HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1                                                                           AFR
 

 
Case :- MISC. BENCH No. - 31608 of 2019
 

 
Petitioner :- M/S Shri Krishna Colonisers Thru.Partner S.Krishna & Anr.
 
Respondent :- State Of U.P.Thru.Prin.Secy.Horticulture & Food Preserv.&Ors
 
Counsel for Petitioner :- Ratnesh Chandra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Kumar Jaiswal,J.

Hon'ble Alok Mathur,J.

(Delivered by Hon'ble Alok Mathur, J.) Heard Sri Ratnesh Chandra, learned counsel for the petitioners, Sri J.B.S. Rathore, Sri Q.H. Rizvi, learned counsel for respondent nos. 1, 2, 3 and 4 as well as learned counsel for respondent nos. 5 and 6.

The petitioners by means of this writ petition have approached this Court seeking writ of certiorari quashing the Notification dated 19.02.1997 by which the Vikas Khand, Bakshi Ka Talab, Lucknow has been declared as "fruit belt" and further prayer has been made to issue a writ in the nature of mandamus directing respondent no. 1 to consider and decide petitioner's representation dated 07.06.2018.

The petitioner no. 1 is a partnership firm engaged in the development of real estate in and around the city of Lucknow and is having vast experience in developing colonies etc. and is having adequate financial resources to undertake large building projects etc. The petitioner no. 2 is partner of the petitioner no. 1.

The petitioners had purchased land at Vikas Khand, Bakshi Ka Talab, Lucknow, the total area which is owned by the petitioners and their partners from time to time, is around 17320.66 square meters and out of the said area, an area of about 10880 square meters has been acquired for outer ring road and thus now an area of 6440.66 square meters is still left with the petitioners.

It is submitted on behalf of petitioners that they have moved an application before the Lucknow Development Authority (hereinafter referred to as "the LDA"), seeking permission to develop the land owned by the petitioners as High-tech Township but the officials of LDA informed them that the area where the petitioners desire to develop hi-tech township is fruit belt area and thus no housing scheme can be permitted within such fruit belt.

The petitioners on further enquiry were informed that the State Legislature has enacted the U.P. Promotion and Protection of Fruit Trees (Regulation of Harmful Establishment Housing Schemes) Act, 1985 (hereinafter referred to as "the Act, 1985") for the purposes to provide for promotion of fruit trees and their protection from plant diseases caused by existence of Brick Kilns and other harmful establishments in the vicinity. As per the Act, 1985 a notification has been issued on 19.02.1997, declaring the said area as a 'fruit belt', which has been impugned in this writ petition.

The State Government has issued the impugned Notification No. 402/58-1-97-381/91, dated 19.02.1997, in exercise of powers under Section 3 of the Act, 1985, thereby fruit belt in Vikas Khand Bakshi Ka Talab, Lucknow is bounded in the following manner :

East - Palika, Kouriyamau, Gorvamau, Phatehapur, Khonarai, Barakhempur, Dhimchari, Sonava, Bhaisamau, Tikari, Bibipur, Jalalpur, Usarana, Kishsupur, Chandnapur, Bhatosuva.

West - Gangjor, Bhouli, Magholiya, Kathwara, Bhikhampur, Sultanpur, Akarriya, Kalon, Dubra.

North - Jamaranua, Sahadatnagar, Cahargaon, Shivri, Saraydamu, Aramba.

South - Mubarakpur, Kamlabad, Barhauli, Dinkarpur, Kjalaua, Chandakodar, Archaraau, Sivan.

As per provisions of Act, 1985 no housing scheme can be permitted in the notified area.

Section 5 of the Act, 1985, provides for prohibition against running harmful establishments or carrying out of housing schemes, provides as under :

"5. (1) Notwithstanding anything in any other law for the time being in force, or in any contract, grant or other instrument having effect by virtue of such law, no person shall, on or after the date of declaration of a fruit belt under Section 3-

(i) instal or run any harmful establishment within such fruit belt or buffer zone thereof, or

(ii) without permission of the State Government or of an officer authorised by the State Government in this behalf, in the manner prescribed, carry out any housing scheme within such fruit belt."

According to Clause (e) of Section 2 of the Act, 1985, "harmful establishment" has been defined as (i) brick-klin, (ii) factory, workshop, or other establishment which uses coke or coal other than wood coal for fuel purposes, in its furnace which emits or causes emission of smoke, and in which articles are manufactured, processed, adapted or produced with a view to their use, transport, or sale and which employs ten or more workers on any day in a year, but does not include hotel, restaurant or other eating places.

The "housing schemes" have been defined under Clause (f) of Section 2, which provides as under :-

"2. (f) 'housing scheme' means any housing or colonization scheme or activity by a person designed to construct more than one residential or other buildings for purposes of sale or letting and includes any scheme for development of any land for lease or sale as plots of land for construction of residential or other buildings, but does not include construction of a building by a person on his own or lease-hold land for his personal use and occupation;"

It has also been provided under Section 6 (1) of the Act, 1985 that whoever contravenes the provisions of Section 5 shall be punished with simple imprisonment which may extend to six months or with fine which may extend to three thousand rupees or with both.

Procedure for declaring any area to be 'fruit belt' has been provided under Section 3 of the Act, 1985, which provides as under :

"3. (1) If the State Government is of the opinion that for the promotion and protection of fruit trees and their produce in any area it is necessary and expedient in the public interest to regulate and restrict running of harmful establishments and carrying on of any housing scheme therein and in its vicinity, it may subject to the provisions of sub-sections (2) to (4) by notification in the Gazette, specify the boundaries of such area and declare it to be fruit belt with effect from such date as may be specified therein.

(2) The State Government shall, before declaring any specified area to be fruit belt under sub-section (1), by notification in the Gazette, and in such other manner as may be prescribed, notify its intention so to do and invite objections and suggestions in regard to the proposed declaration.

(3) Any objections and suggestions under sub-section (2) may be preferred within such period as may be prescribed and shall be addressed to the Director, who shall forward the same, with his comments thereon, to the State Government.

(4) On the expiry of the period, referred to i sub-section (3), the State Government shall consider the objections and suggestions received within the said period and may thereupon proceed in accordance with sub-section (1) to declare such area with or without such changes in its boundary as it may deem fit."

It has been provided in Section 4 of the Act, 1985 that the State Government, where it considers necessary and expedient in the public interest so to do, may, by notification in the Gazette, and in such other manner as may be prescribed and with effect from the date specified in the notification include any area in or exclude any area from the fruit belt specified in the notification under sub-section (1) and 3.

The Act of 1985 was legislated with the object to provide for the promotion of fruit trees and their protection from plant diseases caused by the existence of brick-klins or other harmful establishments in vicinity, and for matters connected therewith.

In pursuance to Section 14 of the Act, 1985, the U.P. Promotion and Protection of Fruit Trees (Regulation of Harmful Establishment Housing Schemes) Rules, 2001 (hereinafter referred to as "the Rules, 2001") were enacted, providing for the manner in which any area can be declared to be a fruit belt. It has been provided therein that minimum agricultural area should be 1500 hectares and Rule 3 of the Rules, 2001 provides as under :

ÞQyiV~Vh dh ?kks"k.kk ds fy, ekud 3& vf/kfu;e dh /kkjk&3 dh mi/kkjk ¿1À ds v/khu QyiV~Vh dh ?kks"k.kk ds fy, fuEufyf[kr ekud gksaxs %& ¿,dÀ fdUgha rhu lagr U;k; iapk;rksa }kjk vko`Rr fdlh {ks= dks lk/kkj.kr;k ,d bdkbZ ekuk tk;sxk fdUrq izR;sd bdkbZ ds fy, U;wure d`f"k {ks= 1500 gsDVs;j gS de ugha gksuk pkfg,A U;k; iapk;rksa dks la[;k rnuqlkj ?kVk;h ;k c<+k;k tk ldr gSA ¿nksÀ Qyks|ku dk U;wure ?kuRo izLrkfor {ks= esa 20 izfr'kr gksxkAß The petitioners admittedly have purchased the land within the notified area from time to time knowing fully well that the said area is notified under the Act, 1985 as fruit belt, wherein housing schemes and brick-klins cannot be permitted and to fulfil their object of constructing housing scheme have approached this Court challenging the impugned Notification dated 19.02.1997, notifying the said land as fruit belt.

The main ground for challenging the impugned notification is that area of the orchard/grove is less than 20% and thus the same could not have been declared to be a fruit belt in terms of Section 3 of the Act, 1985 read with Rules, 2001, the provisions of which are not fulfilled and therefore notification does not fulfill the conditions as laid down under the Act and Rules and therefore are liable to be quashed. In support of their contention they have annexed a copy of the counter affidavit filed by the Deputy Director (Planning), Directorate of Horticulture, Lucknow filed in Writ Petition No. 458(M/B) of 2008, wherein in paragraph 8 it has been stated that as per survey conducted in the year 1999, the area of orchard in proportion to the total area was 8% and further as per survey of 2000 and 2002 it has increased upto 11% and which is continuously increasing till date. Further the density of industrial crops and orchard is rapidly rising. It has been submitted that in the light of the averments made in the aforesaid counter affidavit area of orchard is less than 20% and hence the impugned notification of 1997 deserves to be quashed.

It would be relevant to consider the fact that the land in question being declared fruit belt was notified in the year 1997 and therefore there is presumption to the validity of the impugned notification and that it would have fulfilled the criteria laid down in the Act, 1985. It is not the case of the petitioners that said land when it was notified did not fulfilled the conditions as required in the Act, 1985.

It would be material to consider as to whether subsequently either due to negligence of the State Government or the authorities or for some other factors percentage of groves in the said area falls below 20%, would that be a valid consideration for striking down the impugned notification of 1997.

The direct impact in allowing the writ petition would be that after quashing the notification dated 19.02.1997, the 'fruit belt' area would be open for housing projects for which hundreds of trees would be cut with impunity and the protection sought to be given to the 'fruit belt' area would be withdrawn, and will result in destruction of the "green cover" and the said land would be open for exploitation for promotion of vested interest under the garb of development. It is needless to say that the removal of protection given by the Act, 1985 to the 'Fruit Belt' would have great impact on the ecology of the notified area as it would be open for exploitation by raising/establishing high tech housing schemes wherein number of trees would have to be cut and the green cover which was sought to be protected would be removed.

In the modern welfare state, Justice has to address social realities and meet the demands of time. Protection of environment throws up innumerable challenges for a developing nation. Administrative legislative strategies to bring harmony between environmental values and development needs are imperative. These strategies are to be formulated with the prevailing social economic conditions to fulfill the hopes and aspirations of the present and future generations. In determining the scope of the powers and functions of administrative agencies at this level, and in striking a balance between environment and development, the courts have a crucial role to play.

To adjudicate the issue involved in the present case, the Court would necessarily have to consider the compelling demand of protecting the ecology and green cover on one hand and the need for development on the other, in the light of provisions of the Act, 1985.

The concept of right to life, personal liberty and procedure established by law contained in Article 21 of the Constitution of India after the period of inertia, found a new meaning to the Constitution and the petition and culminating in a landmark decision in Menka Gandhi vs union of India AIR 1978 SC 597, by the Supreme Court held that the right to life and personal liberty, guaranteed under Article 21 of the Constitution of India can be infringed only by a just, fair and reasonable procedure. Due to the new dimension of right to life extended to right to health and other hygienic conditions, in the case of the Rural Litigation and Entitlement Kendra vs State of Uttar Pradesh, 1986 SCC Supl(1) 517, which in fact, is the first case where the Apex Court made an attempt to look into this question. It ordered the closure of mining operations in certain areas, though in certain other areas it allowed them to be phased out in due course. Notably, the court considered the hardship caused to the lessees, but was of the view that it is the pious that has to be paid for protecting and safeguarding the right of the people who live in the environment with minimum disturbance to ecological balance The right to humane and healthy environment has been indirectly approved in the MC Mehta Environmental Foundattion of cases decided in the 80s. New impetus meaning and value system has to be given to sub-clause 7 of Article 51(A) of the Constitution of India which provides for protection and improvement of natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. As stated by the Hon'ble Supreme Court that the right to life in and in Article 21 of the Constitution of India does not fall short of the requirement of quality of life which is possible only in an environment of quality where, on account of human agencies, the quality of air and quality of environment are threatened or affected, the courts would not hesitate to use its innovative power to enforce and safeguard the right to life and promote public interest. The administrative agencies cannot be permitted to function in a manner as to make inroads into fundamental rights under Article 21 of the Constitution of India. The right to life is much more than the right to animal existence and its attributes are manifold, as life itself. A prioritisation of human needs and the new value system has been recognised in these areas. The right to Sweetwater and right to free air, our attributes of right to life, for, these are basic elements which sustained life itself.

The Hon'ble Supreme Court for the first time in the case of Chhetriya Pardushan Mukti Sangarsh Samiti vs State of Uttar Pradesh AIR 1990 SC 2060, observed that every citizen has a fundamental right to have enjoyment of quality of life and living as contemplated in article 21 of the Constitution of India.

In the case of Bangalore Medical Trust vs B.S.Mudappa AIR1991 SC 1902 the Hon'ble Supreme Court was dealing with the question as to whether an open space laid down as such in a development scheme could be leased out for a private nursing home. Justice Thommen answered the question in negative. Once appropriated or earmarked as open space or for building purposes or other development as part of the scheme adopted by local authority like the Bangalore development authority the land should be used for that purpose. If it is to be used for any other purpose, the scheme itself should be ordered in the manner in which, by law, the authority as a corporate body is competent to order. It may be that the aforesaid case did not categorically laid on the right to environment is a part of right to life, but endorse the position that open spaces being the lung space for urban sprawl, is an essential ingredient of development scheme. In case the development authority, after observing the statutory formalities and procedures such as the participating excises and deliberations and application of mind, and what open space into hospital site, the said action may still be invalid. Observance of statutory procedure shall not make an action valid if the action otherwise violate fundamental rights.

In Lal Bahadur Vs. The State of Uttar Pradesh & Others, (2018) 15 SCC 407, the Apex Court relying on Bangalore Medical Trust (supra) observed as under :

"12. Law is well settled in this regard. In Bangalore Medical Trust v. B.S. Mudappa & Others (1991) 4 SCC 54, this Court had considered the question whether area reserved for a public park can be converted for other purposes. The State Government by the subsequent order had allotted the area reserved for public parks to a Medical Trust, for the purposes of constructing a hospital. This Court had laid down the importance of open spaces and public parks in the said case and held that said spaces are a gift from people to themselves. It observed that :

"23. .........

24. Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.

25. Reservation of open spaces for parks and playgrounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill effects of urbanisation.

13. This Court had clearly laid down that such spaces could not be changed from green belt to residential or commercial one. It is not permissible to the State Government to change the parks and playgrounds contrary to legislative intent having constitutional mandate, as that would be an abuse of statutory powers vested in the authorities. No doubt, in the instant case, the legislative process had been undertaken. The Master Plan had been prepared under the Act of 1973. Ultimately, the respondents have realized the importance of such spaces. It was, therefore, their bounden duty not to change its very C.A. NO.5606/2010 purpose when they knew very well that this is a low-lying area and this area is otherwise thickly populated and provides an outlet for water to prevent flood like situation. In fact, the flood-like situation occurred in the area in question. This Court has permitted the protection by raising Bandh."

Another major development of the 20th century has been the right of healthy environment has got entrenched in article 21 of the Constitution of India. Courts in a large measure relied upon this right in addressing the variety of aspects relating to protection and improvement of environment. This court in the case of S.K.Garg vs state of Uttar Pradesh AIR 1999 All 41 held that the right to water is part of right of life guarantee of article 21. It has also been held that article 21 of the Constitution of the right to live a decent life, good and management and maintenance of ecology must be held to have primacy over the statutory rights to hold and the property.

Adherence to the principle of sustainable development is no constitutional requirement. How much damage the environment and ecology has got to be decided on facts of each case. While applying the principle of sustainable development one must bear in mind that the development which meets the needs of the present without compromising the ability of the future generations to meet their own needs is sustainable development. Therefore, the courts are required to balance development needs the protection of environment and ecology. It is the duty of the state under the Constitution to devise and implement a coordinate and coherent program to meet its obligations of sustainable development based on intergenerational equity.

In the case of  Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647 at page 660 the Hon'ble Supreme Court while dwelling upon the need of preservation of the environment and ecology devised of new tools for interpretation, and observed:-

"10. The traditional concept that development and ecology are opposed to each other is no longer acceptable. "Sustainable Development" is the answer. In the international sphere, "Sustainable Development" as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called "Our Common Future". The Commission was chaired by the then Prime Minister of Norway, Ms G.H. Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and Worldwide Fund for Nature, jointly came out with a document called "Caring for the Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in the history -- deliberating and chalking out a blueprint for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. "Sustainable Development" as defined by the Brundtland Report means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists.

11. Some of the salient principles of "Sustainable Development", as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that "The Precautionary Principle" and "The Polluter Pays Principle" are essential features of "Sustainable Development". The "Precautionary Principle" -- in the context of the municipal law -- means:

(i) Environmental measures -- by the State Government and the statutory authorities -- must anticipate, prevent and attack the causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(iii) The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.

12. "The Polluter Pays Principle" has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India [(1996) 3 SCC 212 : JT (1996) 2 SC 196] . The Court observed: (SCC p. 246, para 65) "... we are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country."

The Court ruled that: (SCC p. 246, para 65) "... once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on".

Consequently the polluting industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". The "Polluter Pays Principle" as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

13. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48-A and 51-A(g) of the Constitution are as under:

"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.--The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

48-A. Protection and improvement of environment and safeguarding of forests and wildlife.--The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.

51-A. (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures."

Apart from the constitutional mandate to protect and improve the environment there are plenty of post-independence legislations on the subject but more relevant enactments for our purpose are: the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment (Protection) Act, 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. It also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the latter part of this judgment.

14. In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country.

15. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. To support we may refer to Justice H.R. Khanna's opinion in A.D.M. v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207] , Jolly George Varghese case [Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 : AIR 1980 SC 470] and Gramophone Co. case [Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534 : 1984 SCC (Cri) 313 : AIR 1984 SC 667] ."

The precautionary principle and the principle of polluter pays are integral part and parcel of the National Environmental Law and has now been embedded as a bedrock of environmental jurisprudence under the National Green Tribunal Act and therefore whenever the environment and ecology are being compromised and jeopardised the courts can apply section 20 for taking a restorative measures in the interest of the environment.

The Hon'ble Supreme Court in the case of Arjun Gopal vs Union of India (2017) 16 SCC 267 observed that "in the process this Court also recognise the duty of the state to ensure a healthy environment in terms of article 48A of the Constitution of India as well is a duty of the citizen to ensure that the same under article 51A(g) of the Constitution". The Court also reminded itself of the "precautionary principle"which mandates that there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the order of the court had taken note of the directories effect of the air pollution on the health of the people, particularly the children. Going by all these considerations, the court passed the following directions:-

"19. We thus consider it inappropriate that explosives which are used as fireworks should be available in the market in the NCR till further orders. The mechanism of the law in this regard is clear. Rule 118 of the Explosive Rules, 2008, framed under the Explosives Act, 1884, provides for the manner in which licenses issued under the Explosives Act to store and sell explosives could be suspended or cancelled. Sub-Rule (5) thereof specifically confers on the Central Government a power to suspend or cancel a license if it considers that it is in public interest. This provision also makes it clear that an opportunity to hear the licensee could be dispensed with if the Central Government considers that in public interest. This Court finds that the grave air quality situation in NCR is one such case, where this Court, can intervene and suspend the licenses to store and sell fireworks in the NCR. We direct the Central Government to:

(i) Suspend all such licenses as permit sale of fireworks, wholesale and retail within the territory of NCR.

(ii) The suspension shall remain in force till further orders of this Court.

(iii) No such licenses shall be granted or renewed till further orders.

20. In addition to the above, we direct the CPCB to study and prepare a report on the harmful effects of the materials which are currently being used in the manufacture of fireworks. The report shall be submitted within a period of three months to this Court."

The Principles as enunciated by the Hon'ble Apex Court in the decisions referred herein above, it is abundantly clear that while interpreting any statute which provides for protection of the environment as is in the present case by defining a particular area for the promotion and protection of fruit trees, the Legislative intent is clear which is to preserve and protect the ecology of the notified area, and in no unequivocal terms of the Act of 1985, seeks to preserve and protect the 'fruit belt' from the harmful establishment as defined under the Act, 1985 including housing schemes which would not be permitted as it would hamper the objects of the Act, 1985.

The provision of levying penalty on any person who contravenes the provisions of the Act, 1985, has also been provided for, which makes it clear that it was the intention of the Legislature to protect the 'fruit belt' and further in case there is any violation of the provision of the Act, 1985, inasmuch as if any person establishes any brick-klin or makes any constructions in the notified area, the Collector has been given power to remove the harmful establishment and do all what is necessary for protection of 'fruit belt' and therefore, he is empowered to discontinue or stop the construction of harmful establishment and execution of any housing scheme.

With the passage of time it seems that density of fruit trees in the notified area is falling below 20%, that may be due to the inaction or absence of any policy by the Horticulture Department of the State Government who had clearly failed to take adequate measures for plantation and preservation of fruit trees in the notified area.

Just because the density of fruit trees in the notified has fallen below 20%, would not give any cause of action to the petitioners to declare the notification of 1997 as bad in law, rather, this Court in exercise of powers under Article 226 of the Constitution of India would have adequate powers to issue necessary directions for preservation of the 'fruit belt' and also to take all measures so that density of the fruit trees in the said area does not fall below 20% mark.

Applying the precautionary principle to the facts of the present case which is a fit case wherein writ of mandamus deserves to be issued to the State Government to see that it takes adequate measure immediately for preservation of the 'fruit belt' as well as the 'buffer zone' as defined in Section 2(b) of the Act, 1985.

The issue raised by the petitioner is a classic example of conflict existing in the system today wherein the green cover is being diminished and permission is being sought to cut trees to give way for the sake of development, building high-tech townships. Presented with such situation the Courts are bound to give effect to the Legislative mandate and if possible interpret the legislation so as to preserve the ecology and to protect the green cover. Our legal system is based on English common Law which includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the natural resources. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

The object of Act, 1985 is to provide for promotion of fruit trees and their protection from plant diseases which culminate from existence of brick kilns and other harmful establishments connected therewith.

The land in question which has been purchased by the petitioners has been declared to be a 'fruit belt' by notification dated 19.02.1997, in exercise of power conferred by Section 3 of the Act, 1985 and has been declared to be 'fruit belt'. Once notification has been issued under Section 3 of the Act, 1985, then clause 5 of the said Act comes into operation and in the notified area no person can install or run any harmful establishment which have been defined to mean brick kiln, factory, workshop which uses coke or cause emission of smoke and the prohibition extends to carry out any housing scheme within such 'fruit belt'.

The argument raised by the petitioners that notification of 1997 was issued without there being any proper regulations in place, is the argument which deserves to be dismissed at the very outset itself. Section 3 of the Act, 1985 provides that if the State Government is of the opinion that for promotion and preservation of fruit trees it is necessary and expedient in the public interest to restrain harmful establishments or carrying on of any housing scheme therein and in its vicinity, it may subject to the provisions of sub-section (2) to (4) by notification in the Gazette, specify the boundaries of such area and declare it to be fruit belt with effect from such date as may be specified therein.

The aforesaid provision clearly empowers the State Government to issue notification and specify the guidelines and details as prescribed in the legislation itself to determine the area for which notification has to be issued. Even if any regulation was not in place at the time of passing the notification, the Act, 1985 itself provides for sufficient details for issuance of the notification and the argument raised by the petitioner in this regard does not have any merit and is rejected.

The second ground raised by the petitioner is that the State Government has filed an affidavit in Writ Petition No. 458 (M/B) of 2008, wherein they have stated that the area or orchard in percentage of total area was 8% in the year 1985. As per survey of 2000-2002 same increased to 11% and same is below 20% mark and therefore the notification deserves to be set aside as the area of orchard in the notified area is below 20%.

While examining the validity of notification dated 19.02.1997, same has to be tested in the light of provisions of contained in the Act, 1985. As discussed above the notification was issued in exercise of power under Section 3 of the Act, 1985 and it fulfills all the conditions as prescribed therein.

Needless to say that the Rules, 2001, were not in existence when the impugned notification was issued in 1997, and therefore, the validity of the notification cannot be tested on the anvil of Rules, 2001.

Perusal of the notification dated 19.02.1997, would indicate that objections and suggestions were invited as required under sub-section 2 of Section 3 of the Act, 1985, prior to declaration of the area to be 'fruit belt' by means of notification dated 10.11.1994, which was published in the Gazette as well as news papers. After considering the objections and suggestions received in pursuance to the aforesaid notification dated 10th November, 1994, the said area was notified to be 'fruit belt' by means of notification dated 19.02.1997.

We have carefully perused the notification dated 19.02.1997 as well as the requirement under Section 3 of the Act, 1985 and do not find any infirmity with the same and therefore the argument raised by the petitioner in this regard is without any merit and is hereby rejected.

In the light of above, no case is made out for quashing the impugned notification dated 19.02.1997 by which the Vikas Khand, Bakshi Ka Talab, Lucknow has been declared as 'fruit belt', as no infirmity has been found with the impugned notification requiring interference of this Court.

Writ petition lacks merit and is accordingly dismissed.

However, the State Government is directed to preserve and protect the area which has been declared to be a 'fruit belt' by means of Notification dated 19.02.1997 and take adequate measures to restore the density of fruit trees to minimum of 20% for which purpose the Horticulture Department of the State Government shall immediately take extensive drive for plantation of trees in the 'fruit belt' either by itself or on the private land in the notified area and further to see that the trees planted by it are well protected.

It is also observed that despite the fact that there is a provision for exemption, withdrawal of whole or part of the notified area, but such an exercise can be undertaken by the State Government only in public interest and not at the cost of destruction of the 'green cover' for the benefit any private individual'. It shall always be an endeavor of the State Government to preserve and protect any area which has been declared to be 'green belt' and once an area has been declared to be 'green belt' or an area is notified as 'fruit belt' or for plantation of trees, such an area should not be de-notified by the State Government or used for any purpose other than preservation of ecology.

 
Order Date :- 18.11.2019
 
A. Verma
 

 
(Alok Mathur, J.)             (Pankaj Kumar Jaiswal, J.)