2001 i.e. Dashmesh Education
Society has preferred these appeals against the common order dated
12.10.2004 passed by the High Court of Punjab and Haryana in RSA Nos. 4328
and 4345 of 2002. By the aforesaid order, the decree passed by the trial
court in favour of the plaintiff, which was affirmed in first appeal, has
been reversed by the High Court.
2. Civil Suit No.65 of 2001 was filed seeking a declaration that the
Application dated 21.8.1998 filed by the plaintiff before the defendants
seeking permission for setting up a Country Club/Resort at village Karoran,
Tehsil Kharar, District Ropar is deemed to have been allowed and permission
granted/sanctioned, the same having not been refused in writing within the
statutory period of 90 days of its submission as mandated by the provisions
of the Punjab New Capital Periphery Control Act, 1952. Consequential
relief of permanent injunction was also sought "restraining the defendants
and their agents from interfering in any manner in the works undertaken by
the plaintiff over the land and from demolishing the
constructions/developments already made over the suit land forcibly or in
any other manner."
3. According to the plaintiff, a registered body, by application dated
21.08.1998 it had sought permission for setting up a forest hill country
club/resort within the area of village Karoran, Tehsil Kharar, District
Ropar. According to the plaintiff the project was a non polluting industry
and was capable of generating substantial employment. The plaint averments
also disclosed that it is the case of the plaintiff that the area over
which the resort was planned is covered by the provisions of the Punjab New
Capital Periphery Control Act, 1952 (hereinafter referred to as "the Act of
1952"). The application dated 21.08.1998 submitted by the plaintiff under
the said Act had initially invoked the response of the defendants in the
suit who had asked for submission of site plan/location plan etc., all of
which requirements were complied with by the plaintiff. No action was
subsequently forthcoming despite several representations/ reminders
submitted by the plaintiff. According to the plaintiff, under Section 5 of
the Act of 1952 a decision was required to be taken by the respondents
within 90 days, failing which, the application of the plaintiff must be
deemed to have been accepted. Hence the suit claiming the reliefs earlier
noticed.
4. The suit was contested by the State of Punjab as well as the Punjab
Urban Areas Development Authority (PUDA) contending, inter alia, that the
application filed by the plaintiff was not under Section 5 of the Act of
1952 as the essential requirements thereof were not complied with.
Consequently, no question of deemed permission can and does arise. The suit
was also claimed to be not maintainable as the Forest Department of the
State, a necessary party, was not impleaded. Specifically it was contended
that the land falls within the purview of the Punjab Land Preservation Act
1900 (hereinafter referred to as PLPA) and attracts the provisions of
Indian Forest Act, 1927 and the Forest (Conservation) Act 1980. It was
accordingly urged that the land could not be used by any non forest purpose
without the prior approval of the Union Government and that the State
Government was not competent in law to give permission for setting up of
the country club/resort without due permission from the Government of
India.
5. The suit, as mentioned earlier, was decreed and the first appeals
filed by the State and PUDA were also dismissed by the learned District
Judge by order dated 30.04.2002. Aggrieved, RSA Nos.4328 and 4345 of 2002
were instituted before the High Court by the PUDA and the State wherein by
the impugned judgment and decree dated 12.10.2004 the High Court allowed
the second appeals and reversed the judgment and decree passed by the
learned trial court and affirmed by the first appellate court. It is
against the aforesaid order passed in the second appeals that the plaintiff
in the suit has filed the present appeals.
6. We have heard the learned counsels for the parties.
7. It will be appropriate, at this stage, to notice the substantial
questions of law that were framed by the High Court for determination in
the second appeals in question.
"1. Whether the request for setting up Forest Hill Country Club Resort
made in these application dated 21.8.1998 can be considered to have been
automatically granted on the expiry of 90 days even when the application
was not submitted under any specific provisions of the Act or in the
prescribed proforma and to the appropriate authority?
2. Whether the provisions of Land Preservation Act, 1900, Indian Forest
Act, 1927, the New Punjab Capital (Periphery) Control Act, 1952 and the
Forest (Conservation) Act, 1980 are attracted in the present case?
3. Whether the plaintiff/respondent could justify the legality of his
actions of setting up the said Resort within the area falling under the
purview of 1952 Act on the ground of huge expenditure incurred on the
alleged development works on the basis of deemed sanction?
4. Whether the Forest Guard Sunil Kumar was competent to accept the
report submitted by the Patwari regarding the nature and status of land in
question without any reference to either the revenue records or to the
notifications issued under the Acts mentioned in para No.9 above? More so,
when the Forest Guard was not specifically detailed for any such purposes?
5. Whether the construction made by the plaintiff/respondents without
any specific and express permission from the competent authorities in
violation of the provisions of the Acts mentioned in para No.9 above is
illegal and liable to be demolished?"
8. Though a large number of contentions have been urged on behalf of the
rival parties it will not be necessary for us to consider the same and
record our views thereon in view of certain parallel judicial orders of
the same date i.e. 12.10.2004 that came to be passed by the High Court in a
PIL registered as WP No.1134 of 2004. The relevant facts in the aforesaid
proceeding may now be taken note of.
9. An order dated 12.10.2004 was passed in the aforesaid PIL to the
effect that the land in question covered by the PIL (same as in the present
appeals) is forest land and no non-forest activity is permissible thereon.
The said order was challenged before this Court in Civil Appeal No.4682-
4683 of 2005. The said civil appeals have since been disposed of by an
order of this Court dated 21.05.2014. By the aforesaid order this Court,
on the grounds and reasons assigned, has set aside the decision of the High
Court to the effect that the entire land in Village Karoran District Ropar
is forest land for the purpose of Section 2 of the Forest (Conservation)
Act, 1980 and has remanded the matter to the High Court for a fresh hearing
and decision. Pursuant to the aforesaid order passed by this Court, the
High Court has since considered the matter and directed a physical
verification of the land to be made for determination as to whether the
same or any part thereof is forest land or not. Such determination was
ordered by the High Court in another separate but connected proceeding i.e.
CWP No.22756 of 2013 which proceeding along with the PIL (CWP No.1134 of
2004) has since been disposed of after taking on record the report of the
survey undertaken.
10. The order passed by this Court in civil appeal No.4682-4683 of 2005
remanding the matter for de novo consideration by the High Court; the
consequential consideration of the matter by the High Court; the directions
for survey and the report of survey are subsequent facts which cannot be
overlooked or ignored while rendering our orders in the present appeals.
Though valiant efforts have been made by learned counsel for the appellants
to restrict the scope of the arguments to certain other specific issues and
not to dwell upon the aforesaid aspects of the case, the same are too
significant to be overlooked or ignored. In fact, we have already noticed
that specific issues/substantial questions of law were framed by the High
Court in the second appeals in question with regard to the land being
covered by the provisions of the Forest (Conservation) Act, 1980. The High
Court, however, did not feel it necessary to go into the said question
except for the purpose of a prima facie decision thereon for determining as
to whether the State Forest department was a necessary party in the civil
suit. In fact, the second appeals were decided on consideration of certain
other questions namely, as to whether the application for permission was in
the proper prescribed form; whether relief could have been granted to the
plaintiff without impleading the forest department and other similar
questions. However, in view of the subsequent developments which have been
noted above there is no escape from the necessity of consideration of the
question as to whether the land on which the resort/country club is sought
to be established being a part of the Karoran village is forest land within
the meaning of the Forest (Conservation) Act, 1980 or not. A decision on
the said question so as to conclusively and effectively determine the
rights of the plaintiff has become unavoidable in view of the parallel
developments and orders of this Court in civil appeal No. No.4682-4683 of
2005 and the consequential orders passed by the High Court. In fact such
determination of the entitlement of the plaintiff cannot be short-circuited
by avoiding a decision on the said question particularly when a substantial
question of law was framed by the High Court in the second appeals before
it as noticed and extracted above i.e. whether the land in question is
covered by the provisions of the Forest (Conservation) Act, 1980. The said
question not answered by the High Court in the judgment under challenge
will now be requiring a specific determination in view of the subsequent
development and orders of the court in the parallel and connected
proceedings in C.A. Nos. 4682-4683 of 2005.
11. In view of the above, we arrive at the conclusion that the aforesaid
determination should now be made by the High Court and for that purpose if
the High Court considers it necessary may allow parties to adduce
additional evidence. Such evidence appears to be readily available as the
appellant themselves have brought on the record of the present appeals all
the relevant subsequent developments. Reception of the said material may be
made in the second appeals by following the procedure prescribed by law and
thereafter the High Court shall arrive at a decision on the entitlement of
the parties in the light of the said materials. As the matter has been
pending for long we request the High Court to expedite its process of
consideration of the matter in the light of the present order.
Consequently both the appeals are disposed of in terms of the direction(s)
as indicated above.
Special Leave Petition (C) Nos.19226 of 2013 & 20235 of 2013
12. Writ Petition (C) No.12105 of 2013 was disposed of by the High Court
of Punjab & Haryana on 29.5.2013 in terms of an earlier order dated
15.05.2013 passed in writ Petition (C) No.10478 of 2013. Aggrieved by the
orders passed in the two writ petitions, the present SLPs have been filed.
By order dated 05.07.2013 of this Court, both the SLPs have been tagged
with Civil Appeal No.4682-4683 of 2005. No notice was issued.
13. Civil Appeal Nos.4682-4683 of 2005 has been disposed of by this Court
by order dated 21.05.2014 whereby the matters have been remanded back to
the High Court with certain directions. The present SLPs initially tagged
with the aforesaid two civil appeals have been de-tagged and directed to
hearing separately.
14. The short contention of the petitioners in the SLP is that the
Notifications issued under Sections 4 and 5 of the Punjab Land Preservation
(Chos) Act, 1900 (hereinafter referred to as the '1900 Act'), which were
challenged before the High Court were issued under the provisions of
Section 3 of the 1900 Act prior to the amendments made to the said Section
3 in 1914 and the somewhat comprehensive amendment of the entire 1900 Act
effected in the year 1942. According to the petitioner, Section 3 having
been amended in 1914 and the very object and purpose of the 1900 Act having
been also altered by the amendment of 1942, the subsequent Notifications
issued under Sections 4 and 5 in the year being under the old Section 3 of
the 1900 Act are non est in law.
15. The High Court declined to go into the pleas raised in the writ
petition on the ground that the writ petitions are highly belated and in
any case a dispute pertaining to the land is pending before this Court. The
said dispute, as already noticed, arose in Civil Appeal Nos. 4682-4683 of
2005 which has since been remanded to the High Court and have also been
redecided/ reanswered by the High Court.
16. In so far as delay in filing the writ petitions is concerned, a
series of Notifications, issued from time to time, had been challenged by
the petitioner. The last of the Notifications under challenge is of the
year 2004. The petitioner apparently came into possession of the property
much earlier i.e. in the year 1988. If that be so, it was necessary for
the petitioner to bring his challenge before the High Court well in time;
instead the writ petitions were filed in the year 2013. The view taken by
the High Court on account of delay therefore cannot be faulted though the
High Court appears to have computed such delay from the date of first
Notification issued under Section 3 of the 1900 Act overlooking the
subsequent Notifications issued which were also under challenge. Even if
the subsequent Notifications (of the year 2004) are taken into account, the
eventual conclusion of the High Court cannot be faulted.
17. For the aforesaid reasons, we do not consider it appropriate to
entertain the SLPs any further. Both SLP (C) Nos. 19226 of 2013 & 20235 of
2013 are dismissed.
..........................................J.
[RANJAN GOGOI]
..........................................J.
[N.V. RAMANA]
NEW DELHI,
MARCH 25, 2015.