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'Entirely Illegal Construction': Supreme Court Directs Demolition Of A Hotel-cum-Restaurant Built In Forest Land In Himachal Pradesh

LIVELAW NEWS NETWORK
12 Jan 2021 11:37 AM GMT
Entirely Illegal Construction: Supreme Court Directs Demolition Of A Hotel-cum-Restaurant Built In Forest Land In Himachal Pradesh
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"Not looking askance at the construction of the Hotel-cum-Restaurant structure, in an area which the NGT rightly describes as the "lap of nature", will put us on the path of judicially sanctioned environmental destruction."

The Supreme Court has upheld the order of National Green Tribunal directing demolition of a Hotel-cum-Restaurant in the Bus Stand Complex at McLeod Ganj in Himachal Pradesh.The bench comprising Justices DY Chandrachud, Indu Malhotra and Indira Banerjee dismissed the appeal filed by Himachal Pradesh Bus Stand Management and Development Authority and directed that the process of demolishing...

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The Supreme Court has upheld the order of National Green Tribunal directing demolition of a Hotel-cum-Restaurant in the Bus Stand Complex at McLeod Ganj in Himachal Pradesh.

The bench comprising Justices DY Chandrachud, Indu Malhotra and Indira Banerjee dismissed the appeal filed by Himachal Pradesh Bus Stand Management and Development Authority and directed that the process of demolishing the Hotel-cum Restaurant structure shall be commenced within two weeks and shall be demolished within one month thereafter.

In this case, NGT had found that the Bus Stand Complex seriously disturbs the ecology of the area in which it has been constructed and also violates the provisions of the Forest (Conservation) Act. It directed the authority to pay a compensation of Rs. 15 lacs in terms of Sections 15 and 17 of the NGT Act; and a compensation of Rs. 10 lacs. The State of Himachal Pradesh and its Department of Tourism was directed to pay a compensation of Rs. 5 lacs each. The Tribunal had also ordered an enquiry to be conducted against the officers of the Authority.

In its judgment disposing the appeal filed by the Authority, the bench discussed the concept of Environmental rule of law and also the role of courts in ensuring environmental protection. The court said that the environmental rule of law, at a certain level, is a facet of the concept of the rule of law. In Para 47 of the Judgment, the bench observed thus:

"The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools – conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges – of how they have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity's actions have charted. The environmental rule of law seeks to facilitate a multi– disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognises that the 'law' element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the  destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognises the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance – of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today."
The point, therefore, is simply this – the environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding.

Regarding the role of Court, the bench referred to observations made in recent judgment viz. Bengaluru Development Authority vs Sudhakar Hegde. The role of courts and tribunals cannot be overstated in ensuring that the 'shield' of the "rule of law" can be used as a facilitative instrument in ensuring compliance with environmental regulations, it said. The bench also rejected the plea to allow Hotel-cum-Restaurant structure to stand for their use. Doing so would legalise what is an otherwise entirely illegal construction, the bench added.

Upholding the NGT order, the bench observed

The construction of the Hotel-cum-Restaurant structure in the Bus Stand Complex is illegal and constitutes a brazen violation of law. The permission which was granted by MOEF on 12 November 1997 was only for construction of a 'parking place' at McLeod Ganj. Similarly, the permission granted on 1 March 2001 was granted for constructing a 'bus stand' in the same area. At no point was any permission granted for the construction of a hotel or commercial structure. NGT's finding on this count commends acceptance. 
NGT acted within its mandate in a case of this nature, where the appellant actively allowed the perpetration of a structure in breach of environmental norms. Not looking askance at the construction of the Hotel-cum-Restaurant structure, in an area which the NGT rightly describes as the "lap of nature", will put us on the path of judicially sanctioned environmental destruction.
Case: Himachal Pradesh Bus Stand Management and Development Authority (HPBSM&DA) Versus The Central Empowered Committee [Civil Appeal Nos. 5231-32 of 2016 
Coram: Justices DY Chandrachud, Indu Malhotra and Indira Banerjee
Citation: LL 2021 SC 14

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