KULDEEP KUMAR KOHLI
RZ – 200 B, STREET NUMBER – 3, RAM CHOWK,
SADH NAGAR PART – I, PALAM COLONY,
NEW DELHI – 45
TELEPHONE – 08860332404
EMAIL – kuldeep.kohli55@gmail.com
BEFORE THE NATIONAL GREEN TRIBUNAL
SITTING AT NEW DELHI
MA NO ______ /2014
IN
ORIGINAL APPLICATION NO 04 / 2013
IN
THE MATTER OF:
SONYA
GOSH
...PETITIONER
VERSUS
STATE
OF HARYANA & ORS
...RESPONDENTS
AND
IN THE MATTER OF:
KULDEEP
KUMAR KOHLI
...APPLICANT
APPLICATION SEEKING INTERVENTION AND IMPLEADMENT ON
BEHALF OF MR kuldeep kumar kohli S/0 LATE prem nath kohli, AGED 62 YEARS R/O RZ
200B, STREET NO. 3, RAM CHOWK, SADH NAGAR PART 1, PALAM COLONY, NEW DELHI –
110045 UNDER SECTION 19 OF THE NATIONAL GREEN TRIBUNAL ACT 2010 R/W PROVISIONS
OF THE NATIONAL GREEN TRIBUNAL (PRACTICE AND PROCEDURE) RULES 2011 AND
PRINCIPLES ANALOGOUS TO ORDER 1, RULE 10 (2) R/W SECTION 161 OF THE CODE OF
CIVIL PROCEDURE 1908.
THE APPLICANT ABOVE NAMED MOST
RESPECTFULLY SHOWETH:
1.
That the Applicant has urged the present Application Seeking Intervention and
Impleadment in the present proceedings as being a necessary and proper party to
the same as it has come to the knowledge of the Applicant herein that the
farmhouse / land of the Applicant have been erroneously included in the list of
alleged violators of the Aravali Notification dated 07.05.92 and it has been
further stated that prosecution cases have been filed in the Special
Environment Court, Faridabad, Gurgaon against the said alleged violators. The
present Applicant has been indicated as having violated the said Notification
on account of "Gate, Gate Pillars, with barbed wire fencing. The same
bears mention at Entry No 89 vide the Affidavit of Sh. Balraj Singh Regional
officer, Haryana State Pollution Control Board, Gurgaon Region North), on
behalf of Haryana State Pollution Control Board Haryana dated 20.4.2015 on
behalf of the Respondent No 3 i.e., Haryana State Pollution Control Board
2.
That the Applicant submits that the said inclusion of the Applicant in the
annexures to the Affidavit is wholly contrary to the final Judgment and Order
dated 17.12.2014 passed by the Court of Ramawatar Pareek, being the Ld.
Presiding Officer, Special Environment Court Faridabad in Case No 12 of 2007
titled "Haryana State Pollution Control Board (HSPCB) v. M/s Ansal
Properties and Infrastructure Ltd. and others wherein it was unequivocally
found and held that Ansal Properties and
Infrastructure Ltd. had purchased the land years before the Aravali
Notification was issued and sufficient
evidence has been brought upon file to prove that the development of Aravali Retreat
in Raisina village has been done before the impugned Aravali Notification and
the change in the kind of land from Gair mumkin pahar to Gair mumkin farm house
was done in the revenue records before the issuance of the notification dated 7th
May 1992 and since this area is a Gairmumkin Farm House and hence inferred that
the Aravali notification is not applicable to the area that is described as
Aravali Retreat, as the Aravali notification dated 07.05.1992 is applicable not
on Gair mumkin farm house but the following:
(i)
Areas shown as forest land – whether reserved or protected
(ii)
Areas covered by the notification issued u/s 4 and 5 of the Punjab Land
Preservation Act 1919;
(iii)
All area of Sariska Naitonal Park and Sariska Sanctuary notified under the
Wildlife (Protection) Act 1971 (53 of 1972); and lastly,
(iv)
All areas of Gair Mumkin Pahar, Gair Mumkin Rada, Gair Mumkin Behed, Banjad
Beed, Rundh in the lad records maintained by the State Government as on date of
the Notification in relation to Gurgaon District of the State of Haryana and
the Alwar District of the State of Rajasthan.
The
Ld. Presiding Officer, Special
Environment Court Faridabad Court also held that
“to
rebut the claim of the complainant regarding development of Aravali Retreat in
Raisina village after Aravali notification, sufficient evidence has been
brought upon file by Ld. Defence counsel.
The reports of ld. DRO and Tehsildar themselves admit the purchase of
land by accused no. 1 in the year 1987-88.
Further both these reports admit the development upon the spot.”
It
has been further confirmed by the Ld.
Presiding Officer, Special Environment Court Faridabad in Case No 12 of 2007
titled "Haryana State Pollution Control Board (HSPCB) v. M/s Ansal
Properties and Infrastructure Ltd. and others that:
a. The change of Khasra girdawari of
Rabi 1991 from Gair Mumkin Pahar to Gair Mumkin Farm house is not in dispute.
b. Its subsequent incorporation in the
Jamabandi of 1990-1991 is also not in dispute.
c. The issuance of Aravali Notification
on 7.5.1992 and its applicability on the Gair Mumkin Pahar is also not in
dispute.
d. Sufficient evidence has been brought
upon file in the records to prove that the development of Ansal Retreat in
Raisina village was done before Aravali Notification, including report of
Tehsildar in the year 2010, electricity connections, plantation of trees,
construction of roads etc.
e. The Government of India, Ministry of
Environment & Forest vide their letter No. 17-1/91.PL/IA dated 1.11.2006
have confirmed that in case the members of Aravali Plot Owners association have
plots which in the land records maintained by the State Government as on date
of the Notification dated 7th May 1992 (of MoEF) were categorised as
“Farm House” then this Notification will not be applicable.
The
true copy of the Order dated 17.12.2014 of the Ld. Presiding Officer, Special
Environment Court Faridabad in Case No 12 of 2007 titled "Haryana State
Pollution Control Board (HSPCB) v. M/s Ansal Properties and Infrastructure Ltd.
& Ors has been annexed herewith and marked as Annexure-O.
3.
The applicant submits that the applicant is owner of farm no. A-2 Aravali Retreat, Village Raisina,
Tehsil Sohna, District Gurgaon Haryana registered vide sale deed dated 9.6.2005
in a township developed by Ansal Properties & Infrastructure Ltd. in the
name and style of Aravali Retreat with a
total area of 1200 acres approx. falling in the village Raisina in which
individual farm houses having an area ranging from 1 acre to 2.85 acre have been
carved out which includes roads, water supply, electricity, berms, barbed
wires, fencing and separate gates in the year 1989-1990. In the year
1988, in village Raisina, District – Sohna, Haryana, approximately 1200 Acres
of land at approximately 65 meter elevation was lying barren, uncultivable,
completely denuded, full of stones and boulders and in the condition of total
neglect.
It
is submitted that at the tme it was not seen possible to carry out cultivation
on subject land without substantial investment. Ansals as the Developer got a
study conducted on the subject land by Dr. G.S Randhawa, Environmentalist of
repute to develop the 1200 Acres of land for environment friendly agricultural
farms, complete with eco-friendly shrubs and creepers. To bolster the facts
narrated herein below, it is peritnent to mention that the Developer had
purchased these lands in the year 1988-1989, and had brought fresh soil, earth,
manures, pesticides etc. as per Dr. Randhawa’s reports from the plains and
planted over 400,000 trees, creepers and shrubs, as well as dug tube-wells and
created water bodies. In order to
protect and stop further soil erosion, the Developer also created bunds, small
earthen dams and ponds wherever possible to create a rain water harvesting
system aimed to make the land suitable for agriculture/horticultural works. The
developer also at the same time made drains, overhead tanks, roads, pathways,
fencing and gates of the farm land with due demarcation. The Developer brought electric supply lines to the land and got
installed transformer after due inspections and obtained electric connections
from the concerned authorities and utility providers at the time. The afore mentioned activities were
completed through the years 1989-1992 at a considerable expense by the Builder. Further more, as have been reflected
on records as well, the land described as Aravali Retreat was a privately owned
land falling under niether the forest provisions nor the Punjab Land
Preservation Act.
4.
Applicant herein had purchased the land after the change of land from Gair mumkin pahar to Gair mumkin
farm house, which had already been carried out prior to the Aravali Notification dated 07.05.92. The
Notification states that prior environmental clearance is required where the
Aravali Notification may be applicable for carrying out certain processes and
operations such as construction of any clusters of dwelling unit, farm houses,
sheds, community centre, information
centres and any other activity connected with such construction
(including road of part of any infrastructure relating thereto) and
Electrification “laying of new transmission lines”, etc.
That there is no allegation or contention that the
said farmhouse land falls under items (i)-(iii) and (iv) of the Aravali Notification
as listed in para above. It is of note that the said farmhouse land is out of
the purview of (ii) as not being a Gair mumkin pahar, Gair mumkin Rada, Gair
mumkin Behed, Banjad Beed or Rundh but in fact, it is not even shown in the
land records maintained by the State Government as being so as on date of the
said Notification. It is peritnent to note that the Aravali Notification has
placed ample reliance on the records maintained by the State Government as on
date of the notification which is a sole determining factor with regard to the
subject land. It is submitted that if the subject land as on date of the
Notification dated 07.05.92 is not a Gair mumkin pahar, Gair mumkin Rada, Gair
mumkin eked, Banjad Beed or Rundh land, and is a farmhouse land, there is
absolutely no bar as contemplated under the notification whether on
construction or otherwise since the said land falls clearly outside the
overview of the said Notification. It is clear that the subject Notification
applies prospectively and not retrospectively. The ruling of the Ld.
Environment Court as cited above, and in several other connected matters has
further held that a bare perusal of the land records maintained by the State
would reveal that the said land being a farmhouse land was clearly outside the
purview of the said Notification and that the proceedings initiated by the
Complainant therein i.e. the Respondent No. 3 HSPCB was an abuse of the due
process of law. The Applicant submits
that the said Respondent No 3 i.e. Haryana State Pollution Control Board was
duly represented and accordingly, ought not to have included the name of the
present Applicant in the concerned Affidavit. A certified copy of the said
final Judgment and Order of the Ld. Special Environment Court, Faridabad,
Gurgaon dated 17.12.2014 has been annexed herewith and marked as ANNEXURE-A.
5. That the brief facts concerning the
proceedings as above have been narrated herein below:
(i)
That in the early 1980's M/s Delhi Towers & Estates Pvt Ltd which is a 100%
subsidiary of Ansal Properties & Industries Ltd purchased a large area of
land in and around village Bass, Raisina, Sohna, District Gurgaon, Haryana for
purposes of development and sale which procurement was complete well before
1987. The said procurement covered an area of over 1200 acres.
(ii)
That well prior to March 1991 the said
land stood converted from Gair Mumkin Pahar to " Gair mumkin farm
house" and stands as "farm house" in the last jamabandi of 2005.
The Jamabandi Records up dated every 5 years would reveal the fact of the land
of the Applicant herein being "Gairmumkin farm house". Similarly, the
Sazara-Aks indicates the charts earmarking the portion of the land of the
Applicant herein. The said Jamabandi,
Sazara-Aks as also the mutation records collectively comprise the total
land records maintained by the State Government during the relevant period for
the land falling within the Gurgaon District of the State of Haryana and reveal
that as on the date of the Notification in concern dated 07.05,92 as also
thereafter for a considerably long time the, the said property has stood as
"Gairmumkin farm house" and thus, clearly out of the purview of the
said Notification in concern. Copies of the latest land records have been
annexed herewith and marked collectively as ANNEXURE-B (COLLY).
(iii)
While Ansal was working on
this project, a well-known Environmentalist, Dr. Shekhar Singh, filed a Public
Interest Litigation [PIL] before the Hon’ble Supreme Court of India bearing
Writ Petition No. 598 of 1990 - Shekhar Singh & others Versus Union of
India. Ministry of Environment & Forest, the Government of India through
Under Secretary, Mr. G. Hari Kumar filed an Affidavit. Para 4 of the Affidavit
states “The respondent humbly submits that the said lands were purchased by
Ansals and Aggarwal from individual owners – the lands were not allotted to
them by the Government”. Para 5 of the
Affidavit states “the respondent humbly
submits that the lands are not recorded as forest lands. Therefore Forest (Conservation) Act 1980 is
not applicable to these lands”. Para 11 of the Affidavit states “” In reply to
para V of the petition it is humbly submitted that on receipt of representation
from Shri Shekhar Singh and others regarding alleged illegal transfer of forest
land in Haryana in favour of Ansals and Aggarwal, a detailed was conducted by
this Ministry. During the enquiry it was revealed that about 2,000 acres of
land in Aravali Hills near Raisen Village in Gurgaon District has been
purchased by Ansals and Aggarwal. No
land has been allotted by Government to them. The land purchased by Ansals is
covered under General Section 4 of Punjab Land (Preservation) Act. In respect of this land ownership as well as
possession of the land is with individuals and not with Government”. Para 7 of
the Affidavit states “these lands have not been recorded as ‘Forest” anywhere
in Government records. These lands are
neither Reserve Forest nor Protected Forest nor recorded forest”. Para 11 further states that “the land
purchased by Ansal is covered under General Section 4 of Punjab land
(Preservation) Act. In respect of this
land ownership as well as possession of the land is with individuals and not
with Government. These lands have not
been recorded as “Forest” anywhere in Government records. These lands are neither Reserve Forest, nor
Protected Forest, nor recorded forest.
As land purchased by Aggarwal and Ansals is not recorded as Forest in
Government records, Forest (Conservation) Act 1980 is not applicable to such
lands. Copy of Order dated 27.01.1995 of
the hon'ble Supreme Court is attached marked as ANNEXURE-C
(iv)
That on 3.10.1991 Ansal Properties & Industries Ltd. allotted a Farm admeasuring 1
acres being A-2 in the proposed Aravali
Retreat' Farms Scheme at Village Bass, District Gurgaon, Haryana to a Mr
H S Dhakaalia and Mr P L Sakarwal F 68, Naraina, New Delhi – 28 The said developers charged an amount. of Rs
3,65,000/- per acre i.e., a total amount of Rs 3,65,000/- for the said piece of
farm towards costs of land and charges of development under the Aravali Retreat
Scheme which is to have artery roads, berms, plantation of trees along the
artery roads etc. It was also indicated in the Allotment Letter that the
developers would also provide each individual farm with barbed wire fencing and
a separate gate. It was specifically submitted therein that the developers had
purchased or entered into purchase agreements with various land
owners/bhoomidars of the land comprised in the Scheme and the developers were entitled
to enter into Agreements of Sale, with third parties directly as nominees of
the said original land owners. The same finally indicated that the land will be
transferred in favour of the buyers by the developers or as nominees of the
developers, by the original owners / bhoomidars. The electric connection
charges and charges for water were to be separately charged in accordance to
the cost charged by the Haryana State Electricity Board and / or other
authority (ies) for the services connection, sub-station equipment, security
deposit etc. The developers entrusted the work of maintenance, upkeep and
operation of common services and facilities to M/s Star. Estate Management Pvt
Ltd.
(v) That on 29.01.90 the District Town Planner
for the Director, Town & Country Planning, Haryana, Chandigarh confirmed
its “No Objection” to Ansal Properties & Industries Ltd for development of
Farm / Orchid estate in the scheme known
as 'Aravali Retreat' in Raisina village, District Gurgaon, Haryana wherein it
was specifically confirmed that the proposed site does not fall in any
controlled area and no permission is required for any activity thereto and that
any subsequent attempt to revoke the same without following the due process of
law cannot form the basis of attempting to enforce the same retrospectively. A
copy of the NOC dated 29.01.90 from the District Town Planner for the Director,
Town & Country- Planning, Haryana; Chandigarh is annexed hereto and marked
as ANNEXURE-D.
(vi)
That on 29.6.93, the Conservator of Forests, South Circle, Gurgaon wrote to M/s
Ansal Properties & industries Ltd upon the query by the later that the
Khasra Number in question in the village Raisina was not closed under Section 5
of the Punjab Land Preservation Act 1900 and the restriction under the said Act
does not apply thereto. A copy of the communication dated 29.6.93 by the
Conservator of Forests, South Circle; Gurgaon to M/s Ansal Properties &
industries Ltd is annexed hereto and marked as ANNEXURE-E.
(vii)
That thereafter, the said farm house land was sold / allotment transferred by
Shri H S Dhakaalia and Shri P L Sakarwal Resident of F 68 Naraina, New Delhi –
110028 to Mr. Kuldeep Kumar Kohli S/o Late Shri Prem Nath Kohli Resident of RZ
200B, Street No. 3, Ram Chowk, Sadh Nagar Par I, Palam Colony, New Delhi
-110045 the present applicant on 25.2.1996. Subsequent to receipt of the said
confirmation from the Ansal Housing and Construction Ltd to whom the erstwhile
owner had applied for the said transfer, the
afore stated farm house land was purchased at a price of Rs 3,65,000/-.
A copy of the Allotment Letter with transfer details are annexed hereto and
marked as ANNEXURE-F (COLLY).
(viii)
That thereafter, due possession was taken over finally on 4.4.2006 by the
applicant.
(ix)
That the due Sale Deed was entered into between M/s Ansal Housing and
Construction Company Ltd and the Applicant herein on 9.6.2005 and due Stamp
Duty of Rs 46,200.00 was paid thereupon. A copy of the said Sale Deed and
Receipt for the stamp Duty is annexed collectively and marked as ANNEXURE-G
(COLLY).
(x)
That the said Farm house land being Farm No A-2 in Aravali Retreat in village
Raisina District Gurgaon, Haryana was specifically described as the piece of
land admeasuring 1 acres, bearing distinct No. A 2 covered by Rectangle No.
9/23 Min, 24 Min and Rectangle No. 24/2 Min, 3 Min, Khewat No. 58, Khata No. 94
Kita 856, Total Area 6612 Kanal 7 Marla Ka 160/132247 Bagh Area 8 Kanal share hereinafter referred to as Farm No A 2.
The Sale Deed also confirmed that the said farm is free from all sorts of
encumbrances, liens, charges etc and the Promoter has the full right and
authority to sell the land.
(xi) That suddenly, in
the Year 2004, the Applicant was served with a Notice dated 1.9.2004 being a
Show Cause Notice under the Environment Protection Act 1986 with the allegation
that the Applicant herein had constructed a farm house/boundary
wall/gate/fencing/room without applying and without obtaining prior
environmental clearance on a Gair Mumkin Pahar and that the same was in
violation of the Aravali Notification dated 7.5.1992 A copy of the said Show
Cause Notice dated1.9.2004 is annexed herewith and marked as ANNEXURE-H.
(xii)
That in response thereto, the Applicant herein sent various correspondences
inter alia dated 08.10.2004 and 09.11.2004. That further, various
correspondences were also sent to the Ministry of Environment and all avenues
possible detailing out the fact that the farm house land in concern was
unequivocally indicated as being "farm house" and not as Gair Mumkin
Pahar in the Land Records maintained by the State Government itself and that
the Applicant was a bona fide allottees having paid monies only upon the fact
of the land being a 'farm house' and for purposes of a farm house.
(xiii)
That again in the year 2005, the Applicant was served with a Notice dated
22.7.2005 being another Show Cause
Notice under the Environment Protection Act 1986 with the allegation that the
Applicant herein has carried out construction activities in Gair Mumkin Pahar
and violated Aravali Notification dated 7.5.1992. That Applicant, in response
thereto sent a reply dated 18.08.2005. A copy of the said Show Cause Notice
dated 22.7.2005 is annexed herewith and marked as ANNEXURE-I.
(xiv)
That on 1.11.2006 the Additional Director, Ministry of Environment &
Forests, Government of India wrote to the Aravali Retreat Plot Owners
Association clarifying that the Notification dated 7.5.92 was not applicable to
plots which were categorized as "Farm House" and which were not
registered as Gair Mumkin Pahar, Gair Mumkin Rada, Gair Mumkin Behed or Banjad
Beed or Rundh as on the date of the said Notification. A copy of the said
clarification issued by the Ministry of Environment & Forests, Government
of India vide Order No 17 — 1/91.PL/1 A dated 1.11.2006 is annexed herewith and
marked as ANNEXURE-J.
(xv)
That again in the year 2009, the Applicant was served with a Notice dated
28.2.1.2009 being another Show Cause
Notice under the Environment Protection Act 1986 with the allegation that the
Applicant herein has consciously and in a planned manner developed
infrastructure like roads, water supplies, sewerages, Electricity network to
enabling construction of cluster of dwelling units, Farmhouses and other
buildings and you have yourself constructed cluster of Residential Unit/
Residential Accommodation/ Commercial Establishment etc. without applying and
without obtaining prior environment clearance which is in violation of the
provisions of the Aravali Notification and provisions of EP Act, 1986 thereby render yourself liable for
prosecution under section 15 red with section 19 of Environment (protection)
Act, 1986.. A copy of the said Show Cause Notice dated 28.1.2009 is annexed
herewith and marked as ANNEXURE-K.
(xvi)
That however, suddenly in 2009, the Haryana State Pollution Control Board
(HSPCB) which came into existence under the provisions of the Environment
Protection Act 1986 had urged a Complaint dated 12.11.2009 against the
Applicant before the Ld. Presiding Officer, Special Environment Court,
Faridabad in capacity of a State Government functionary as authorized by the
Central Government. M/s Ansal Properties & Industries Ltd. was made the
accused No. 2 in the said complaint bearing dated 12.11. 2009 against the Applicant
before the Ld. Presiding Officer, Special Environment Court, Faridabad and so
were the other companies associated with Ansal Properties & Industries
Limited made accused No. 3, 4 and 5. A true copy of the said Complaint dated
12.11.2009 is annexed herewith and marked as ANNEXURE L.
(xvii)
That subsequently, on 28.4.2014, the Applicant herein was summoned by the Ld.
Special Environment Court, Faridabad and consequently, entered appearance
together with the accused no. 2, 3, 4 and 5.
(xviii)
That since M/s Ansal Properties and Industries Limited with other associate
companies were the promoters of the project namely Ansals Aravali Court and
hence apart from they being co accused in all the cases in respect of the farm
houses in Aravali Retreat were also the main accused in a separate case No. 12
of 2007 instituted on 26.7.2007 in the court of Ramawatar Pareek, being the Ld.
Presiding Officer, Special Environment Court Faridabad in Case titled
"Haryana State Pollution Control Board (HSPCB) v. M/s Ansal Properties and
Infrastructure Ltd.
(xix)
That after almost 20 years of having sold the property to different buyers,
HSPCB not only chose to prosecute Ansals before the Special Environment Court,
Faridabad but also chose to fractionalise the lands of Ansal Aravali Retreat
and instituted cases against 579 farm land owners who bought the property from
Ansals. That the proceedings against all the accused in this matter were
running parallel in the court of Ramawatar Pareek, being the Ld. Presiding
Officer, Special Environment Court Faridabad
including the Case titled "Haryana State Pollution Control Board
(HSPCB) v. M/s Ansal Properties and Infrastructure Ltd. in respect of the
entire 1200 acres of land which was developed by M/s. Ansal Properties and
Infrastructure Limited with the allegation that the entire area of 1200 acres
of land namely Ansal Aravali Retreat has been developed by them in violation of
the Aravali notification dated 07.05.1992.
(xx)
That on 05.01.2011, the Commissioner, Gurgaon Division, Gurgaon on 05.1.2011
wrote and confirmed to the Chairman, Haryana State Pollution Control Board,
C-11, Sector – 6, Panchkula-1 that the Deputy Commissioner was asked to submit
a report as per records maintained by the State and the same confirmed that M/s
Ansal Group had purchased the land in the Year 1987-88 and developed
farmhouses, makan, road, electric supply as also other developmental work prior
to March 1990 i.e., prior to the subject Notification dated 7.5.1992, and after
noticing the progress on the site the Patwari had recorded this change in March
1990 as Gair Mumkin farmhouse, makan, road. A copy of the confirmation by the
Commissioner, Gurgaon Division dated 05.01.2011 is annexed herewith and marked
as ANNEXURE-M.
(xxi)
That the final Judgment and Order dated 17.12.2014 passed by the Court of
Ramawatar Pareek, being the Ld. Presiding Officer, Special Environment Court
Faridabad in Case No 12 of 2007 titled "Haryana State Pollution Control
Board (HSPCB) v. M/s Ansal Properties and Infrastructure Ltd. and others
wherein it was unequivocally found and held that sufficient evidence has been brought upon
file to prove that the development of Aravali Retreat in Raisina village has be
done before the Aravali Notification
since the area is a Gairmumkin Farm
House and the Aravali notification is applicable on Gairmumkin Pahad. A true copy of the Order dated 17.12.2014 is
annexed herewith and marked as ANNEXURE-A.
(xxii)
It has been confirmed repeatedly as per the following judgements that the land
in question at Aravali Retreat is farm house and hence the Aravali notification
dated 7th May 1992 is not applicable to the farm houses at Ansal
Retreat, Tehsil Sohna, Dist. Gurgaon.
· HSPCB
v. Sunil Kalra
· HSPCB
v. Prateek Shrivastava
· HSPCB
v. Mrs. Raj R Gupta
· HSPCB
v. Namita Mehta
· HSPCB
v. Sanjay Mittal
· HSPCB
v. Jyotirmay Daw
· HSPCB
v. K K Nanda
· HSPCB
v. Gulshan Rai
· HSPCB
v. Gulshan Rai
·
HSPCB v. Ansal Properties &
Infrastructure Ltd.
·
HSPCB v. Shri
Nirmal Jain
·
HSPCB v. Shri
Jeevan Mehar
·
HSPCB Mrs.
Sunita Kalra
·
HSPCB v. Shri
A.K Kalra
·
HSPCB v. Shri
Prasanchit Ganguli
·
HSPCB v. Shri
Narayan Nair
·
HSPCB v. M/s.
Beniwal & Co.
·
HSPCB v. Shri
Surender Pradhan
·
HSPCB v. Mrs.
Sonia Sood
·
HSPCB v. Shri
Rajeev Singh
·
HSPCB v. Mrs.
Sharda Agarwal
· HSPCB v. Vijay Mullick
(xxiii)
The above judgements are therefore clearly indicative of the settled fact that
the land in question is a Gairmumkin Farm House
land and that the notification of the Government of India issued by the
Ministry of Environment and Forests SO No. (19) Dated 7th May 1992
commonly known as Aravali Notification is not applicable in respect of the farm
houses sold by Ansal Group in village Raisina, Tehsil Sohna, District Gurgaon.
Needless to mention that the above judgements have been made by the Honourable
Court after going into details of each and every issue taken up by Haryana
State Pollution Control Board and the documentary evidence provided in terms of
the Revenue Records for the said farm houses.
(xxiv)
That three appeals were filed by the HSPCB before the Honourable High Court of
Punjab & Haryana against the following respondents:
Mr.
Sunil Kalra through CRM A 299 MA 2014;
Mr.
Prateek Srivastava through CRM A 298 MA 2014;and
Mr. Jyotirmay Daw
through CRM A 297 MA 2014.
All
the above three appeals were dismissed by the Honourable High Court of Punjab
& Haryana vide order dated 16.07.2015. True copies of the Online Case
Status of appeals above have been annexed herewith and marked as ANNEXURE-N
(COLLY).
(xxv)
In the order of the Divisional Forest Officer, Gurgaon vide letter No. 867G
dated 17.07.2015 it is stated that:
That As per report of Tehsildar Sohna the petitioner
and its associate companies have purchased the land in the revenue estate of
Raiseena Tehsil Sohna and not in the revenue estate of village Gairatpur
Bass. The land purchased by the
petitioner is not covered under section 4 and 5 of the Punjab Land Preservation
Act 1900 and Aravali Plantation Scheme and Reserve Forests/Protected Forest
It
is to be noted that the general section 4 of Punjab Land Preservation Act, has
been made applicable in the area of Tehsil Sohna District Gurgaon as per
Haryana Government Notification dated 4.1.2013. The True Copy of the order of
the Divisional Forest Officer, Gurgaon dated 17.7.2015 along with Notification
dated 04.01.2013 has been annexed herewith and marked as ANNEXURE-O (Colly).
(xxvi) That These documents are relevant insofar as
the non-applicability of section 4 and section 5 of the Punjab Land
preservation Act 1900 and Aravali Plantation Scheme and Reserve
Forest/protected Forest is concerned as the document clearly specifies that the
land at Ansals Aravali Retreat does not fall in any of the above categories.
(xxvii)
In the order of the Honourable High Court of Punjab & Haryana dated 24.07.2015
in respect of a writ petition CWP Nos. 5603, 6689 and 6690 of 2015 filed by
Delhi Towers and Estates Ltd. v. State of Haryana and ORS in a matter related
to farms at Ansal’s Aravali Retreat, Village Raisina, Tehsil Sohna, Dist.
Gurgaon the Hon'ble High Court settled the issue whether the land at Ansals
Aravali Retreat is a forest land. True copy of the Order dated 24.07.2015 has
been annexed herewith and marked as Annexure-P.
(xxviii)
In CWP 5603 of 2015 in the High Court of Punjab & Haryana, at Chandigarh in
the matter of M/s Delhi Towers Estates
Private Limited versus State of Haryana and Others an affidavit has been
submitted by Shri T L Satyaprakash IAS Deputy Commissioner Gurgaon wherein it
has been stated at page 2 as –
“And
as per report of Tehsildar, Sohna pertaining to revenue record of village
Raiseena the total area measuring 9057 Kanal 15 marla described in revenue
record as “Gair Mumkin Pahar” since Chakbandi of year 1955-56 are in the
ownership of private owners of Village Raiseena bearing Had Bast No. 184 and
above said area “Gair Mumkin Pahar” in village Raiseena never remained in the
ownership of State of Haryana and Gram Panchayat.
(xxix)
That accordingly, the Ld. Special Environment Court was pleased to hold that
there was a miserable failure in proving the charges u/s 19 of the Environment
Protection Act on the part of the present HSPBC. That notwithstanding the
aforestated, it has now come to the knowledge of the Applicant that the name of
the Applicant in relation to his farmhouse / land have been erroneously
included in the list of alleged violators of the Aravali Notification dated
07.05.92 and it has been further stated that prosecution cases have been filed
in the Special Environment Court, Faridabad, Gurgaon, against the said alleged
violators.
(xxx)
That since the aforestated is notwithstanding the fact that firstly, the
subject land / farmhouse did not fall within the purview of the said
Notification; and secondly, the same had already been adjudicated by the
Special Environment Court and held completely in favour of the farm land owners
in respect of all the cases decided so far and hence, being left with no
option, the Applicant herein has urged the present Application for Impleadment
in the subject proceedings and to have its name deleted from the array of
alleged offenders in the affidavit of the Respondent No.3.
6.
That the aforestated Order dated 17.12.20014 also came to be passed by the Ld.
Environment Court in view of the fact that firstly, the prohibition was
prospective and not retrospective i.e., that there to be no constructions etc.
undertaken in the restricted lands subsequent to the Notification. Hence,
firstly, the land ought to fall within the specific categories as afore stated
as on date of the Aravali Notification; and secondly, there ought to be
constructions carried out subsequent to the said Notification upon the said
restricted land. Hence, one without another did not attract the provisions of the Act i.e., not carrying
out any constructions / cutting of trees / mining / electrification subsequent
to the notification on the category of land as stipulated would not attract the
provisions of the Notification nor would construction etc. even subsequent to
the Notification on a land not falling within the category attract the same
simply because it was out of the scope of the Notification.
7. That interestingly,
there is to be not even a complete bar on construction / electrification etc.
in an area which falls within the restricted areas as earmarked by the
Notification but rather, the bar is on carrying out the activity without a
prior permission. Hence, where there is an element of discretion conferred on
the State Government Authorities, there can then be said to be no eminent or
compelling public interest requiring a uniform and structured compliance
without any scope for consideration.
8. That in any case a bare perusal of
the records collectively as indicated in the foregoing paras, being the
official Land Records maintained by the State the sale Deed and transfer
documents, the correspondence by the District Town Planner for the Director
Town & Country Planning Haryana, Chandigarh dated 29.01.90 granting “No
Objection Certificate” for development of Farm / Orchid estate in the scheme known
as Aravali Retreat in Raisina village, District Gurgaon, Haryana wherein it was
specifically confirmed that the proposed site does not fall in any controlled
area and no permission is required for any activity thereto; the correspondence
dated 29.03.93 by the Conservator of Forests, South Circle, Gurgaon indicating
that the Khasra Number in question in the village Raisina is not closed under
Section 5 of the Punjab J Land Preservation Act 1900; the correspondence by the
Additional Director, Ministry of Environment & Forests, Government of India
vide Order No 17 1/91. PL/1 A dated 1.11.2006 confirming that the Aravali
Notification dated 7.5.92 is not applicable to plots which were categorized as
"Farm House" and not as Gair Mumkin Pahar, Gair Mumkin Rada, Gair Mumkin
Behed or Banjad Beed or Rundh on the Land Records of the Government of Haryana
as on the date of the said Notification; and further, as late as on 05.1.2011
the correspondence and confirmation from the Commissioner, Gurgaon Division,
Gurgaon to the Chairman Haryana State Pollution Control Board, C-11, Sector-6,
Panchkula-1 confirming that the Deputy Commissioner was asked to submit a
report as per records maintained by the State and the same confirmed that M/s
Ansal Group had purchased the land in the Year 1987-88 and developed
farmhouses, makan road, electric supply as also other developmental work prior
to March 1990 and after noticing the progress on the site the Patwari had
recorded this change in March 1990 as Gain Mumkin farmhouse, makan, road i.e.,
prior to the subject Notification dated 7.5.92 which operated prospectively and
not retrospectively; and lastly, the findings in the Judgment and Order
dated17.12.2014 passed by the Ld Special Environment Court, Faridabad in Case
No 12 of 2007 titled HSPCB v. Ansals Properties and Infrastructure Limited
leave no scope for doubt that the Applicant is outside the purview of the
Aravali Notification dated 07.05,92, as he is having his parcel of farmhouse
land within the 1200 Acres of land comprising the Aravali Retreat, which was
the subject matter of the case above, Consequently, as also observed by the
said Ld Environment Court, the proceedings against the present Applicant are an
abuse of the due process of law and in case the Applicant is made to undergo
the entire process once again before this Hon’ble Court the same amounts to
nothing short of double jeopardy under law and is wholly impermissible
Accordingly, the issue of the farm house land of the Applicant not being
amenable to the subject Notification- as aforestated is no longer res Integra
and the same already stands decisively concluded in favour of the
Applicant herein. Hence, the name of the Applicant requires to be specifically
deleted from the List of Offenders to the Notification dated 7.5.92 as filed by
the Respondent No 3 along with Affidavit despite being well aware of the fact
that the proceedings have already been concluded in favour of the Applicant.
9. That by inclusion of the name of the
applicant at Entry No. 89 in the affidavit of Sh. Balraj Singh, Regional
officer, Gurgaon Region North, on behalf of Haryana State Pollution Control
Board dated 20.4.2015 filed before this Hon'ble Triubunal, the Respondent No.3
has attempted to initiate fresh proceedings before the applicant, while concealing
the settled facts in the matter, and any continuance of such attempted fresh
proceedings on part of Respondent No. 3 qua the Applicant without bringing on
record the settled facts or questions of law
shall be hit by the provisions of law as being res judicata since the
same would be repugnant to the settled judicial finding of a competent
court of law.
10. That even otherwise, the inclusion
of the name of the Applicant herein in the Annexures appended to the Affidavits
as indicated afore would be contemptuous on the part of the HSPCB to the
findings of the Ld. Special Environment Court being already seized of the
matter and having applied its mind to the same
as also the fact that neither its final Order nor its findings have even
been stayed before any court of law,
leave alone being set aside,
11. That the Applicant herein clarifies
that the interest of the present Applicant in the present proceeding is limited
to the extent of having his name deleted from the so called List of Offenders
of the Aravali Notification dated 07.05.92 as appended to the Affidavits as
afore and a clarificatory order that the Applicant is outside the purview of
the present proceedings or any Orders passed there under.
12. That the present Applicant has moved
this Hon'ble Tribunal in order to obviate any instance of Orders being passed
per incuriam the earlier judicial findings vide the Order dated 17.12.2014
13. That the Applicant also craves to be
placed on parity with similarly situated other lands such as the Pathways World
School at village Raisina, Tehsil Sohna, District Gurgaon, Haryana wherein it
has been specifically also held that since the same were categorized as
"farm house" prior to the Aravali Notification the same neither
attracts provisions of the Forest (Conservation) Act 1980 nor the Aravali
Notification No SO - 319(E) dated 07.05.1992 r/w Notification no.1189 (E) dated
29.11.99. That it has also come to the come to the notice of the Applicant
herein that there are many other persons / farmhouse owners who have not even
received notices and the Applicant herein has been singled out.
14. That in any case nothing remains in
the present matter qua the Applicant subsequent to the clarification issued by
the Ministry Environment & Forests, Government of India vide Order
No 17-1/91 PL/1A dated 1.11,2006 as aforestated confirming that the
Aravali Notification dated 07.05.92 not applicable to plots which were
Categorizes as farm house on the land records of the government of Haryana as
on the date of the said notification.
15.. That the present applicant is a
necessary and material party to the present proceedings in so far as its land
is concerned in order to do complete justice in the matter and for the reason
that its name has been placed on record as an offender of the Aravali
notification dated 07.05.1992. That accordingly, the applicant craves
permission to intervene and be impleaded as party to the present proceeding,
failing which grave and substantial injury shall be caused to the applicant’s
material rights under law.
16. That the present Application is
being made bona fide and in the interest of justice. The application has a good
prima facie case in favour. That the grave inconvenience, irreparable injury
and prejudice would be caused to the applicant in case the present Application
is disallowed in as much as the same would directly prejudice the right of the
applicant in present and in the future as also lead to multiplicity of
proceedings. That accordingly, the balance of convenience and inconvenience,
both, tilt overwhelmingly in favour of allowing the application of the present
applicant for impleadment.
17. That the applicant herein has not
filed any another application seeking impleadment in the proceedings. That
however, a part of the
determination sought to be delivered
vide the present proceedings being the part concerning the land of the
applicant stands already determined vide prior proceedings in Case No 12 of
2007 vide the final judgement and order dated 17.12.2014 as aforestated and hence,
the land of the applicant ought to be deleted from the present proceedings.
PRAYER
For the facts and circumstances afore
narrated, it is therefore most humbly prayed that Hon’ble court may graciously
be pleased to:
(a) Allow the present application and
permit the applicant to intervene and be a party to the present proceedings:
(b) Direct/permit the amendment of the
memo of parties in terms of the present application and
(c) Pass any such other orders(s) and
directions as this Hon’ble court may deem fit and proper in the facts and
circumstances of the case.
It is prayed accordingly.
APPLICANT
