Dismissed

Prem Mohan Gaur v. National Highways Authority of India

NGT5 Jul 2024IA No. 148/2024 in Review Application No. 5/2024

Case brief

AI extract

What is this about?

The Court dismissed a review application filed by the National Highway Authority of India challenging a Tribunal order that directed environmental compensation for illegal road construction, tree cutting, and encroachment on protected lands.

What did the court decide?

Review Application dismissed with no merit found in the grounds raised by the Review Applicant.

Prem Mohan Gaur vs National Highways Authority of India — Environment and Pollution | NGT (2024)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI

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REVIEW APPLICATION NO. 05/2024 IN ORIGINAL APPLICATION NO. 892/2022 (I.A. NO. 148/2024)

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IN THE MATTER OF:

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PREM MOHAN GAUR

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S/O Shri Om Parkash Gaur R/O Village Post Office Hajipur, Tehsil Sohna, Gurugram, Haryana

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...Applicant(s)

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Versus

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1. National Highway Authority of India Through Chairman, G5 & 6, Sector 10, Dwarka, New Delhi-110075 2. Chief Minister of Haryana-cum-Chairperson HPWWMA, 4^th Floor, Haryana Civil Secretariat, Sector 1, Chandigarh-160001 3. State of Haryana Through Chief Secretary, Haryana Secretariat, Chandigarh-160001 4. Union of India Through Secretary, Ministry of Environment, Forest & Climate Change Indira Paryavaran Bhawan, Jorbagh Road, New Delhi - 110 003 5. Deputy Commissioner, Gurugram First Floor, Mini Secretariat,

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Gurugram-122001

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6. Deputy Commissioner, Nuh Second Floor, Mini Secretariat Nuh-122107

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7. Deputy Commissioner, Palwal Room No. 1, Second Floor, Mini Secretariat, Palwal - 121102

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8. Principle Chief Conservator of Forests (HoFF), Department of Forests, Government of Haryana, C-18, Van Bhawan, Sector 6, Panchkula, Haryana - 134109

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9. Division Forest Officer, Gurugram Forest Complex, Sohna Road, Near Court Complex Gurugram-122001

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10. Division Forest Officer, Nuh Gaushala Road, Forest Complex, Nuh-122107

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11. Sh. Parmender Singh Block Development and Panchayat Officer Sohna BDPO Office Complex Sohna, Gurugram-122103

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12. Tehsildar, Sohna Tehsil

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First Floor, Sohna Bus Stand Complex, Gurugram-122103

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13. Block Development and Panchayat Officer Indri BDPO Office Complex Indri Nuh-122103

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14. The District Pond Management Officer-cum-Executive Engineer Water Services Division, Nuh/Mewat Irrigation and Water Resources Department, Haryana - 122107

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15. Sh. V.K. Joshi

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General Manager cum Project Director, NHAI CMU Mathura- Faridabad, Plot No. 8, Near Toll Plaza Building, Main Mathura Road, Sarai Faridabad - 121003 16. Executive Engineer Palwal W/S Division, Canal Colony, Near Aligarh Bridge, Palwal - 121102 17. Executive Engineer Provincial Division, PWD B&R Br. Nuh, Near YMD College, Nuh, Haryana - 122107 ...Respondent(s) ......... National Highway Authority of India Through Chairman, G5 & 6, Sector 10, Dwarka, New Delhi-110075

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...Review Applicant

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COUNSELS FOR APPLICANT(S):

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Ms. Madhavi Diwan, Senior Advocate with Mr. Sahil Monga and Ms. Aishaavi Narain, Advs. for Review Applicant (NHAI)

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CORAM:

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HON’BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE DR. A. SENTHIL VEL, EXPERT MEMBER

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RESERVED ON: MAY 09, 2024 PRONOUNCED ON: JULY 05, 2024

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ORDER

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BY HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER

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This Review Application has come up at the instance of National Highway Authority of India (hereinafter referred to as ‘Review applicant’ ) with the prayer to review and set aside order dated 13.04.2024 passed by

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this Tribunal in Original Application No. 892/2022, Prem Mohan Gaur

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vs. National Highway Authority of India & Others. Several grounds have been taken in Review Application. Virtually, there is an attempt to reargue the matter in detail. This is not permissible in Review Application and a review applicant cannot be allowed to reargue the matter by way of review. The scope of review is very limited.

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Recently, in Review Petition (Civil) No. 1620/2023, Civil Appeal

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No. 1661/2020, Sanjay Kumar Agarwal vs. State Tax Officer (1) & Another and other connected matters, decided on 31.10.2023, Supreme Court has observed that the parties are not entitled to seek a review of judgment merely for the purpose of re-hearing and a fresh decision of the case. Applying principles of Order 47 Rule 1 CPC, it is said that a review of judgment is open inter-alia if there is a mistake or error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record. Supreme Court has culled down following propositions relevant for review of the judgment:

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i. A judgment is open to review inter-alia if there is a mistake or an error apparent on the face of the record.

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ii. A judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

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iii. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise

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its power of review.

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iv. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected”.

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v. A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.”

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vi. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

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vii. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

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viii. Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.

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Thus, ex-facie this Review Application is liable to be rejected. However, to satisfy ourselves that there is no error apparent on record in the judgment in question and substantial justice has been done, we have considered the objections/issues raised by Review-applicant and our findings are as under:

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Firstly , it is argued that construction of road was carried out under an agreement dated 21.10.2020 executed between review applicant and M/s. Dineshchandra Giriraj Infra Pvt. Ltd. (hereinafter referred to as

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‘ Concessionaire’ ). Under the agreement, aforesaid Concessionaire was obliged to ensure compliance of all the applicable laws while executing the agreement. When questioned, Learned Counsel for review applicant could not dispute that the project executer is review applicant and the said Concessionaire was nothing but a sub-contractor employed by review applicant, therefore, review applicant is a principal executer of the work and if there was any violation of environmental laws, responsibility of the principal executer of the work i.e., review applicant, cannot be doubted. It may have got the work executed through several contractors/subcontractors but that will not absolve the review applicant from its own responsibility. Since principal executer of the work i.e., review applicant was not only impleaded as respondent 1 in OA but given full opportunity to defend and has also filed its objections etc., besides advancing oral submissions through its Counsel Shri A P Singh and Shri Shreyansh Rathi, non-impleadment of sub-contractors employed by review applicant is neither an illegality nor irregularity and in fact, sub-contractor of the review applicant was neither necessary nor proper party, therefore, this objection has no substance, hence rejected.

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Second submission is that a fact-finding Committee was constituted by Tribunal vide order dated 11.01.2023 comprising Haryana State Pollution Control Board (hereinafter referred to as ‘HSPCB’ ), Principal Chief Conservator of Forest (hereinafter referred to as ‘PCCF’ ) and District Magistrate, Gurugram. Committee submitted its Report dated 11.07.2023 which shows that it has considered the stand taken by NHAI and other authorities. Objection of review applicant is that during the proceedings of Joint Committee and before submission of report, review applicant was not given any opportunity by the Joint Committee and only a post-facto

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hearing has been granted to review applicant by Tribunal.

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The submission is contrary to record in as much as from the Report of Joint Committee, it is evident that the stand of NHAI i.e., review applicant has been considered by Joint Committee on various issues and, thereafter, it has recorded its findings. Secondly, a fact- finding Report of Joint Committee is in the nature of Expert Commission’s Report which is referable to Order 26 Rule 10(a) CPC and thereagainst, review applicant was given due opportunity to submit its reply/objection which it has done through its response dated 02.10.2023 and thereafter, the matter has been considered by Tribunal. Therefore, in our view, requirement of ‘principle of justice’ has been duly complied with and the submission otherwise has no stand, hence rejected.

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Third submission is that project is of a national importance and the review applicant has proceeded for execution of the said project keeping in mind ‘National Importance’. However, in our view, it goes without saying that any construction activity by review applicant ought to have complied with environmental laws and norms and it has no authority to violate such laws merely on the ground that the project is of national importance. The submission, therefore, in our view, has no substance and has been mentioned just to reject the same.

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Fourth submission is that review applicant has not got the land of khasra no. 91 and 92 of village Kiranj acquired. Judgment of Tribunal shows that we have recorded findings of encroachment on the part of review applicant in respect of two nallas which were on khasra no. 91 and 92 and used for irrigations channels. They were encroached and constructions were made thereon. The findings recorded by Tribunal in

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para 53 of the judgment read as under:

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“ 53. The finding of encroachment has also been recorded by Joint Committee in respect of the above nallahs which were used as irrigation channels. These are storm water drains and could not have been obstructed or closed or encroached upon by NHAI as violation thereof results in serious damage to environment in as much as it prohibits water recharge to ground water, irrigation facilities to agricultural fields whereby also the water used in agriculture fields serves as a mode of water recharge for ground water and protects even surface water from being used or extracted or taken away.”

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Whether the land was acquired or not, is not an issue considered by this Tribunal nor such a finding has been recorded by Tribunal.

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Tribunal has categorically recorded finding of encroachment meaning thereby, illegal possession over the land of nallah was taken and constructions were made by review-applicant. Therefore, objection in respect of khasra no. 91 and 92 has no substance, hence rejected.

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Fifth submission is regarding construction on gochar/charagah land in Hajipur village. On this aspect, review applicant has obtained subsequently a letter dated 12.03.2024 i.e., after delivery of the judgment by this Tribunal which is dated 13.02.2024 in OA 892/2022 (supra) .

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It is said that there is no law which prohibits acquisition of land which is recorded as charagah in khana kasht and in any case, as per Competent Authority’s letter dated 12.03.2024, the above land is described as ‘banjar kadim’ i.e., barren, unproductive and waste land.

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We have gone through the letter dated 12.03.2024 which is at page 165 of the paper book. It clearly shows that in khana kasht, the said land is recorded as ‘charagah’. Whether the land could have been acquired or not is not the question which has been adjudicated by Tribunal but what

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has been held is that a land which is in the category of ‘charagah’, cannot be used for any other purposes. An acquisition may result in change of ownership but it does not change the nature of the land and if a particular user is prohibited to one owner, the subsequent owner will also have the same restrictions/prohibition unless there is a change in the category of nature of land in accordance with law. This is what has been said in paras 39, 43 and 44 of the judgment which read as under:

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“39. However, it is also evident from record that in Jamabandi of 2013-14, the said land was in the category of ‘charagah’. Whether ownership of the land vest in the Gram Panchayat or Government of India but the fact remains that nature of the land was ‘charagah’ in the revenue record and its nature was never changed. A ‘charagah’ is a land which is for the benefit of the villagers for providing feed to the cattles in the village. The ‘charagah’ or ‘gochar’ land is meant for common use of villagers and its use could not have been changed due to change of ownership or due to acquisition unless such change is allowed in accordance with law. It is nobody’s case including that of NHAI that user of land was ever allowed to be changed at any point of time in accordance with law. In fact it continued to be a ‘charagah’ or ‘gochar’ land.

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xxx...............................................xxx.......................................xxx

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43. The importance of grazing land/Gochar in a village for use by village community is not disputed before us also. Poor villagers may not afford to purchase expensive feed and fodder for their domestic animals to provide them good health and nutrients foods. Grazing land provides economic support to these indigent people. It is a very source and means of livelihood for them. Besides, it is also a part of ecology. A grazing land helps a lot in maintaining ecological balance by providing domestic animals of the rural people, their natural habitation, natural home, natural environment and natural vegetation where they eat food/grass, drink water, get pure air, sunlight, rest, move and enjoy freedom from the shackles of farm house, freedom from the fetters of road and freedom from every iron bar. Their habitats are necessary and necessary to be preserved as otherwise it would be a perpetration of cruelty, torture, exploitation and degrading of domestic animals and unbalancing ecological system.

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44. The judicial precedents referred above show that ‘Gochar’ land is for use of village community and cannot be used for any other purposes unless its user is changed by following the

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procedure prescribed in law if there is any enabling provision, otherwise nature of ‘Gochar’ land cannot be changed. Even acquisition of land by NHAI per se would not result in change of user of the land since the village community will continue to have its common rights protected with regard to grazing of cattles and mere change of ownership will not demolish such right of common villagers/village community. The contention of NHAI that the land was acquired by it, therefore, would not entitle to change user of the land unless the same is obtained in accordance with law . There is nothing on record which shows that NHAI got the user of the land/nature of the land converted/changed so as to entitle it to use ‘Gochar’ land for a purpose other than as grazing land/Gochar land/Charagah. The construction raised on ‘Gochar’ land by NHAI, therefore, is clearly illegal and has resulted in damaging ecological balance for which purposes the land was identified and reserved as Gochar/grazing land/Charagah.”

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Therefore, on one hand, we are clearly of the view that document obtained subsequently after judgment cannot be used for the purpose of seeking a review of an earlier judgment but even if the said document is taken into consideration, it does not make any difference since the document also reiterate that the land in question is recorded as charagah in khana kasht. The mere fact that due to non-maintenance of the land properly, charagah has become banjar, will not result in change in nature of the land as it remained to be charagah and that can be changed only if permitted under law and after following the procedure prescribed in law for such change and not otherwise. Tribunal has rightly followed the law laid down by Supreme Court in Rameshbhai Virabhai Chaudhari vs. The State of Gujarat & Others, Civil Appeal No. 5135/2021 and State of Jharkhand & Others vs. Pakur Jagran Manch & Others, (2011) 2

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SCC 59 and the law declared therein, in our view, squarely covers the issue in question.

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Sixth submission is that findings recorded in para 45 about cutting

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of trees vis-a-vis number of trees is not correct in as much as though applicant claimed that 441 trees were cut but as per Forest Department, only 263 trees of different species were cut illegally which included 22 trees belonged to exempt category, hence only 241 trees were cut in violation of Section 4 (General) of Punjab Land Preservation Act, 1900.

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Learned Counsel appearing for review applicant vehemently contended that having said so in para 45, Tribunal has mentioned in para 47 that NHAI is liable to pay environmental compensation for illegal cutting of 441 trees which was a number given by applicant but not verified by Forest Department. It is also contended that review applicant had paid compounding charges of Rs.58,940/- and also deposited Rs.9,37,238/- in Compensatory Afforestation Fund Management and Planning Authority, hence, no compensation could have been imposed for such illegal cutting of trees.

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The submissions advanced on behalf of review applicant admits firstly that it has illegally cut trees in village forest. It also admits that no environmental compensation causing damage to environment due to illegal cutting of trees has been assessed or paid by review applicant.

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Review applicant has also cut a number of trees illegally from private farmers’ land. In fact, the issue of cutting of trees has been dealt with as second and third violation in paras 45 to 48 the judgment. The number of trees cut on the private farmers land has not been discussed or enquired into by Forest Department. Such number of trees are mentioned in the document filed by review applicant as annexure-5 at page 170 which is an award of compensation dated 20.01.2023 and shows total number of trees

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as 260 in 72 survey numbers. The details of number of trees have been given in chart in column 3 and the total comes to 260. If 260 is added to 241, it comes to 501 i.e., more than 441 trees. Since the document now filed as award along with review application was not before us when we passed the judgment dated 13.02.2024, we had no occasion to give this figure otherwise the amount of compensation would have been much more. Now, we do not find any justification to modify and increase the amount of compensation on the basis of subsequent information supplied by review applicant. However, in view of the above discussion which shows that actual number of trees cut illegally by review applicant is more than 500 and we have mentioned in para 47 only 441 trees, it cannot be said that there is no manifesto error or error apparent on the face of record which requires review of the judgment. This ground taken by review applicant, therefore, is rejected.

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Seventh ground with regard to compensation paid for trees standing on private farmers land in village Kiranj is also totally misconceived in as much as the said amount refers to the cost of the trees illegally cut and not the amount of environmental compensation. Since damage has been caused by cutting of trees illegally to environment in various ways and environmental compensation is payable for the same, therefore, the cost of trees paid has nothing to do so far as the question of environmental compensation is concerned. Therefore, even this contention is thoroughly misconceived.

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Eighth contention is that the pond in village Kiranj, which has been held to some extent, encroached by review applicant, was not recorded as pond under Haryana Pond and Waste Water Management Authority Act,

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2018 when acquisition proceedings were initiated, hence it cannot be said that the pond is entitled for any protection. The submission is thoroughly misconceived. Irrespective of the question whether a pond is registered under any Statute or not, it is entitled for protection under environmental laws since nature of the pond cannot be changed and has to be maintained as it is for public good and protection of environment. In case of Hinch Lal Tiwari vs. Kamla Devi, (2001) 6 SCC 496 , Supreme Court as long back in 2001 has clearly held that a pond cannot be allowed to be encroached illegally nor its nature can be allowed to be changed and it must be restored by local administration. The observations made by Supreme Court in Hinch Lal Tiwari vs Kamla Devi (supra) in respect of pond are reproduced as under:

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“...the material resources of the community like forests, tanks, ponds, hillock, mountain, etc. are nature’s bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution ...”

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It is not in dispute that khasra no. 30/3 and 30/8 were having area of 8K 0M and 7K 16M, respectively, but some area thereof was encroached upon by review applicant in construction of the road in question. In view of Supreme Court’s judgment in Hinch Lal Tiwari vs Kamla Devi (supra) , it would have been justified to demolish the constructions made by review applicant so as to restore the pond to its original position. However, taking pragmatic view in the matter since road construction is in public interest, we, instead of directing for demolition, have allowed review applicant to pay only environmental compensation by application of principle of ‘Polluter Pays’ and in our view, the view taken by Tribunal is justified, therefore, this submission is thoroughly misconceived and 13

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hereby rejected.

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Lastly, it has been contended that environmental compensation has been computed on a much higher basis. However, we find that there is a detailed discussion on this aspect and no error apparent on the face record in this respect has been pointed out during the course of the argument despite our repeated query, hence argument on the quantum of compensation, having no substance, is rejected.

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In view of the above discussion, we find no merit in Review Application. It is accordingly dismissed.

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PRAKASH SHRIVASTAVA, CHAIRPERSON

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SUDHIR AGARWAL, JUDICIAL MEMBER

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DR. A. SENTHIL VEL, EXPERT MEMBER

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July 05, 2024 Review Application No. 05/2024 In Original Application No. 892/2022 R

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Prem Mohan Gaur v. National Highways Authority of India

Case brief

What is this about?

What did the court decide?

Prem Mohan Gaur v. National Highways Authority of India

Case brief

What is this about?

What did the court decide?

What the court decided

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