Veeru Devgan Vs.
State of Tamil Nadu & ANR. [2008] INSC 1549 (11 September 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4448 OF 2005 VEERU DEVGAN
... APPELLANT VERSUS
C.K. THAKKER, J.
1.
The
present appeal is preferred by the appellant against some of the directions
issued in the judgment delivered by the High Court of Judicature at Madras on
December 23, 1999 in Civil Writ Petition No. 19842 of 1999. By the said
judgment, the High Court held that though the appellant herein-writ petitioner
in the High Court-had not violated the terms and conditions of the permission
granted to him to shoot a film and had not caused damage to the grassland or
adversely affected environment, he 2 would deposit Rs. fifty lakhs which will
be utilized for protection and improvement of environment and the forest in and
around Udhagamandalam.
2.
To
appreciate the grievance raised by the appellant in the present appeal, few
relevant facts may be noted.
3.
The
appellant is the sole proprietor of M/s Devgan Films which inter alia is
engaged in the production and direction of films since 1996. The appellant
conceived an idea of producing a musical film for children titled "Raju
Chacha". The appellant initially started shooting of the said film in the
Gulmarg area in Kashmir but due to Kargil war, the shooting was postponed.
Then, a decision was taken to change the venue to Schoolmund (Wenlock Downs
Reserve Forest), Ooty in the State of Tamil Nadu. For the said purpose, the
appellant made an application to the Principal Chief Conservator of Forests of
the State of Tamil Nadu on August 31, 1999 for issuance of `no 3 objection
certificate' to shoot a part of the film in the Nilgiri South and North
Division.
On the same day, the
Principal Chief Conservator of Forests granted such permission for a period of
120 days from October 01, 1999 to March 30, 2000. The appellant deposited an
amount of Rs. 60,000/- @ Rs. 500/- per day for 120 days with the Information
and Tourism Department towards fee for using the area in question. He also
deposited an amount of Rs.5,000/- under the head "Miscellaneous and
Photograph expenses". On September 06, 1999, the Director of Information
and Public Relations granted necessary permission for shooting in Nilgiri
District, Ooty. On October 5, 1999, the appellant furnished a refundable
security deposit of Rs. two lakhs in savings account towards permission for
shooting the film and erection of pre-fabricated sets in the designated area.
Immediately thereafter on October 07, 1999, the permission sought by the
appellant was granted to erect sets of a 4 particular size. The appellant
stated that similar permissions had been granted for more than 100 films during
previous years for shooting in the Nilgiri under the Tamil Nadu Forests
Department Code, 1984. A formal agreement was executed between the sole
proprietor of M/s Devgan Films on the one hand and the District Forest Officer
(`DFO' for short), Nilgiri South Division-respondent No.2, on the other hand,
whereby permission was granted for shooting the film and erection of temporary
sets of the size of 60mm x 60mm subject to the conditions specified therein.
The appellant was
directed to deposit an amount of Rs.10,800/- as ground rent for erection of temporary
sets. A copy of the said agreement has been produced by the appellant in the
present proceedings.
4.
It
appears that an article was published on December 03, 1999 in a newspaper
`Dinamalar' (Tamil Daily) alleging therein that grasslands were being damaged
and wildlife was 5 disturbed by the actions of the appellant.
A notice was,
therefore, issued by DFO on December 06, 1999 to the appellant to show cause
why permission granted to the appellant should not be cancelled as the
appellant had violated conditions of the agreement. The appellant was also
directed to suspend further erection of the sets for shooting the film. On
December 9, 1999, the appellant made a representation to the Chief Secretary of
the State stating that he had taken full care of the environment and grasslands
had not been damaged. A prayer was also made to drop the proceedings against
the appellant and to allow the Company to complete the shooting. The grievance
of the appellant is that in spite of the fact that there was no damage to the
environment and the appellant had not committed breach of any condition of
agreement, the DFO, without affording an opportunity of hearing to the
appellant, passed an order on December 10, 1999 cancelling the permission on
the purported 6 ground that the appellant had violated conditions of the
agreement entered into between the parties and had caused damage to grasslands.
5.
Being
aggrieved by the order cancelling permission, the appellant approached the High
Court by filing a writ petition under Article 226 of the Constitution
challenging the cancellation of licence. A Non-Governmental Organization (NGO),
namely, Tamil Nadu Green Movement, on the other hand, challenged the order
dated October 07, 1999 by which permission was granted to the appellant to
shoot the film "Raju Chacha".
6.
Both
the petitions were heard together. The High Court by the impugned judgment,
dated December 23, 1999, held that it was not proved that the
appellant-licensee had violated terms and conditions of the licence.
It also recorded a
finding on the basis of the reports submitted by the Forest Authorities that
the appellant had not caused damage to 7 environment or grassland. The action
of cancellation of licence and termination of agreement was, therefore, illegal
and contrary to law. The High Court, however, directed the appellant to deposit
Rs. 50 lakhs for protection of environment.
7.
Being
aggrieved by that part of the order, the appellant has approached this Court.
The judgment of the
High Court was delivered on December 23, 1999. Immediately thereafter, there
was Christmas vacation. According to the appellant, under the circumstances, he
was constrained to comply with the order passed and direction issued by the
Court.
8.
After
getting certified copy of the judgment, the appellant approached this Court by
filing Special Leave Petition on April 03, 2000. On April 24, 2000, notice was
issued by this Court and the matter was ordered to be tagged with Writ Petition
(Civil) No. 202 of 1995 [T.N. Godavarman Thirumulpad v. Union of India &
Ors.]. It may be stated that in T.N. Godavarman, this Court is considering the
larger issue of protection of forests. On April 23, 2001, this Court ordered
that any amount deposited by the writ-petitioner in the High Court of Madras
should be invested in a fixed deposit in a nationalized Bank. The Special Leave
Petition remained pending for a long period. On April 01, 2005, however, when
the matter was placed before the Court, it was noticed that the instant case
did not relate to larger issue raised in T.N. Godavarman but was an individual
one. The Court, hence, ordered to place the matter before a regular Bench. On
July 22, 2005, leave was granted. On February 25, 2008, a Bench presided over
by Hon'ble the Chief Justice of India directed the Registry to place the appeal
for final hearing during summer vacation. That is how the matter has been
placed before us.
9.
We
have heard the learned counsel for the parties.
10.
The
learned counsel for the appellant strenuously contended that the direction
issued by the High Court to pay Rs. 50 lakhs was wholly illegal, unlawful and
arbitrary. Once a finding is recorded by the High Court that the appellant had
not violated conditions of licence or committed breach of the agreement entered
into between the parties and no damage had been caused to grassland, nor
environment had been adversely affected, the Court had no power, authority or
jurisdiction to direct the appellant to pay/deposit any amount. The counsel
submitted that affidavits were filed by the parties, records were called for
and parties were heard. On the basis of the findings recorded in the reports
submitted before the Court, it concluded that the appellant had acted in
consonance with terms and conditions of the agreement. Whatever amount required
to be paid towards damage was actually paid by the appellant. Compounding of
offences under the relevant laws had also been 10 done and the requisite
amount was paid.
Precisely because of
that the Court allowed the petition filed by the appellant-writ petitioner and
set aside the order dated December 10, 1999. The Court also, only for that
reason, did not grant relief sought by NGO in the other petition seeking
setting aside permission granted and agreement entered into between the
appellant and the State of Tamil Nadu. The counsel further submitted that over
and above regular payments which were required to be made, certain additional
amounts were also paid by the appellant including refundable deposit of Rs. 2
lakhs. The State was duty bound to refund even the said amount. On all these
grounds, it was submitted that the appeal deserves to be allowed by setting
aside the direction of the High Court to deposit Rs. 50 lakhs by the
appellant-writ petitioner to the respondent State Authorities. The State is also
bound to repay refundable deposit of Rs.2 lakhs.
11.
The
learned counsel appearing for the State fairly stated before the Court that the
High Court, no doubt recorded a finding in favour of the appellant. He,
however, submitted that the High Court was exercising plenary jurisdiction
under Article 226 of the Constitution. The Court, in exercise of that
jurisdiction, thought it proper to direct the appellant to deposit Rs. 50 lakhs
for protection of environment. The said amount can be utilized in general public
interest and in making citizens aware of the environmental protection.
12.
Having
heard the learned counsel for the parties, in our opinion, the direction issued
by the High Court cannot be said to be in accordance with law or based on the
materials before the Court or conclusions recorded by the Court on that basis.
We have been taken to the relevant part of the judgment of the High Court. The
High Court considered in detail the complaint made against the appellant 12 as
also the reports submitted by the Forest Authorities. On the basis of the
reports, the Court recorded a finding that there was no violation on the part
of the appellant of terms and conditions of the agreement entered into between
the appellant and the State and hence State was not justified in cancelling
licence and terminating the agreement. The High Court, therefore, set aside the
order passed by the State cancelling licence and terminating agreement by
allowing the petition.
13.
Referring
to the relevant statutes, such as, Forest (Conservation) Act, 1980, Forest
(Conservation) Rules, 1981 and Tamil Nadu Forest Department Code, 1984, the
High Court stated;
"The real
question here, however, is as to whether the words `breaking up or clearing of
any forest land or portion thereof' are applicable to the activity undertaken
by Producer in the Schoolmund area. The activity that has been permitted is the
erection of a temporary set for and shooting a film, which set is to remain on
the land for a period of about 120 days. The technology used in erecting the
set 13 does not involve digging the earth for support. The set rests on the
base of the G.I. pipes. The base of the G.I. pipe merely rests on the ground
and is not embedded therein. The set is to be removed within a matter of few
months.
On such removal, the
grass will admittedly regenerate after the winter. The forest land is to be
restored to its original condition. No part of the forest land is lost as would
be the case if a structure involving digging of foundations were to be constructed.
For the duration of about 120 days the land cannot be used for other purposes.
The land is free of tree growth. Admittedly, no trees existed or exist on this
land, and no tree has been cut. The land is grassland, the land is located very
close to a main Highway, the plantations which exist at a distance of about 450
meters are man made plantations. There is a settlement with a School also at a
distance of about 450 meters. Close to the location is a forest road, through
which equipment has been apparently brought to the site by the Producer.
According to the
Producer, the State Government has consistently been permitting the shooting of
films in this area. In the counter-affidavit filed by one Kumar Mangat, who
holds a Power of Attorney from the Producer, it is stated that several films
have been shot in this area. He has mentioned the names of certain films,
Betabi in 1997, Deewana in 1992, Allan in 1995, Sadak in 1995, Khubsoorat in
1999, Hum in 1980s, Jigar in 1992, Tridev, Ravanraj etc. He has also 14 stated
that he had reliably learnt that permission had been granted by the Department
earlier to one Padmalaya Films, Madras to erect sets of a dimension of 300 ft x
300 ft in adjoining area of Paimund on Old Mysore Road at Udugai, South Range
in the year 1995. The State Governemnt has not disputed the fact that this area
has been made available in the past to Producers as a location for their films.
In fact, the Tamil Nadu Forest Department Code specifically contemplates the
grant of such permission and also sets out the authority competent to grant the
permission and the power of that authority to impose such conditions and
restrictions as may be considered appropriate by the Chief Conservator of
Forests".
14.
Proceeding
further, the Court observed;
"'Breaking up'
referred to in the Explanation involves activity such as extensive digging over
a substantial area, or to considerable depth, or for a purpose which is of long
duration.
Digging wells, or
foundation for houses or tillig the land for purposes of cultivation in a
forest may amount to breaking up the forest land. The breaking up should be
such as to have some degree of permanence. All activity on the forest land does
not amount to breaking up the forest land.
Resting the support
for a temporary set for a few months on the forest land does not amount to
breaking up 15 the forest land. So also the laying of a water pipe of
relatively small diameter, or of electric wires covered with plastic, a little
below the surface, for a short period cannot be regarded as amounting to
breaking up the forest land, especially when at the end of that period of few
months the pipes and wires are to be removed and the grass will regenerate over
that area.
... ... ... ... ...
The shooting of a
film, per se, in a reserve forest cannot be regarded as a non-forest purpose as
defined in Section 2 of Forest (Conservation) Act. Nature is meant to be
enjoyed at the least visually, and not merely kept in a frozen state, unless
there are very special reasons for preventing entry of people into special
areas, which are sensitive and delicate, and whose preservation in their
current state is for good reasons regarded as essential. The Apex Court has had
occasion to consider the provisions of the Act largely in the context of claims
that mining activity should be allowed to continue, or that trees should be
allowed to be cut, or that forest land be allowed to be leased, or that
buildings be allowed therein. In all such cases, where deforestation was the
evident consequence, approval of the Central Government was held to be
mandatory. There is no danger of deforestation by the erection of a temporary
set rested on the base of G.I. pipes which merely rest on and are not rooted in
the earth".
15.
Dealing
with the reports submitted by the Authorities, the Court said;
"In this case,
we have reports of the Collector and the District Forest Officer. According to
the Collector, in the winter months grass automatically withers away, and that
only in May, they will naturally regenerate. According to the District Forest
Officer, the winter ends in February. Permission given to the Producer here is
only upto the period which expires long before the month of May begins, and
grass will begin to regenerate naturally. Moreover, the minimal damage caused
to the grass is undertaken to be repaired by the Producer, who even according
to the State's Officers, has been maintaining the grass.
Having regard to the
facts of this case, which we have set out in considerable details in the
earlier part of our Order, we are not persuaded to hold that the prior approval
of the Central Government in the circumstances was essential before the
Producer could have proceeded to put up the temporary set at the Schoolmund
area, or that such permission is necessary for shooting the film in the forest.
We do not belittle in
anyway, the genuine concern of the environmentalists for the preservation of
the forest land in the area. The granting of permission to erect sets 17 is
not a part of the standard conditions subject to which permission is to be
granted for filming in the area. The details regarding the extent of the area
to be occupied by a temporary set, it's weight etc., were not made known by the
Producer to the Principal Chief Conservator or to the Director of Information,
when he first applied. That application as we have seen is a bad one. It is
only when he approached the District Forest Officer that details were made
known. The District Forest Officer in turn had only secured permission and
concurrence of the Principal Chief Conservator over telephone for incorporating
permission to put up the set in the agreement. We cannot say that the Producer
has been fair to the State in the manner in which he secured permission for
putting up a set of this magnitude. It is also not in dispute that the
Petitioner had compounded alleged offences regarding the drawing of water from
a water source at some distance for the purpose of watering the grass in and
around the structure. He had also compounded an offence for damaging the grass
in some parts, the extent of the damage is not known. Having regard to the
amount of fine that has been levied and collected, it could not have been
substantial.
Having regard to this
conduct of the Producer and also having due regard to the need for ensuring
that no damage is done to the forest land, we consider it appropriate to
appoint a Commissioner at the cost of the Producer to supervise all further 18
activity of the Producer in Schoolmund. The Commission may at his discretion
associate such other persons as he may regard as being possessed of special
knowledge and experience of the area or of ecology and administration in his
work".
16.
The
High Court, however, in para 47, directed;
"47. The
producer has obtained the right to use of this land, though for a limited
period, for a nominal fee, which does not in the lease represent the proper
value of what he has been allowed to use. The budget for the film is said to be
Rs.10 crores. It has been stated by him in correspondence that he has incurred
an expenditure of about Rs.4 crores for the erection of the set. Keeping in
view this, and other relevant considerations, we direct the Producer of the
film to deposit a sum of Rs.50 lakhs (Rupees Fifty Lakhs) in this Court within
a period of one week from today. That amount shall be utilised for the
activities concerning the protection and improvement of the environment and the
forest in and around Udhagamandalam and also for programme for creating a
greater awareness of the need to preserve the environment and of the methods to
be employed in that regard. The disbursal of that amount shall be subject to
further directions to be made by this Court after receiving the reports from
19 the Commissioner appointed by this Court, who shall consult all such experts
as he may consider to be capable of giving well informed expert view on the
forests and ecology in and around Ooty". (emphasis supplied)
17.
In
para 51, the Court stated;
"51. In view of
the order now made, and subject to compliance by the petitioner with the
directions given by us in this order, and the directions which the Commissioner
may give during the period between now and the completion of the shooting and
the restoration of the area to it's original condition, we set aside the order
of the District Forest Officer dated 10.12.1999 cancelling the agreement dated
7.10.1999. We find that the extreme step of cancellation of the agreement on
the grounds stated therein was not in the circumstances justified. The
employment of about 125 persons for erecting the set was only to be expected
having regard to it's size. The District Forest Officer had not objected to the
employment of that number till 95% of the set at a cost of over Rs. 2 crores
had been completed, though he was aware of the size of the set and the number
of persons employed. Moreover the relevant clause in the agreement advisedly
used to the term `about' and did not prohibit the employment of persons in
excess of a specified number. The persons employed were, according to
Collector, paid Rs.150/- per day, and there was no complaint from anyone. The
use of water for 20 sprinkling the grass and marginal `damage' to grass had
been computed and were not such serious breaches of the agreement as to warrant
its cancellation".
18.
From
the above observations, it is clear that according to the High Court, the
appellant had not caused damage to the grassland nor had committed any action
which warranted cancellation of licence and yet it imposed an enormous
condition to deposit Rs. 50 lakhs inter alia on the grounds, namely, (i)
fixation of nominal fee by the State for the use of the site; and (ii) heavy
budget of the film (Rs.10 crores).
19.
The
counsel submitted that both the grounds weighed with the High Court were wholly
irrelevant and totally extraneous to the issue in question and could not have
been taken into account by the Court while adjudicating lis between the
parties. To satisfy the conscience of the Court, however, the counsel submitted
that almost on the same terms and conditions, 21 permission was granted to
several film producers having more budgets and the case in hand was not of
showing any concession in favour of the appellant in fixation of fee.
Hence, even on
factual ground, the High Court was not right. The counsel also submitted that
even the film was not commercially successful and according to the appellant,
the producer had incurred loss.
20.
Be
that as it may, in our opinion, legal submission of the learned counsel for the
appellant is well-founded and must be upheld.
If after following proper
procedure and complying with all terms and conditions, the appellant-writ
petitioner was granted permission to shoot the film and all payments had been
made as per the terms and conditions of the agreement and there was no finding
as to damage to environment, to grassland or to wildlife as alleged in the
newspaper report and once the High Court was satisfied on the basis of the
reports submitted by the authorities and 22 it set aside the order of
cancellation of licence and termination of agreement, in our judgment, the High
Court could not have directed the appellant to deposit Rs. 50 lakhs to be used
towards creating greater awareness for environmental protection and for
preservation of forests.
21.
No
doubt the High Court was exercising plenary jurisdiction under Article 226 of
the Constitution. To us, however, even plenary powers must be exercised
judicially and judiciously on the basis of facts before the Court and on
well-settled principles. Since the findings recorded by the High Court were in
favour of the appellant-writ petitioner, the grievance voiced by the appellant
that the High Court was in error in directing deposit of Rs. 50 lakhs is
well-founded and the appellant is entitled to refund of the said amount.
22.
As
stated by the learned counsel for the appellant, he had to deposit the said
amount in view of the fact that on deposit of 23 the said amount, the
appellant was allowed to proceed with the shooting of the film. He was thus
constrained to make such deposit. It would, therefore, be appropriate if we
direct refund of the said amount with accrued interest thereon to the
appellant. The State will also refund Rs.2 lakhs paid by the appellant to the
State towards refundable deposit, however, without interest. Let such payment
be made within a period of four months from today.
23.
For
the foregoing reasons, the appeal is allowed, the order passed by the High
Court to the extent of directing the appellant to deposit Rs. 50 lakhs by him
is set aside and the said amount with accrued interest is ordered to be paid to
the appellant-writ petitioner of Civil Writ Petition No. 19842 of 1999. The
State will also refund Rs.2 lakhs to the appellant. On the facts and in the
circumstances of the case, however, there shall be no order as to costs.
.........................................J.
(C.K. THAKKER)
..........................................J.
NEW
DELHI,
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