The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.

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show that the State is under a mandate to protect and improve the environment and safeguard the forests. The precautionary principle requires the Government to anticipate, prevent and remedy or eradicate the causes of environmental degradation including to act sternly against the violators; vi. While interpreting and applying the laws relating to the environment, the principle of sustainable development must be borne in mind. In the case of Rajeev Suri v. Delhi Development Authority and Ors. [(2022) 11 SCC 1], a Bench of this Court to which one of us is a party (A.M. Khanwilkar, J.) has very succinctly dealt with the concept of sustainable development. Paragraphs 507 and 508 of the said decision reads thus: “507. The principle of sustainable development and precautionary principle need to be understood in a proper context. The expression “sustainable development” incorporates a wide meaning within its fold. It contemplates that development ought to be sustainable with the idea of preservation of natural environment for present and future generations. It would not be without significance to note that sustainable development is indeed a principle of development - it posits controlled development. The primary requirement underlying this principle is to ensure that every development work is sustainable; and this requirement of sustainability demands that the first attempt of every agency enforcing environmental Rule of law in the country ought to be to alleviate environmental concerns by proper mitigating measures. The future generations have an equal stake in the environment and development. They are as much entitled to a developed society as they are

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to an environmentally secure society. By Declaration on the Right to Development, 1986, the United Nations has given express recognition to a right to development. Article 1 of the Declaration defines this right as: “1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

508. The right to development, thus, is intrinsically connected to the preservance of a dignified life. It is not limited to the idea of infrastructural development, rather, it entails human development as the basis of all development. The jurisprudence in environmental matters must acknowledge that there is immense interdependence between right to development and right to natural environment. In International Law and Sustainable Development, Arjun Sengupta in the chapter “Implementing the Right to Development” notes thus: “… Two rights are interdependent if the level of enjoyment of one is dependent on the level of enjoyment of the other…” vii. Even ‘environmental rule of law’ has a role to play. This Court in the case of Citizens for Green Doon v. Union of India and Ors. 2021 SCC OnLine SC 1243 has dealt with another important issue of lack of consistent and uniform standards for analysing the impact of development projects. This Court

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observed that the principle of sustainable development may create differing and arbitrary metrics depending on the nature of individual projects. Therefore, this Court advocated and accepted the need to apply and adopt the standard of ‘environmental Rule of law’. Paragraph 40 of the said decision reads thus: “40. A cogent remedy to this problem is to adopt the standard of the ‘environmental Rule of law’ to test governance decisions under which developmental projects are approved. In its 2015 Issue Brief titled “Environmental Rule of Law : Critical to Sustainable Development”, the United Nations Environment Programme has recommended the adoption of such an approach in the following terms: “Environmental rule of law integrates the critical environmental needs with the essential elements of the rule of law, and provides the basis for reforming environmental governance. It prioritizes environmental sustainability by connecting it with fundamental rights and obligations. It implicitly reflects universal moral values and ethical norms of behaviour, and it provides a foundation for environmental rights and obligations. Without environmental rule of law and the enforcement of legal rights and obligations, environmental governance may be arbitrary, that is, discretionary, subjective, and unpredictable.” (emphasis supplied)

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Forest Constitute A National Asset ● Amarnath Shrine, In re, (2013) 3 SCC 247 “19. Where it is the bounden duty of the State to protect the above rights of the citizen in discharge of its constitutional obligation in the larger public interest, there the law also casts a duty upon the State to ensure due protection to the forests and environment of the country. Forests in India are an important part of the environment. They constitute a national asset. We may, at this stage, refer to the concept of inter-generational equity, which has been treated to be an integral part of Article 21 of the Constitution of India. The courts have applied this doctrine of sustainable development and precautionary principle to the cases where development is necessary, but certainly not at the cost of environment. The courts are expected to drive a balance between the two. In other words, the onerous duty lies upon the State to ensure protection of environment and forests on the one hand as well as to undertake necessary development with due regard to the fundamental rights and values.” (emphasis supplied) Environmental Rule of Law ● H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee, (2021) 4 SCC 309 “I.1. Environmental rule of law xxx xxx xxx “49. 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

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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

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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. xxx xxx xxx

54. In an article in Georgetown Environmental Law Review (2020), Arnold Kreilhuber and Angela Kariuki explain the manner in which the environmental rule of law seeks to resolve this imbroglio [ Arnold Kreilhuber and Angela Kariuki, “Environmental Rule of Law in the Context of Sustainable Development”, 32 Georgetown Environmental Law Review 591 (2020).] : “One of the main distinctions between environmental rule of law and other areas of law is the need to make decisions to protect human health and the environment in the face of uncertainty and data gaps. Instead of being paralyzed into inaction, careful documentation of the state of knowledge and uncertainties allows the regulated community, stakeholders, and other institutions to more fully understand why certain decisions were made.”

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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.” (emphasis supplied) Role of Courts ● H.P. Bus-Stand Management & Development Authority (Supra) “I.2. Role of courts in ensuring environmental protection

56. In a recent decision of this Court in BDA v. Sudhakar Hegde [(2020) 15 SCC 63] , this Court, speaking through one of us (D.Y. Chandrachud, J.) held : (SCC pp. 112-13, paras 94-95) “94. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth. … Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the State and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public- spirited individuals are called to invalidate such actions. …

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95. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision-making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution, proper structures for environmental decision- making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.” xxx xxx xxx

58. The UNEP Report (supra) also goes on to note [ UNEP, “Environmental Rule of Law First Global Report” (January 2019), p. 213.] : “Courts and tribunals must be able to grant meaningful legal remedies in order to resolve disputes and enforce environmental laws. As shown in Figure 5.12, legal remedies are the actions, such as fines, jail time, and injunctions, that courts and tribunals are empowered to order. For environmental laws to have their desired effect and for there to be adequate incentives for compliance with environmental laws, the remedies must both redress the past environmental harm and deter future harm.”

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59. In its Global Judicial Handbook on Environmental Constitutionalism, the UNEP has further noted [UNEP, Global Judicial Handbook on Environmental Constitutionalism (3rd Edn., 2019), p. 7.] : “Courts matter. They are essential to the rule of law. Without courts, laws can be disregarded, executive officials left unchecked, and people left without recourse. And the environment and the human connection to it can suffer. Judges stand in the breach.”

60. The above discussion puts into perspective our decision in the present appeals, through which we shall confirm the directions given by NGT in its impugned judgment [T.N. Godavarman Thirumulpad v. Union of India, 2016 SCC OnLine NGT 1196] . 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.” (emphasis supplied) FACTUAL BACKGROUND

40Copy pinpoint40. Between the years 1950-1959, a revision of survey and settlement of village Kompally took place. It was concluded on 17.11.1960. An application was stated to have been filed by Respondent No. 1 (Original Plaintiff), invoking Section 87 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 F. (hereinafter referred to as “A.P. Land Revenue Act, 1317 F.”), seeking rectification of survey error. It was so filed on the premise that the Plaintiff actually owned the suit land. The suit land consists of 106.34 Acres and the Schedule reads thus – Village Kompally, District Warangal, Survey Number 171/3 to 171/7 admeasuring 106.34 Acres. This application did not surface for nearly a decade and a half, for the reasons known to the Plaintiff.

41Copy pinpoint41. A notification being Gazette No. 85-B was published in the Andhra Pradesh Gazette on 11.11.1971 by the State Government, under Section 15 of the A.P. Forest Act, declaring the land, which was part of the earlier proceedings of the revenue department dated 17.11.1960, as reserved forest. It was done on the premise that the lands were forest lands and, therefore, they were accordingly declared as reserved forest.

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42Copy pinpoint42. Rather strangely, the application so filed by the Plaintiff was rejected by the Revenue Authority only on 10.01.1975. The revision filed by him was allowed by remitting the matter to the Joint Collector. Suffice it is to state that despite the findings rendered, neither the Forest Department nor the Forest Settlement Officer was arrayed as a party to these proceedings before the revenue department. It is also seen that the order of the Revenue Authority and the Revisional Authority were passed much after the declaration under Section 15 of the A.P. Forest Act, vesting the lands in the State by giving them the status of a reserved forest.

43Copy pinpoint43. On 07.07.1981, the Joint Collector, Warangal allowed the application of the Plaintiff. Realising that the said order will not give the Plaintiff benefit of any sort, he filed an application before the Government seeking denotification of the land declared as reserved forest’, which was rightly dismissed on 01.09.1984.

44Copy pinpoint44. A suit was filed by the Plaintiff on 23.04.1985 in OS No. 56 of 1985 on the file of I Additional Sub-Judge, Warangal seeking a declaration of title and permanent injunction. In the said suit the Defendant no. 1 was the District Collector representing the Revenue Department with the Defendant no. 2, Forest Officer representing the Forest Department. Quite surprisingly, neither the Forest Settlement Officer nor the State of Andhra Pradesh, Forest Department was made a party defendant. The trial court while granting title to the plaintiff declined the incidental relief of injunction.

45Copy pinpoint45. On appeal, the High Court, by giving adequate reasons reversed the said finding of the trial court qua the declaration, and confirmed the findings on injunction by dismissing the suit in toto. Ultimately, it was held that the suit property is forest land. The proceedings concluded under the A.P. Forest Act, though not specifically challenged, and that too without the proper and necessary parties, were found to be just and proper.

46Copy pinpoint46. The trial court and the High Court in first appeal have given factual findings against the plaintiff. Only two witnesses were examined, one on each side. The trial court took note of the fact that there is material evidence to show that the suit land is a part of the reserved forest. The plaintiff was not at all in possession of the suit land. The suit was also held as barred under Section 5 of the A.P. Forest Act.

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47Copy pinpoint47. The High Court, being the final court of fact and law, went ahead and held that the plaintiff had miserably failed to show his title to the suit property. The Plaintiff did not have any personal knowledge about the manner of his succession to the suit property. Even as per his own evidence, he is not the absolute owner of the suit property, being a co-owner. The documents relied on by him, more particularly the decision of the revenue authorities, do not establish both title and possession. A detailed discussion was made on the effect of Section 15 and 16 of the A.P. Forest Act, along with the documents marked on behalf of defendants. It took note of the fact that though a portion of the property was sold as per the evidence of the Plaintiff, there is no proof.

48Copy pinpoint48. Immediately after the judgment of the High Court dated 20.07.2018, a review was filed on behalf of the plaintiff on 18.11.2018. Shockingly, Defendant No. 1, who filed a common written statement along with the Defendant No. 2 and, thus, took a stand that the suit property is a forest land which becomes part of a reserved forest area, in line with the stand taken by the Defendant No. 3, who was impleaded pending the first appeal, constituted a committee on 12.07.2019 on an application said to have been filed by the Plaintiff in the year 2017, which was obviously pending the first appeal.

49Copy pinpoint49. More surprisingly, the District Forest Officer did not appear before the Committee and based upon a report submitted, it was held that the suit property is required to be excluded in favour of the plaintiff. This was done despite the fact that the District Collector, who was a party to the suit, took a specific stand, and in view of the judgment which attained finality, that the suit land is forest land, the District Collector has got no jurisdiction at all to deal with it in any manner especially in the light of Section 15 and 16 of the A.P. Forest Act. We do not wish to say anything more on this, though wisdom has dawned upon defendants again, as could be seen from the affidavit filed by the State before this Court reiterating the original stand.

50Copy pinpoint50. The aforesaid decision was taken by the District Collector after the judgment of the First Appellate Court. It was accordingly marked as a court exhibit in the review. Thereafter, it was taken up for hearing and disposed of on 19.03.2021. The Learned Judge who delivered an elaborate judgment in the first appeal was transferred to Andhra Pradesh on establishment of the High Court at Amravati. The review came to be filed before another Learned Judge. The impugned order

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was passed in the purported exercise of the power of review, by virtually reversing all the findings rendered in the appeal, while placing reliance upon evidence which on the face of it was inadmissible and, therefore, void from its inception, rendered by an authority which had absolutely no jurisdiction at all.

51Copy pinpoint51. While doing so, the High Court in review jurisdiction once again reconsidered the evidence produced by the Defendants. In the process, the High Court fixed a heavy onus on the Defendants ignoring the fact that on the earlier occasion the Plaintiff had miserably failed to prove his title. Incidentally, it was held that Section 5 of the A.P. Forest Act which speaks about the bar of a suit can only be applied during the pendency of proceedings under the A.P. Forest Act and not thereafter. Despite no challenge either to the proceedings under the A.P. Forest Act and that too in the absence of proper and necessary parties, an adverse inference was drawn by taking note of the statement made by DW-1 who was only a Forest Officer and, therefore, not having any direct connection with the action taken. Various admissions made by the plaintiff in his deposition were conveniently ignored. The High Court went on to criticize the conflicting stand taken by two wings of the State while ignoring the fact that Defendant No. 1 had absolutely no say. SUBMISSIONS OF THE APPELLANTS

52Copy pinpoint52. Ms. Aishwarya Bhati, Learned Additional Solicitor General, appearing for the appellants, submitted that the Forest Conservation Act, 1980 defines a forest which is inclusive of all types of forests. The extensive inclusion would take in its sweep even the private forests. Revenue records do not confer title. The High Court clearly exceeded its jurisdiction in review by entertaining a re-hearing and virtually acted as an appellate court. The Respondents did not satisfy the court on the title, which finding has not been touched. SUBMISSIONS OF THE RESPONDENTS

53Copy pinpoint53. Mr. Neeraj Kishan Kaul, Learned Senior Counsel appearing for the respondents, vehemently contended that the proceedings before the Forest Settlement Officer have become final. Even the trial court has held that the plaintiff had title. Once title is proved, possession has to follow. As there is an error apparent on the face of record, the power of review has been exercised correctly. The finding that Section 5 of the A.P. Forest Act, has got no application is correct, as there is no

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attempt to interdict the proceedings. As there is no apparent perversity, this Court need not interfere with the impugned order. DISCUSSION

54Copy pinpoint54. We have already recorded the facts in detail. It is a classic case where the officials of the State who are expected to protect and preserve the forests in discharge of their public duties clearly abdicated their role. We are at a loss to understand as to how the High Court could interfere by placing reliance upon evidence produced after the decree, at the instance of a party which succeeded along with the contesting defendant, particularly in the light of the finding that the land is forest land which has become part of reserved forest.

55Copy pinpoint55. There is a distinct lack of jurisdiction on two counts – one is with respect to an attempt made to circumvent the decree and, the second is in acting without jurisdiction. The land belongs to the Forest Department and therefore, Defendant No. 1 had absolutely no role in dealing with it in any manner. Proceeding under the A.P. Land Revenue Act, 1317 F. has got no relevancy or connection with a concluded proceeding under the A. P. Forest Act. The proceeding under the A. P. Forest Act was concluded on 11.11.1971. Thereafter, without any jurisdiction, an order was passed under Section 87 of the A.P. Land Revenue Act, 1317 F.

56Copy pinpoint56. The High Court on the earlier occasion had given a clear finding that even at the time of declaration under the A.P. Land Revenue Act, 1317 F, these lands were not shown as private lands by the defendant, among other factual findings. It is indeed very strange that the High Court which is expected to act within the statutory limitation went beyond and graciously gifted the forest land to a private person who could not prove his title. While disposing of the first appeal, the High Court exercised its power under Order XLI Rule 22 of the CPC 1908 for partly reversing the trial court decree. Even otherwise, there were concurrent findings in so far as dismissal of the suit for injunction is concerned. In our considered view, the High Court showed utmost interest and benevolence in allowing the review by setting aside the well merited judgment in the appeal by replacing its views in all material aspects.

57Copy pinpoint57. Let us alternatively examine the question of maintainability of a suit for the relief of declaration. The suit filed is not maintainable as the plaintiff has not challenged the proceedings under Section 15 of

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A. P. Forest Act. These have become final and conclusive in view of the express declaration provided under the statute in Section 16 of A. P. Forest Act. Rather, the plaintiff filed an application for denotification before the Government which was rejected. Neither the State Government, which rejected the said application, nor the Forest Settlement Officer has been made as party defendants in the suit, with the State arrayed as respondent represented by the Principal Secretary, Forest Department, at a later stage in the appeal. Though, the Forest Officer of the Forest Department may be an interested party, the authority who otherwise could answer is the Forest Settlement Officer. He is the one who concluded the proceedings. In any case, the said exercise is irrelevant as the Plaintiff could not prove his title nor does there lie any relevance to the action taken under the A.P. Land Revenue Act, 1317 F. Furthermore, there is no specific challenge to the concluded proceedings under the A. P. Forest Act. The Plaintiff has merely asked for declaration of title and permanent injunction restraining the Defendants from interfering with possession.

58Copy pinpoint58. We, thus, conclude that the impugned judgment does not stand the legal scrutiny as it is ridden with both factual and legal errors.

59Copy pinpoint59. Accordingly, the appeal stands allowed. The impugned judgment stands set aside by restoring the judgement rendered in A.S. No. 145 of 1994. We consider it appropriate to impose cost of Rs. 5,00,000/- each on appellants and respondents to be paid to the National Legal Services Authority (NALSA) within a period of two months from the date of this judgment. The appellant State is free to enquire into the lapses committed by the officers in filing collusive affidavits before the competent court, and recover the same from those officers who are responsible for facilitating and filing incorrect affidavits in the ongoing proceedings. The Contempt Case No. 624 of 2021 pending before the High Court is directed to be closed. I.A. No.65196/2021 is dismissed. All other pending applications stand closed.

Headnotes prepared by: Divya Pandey Result of the case: Appeal allowed.