THE STATE OF RAJASTHAN AND ANOTHER Versus ULTRATECH CEMENT LTD

THE STATE OF RAJASTHAN AND ANOTHER Versus ULTRATECH CEMENT LTD

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


Civil Appeal No. 5841 of 2022 @ SLP (C) Nos.37439 of 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5841/ 2022
ARISING OUT OF
PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. 37439 OF 2016
THE STATE OF RAJASTHAN AND ANOTHER .… APPELLANTS
Versus
ULTRATECH CEMENT LTD. ….. RESPONDENT

J U D G M E N T
HIMA KOHLI, J.
1. Leave granted.
2. The appellant–State of Rajasthan1
 has assailed the judgment dated 26th
February, 2016, passed by a Division Bench of the High Court of Judicature for
Rajasthan Bench at Jaipur whereby the order dated 05th October, 2012, passed by the
learned Single Judge dismissing a writ petition preferred by the respondent–Ultratech
Cement Ltd.2
 (S.B. Civil Writ Petition No. 15416 of 2012) was set aside and its appeal
allowed with a direction to the appellant–State Government to process the allotment of
the land in favour of the respondent–Company for setting up a cement plant in Tehsil
1 In short ‘State Government’
2 In short ‘Company’
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Nawalgarh, District Jhunjhunu, in terms of the letter of allotment dated 23rd February,
2012.
3. A brief overview of the facts of the case is necessary.
3.1 With the idea of setting up a Cement plant having the capacity of 3 million tons of
cement per annum in four villages situated in Tehsil Nawalgarh, District Jhunjhunu,
spreading over 1000 hectares of land, the respondent–Company purchased/acquired
400 hectares of land through direct negotiations and took steps to acquire the remaining
part of land through private negotiations, as also by way of allotment through RIICO. For
executing the project of cement manufacturing, the respondent–Company applied to the
appellant–State Government in the year 2000 – 2001 for grant of adjoining mining
leases for mineral lime stone (cement grade) in Tehsil Nawalgarh, District Jhunjhunu. A
letter of intent3
 was issued by the appellant–State Government on 16th March, 2002 in
respect of two mining leases, but due to non-availability of environment clearance within
the stipulated time, the said LOI was cancelled by the State Government by order dated
07th February, 2005. The said order was challenged by the respondent–Company by
preferring a revision petition before the Mines Tribunal which was allowed vide order
dated 19th July, 2007 and the matter was remitted back to the State Government for
fresh examination in accordance with law. The appellant–State Government vide order
3 In short ‘LOI’
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dated 22nd November, 2007, restored the LOI subject to compliance of certain conditions
and on an undertaking to be furnished by the respondent–Company. The said LOI was
however, cancelled by the Mines Tribunal vide order dated 29th July, 2009. Aggrieved by
the said cancellation order, the respondent–Company approached the High Court by
filing a writ petition which was allowed vide order dated 19th August, 2010 and the
appellant–State Government finally issued a LOI on 28th October, 2010.
3.2 This time, the District Collector, Jhunjhunu issued an approval letter dated 23rd
February, 2012, for allocation of Government land falling under mining lease area to the
respondent–Company for setting up a cement plant subject to the fulfillment of certain
conditions stipulated therein. The captioned letter issued by the District Collector,
Jhunjhunu is extracted hereinbelow:
“Sir,
Vide above referred letter under above mentioned
subject, the State Government has granted approval for
reservation and allocation of land falling under mining
lease area for setting up a cement plant is granted
under Section 92 of the L.R. Act which shall be subject to
the fulfillment of the below mentioned conditions: -
(i) Approval for allocation of the land recorded as pasture
land in the mining leased area is given in favour of
the applicant company subject to the condition that
the company shall surrender the land equivalent to
the allocated land after purchasing it in the same
village and after developing it as grazing land and will
also make it available to the concerned Gram
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Panchayat after doing fencing of the four walls of the
land.
(ii) In-principle consent for allocation of the gairmumkin johad land falling under mining lease area, as
applied for by the company, is given in favour of the
company subject to the condition that company shall
purchase other land and develop it as Johad and
surrender it to the Gram Panchayat. The company
shall also produce NOC/ orders for allocation of Johad
land obtained from Hon'ble High Court.
(iii)Company's application for allocation will be
considered only after producing permission/ NOC of
the competent authority of Panchayat Raj Vibhag and
Education Department for gair-mumkin abadi school,
graveyard, maszid etc. situated on the mining lease
area.
(iv) 0.32 Hectare land in the mining lease area is
recorded in the name of Ajmer Electricity Distribution
Corporation Ltd. Above land shall be allocated in
favour of the applicant-company on producing NOC
from the Ajmer Electricity Distribution Corporation
Ltd.
(v) Consent is issued for allocation of the classified
land of gair-mumkin Bani & gair-mumkin passage as
per your proposal which falls under mining lease area
for the purpose in accordance with rules.
Therefore, kindly ensure action as above.
Encl: as above.
 Sd/-
District Collector, Jhunjhunu”
3.3 In view of condition No.(iii) contained in the captioned letter which called upon
the respondent–Company to produce NOC/orders for allocation of ‘Johad’ land from the
High Court, the respondent–Company approached the High Court by filing S.B. Civil
Writ Petition No.15416/2012. Accompanying the said writ petition were several
documents pertaining to the spot inspection of the site, the Reports of the Tehsildar and
the correspondence between the parties to demonstrate that the subject land that had
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been classified as ‘Johad’, neither fell in the catchment area, nor did water gather there
and there did not exist any natural source of water on the subject land and therefore,
classification of the subject land could be converted to ‘Siwai Chak’ land. Not
persuaded by the averments made in the writ petition, the learned Single Judge
dismissed the writ petition at the stage of admission itself with an observation that it is
for the State Government to decide whether the disputed land is ‘Johad’ land or not and
that the Court was bound by the judgment of the Division Bench of the High Court in the
case of Abdul Rahman v. State of Rajasthan and Others4
.
3.4 Dissatisfied with the in limine dismissal of its writ petition, the respondent–
Company preferred an appeal before the Division Bench of the High Court registered
as D.B.Special Appeal (Writ) No. 73/2013. Noting that several representations
submitted by the respondent–Company to the appellant–State Government for
examining the matter afresh and for making necessary corrections in the revenue
records were pending, vide order dated 23rd November, 2015, the Division Bench
directed the appellant–State Government to consider the respondent’s representations
in the light of the observations made in the case of Director General, Research and
Development v. State of Rajasthan & Others5
, in particular, para 3 thereof, that is
extracted hereinbelow:
4 2004(4) WLC (Raj.) 435
5 211 SCC Online Raj 3197
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“It is conceded on facts that in fact there is no Gair Mumkin Nadi existing on
the spot, therefore the decision rendered by the Division Bench of this court
in (Abdul Rahman Vs. State of Rajasthan & Ors.) shall not come in the
way of the respondents in making the allotment. In view of aforesaid factual
matrix and considering the nature of requirement, we direct that let the
allotment be • processed as assured within six weeks from today".
While passing the aforesaid order, it was made clear that in the event the appellant–
State Government does not decide the representation of the respondent–Company, the
appeal will be decided on merits.
3.5 In compliance of the aforesaid order, the appellant–State Government passed an
order dated 25th January, 2016, holding inter alia that the subject land having been
recorded in the revenue record as ‘Johad’, no allotment could be made in favour of the
respondent–Company. In view of the aforesaid stand taken by the appellant–State
Government, the Division Bench proceeded to hear the respondent’s appeal on merits
and allowed the same by virtue of the impugned judgment whereunder the appellant–
State Government has been directed to allot the subject land in question to the
respondent–Company and take consequential steps in the matter.
3.6 The High Court has specifically recorded in the impugned judgment that learned
counsel for the appellant–State Government did not dispute the fact even before the
Court that though the subject land in question was classified as ‘Johad’, it neither fell
within any catchment area, nor did water ever collect there and there was no natural
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water reservoir on the subject land. The court opined that looking at the topography of
the area, the site in question did not have use for any other purpose at all. In fact, the
said site selected for mining, had commercially viable lime stone deposits and the
selection was made after due consultation with the Gram Panchayat, Baswa. Thus,
there was no justification for turning down the fact-finding Reports filed by the Tehsildar,
Land Records, Nawalgarh, regarding the status of the land. In fact, the said Reports had
been duly accepted by the appellant–State Government.
3.7 The impugned judgment went on to record that in Abdul Rahman’s case4
,
referred to by the learned Single Judge, the Court had only directed the State
Government to chalk out a plan for restoration of the catchment areas to their original
shape. The said judgment did not prohibit alienation of the property held as a public
trust except for highlighting the fact that any such alienation would require a higher
degree of judicial scrutiny, thus creating a balance between the Doctrine of Public Trust
and the Doctrine of Sustainable Development. It was observed that a pragmatic view
ought to be taken in the matter, more so, when the area classified as ‘Johad’, did not fall
in any catchment area, nor was there any natural water reservoir for it to be declassified
from the category of ‘Johad’ to ‘Sawai Chak’ land.
4 Mr. Milind Kumar, learned Standing Counsel appearing for the appellant–State
Government has assailed the impugned judgment by submitting that the same runs
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contrary to the judgment of the High Court in Abdul Rehman’s case4
 where it has been
held by the Division Bench that no right can be given to use Nadi land or other water
bodies for construction activity and that catchment of pond/water reservoir shall not be
allotted for any personal/commercial purposes; that utilizing the ‘Johad’ land for
commercial purpose may cause environmental damage; that the High Court has erred
in placing reliance on Director General, Research and Development5
; that there are
decisions of this Court as in Vellore Citizens’ Welfare Forum v. Union of India and
Others6
, A.P Pollution Control Board v. Prof. M. V. Nayudu (Retd.) And Others7
,
Lafarge Umiam Mining Private Limited (Applicant) in T.N. Godarvarman
Thirumulpad v. Union of India and Others8
, Electrotherm (India) Limited v. Patel
Vipulkumar Ramjibhai and others9
, Common Cause v. Union of India10, Alembic
Pharmaceuticals Limited v. Rohit Prajapati and Others11 that have highlighted the
use of precautionary principle in environmental matters and held that the burden of
proof is on the project proponent who is proposing to alter the status quo or impact the
environment. Reference was also sought to be placed on the judgment of this Court in
Jagpal Singh and Others v. State of Punjab and Others12
, where directions were
issued to all State Governments to prepare schemes for eviction of illegal occupants of
6 (1996) 5 SCC 647
7 (1999) 2 SCC 718
8 (2011) 7 SCC 338
9 (2016) 9 SCC 300
10 (2017) 9 SCC 499
11 (2020) 17 SCC 157
12 (2011) 11 SCC 396
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Gram Sabha land and for restoration of the said land for common use of the villagers of
the area. Learned counsel for the appellant–State Government went on to refer some
additional documents filed recently, in particular, letter dated 07th July, 2014, addressed
by the Tehsildar, Nawalgarh to the District Collector which mentioned the status of land
in one of the four villages identified as mining area in district Jhunjhunu, namely Village
Baswa and stated that in some khasra numbers of the said village, there exists a pucca
pond which acts as a catchment area of rain water. Some circulars issued by the State
Government have also been cited which state that all the allotments which were
recorded in the revenue records as nala, river, pond, dam or embankment after 1955
and were converted by changing the land classification from agricultural purpose to
non-agricultural purpose, be referred to the competent Court with the relevant facts for
classification of allotment.
5 The aforesaid submissions have been repelled by Mr. Hiren P. Raval, Senior
Advocate appearing for the respondent–Company who submitted that the present
appeal is not maintainable when the appellant–State Government has already given its
in-principle consent for the respondent–Company to use the subject land for mining
purpose subject to obtaining a No Objection Certificate from the High Court. Once the
High Court has given a No Objection Certificate in terms of the view expressed in the
impugned judgment, there was no occasion to file the present appeal. On merits, it was
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submitted that there is no good reason for the appellant–State Government to have
refused to rectify the error in the revenue records in respect of the classification of the
parcel of land, part of which has been wrongly classified as ‘Gair-Mumkin Johad’ i.e.
reservoir land, despite the fact that the Tehsildar, Nawalgarh and the District Collector,
Jhunjhunu submitted two Reports stating inter alia that there was no water reservoir on
the subject land at any point in time. To substantiate the said submissions, learned
counsel referred to the two Reports submitted by the Tehsildar, Nawalgarh dated
19th/27th April, 2011 and 25th November, 2012/5th December, 2012. He also took this
Court through the recommendations made by the District Collector, Jhunjhunu calling
upon the State Government to examine the matter and pass appropriate orders. In
particular, he referred to the letters dated 19th December, 2012 and 26th, February,
2013, addressed by the District Collector, Jhunjhunu to the Deputy Secretary, Revenue
Department of the State Government recommending change of class of the land in the
revenue records from ‘Gair-Mumkin Johad’ to ‘Sawai Chak’ land, on the basis of the
certificates issued by the Tehsildar, Nawalgarh. Learned counsel pointed out that at no
stage has the appellant–State Government disputed the Reports of the Tehsildar or the
recommendations made by the District Collector. Instead, it has been harping on the
judgment of the Division Bench of the High Court of Rajasthan in Abdul Rehman’s
case4
, without appreciating that the said judgment has not declared that alienation of
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property held as a public trust, is totally prohibited. It was submitted that the fact
situations of each case would have to be examined before taking a decision and in the
instant case, it is not disputed by the appellant–State Government that the subject land
does not fall in any catchment area, water does not collect there and there is no natural
water reservoir on the land. In all this back and forth that commenced in the year 2000
and is continuing till now, the environment clearances issued in favour of the
respondent–Company are going to lapse at the end of the year 2022, which would
automatically result in cancellation of the LOI issued by the appellant–State
Government, thus, leaving the respondent–Company high and dry for no fault
attributable to it. It was therefore urged that the impugned judgment does not deserve to
be interfered with, as it is based on fact finding Reports submitted by the revenue
authorities that have not been questioned by the appellant–State Government till date.
6 We have heard the arguments advanced by the learned counsel for the parties,
perused the impugned judgment and the documents placed on record. The only issue
that arises for the consideration of this Court is that once an in-principle consent has
already been accorded by the appellant–State Government for reservation and
allocation of the subject land under the mining lease in favour of the respondent–
Company for it to set up a cement plant and the condition inserted in the approval letter
dated 23rd February, 2012 that the respondent–Company should produce a No
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Objection Certificate / order from the High Court permitting allocation of ‘Gair–Mumkin
Johad’ land stands satisfied by virtue of the impugned judgment, would a challenge still
lie against the same at the instance of the appellant–State Government?
7 A perusal of the impugned judgment indicates the following factors that have
weighed with the High Court for allowing the appeal preferred by the respondent–
Company :-
(a) That the Tehsildar, Nawalgarh had made a physical spot inspection of the
subject land in question and submitted a detailed Report to the District
Collector, Jhunjhunu on 19th April, 2011 stating that the subject land,
classified as a ‘Johad’ neither fell in the catchment area, nor did water ever
collect there and that no natural source of water existed on the subject
land;That the subject land was again inspected by the Tehsildar, Land
Records, Nawalgarh, who sent a Report to the District Collector, Jhunjhunu
on 25th November, 2012 / 05th December, 2012 stating inter alia that there is
no natural water body on the subject land and the ‘Gair-Mumkin Johad’ falling
under the proposed mining lease area, does not fall within the water logging
area or the catchment area. Therefore, a recommendation was made for
change of the class of land and for recording it as ‘Sawai Chak’ land;
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(b) That the District Collector, Jhunjhunu made his recommendations on two
different occasions to the State Government for issuing necessary orders to
correct the revenue records and change the classification of the land to be
recorded as ‘Sawai Chak’ land.
(c) That on receiving a communication dated 01st February, 2013 from the State
Government calling upon him to re-examine the matter and pass appropriate
orders, the District Collector, Jhunjhunu had once again made a
recommendation vide letter dated 26th February, 2013, that necessary orders
for correction of the revenue records ought to be made in the instant case;
(d) That the Gram Panchayat Baswa, Tehsil Nawalgarh, District Jhunjhunu
passed Resolution No.21 dated 03rd February, 2011, stating that no water
had ever accumulated in the subject land and the Gram Panchayat had no
objection in granting the said land classified as ‘Johad’, to the respondent–
Company for mining lease purposes, subject to the Company giving equal
measure of developed land to the Gram Panchayat in the same village;
(e) the Court took note of the undertaking given by the respondent–Company in
the writ proceedings for initiating the following activities for the benefit of the
surrounding villages –
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(i) Equal and alternate land to be developed as 'Johad' in place of
'Johad' land in the mining activity area in the same village so that
villagers could benefit from the basic amenities.
(ii) Creation of a water reservoir in the mined out area.
(iii) Development of water harvesting structures for augmenting ground
water recharging in the area.
(iv) Initiation of CSR activities in the surrounding villages.
(f) The respondent–Company gave an undertaking before the Court that
development of the site for alternate ‘Johad’ would be done in a planned
manner where the catchment area, water harvesting structures and cattle
grazing land would be developed. The Company also undertook to convert
Dug-cum-Bore Well (DCB Well) into injection wells in order to develop
suitable drainage pattern for augmentation of ground water table;
8 It is a matter of record that the appellant–State Government has not questioned
the Reports prepared by the Tehsildar, Nawalgarh after making spot inspection on two
occasions. The position remains the same even as of now. The first Report was
prepared by the Tehsildar on 19th/27th April, 2011 and the second one on 25th November,
2012/05th December, 2012. Both the Reports were categorical in their findings that there
was no natural water body on the subject land classified as a ‘Johad’ and that the
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subject land neither fell in the catchment area, nor did water ever collect there and there
was no natural source of water that existed on the subject land. That being the position,
we see no reason to permit learned counsel for the appellant–State Government to rely
on a communication dated 02nd July, 2014, addressed by the Tehsildar to the District
Collector, in respect of a part of the subject land falling in village Baswa to urge that
there exists a pucca pond at some spots, more so when there is no explanation for not
filing the documents. The aforesaid communication could have easily been filed by the
appellant–State Government before the High Court at the appropriate stage, well before
the date of passing of the impugned judgment. Nothing prevented the appellant–State
Government from producing the relevant photographs of the purported pucca pond
existing at some spots within village Baswa. It is not the case of the appellant–State
Government that the earlier Reports submitted by the Tehsildar, Nawalgarh after
conducting a physical spot inspection had been manipulated or prepared in a mala fide
manner, nor is there any averment made in the appeal that departmental action was
initiated against the then Tehsildar, Nawalgarh for having prepared incorrect Reports of
the spot inspection. Given the said position, there is no reason to discard the two
Inspection Reports prepared by the Tehsildar, Nawalgarh that form a part of the record.
Both the said Reports have stated in clear terms that there is no natural water body on
the subject land and the ‘Gair–Mumkin Johad’ falling under the proposed mining lease
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area does not fall within the water logging area or the catchment area. We, therefore,
decline to give any weightage to the letter dated 07th July, 2014 addressed by the
Tehsildar, Nawalgarh to the District Collector, Jhunjhunu.
9 The Circulars dated 26th June, 2012, 17th April, 2013 and 26th July, 2017 issued
by the Revenue Department can also not be of any assistance to the appellant–State
Government, for the simple reason that the said circulars came to be issued in
compliance of the judgments of the High Court and this Court directing removal of
encroachment from the Gram Panchayat land and eviction of unauthorized occupants
therefrom. The present case does not fall in the above categories for the simple reason
that the respondent–Company has applied through proper channel for allotment of land
for mining purpose; it has received requisite environment clearances followed by LOIs
issued by the appellant–State Government. Armed with the necessary approvals from
the State Government for reservation and allocation of land falling under mining lease
area, the respondent–Company had approached the revenue authorities for setting up a
plant on the subject land and requested that necessary changes be made in the revenue
records pertaining to land described as ‘Johad’ at certain spots, where in fact, no ‘Johad’
actually existed. In this context, the recommendations made by the District Collector,
Jhunjhunu gain significance. The first letter in this regard was addressed by the District
Collector to the Deputy Secretary, Revenue Department of the appellant–State
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Government on 19th December, 2012, relevant extract whereof is reproduced
hereinbelow:
 “When a site inspection report in this connection was sought from
Tehsildar, Nawalgarh, he informed vide his letter No.2501 dated 5.12.12 that
there is a government primary school building on the gair-mumkin Johad
land of Khasra No.493 area 3.96 hectare, Khasra No.546 raqba 16. 73
hectare, Khasra No.608 raqba 17.55 hectare, Khasra No.649 raqba 4.81
hectare, Khasra No.1304/493 raqba 0.14 hectare and Khasra No.1316/ 608
raqba 0.11 hectare land situated in village Basawa and rest of the land does
not come within the catchment area. Land of the above mentioned Khasra
Numbers does not have any natural water reservoir, nor it is in the
catchment area. Tehsildar, Nawalgarh has recommended to change its class
and declare it Sivaychak land.
In perspective of the above decisions of Hon'ble Rajasthan High
Court and enclosing herewith the Tehsildar Report attached with letter
No.2501 dated 5.12.12 (copy enclosed) and copy of the enclosed Jamabandi
for Samvat 2067-2070, it is submitted that Tehsildar's report has been
analyzed and I am satisfied with the report. As per the site inspection report of
the Gair-mumkin Johad land of Khasra No.493 area 3.96 hectare, Khasra
No.546 raqba 16.73 hectare, Khasra No.608 raqba 17.55 hectare, Khasra
No.649 raqba 4.81 hectare, Khasra No.1304/4 93 raqba 0.14 hectare and
Khasra No.1316/608 raqba 0.11 hectare land situated in village Basawa,
there is a government primary school on 0.10 hectare land out of 16.73
hectare of Khasra No.546 it is recommended that class of the above land
may be changed and allocated to M/s Ultratech Cement Limited Co. in
accordance with law.”
10 After receiving the aforesaid letter, the Secretary, Revenue Department
addressed a letter dated 1st February, 2013 to the District Collector, Jhunjhunu clearly
stating inter alia that only he as the ‘District Collector’ must certify whether the land in
question is a ‘Johad’ land or not and the said certification is not to be done by the State
Government. Therefore, the District Collector was directed to visit the site himself and
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inquire into the matter and then issue appropriate orders. In compliance of the said
directions, the District Collector wrote another letter dated 26th February, 2013 to the
Deputy Secretary, Revenue Department, reiterating that the revenue records do not
record any water reservoir in the relevant khasra numbers of the subject land and it was
in this background that letter dated 19th December, 2012 had been issued by him
recommending change of class of the land on the basis of the certification of the
Tehsildar, Nawalgarh in the revenue records. It was again stated by the District Collector
that in the light of the Report of the Tehsildar and the copies of old and current revenue
records, orders may be issued by the State Government with regard to change of class
of the proposed land that was entered into revenue records as ‘Johad’.
11 The aforesaid material has been examined at length in the impugned judgment.
The High Court has also taken note of the Resolution passed by the Gram Panchayat,
village Baswa and the certificate issued by the Gram Panchayat which records that no
water had ever accumulated on the subject land and the Gram Panchayat did not have
any objection to the said land being granted to the respondent–Company for mining
lease purpose subject to the condition that it would be receiving an equal measure of
developed land in the same village from the respondent–Company in view of the land
being consumed for mining lease purpose. The respondent–Company has also given
undertakings to the High Court that the environment of the village will not be adversely
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impacted and the ecological balance shall be maintained. One of the undertakings given
by the respondent–Company is that the site identified for development of an alternate
‘Johad’ would be identified and developed in a planned manner, so as to create a
catchment area, water harvesting structure and cattle grazing land.
12 Given the above background, reliance placed by learned counsel for the
appellant–State Government on the judgments cited by him, is found to be misplaced. In
Vellore Citizens’ Welfare Forum6
and A.P Pollution Control Board7
, this Court
recognized the requirement of reconciliation between the concept of development and
ecology as a facet of sustainable development. The relevant Articles of the Constitution
of India including Articles 21, 47, 48-A, 51-A (g) that protect and improve the
environment have been highlighted and the Precautionary Principle and Polluter-Pays
Principle have been declared to be a part of the environmental law of the country. It has
also been accepted that the burden of proof should lie on the entity proposing an activity
that is potentially harmful to the environment. There can be no quarrel with the above
position, but neither of the aforesaid judgments are relevant in the facts and
circumstances of the instant case, inasmuch as no burden has been placed on the
respondent–Company to demonstrate that the industry proposed to be set up by it, shall
not cause any serious and/or irreversible harm to the ecology of the area. On the
contrary, it is the stand of the Revenue Department of the appellant–State Government
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itself that there is no likelihood of any damage to the ecology of the area as the spot
inspections reveal that there is no pond existing on the subject land that may be
impacted adversely.
13 In Narmada Bachao Andolan v. Union of India13
, this Court had the occasion to
discuss the Precautionary Principle and it was held that the said principle and the
corresponding burden of proof on the person who wants to change the status quo, will
ordinarily apply in the case of polluting or other projects or industry where the extent of
damage likely to be inflicted, is not known. But when the effect of the project is known,
then the principles of sustainable development would come into play which will ensure
that mitigative steps can be taken to preserve the ecological balance. In the present
case, there is no such uncertainty due to lack of availability of data or scientific material
about the damage if any, likely to be caused to the ecological balance of the area.
Instead, detailed spot inspections have been conducted by the revenue authorities from
time to time that establish that there is no ‘Johad’ existing on the subject land. Despite
that, the respondent–Company has been directed to develop an alternate ‘Johad’ in a
planned manner at the same area, as a mitigative step which it has undertaken to
execute.
13 (2000) 10 SCC 664
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Civil Appeal No. 5841 of 2022 @ SLP (C) Nos.37439 of 2016
14 In Lafarge Umiam Mining Private Limited8
, this Court has recognized the fact
that the environment has different facets and universal dependence of humans for the
use of environmental resources for the most basic needs, inescapably requires choices
to be made at different levels on environmental protection and factor in the risks which
are to be regulated, as recognized by the concept of sustainable development.
Conceding that it is impossible to lay down ‘across-the-board’ principles and much would
depend on the facts of each case, this Court opined that what was required to be seen
was how much protection would be sufficient and whether ends would be served by
diverting resources to other uses and at the same time, strike a fine balance between
environmental protection and environmental risk. No such fine balance is required to be
struck in the instant case when admittedly, the spot inspections show that there does not
exist any ‘Johad’ on the subject land that is likely to be affected on account of the
change proposed in the revenue records.
15 The directions issued in Jagpal Singh’s case12 calling upon State Governments
to prepare a scheme for eviction of illegal/unauthorized occupants of Gram Sabha land
also do not come in the way of the respondent–Company. The purpose of the said
direction was to prepare a scheme for removal of illegal occupants expeditiously. This
does not prevent the respondent–Company from approaching the Court for correction in
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Civil Appeal No. 5841 of 2022 @ SLP (C) Nos.37439 of 2016
the revenue records when the site inspection Reports prepared by the Revenue
Authorities show that there is no water body or catchment area on the subject land.
16 The focus in the case of Electrotherm (India) Limited9 was on conducting public
hearings as a mandatory requirement of the environmental clearance process and the
Court has frowned upon doing away with public hearings in the course of the decisionmaking process. In the case of Common Cause10
, this Court was seized of the aspect
of illegal/unlawful mining in the State of Odisha and it was observed that Courts cannot
interfere with the Mining Policy or lay down limits on the extent of mining activity that
should be permitted by the State/Central Government. The said decision does not have
any application to the facts of the instant case where the appellant–State Government
has already given an in-principle consent for setting up a cement plant in favour of the
respondent–Company and the High Court was only required to examine the aspect of
correction in the revenue records in relation to the subject land where a ‘Johad’ was
mentioned, but none existed at site.
17 In Alembic Pharmaceuticals’ case11
, the issue before this Court was with
respect to the operation of industries without obtaining prior environmental clearance for
a long time and their liability on account of such non-compliance. Noting that the
industries had evaded the legally binding regime of obtaining environment clearance, it
was held that penalty must be imposed on them for disobedience and non-compliance
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Civil Appeal No. 5841 of 2022 @ SLP (C) Nos.37439 of 2016
of the rules and regulations. Here, the respondent–Company has admittedly received
environmental clearances and in spite of the same, its project has not taken off due to
various hurdles created by the appellant–State Government. Clearly, the present case is
not one of breach of any norms for imposition of penalty on the respondent–Company.
18 Even the judgment of the Division Bench of the Rajasthan High Court in the case
of Abdul Rehman4
is being completely misread by the appellant–State Government.
The focus in the said judgment was on the restoration of the catchment area to its
original shape for which a plan was directed to be drawn up which included demarcation
of the catchment areas, demarcation of drainage channels etc. Nowhere in the said
judgment has it been observed that the description of a land as a pond in the revenue
records, when no pond exists on site, cannot be corrected after conducting a spot
inspection. We are inclined to accept the submission made by learned counsel for the
respondent–Company that in the absence of any pond at the spot, the decision
rendered in the case of Abdul Rehman4
 cannot be an impediment for processing the
application of the respondent–Company for allocation of the subject land, for setting up
a cement plant. The High Court has rightly referred to the decision of this Court in
Director General, Research and Development5
, where noting the fact that there was
no ‘Gair-Mumkin’ Nadi existing on the spot, it was observed that the decision of the High
Court in Abdul Rahman4 will not come in the way of allotting the land to the petitioner.
Page 23 of 24
Civil Appeal No. 5841 of 2022 @ SLP (C) Nos.37439 of 2016
19 For the aforesaid reasons, we concur with the findings returned in the impugned
judgment which is upheld. The appellant–State Government is directed to take
necessary steps to process the allotment of the subject land in favour of the
respondent–Company within four weeks from today. The respondent–Company shall file
a fresh undertaking with the State Government, within the same timeline, as was filed by
it before the High Court, for initiating time bound activities for the benefit of the
surrounding villages, as compensatory measures for the allocation of the subject land.
The appeal is dismissed while leaving the parties to bear their own expenses.
.................................CJI.
 [N. V. RAMANA]
 ...................................J.
 [HIMA KOHLI]
.................................J.
 [C. T. RAVIKUMAR]
NEW DELHI,
AUGUST 26, 2022
Page 24 of 24

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