‘Negative Equality’ Plea, Says Deemed Permission Cannot Override ESZ Restrictions; Environmental Laws Aim to Prevent, Not Regularise Violations
Jodhpur: The Rajasthan High Court has upheld action against hotels, resorts and other constructions in the Eco-Sensitive Zone (ESZ) around Udaipur’s Sajjangarh Wildlife Sanctuary, holding that ordinary development permissions cannot override restrictions applicable to the protected area.
Justice Sameer Jain dismissed a batch of petitions challenging sealing, demolition and other coercive action by the authorities against the properties.
Petitioner relied upon old approval
The petitioners relied on old government approvals, land conversion orders and pattas while arguing that their properties were legal before the 2017 Sajjangarh ESZ notification. Alleging that the establishment in question fall within the concept of “existing resort” and the further construction done on the land should be construed as extension of such existing establishment.
The petitioner stated that the authorities wrongly treated all construction as a new hotel without first determining whether the resort was an existing establishment under the Zonal Master Plan.
Delay considered as “Deemed Permission”
Further submitted that the petitioner had followed the required procedure, paid the scrutiny fee and submitted all documents, while the authorities had processed the application and forwarded it to the Forest Department for necessary environmental clearances, creating a legitimate expectation that the proposal was under consideration.
It was further contended that where applications were not decided within the prescribed period, they resulted in “deemed permission.”
General Permissions Cannot Override ESZ Restrictions
The authorities, stated that the properties fell within the restricted ESZ and that ordinary development permissions could not authorise construction prohibited under the applicable environmental restrictions.
The petitioners challenged the action, arguing that the notices did not specifically refer to the ESZ restrictions and that their cases should have been considered under the applicable Zonal Master Plan.
‘Deemed Permission’ Cannot Legalise Prohibited Construction
Rejecting the plea, the High Court held that the central question was whether the permissions relied upon by the petitioners could authorise construction in an area subject to ESZ restrictions.
Justice Jain made it clear that “deemed permission” cannot convert construction prohibited under the ESZ regime into legal construction.
Old Construction Does not permit New Construction
The Court also rejected the argument that properties which existed before the 2017 notification could subsequently be expanded without complying with the restrictions.
Court further clarified that the existence of an old hotel or resort does not give it an unrestricted right to undertake new construction. Any expansion requires permissions and restrictions will be applicable to such construction.
Investment Cannot Make Illegal Construction Legal
The Court further held that the fact that substantial money had been invested or construction had already been completed could not make prohibited development lawful.
Referring to the Public Trust Doctrine, court noted the State’s responsibility is to protect environmentally sensitive areas.
‘Negative Equality’ Cannot Be Claimed for Another Illegality
The Court held that one illegality cannot justify another, and Article 14 does not require the State to repeat an illegality simply because similar action was taken someone else .
Finding no legal error in the action taken by the authorities, the High Court dismissed the petitions, upholding the sealing, demolition and other measures taken against the constructions falling within the restricted ESZ.