Veeru Devgan vs State Of Tamil Nadu & Anr

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. 8

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.

9

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

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".

16 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.

24

.........................................J. (C.K. THAKKER)

NEW DELHI, ..........................................J. September 11, 2008. (LOKESHWAR SINGH PANTA)