Developer managed to obtain stay on encroachment of Gwalpahari drain: Gurugram residents approaches HC for vacation of stay, saying that stay was managed by misleading HC, seeks criminal action against Developer.
CHANDIGARH: TUESDAY: Paras Buildtech India Pvt. Limited allegedly encroached upon a natural drain in Gwalpahari village. When the Municipal Corporation Gurgaon issued notice for fresh demarcation to know about the encroachment; However, the Builder managed to obtain a stay from the Punjab and Haryana high court on a notice issued by MCG for conducting a fresh demarcation of the kost nullah.The two residents of Gurgaon on whose behest the National Green Tribunal had sought reply from the developer; has now filed an Application for Vacation of Stay through their Advocate Pardeep Rapria; in the Punjab & Haryana High Court alleging that interim stay, which is the rarest of the rare judicial exercise, has been managed by misleading the HC by concealment of crucial facts.
Application reads that the Developer "managed
the interim order by concealment of crucial of relevant fact that the
Hon'ble Green Tribunal is already seized with the matter and issued
notice on 28.03.2017..this
Hon'ble Court may not have granted interim relief to the Petitioners;
which has ramifications to eclipse the relief to be granted by the
Green Tribunal." Application further reads, "Petitioners
have merely mentioned that the encroached area is only 195 Sq.Yds.,
whereas the actual encroached area is 6,969.113
Sq.Yds. which is clear from the registered demarcation plan bearing
Tehsildar Sohna Registration No. 2532, Dated: 07.05.2015" Petitioners
have failed to establish how the irreparable loss would be caused to
them merely by re-demarcation by the Revenue Department of State of
Haryana. Mr. Rapria Advocate for the Gurugram residents told that 'x-parte
stay
dated 27.04.17, was obtained fraudulently by pulling wool over the
eyes of this Hon’ble High Court only to avoid or delay the
re-demarcation in progress under the watchful eyes of the Hon’ble
National Green Tribunal.' The encroachment of the drain have serious environmental ramifications. The application for vacation of stay will come up for hearing before Justice Amit Rawal of the Punjab & Haryana High Court on 04.05.2017.
SEE ORIGINAL APPLICATION
IN
THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil
Misc. _________ of 2017
In
Civil Writ Petition No.8408 of 2017
Paras
Buildtech India Pvt Ltd and Ors
.....Petitioner
Versus
State
Of Haryana and Ors
.....Respondents
APPLICATION
OF RESPONDENTS NO. 7 & 8 UNDER SECTION 151 C.P.C. READ WITH
ARTICLE 226 (3) OF THE CONSTITUTION OF INDIA FOR VACATION OF STAY
ORDER DATED 27.04.2017
MOST
RESPECTFULLY SUBMITTED:
- This Hon'ble Court has made an interim order dated 27.04.17 without furnishing copies of petition and all documents in support of the plea for such interim order and also without giving an opportunity of being heard to the Respondents No. 7 and 8.
- That the above said writ petition was fixed for 25.04.17 for initial hearing, however, the Hon'ble Court was pleased to pass the order which reads, “Be listed before another Bench after obtaining necessary orders from Hon'ble the Chief Justice, on 27.04.2017.”
- That the Applicants/Respondents came to know about the ex-parte stay order dated 27.04.2017 through media coverage which reads: “The National Green Tribunal (NGT) on Friday asked private developer to prove it has not encroached upon a natural drain in Gwalpahari village. This drain, known as kost nullah, further joins the Badsahpur drain at Ghata village. The Green Court's direction to Paras Buildtech Limited came a day after the realtor managed to obtain a stay from the Punjab & Haryana High Court on a notice issued by NCG for conducting a fresh demarcation of the kost nullah.” The true copy of the news story published in the Times of India, Gurugram dated 29.04.17 is enclosed as Annexure R7/1.
- That it is the well settled law that the grant of ex-parte stay is the rarest of rare exercise of judicial power.
- That the brief facts going to the root of the present issues are that the Paras Buildtech India Pvt Ltd and some other builders have illegally raised constructions on the storm water drain(to the north of Gurgaon-Faridabad road) and has consequently filled up the drain with tonnes of soil and laid concrete pipes which has led to the obstruction of the natural flow of the drain. The encroachment and filling up of the storm water drain, locally known as Kost/ Badshahpur Nallah (Khasra No. 86) passing through Khasra No. 86 at Gwal Pahari in Gurgaon, its feeder tributaries in its catchment, and other nullahs of Gurgaon. The act of filling up of natural storm water drain is not only in violation of provisions of Water (Prevention and Control) Act, 1974, but also several orders and directions passed by the Green Tribunal. That storm water nullahs/drains/streams such as the ones in question have been formed by the flow of water over time and have traditionally helped channel the peak rainfall during monsoon seasons and also act as a good protection from flood like situations. Moreover, they are good recharge sources for the ground water in the area by increasing retention of rainwater. Their meandering course helps in slowing down the fast flow of water, increasing the water holding capacity and groundwater recharge capacity. It is submitted that when there is urbanization and concretization all around in the city of Gurgaon, which lead to increased rainwater runoff, such storm water nullahs/drains become all the more important to hold the water and prevent flood like situations. The Applicants/ Respondent No. 7 and 8 have already filed the Original Application No. 184 of 2017 under Section 14 read with Section 15 of the National Green Tribunal Act, 2019 before the National Green Tribunal (NGT) for protection and restoration of storm water drain. And, on 28.03.2017 the NGT issued notice to the Petitioner Paras Buildtech India Pvt Ltd which was served on 05.04.2017. The true copy of the Original Application No. 184 of 2017 pending before the NGT is annexed herewith as ANNEXURE R7/2.
- That the National Green Tribunal has been established under THE NATIONAL GREEN TRIBUNAL ACT, 2010 for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. India is a party to the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment. Further decisions were taken at the United Nations Conference on Environment and Development held at Rio de Janeiro in June, 1992, in which India participated, calling upon the States to provide effective access to judicial and administrative proceedings, including redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. Thus, the National Green Tribunal has been established to implement the decisions taken at the aforesaid conferences, in view of the involvement of multi-disciplinary issues relating to the environment.
- That it may be very relevant and important to mention here that in view of the fact that Section – 15 of the Green Tribunal Act empowers only the National Green Tribunal to provide for restitution of property damaged and for restitution of the environment for such area or areas. Therefore, this Hon'ble Court may not have granted interim relief to the Petitioners; which has ramifications to eclipse the relief to be granted by the Green Tribunal.
- That the Petitioners have allegedly encroached the total area of 6,969.113 Sq.Yds. which is clear from the registered demarcation plan bearing Tehsildar Sohna Registration No. 2532, Dated: 07.05.2015, annexed as ANNEXURE R7/3.
- That on 28.04.17 the Counsel for the Petitioner got recorded his statement before the Hon’ble National Green Tribunal (Principal Bench) that Paras Buildtech India Pvt Ltd has stopped construction during pendency of Original Application No. 184/2017. Whereas by initiating the collateral proceedings before this Hon’ble High Court and obtaining interim stay on the fresh demarcation is misconceived and appears a camouflage to achieve some nefarious objects in the matter which is primarily before the expert body, Hon’ble Principal Bench, National Green Tribunal.
- That it is apparent from examination of the 2016 draft sketch prepared by the District Town Planner, Gurugram for joint approval of areas to be identified as NCZ under the aegis of the NCRPB. It is an accepted fact that “bhood” and “gair mumkin pahar” are inviolate categories which can never undergo change and both fall under the category of NCZ alongwith Section 4 & 5 PLPA, Aravalli Plantation (AP) and Block Forest categories. That “paleo-channels” and “bandhs” also fall in the protection category of NCZ. That NCRPB has filed adverse affidavit dated 21.08.14 against the stand of State of Haryana, as noted in Order dated 16.01.15 in IO in CWP No. 19050 of 2012 titled Chandra Shekhar Misra Vs. Union of India and others pending for 01.05.17 before Hon'ble Division Bench No. II for not timely identifying, since 1997 (Godavarman judgment), the extent of NCZ/ Aravallis by State of Haryana. That a copy of the Order dated 16.01.15 in IO in CWP No. 19050 of 2012 titled Chandra Shekhar Misra v. Union of India is enclosed as Annexure R7/4.
- That a copy of 2016 draft sketch prepared by the District Town Planner, Gurugram for joint approval of areas to be identified as NCZ under the aegis of the NCRPB is enclosed as Annexure R7/5 and would establish beyond any manner of doubt that huge illegal constructions are going on in the Aravalli “protected at any cost” areas of Southern Haryana.
- That such situation is without precedent and the State of Haryana fully knowing the law of the land, is deliberately keeping quiet and is letting the Courts of law at all levels be misled by builders into bartering away the Aravallis and also the equity of future generations who shall suffer terribly for the loss of tree cover and deep water acquifer levels.
- That the applicants/ respondent nos. 7 & 8 assert that inaction of the State of Haryana attracts upon it, the mischief of the “Doctrine of Willful Blindness” in this matter [John Henry Sansregret v. Her Majesty The Queen, [1985] 1 SCR 570 (Canada), paras 22-24, Coppard v. Customs and Excise Commissioners; [2003] 2 WLR 1618, WLR p.1624 para 23, WLR p.1628 paras 38-39; Assistant Commissioner, Assessment II, Bangalore and Ors., v. Veliappa Textiles Limited and Anr.2003 (11) SCC 405, p.436 para 56, Baldev Raj Chadha v. Union Of India & Ors, 1980 (4) SCC 321, SCC p.325 para 8 & SCC p.329 para 16].
- That there is no prima-facie case for interim order on the below mentioned grounds:
- BECAUSE it is the well settled law that the grant of ex-parte stay is the rarest of rare exercise of judicial power.
- BECAUSE the Petitioners have managed the interim order by concealment of crucial of relevant fact that the Hon'ble Green Tribunal is already seized with the matter and issued notice on 28.03.2017. Any stay which shall cause delay in the proceedings before the expert body, Hon’ble National Green Tribunal, next fixed for 03.07.17, on the valid ground that re-demarcation awaited by the Hon’ble National Green Tribunal in this very matter for further proceeding on 03.07.17 would be estopped in view of the continuing stay by this Hon’ble High Court effective till 03.08.17, can never be said to be fully in the interests of justice.
- BECAUSE in view of the fact that Section – 15 of the Green Tribunal Act empowers only the National Green Tribunal to provide for restitution of property damaged and for restitution of the environment for such area or areas. Therefore, this Hon'ble Court may not have granted interim relief to the Petitioners; which has ramifications to eclipse the relief to be granted by the Green Tribunal.
- BECAUSE the Petitioners have failed to establish how the irreparable loss would be caused to them merely by re-demarcation by the Revenue Department of State of Haryana.
- BECAUSE initiating the collateral proceedings before this Hon’ble High Court and obtaining interim stay on the fresh demarcation is misconceived and appears a camouflage to achieve some nefarious objects in the matter which is primarily before the expert body, Hon’ble Principal Bench, National Green Tribunal.
- BECAUSE the order of ex-parte stay dated 27.04.17, was obtained fraudulently by pulling wool over the eyes of this Hon’ble High Court only to avoid or delay the re-demarcation in progress under the watchful eyes of the Hon’ble National Green Tribunal.
- That it may also be expedient in the interests of justice that this Hon’ble High Court take into consideration that a vile attempt has been made to subvert the public environmental interest, and to sabotage or at least delay the good case of the applicants pending before the other forum for 28.04.17/ 03.07.17, by not revealing the entire facts to the Hon’ble High Court, hence petitioners’ conduct merits at the very least a serious consideration of all these facts to arrive at a final conclusion whether it shall be expedient in the interests of justice to proceed under Section 340 Cr.P.C.
- That the advance copy of the Application for vacation of stay has already been furnished the Counsel for the Petitioners.
PRAYER
It
is, therefore, prayed that this Hon’ble Court may kindly be
pleased:
- Vacate the ex-party stay granted vide order date 27.04.2017 in CWP-8408-2017.
- Exempt from filing of the certified copies of ANNEXURE R7/1 to R7/5. And/or
- Initiate process under Section – 340 Cr.P.C. against the Petitioners. And/or
- Pass any other order or direction as may be deemed fit.
Sharmila
Kaushik
Respondent
No.7
Vaishali
Rana Chandra
Respondent
No. 8
THROUGH
COUNSEL
Dated:
02.05.2017
(PARDEEP KUMAR RAPRIA)
CHANDIGARH
(COUNSEL FOR THE RESPONDENT No. 7 & 8)
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