Wetland Protection: Are the orders of two Supreme Court Benches in conflict?

Wetland protection is a subject of significant concern today.

On February 8 this year, a Supreme Court Bench headed by Justice Madan B Lokur and comprising Justice PC Pant passed an order directing that Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 shall apply to 2,01,503 wetlands that have been mapped by the Central government.

This order effectively banned a host of activities in the 2,01,503 wetlands identified by the Centre. Such activities include setting up of new industries and expansion of existing industries, solid waste dumping, discharge of untreated wastes and effluents from industries, new construction of permanent nature other than boat jetties etc.

What makes it interesting however, is another Bench of the same court has been passing orders enabling constructions in a wetland (which is now protected by Justice Lokur’s order) in Udaipur city in Rajasthan.

This case relates to construction on agricultural land in Udaisagar lake by Vardha Enterprises (Vardha) and has a very long and litigious history.

2007: A Rajasthan High Court judgment on conservation of lake system

The foundation of the case can be traced to a public interest litigation petition that was filed in 1999 by one Rajendra Kumar Razdan in which the Court passed its judgment in 2007 giving comprehensive directions on conservation of lake systems. Directions were issued with respect to sewerage system, de-silting, removal of encroachment and establishment of “No Construction Zones” in and around lakes. State authorities were ordered not to permit any construction within the “No Construction Zone”.

Contempt petition In Rajasthan High Court and appeal to Supreme Court

In 2008, Vardha had purchased 8.15 hectares of agricultural land on an island in Udaisagar lake. The said island along with the land on the shoreline fell in Periphery Control Belt (Green Zone) as per the Master Plan for Udaipur City.

Vardha applied to the Urban Improvement Trust (UIT) for conversion of land from Periphery Control belt to ‘commercial’ for construction of a hotel. In 2009, a State-level Committee on Land Conversion changed the land from Periphery Control belt to ‘commercial’ subject to certain conditions. Subsequently, UIT granted permission to Vardha to construct hotel on 2.034 hectares of the island. Similar conversion order was obtained with respect to the land along the shoreline for constructing a boat jetty.

Meanwhile, a contempt petition was filed in 2010 by Rajendra Kumar Razdan (the petitioner in the 1999 PIL) in Rajasthan High Court alleging that the directions of the High court in its 2007 order were being flouted by allowing constructions to happen in and around Udaisagar lake.

A Division Bench of the High Court presided by Justice Arun Mishra, who is now a sitting judge of the Supreme Court, allowed the contempt petition. It quashed the permissions given to Vardha and also ordered Vardha to remove all the constructions made on the island and the shoreline. Relying on Polluter Pays principle, the High Court also directed Vardha to pay Rs. 1 crore for damage caused to the ecology and for restoration of the environment.

Vardha appealed against this decision to Supreme Court. In 2014, a Bench of Justices BS Chauhan, Jasti Chelameswar and MY Eqbal allowed the appeal and set aside the judgment of the High Court.

Round 2 in Supreme Court

After the judgment was passed in its favour, Vardha applied for renewal of construction permission on the island which was rejected by the UIT. Vardha then approached the Supreme court against the same.

The Supreme Court Bench headed by Justice Chelameswar, not only allowed the said application by Vardha but also ordered Secretary, UIT to pay Rs. 1 lakh as costs against rejection of such construction permission.

Vardha, then proceeded to seek permission to construct a Kuccha road upto the hotel through the lake bed which was rejected by the District Collector.

Despite the same, Vardha started such constructions in the shoreline area, which led to a show cause notice being issued by Tahsildar for removal of illegal construction of road and jetty.

Tehsildar finally ordered against Vardha directing eviction and removal of all encroachments.

Interestingly, Vardha chose to file a contempt petition in Supreme Court against the said orders as well and sought permission for construction of jetties and restoration of Kuccha road.

In May 2016, the Court passed an order in the contempt petition asking the Chief Engineer to pass appropriate orders on Vardha’s representation for approval of seven drawings with regard to constructions. The Court in its order noted that in case the application is to be rejected, either fully or in part, the said officer should record his reasons for such rejection.

The concerned Chief Engineer proceeded to consider Vardha’s application and approved them in entirety but the State authorities took objection to the same.

State of Rajasthan filed an interim application in the above contempt petition seeking appointment of a Court commissioner to visit the site and submit a report to the court.

Even as the State authorities were proceeding against the officers responsible for approval of the seven drawings, the Supreme Court passed an order on March 27, 2017 constituting a three-member committee comprising former Solicitor General Ranjit Kumar, Senior Advocate Rajeev Dhavan and advocate Nidesh Gupta to find out a way of providing access the hotel on the island.

The Court in its order noted that “it is necessary to find out a way of providing access to the property in question through land”.

Notification under Lake Act and more petitions and PILs in Supreme Court

On April 19, 2017 the State government issued a notification under Section 5 of the Rajasthan Lakes (Protection and Development) Authority Act, 2015 classifying Udaisagar lake a Protected Area.

Vardha immediately filed a petition in Supreme Court challenging the above notification or in the alternative, to exclude Vardha’s plots and its constructions in Udaisagar lake from the ambit of the said notification. The Bench presided by Justice Chelameswar issued notice in the said petition on May 1, 2017.

Meanwhile a Public Interest Litigation was filed in Supreme Court by one Babu Lal Jajoo praying that all constructions in Udaisagar lake be stopped. This was first listed before a Bench presided by Justice Madan Lokur which issued notice in the matter. Subsequently, the matter was transferred to the Bench headed by Justice Chelameswar to be heard along with the Vardha matter.

In the meantime, the National Green Tribunal, in an Original Application by one Mahesh Chandra Saxena, directed the Rajasthan government to ensure that all construction work in Udaisagar lake by Vardha be halted. Vardha filed an appeal against the same in Supreme Court in which the Court stayed the order of NGT and transferred the original application pending in the NGT, to itself.

All these cases are now pending before the Bench presided by Justice Jasti Chelameswar.

Two Benches, different outlook?

While the Bench headed by Justice Lokur has passed an order directing protection of wetlands, another Bench presided by Justice Chelameswar has been seized of a case in which orders have been passed enabling construction in the wetland owned by Vardha. What is interesting is that the 2,01,503 wetlands, which are protected by the order of Justice Lokur headed Bench, also includes the Vardha property.

While many of the orders of the latter bench were passed before the order passed by Justice Lokur’s Bench, it remains to be seen how the Bench hearing the Vardha case will now treat matter considering the fact that a comprehensive order is in place by Justice Lokur’s Bench.

Read the order passed by the Bench headed by Justice Madan Lokur  below.

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