Submitting its affidavit, the state on Thursday contended that all land under PLPA cannot be treated as “forest land”, taking a stand different from what it told the court in 2018.
Every building in 11 districts of Haryana, including Gurugram and Faridabad, will have to be demolished if the authorities were to remove all structures from “forest land” as defined and mandated by a 2018 Supreme Court judgment, the state government said on Friday, cautioning that such an exercise could create a “serious and unparalleled law-and-order problem”.
Expressing its inability to implement a July order by the top court to raze structures from forest land, the Manohar Lal Khattar-government said that “the task is beyond its capacity” because nearly 40% of land in the state is considered forest land in the terms of the Supreme Court’s 2018 judgment.
Therefore, carrying out this exercise, the state said, will lead to a mammoth demolition of buildings, schools, colleges, government offices and residential buildings in 11 districts, which includes all of Gurugram and Faridabad.
On July 23, a bench of Justices AM Khanwilkar and Dinesh Maheshwari, directed the Haryana government to ensure that all unauthorised structures standing on Aravali forest land should be cleared. “Our direction to remove all structures on forest land applies to all structures without any exception,” stated the directive.
Abiding with this direction, state authorities demolished the slum colony of Khori Gaon, and issued show-cause notices to owners of 129 farmhouses, banquet halls, schools, religious institutions, and commercial structures.
Several among these 129 owners claimed that their properties fell outside forest area, but the state forest department dismissed the objection on the ground that these lands were notified under the Punjab Land Preservation Act (PLPA), 1900, and had to be considered forest land. The decision of the forest department was based on the September 2018 judgment of the Supreme Court which declared that land falling under PLPA was to be treated as forest land. It was on this reasoning that the top court in 2018 ordered the demolition of all buildings in Kant Enclave, a residential colony in Faridabad.
Submitting its affidavit, the state on Thursday contended that all land under PLPA cannot be treated as “forest land”, taking a stand different from what it told the court in 2018.
The state said that a total of 1,739,907 hectares of land in the state has been notified under PLPA, and this accounts for 39.35% of the geographical area in the entire state, including the whole of 11 districts – Gurugram, Faridabad, Palwal, Panchkula, Ambala, Yamunanagar, Rewari, Bhiwani, Charki Dadri, Mahendergarh, and Mewat.
It further stated: “In terms of the September 2018 decision and July 23 order, all areas notified under Sections 3,4,5 of PLPA are forest land. The land included under PLPA includes both government and private land and structures that have come up on these lands include schools, colleges, hospitals, police stations, roads, transmission lines, government buildings, defence establishments, infrastructure and residential houses.”
The affidavit added: “The demolition required is on a massive scale and beyond the capacity of the state government and is bound to create serious and unparalleled law and order problem… Besides, it raises a very pertinent issue regarding constitutional rights of the people to such land, particularly where construction have been undertaken after taking requisite approvals in accordance with law.”
The state informed the court that it has declared forest land under the Indian Forest Act, 1927 and this covers over 1.46 lakh hectare, accounting for about 4% of the state’s territory.
In the 2018 Kant Enclave case, the Supreme Court said in its judgment: “We have no doubt that land notified by Haryana under provisions of PLPA must be treated as ‘forest’ and ‘forest land’ and has in fact been so treated for several decades by the state of Haryana. There is no reason to change or alter the factual or legal position.” The court placed reliance on an affidavit filed by the state authorities treating PLPA land as forest land.
In its latest affidavit, though, the state took a stand that land notified under PLPA was for the purpose of conserving and restoring erosion of soil, and was applicable for a limited period and not in perpetuity. During this period, when the notification is in force, there is prohibition of specified non-forest activities and that prohibition ceases once the notification expires, it explained.
“Intention of PLPA has never been to create or convert notified land into forest land in any manner. The closure or prohibition which is sought to be enforced as a temporary measure solely as a measure to regulate, restrict or prohibit certain activities during the period of such closure which is lifted upon the expiry of the said period,” the state forest department’s affidavit said.
During the proceedings on Friday, Solicitor General Tushar Mehta, appearing for the state, argued that the 2018 judgment of the court has gone “slightly wrong”.
The bench, however, asked Mehta: “Is this argument now available to you after the 2018 judgment? This judgment (Kant Enclave matter) was the final word on this, unless you are asking us to set it aside.”
Lawyers appearing for Khori Gaon residents and owners of properties served with show-cause notices sought time to file response to state’s affidavit. The court posted the matter for hearing on November 15.
The Haryana government’s affidavit mentioned that, in 2014, the state government approached the Supreme Court in the MC Mehta batch of cases where the Court was considering protection of Aravali forest land. The state moved an application seeking clarification that land notified under expired notifications or orders passed under Section 4, 5 of PLPA should not be treated as forest. This plea is still pending consideration of the top court.
In February 2019, following the Kant Enclave judgment, the Haryana assembly passed an amendment to PLPA by excluding certain land out of the ambit of PLPA notification for purposes of construction. But this law was stalled by the Supreme Court, on March 1, 2019, and seen as an attempt to override its decisions to protect forest land. “No action is to be taken by the Haryana government in furtherance of the the PLPA (Amendment) Act, 2019,” the court said at the time, and the matter is also pending before it.
