PRAGNESH SHAH versus DR. ARUN KUMAR SHARMA & ORS. on 12 January 2022

SUPREME COURT REPORTS

[2022] 8 S.C.R.

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PRAGNESH SHAH

v.

DR. ARUN KUMAR SHARMA & ORS.

(Civil Appeal Nos. 7724-7725 of 2021)

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JANUARY 12, 2022

[DR. DHANANJAYA Y. CHANDRACHUD ANDA. S. BOPANNA, JJ.]

National Green Tribunal Act, 2010 – Environment ProtectionCAct, 1986 – Environment Protection Rules, 1986 – Eco-sensitiveZone Notification and Zonal Master Plan 2030 – NGT on basis of areport dated 08.12.2020 submitted by an Expert Committee, allowedan original application filed by the first respondent, whichchallenged the Zonal Master Plan 2030 prepared by the State ofDRajasthan, for the Mount Abu Eco-sensitive Zone – Report of theExpert committee had, inter-alia, declared land owned by theappellant to be unfit for construction – Review filed by the appellantwas dismissed by NGT – On appeal, held: the Expert Committee hasfurnished valid reasons for determining that construction must notbe allowed so as to preserve the eco-system of the region – ExpertECommittee has noted that while the proposed site for residentialbuildings covers the land of low slopes which is stable, it also coverslands with a high slope domain which are not suitable forconstruction – Low slope domain site is a habitat for wildlife andfootprints of sloth bear were also observed and it was in this contextFthe Expert Committee determined that construction must not beallowed – At places with a high slope domain, the landscape wasnoted to be fragile in terms of soil erosion – Further, the ExpertCommittee opined that the proposed tourism facility centre maydisturb the wild life eco-system – The ESZ notification required,inter alia, the State of Rajasthan to prepare the ZMP 2030, so as toGensure that future development activity in the region could beplanned while accounting for potential environmental degradation,following the precautionary principle – The ESZ notification isbacked by a statutory mandate of Union legislation – TheNotification is an enforceable charter for the preservation of thefragile eco-system of Mount Abu – Every authority is duty bound toH

comply with its terms and any action in breach must peril invalidation– NGT had correctly directed the ZMP 2030 to be modified to bringit into conformity with the ESZ Notification and the precautionaryprinciple – Specifically, it correctly upheld the Expert CommitteeReport’s recommendation that no construction should be allowedto take place on the appellant’s land.

Environmental Law – Precautionary principle – Held: Theprecautionary principle envisages that the State cannot refuse toact to preserve the environment simply because all the scientificdata may not be available – If there is some data to suggest thatenvironmental degradation is possible, the State must step into actionto prevent it from taking place.

Dismissing the appeal, the Court

Merits of Expert Committee Report

Conclusion

HELD: 1. As regards the disputed site in question in thisappeal (“near STP plant”), the Expert Committee has furnishedvalid reasons for determining that construction must not beallowed so as to preserve the eco-system of the region. TheExpert Committee has noted that while the proposed site forresidential buildings covers the land of low slopes which is stable,it also covers lands with a high slope domain which are not suitablefor construction. At places with a high slope domain, the landscapewas noted to be fragile in terms of soil erosion. Further, the ExpertCommittee opined that the proposed tourism facility centre maydisturb the wild life eco-system. Additionally, although the lowslope domain may be suitable for construction, the site is a habitatfor wildlife and footprints of the sloth bear were also observedduring the field visit. It was in this context that the ExpertCommittee determined that construction must not be allowed onthe site to preserve the eco-system. In comparison, theobservations contained in Table 16 with reference to the “SunsetRoad Scheme” and the “Sunrise Housing Society” sites clearlyindicate that there is no discrimination against the appellant sincethere is a material difference in the location and suitability of thesites for construction. [Para 24][174-A-E]

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156SUPREME COURT REPORTS

APrecautionary Principle

2. The report of the Expert Committee is consistent withthe precautionary principle. The report has hence been correctlyaccepted by the NGT since it is mandated to follow theprecautionary principle under Section 20 of the NGT Act. TheBprecautionary principle requires the State to act in advance toprevent environmental harm from taking place, rather than byadopting measures once the harm has taken place. In decidingwhen to adopt such action, the State cannot hide behind the veilof scientific uncertainty in calculating the exact scientific harm.[Paras 25 and 31][174-E-F; 177-G-H]C

3. The precautionary principle envisages that the Statecannot refuse to act to preserve the environment simply becauseall the scientific data may not be available. If there is some datato suggest that environmental degradation is possible, the Statemust step into action to prevent it from taking place. Indeed, itDwas this thought that compelled this Court in T.N. Godavarmanto direct the State to identify ESZs across India, so that steps canbe taken to identify areas where there is a greater possibility ofenvironmental degradation and a plan is put in place to preventsuch degradation before it actually makes the harm irreversible.E[Para 32][180-G-H; 181-A]

4. Mount Abu was identified as an ESZ, under the ESZNotification. The reason for doing this is because the Staterecognized that environmental degradation of the fragile eco-system is a real possibility in Mount Abu and the area surroundingFit if action is not immediately taken. A significant amount of soilerosion, air and water pollution has already taken place due tothe developmental activities. The recitals in the ESZ Notificationrecognize the ecological importance of Mount Abu since it PARTH 32 contains both tropical dry deciduous forests and evergreenforests; its flora and fauna comprise of several endemic and rareGspecies; and it also contains not only natural heritage such asNakki lake but also man-made heritage sites such as the Dilwaratemples. The ESZ notification required, inter alia, the State ofRajasthan to prepare the ZMP 2030, so as to ensure that futuredevelopment activity in the region could be planned whileHaccounting for potential environmental degradation, following the precautionary principle. The ESZ notification is backed by astatutory mandate of Union legislation. The Notification is anenforceable charter for the preservation of the fragile eco-systemof Mount Abu. Every authority is duty bound to comply with itsterms and any action in breach must peril invalidation. [Para33][181-A-E]

M.C. Mehta v. Union of India (2004) 12 SCC 118 :

[2004] 3 SCR 126; Research Foundation for ScienceTechnology National Resource Policy v. Union of India(2005) 10 SCC 510; Hospitality Assn. of Mudumalai v.In Defence of Environment & Animals (2020) 10 SCC589 : [2020] 10 SCR 273; H.P. Bus-Stand Management& Development Authority v. Central EmpoweredCommittee (2021) 4 SCC 309 : 2021 (1) JT 187 – reliedon.

T.N. Godavarman v. Union of India & Ors. Writ PetitionNo 202 of 1995; Mantri Techzone (P) Ltd. v. ForwardFoundation (2019) 18 SCC 494; Municipal Corporationof Greater Mumbai v. Ankita Sinha and Others 2021SCC OnLine SC 897 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7724-7725 of 2021.

From the Judgment and Order dated 10.03.2021 of the NationalGreen Tribunal, Principal Bench, New Delhi in Original ApplicationNo.312 of 2016 and Order dated 29.07.2021 in Review Application No.26of 2021 in Original Application No.312 of 2016.

Mukul Rohatgi, Siddhartha Dave, Sr. Advs., Aditya Vaibhav Singh,Ms. Saumya Gupta, Ms. Aarushi Singh, Ms. Vidhi Thaker, Ms. NidhiJaswal, Advs. for the Appellant.

Amit Sibal, Sr. Adv., Sameer Parekh, Vinay Tripathi, Sumit Goel,Ms. Nina R. Nariman, Ms. Geetika Kapur, Tanuj Agarwal, ParitoshArora, M/s Parekh & Co., Advs. for the Respondents.

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158SUPREME COURT REPORTS

[2022] 8 S.C.R.

AThe Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into the following sections tofacilitate analysis:

AThe Appeal

B

BEco-sensitive Zone Notification and Zonal Master Plan2030

CProceedings before NGT

DSubmissions of counsel

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EJurisdiction of NGT

FMerits of Expert Committee Report

GPrecautionary Principle

HConclusion

D

A The Appeal

1. These appeals under Section 22 of the National Green TribunalAct[1] arise from judgments dated 10 March 2021 and 29 July 2021 of theENational Green Tribunal[2]. By its judgment dated 10 March 2021, theNGT, on the basis of a report[3] dated 8 December 2020 submitted by anExpert Committee, allowed an original application[4] filed by the firstrespondent, which challenged the Zonal Master Plan 2030[5] prepared bythe State of Rajasthan, for the Mount Abu Eco-sensitive Zone[6]. TheFreport of the Expert Committee had, inter alia, declared land owned bythe appellant to be unfit for construction. Further, by its judgment dated29 July 2021, the NGT dismissed an application for review[7] which hadbeen filed by the appellant.

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1 “NGT Act”

2 “NGT”

3 “Expert Committee Report”

4 Original Application No 312 of 2016

5 “ZMP 2030”

6 “ESZ”

H7 Review Application No 26 of 2021

B Eco-sensitive Zone Notification and Zonal Master Plan2030

2. The appellant is the owner of a certain parcel of land situatedin Mount Abu in the State of Rajasthan. The appellant claims that theland was earmarked as “Residential” and as a “Tourist Facility” in theZonal Master Plan 2025 for Mount Abu.

3. On 25 June 2009, the Union Government in the Ministry ofEnvironment, Forest and Climate Change[8] issued a Notification[9] by whichit notified Mount Abu and the area surrounding it as an ESZ. The ESZNotification was issued in exercise of powers conferred by sub-Section(1) read with Clause (v) and Clause (xiv) of Section 3(2) of theEnvironment (Protection) Act 1986[10] and Rule 5(3) of the EnvironmentProtection Rules 1986. The preamble to the ESZ Notification containsrecitals emphasizing the ecological importance of Mount Abu:

“S.O.1545(E) - WHEREAS, Mount Abu area has significantecological importance comprising of tropical dry deciduous forestsat lower altitude and evergreen forests at higher altitude and theflora and fauna of the region comprise of several endemic andrare species; besides Mount Abu has natural heritage such asNakki Lake and man-made heritage like Dilwara temples andother heritage buildings and structures; AND WHEREAS, considerable adverse environment impact hasbeen caused due to degradation of the environment with excessivesoil erosion and water and air pollution on account of certaindevelopmental activities, thereby endangering not only the naturalresources, but also affecting the health and very survival of livingbeings; AND WHEREAS, it is necessary to conserve and protect thearea from ecological and environmental point of view; AND WHEREAS, a draft notification under sub-section (1) readwith clause (v) and clause (xiv) of sub - section (2) of section 3 ofthe Environment (Protection) Act, 1986 (29 of 1986) was published 8 “MoEF&CC”

9 “ESZ Notification”

10 “EP Act”

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Ain the Gazette of India, Extraordinary, vide Notification ofGovernment of India in the Ministry of Environment and Forestsvide number S.O. No. 2497 (E), dated the 22[nd] October, 2008, asrequired under sub-rule (3) of rule 5 of the Environment(Protection) Rules, 1986, inviting objections and suggestions fromall persons likely to be affected thereby within a period of sixtyBdays from the date on which copies of the Gazette containing thesaid notification were made available to the public; AND WHEREAS, copies of the Gazette containing the saidnotification were made available to the public on the 22[nd] October,C2008;AND WHEREAS, all objections and suggestions received inresponse to the above mentioned draft notification have been dulyconsidered by the Central Government; Now, THEREFORE, in exercise of the powers conferred by sub-Dsection (1) read with clause (v) and clause (xiv) of sub - section(2) of section 3 of the Environment (Protection) Act, 1986 (29 of1986) and sub-rule (3) of rule 5 of the Environment (Protection)Rules, 1986, the Central Government hereby notifies Mount Abuand surrounding region enclosed within the boundary describedEbelow in the State of Rajasthan as the Mount Abu Eco-sensitiveZone (hereinafter called “the Eco-sensitive Zone”).”

4. The ESZ Notification was preceded by a draft to whichobjections and suggestions were invited. The ESZ Notification outlinesthe boundaries of the ESZ in which activities are to be regulated. TheFNotification envisages the preparation of a new Zonal Master Plan[11] forthe restoration of denuded areas, conservation of existing water bodiesincluding Nakki Lake, management of catchment areas, watershedmanagement, groundwater management, soil and moisture conservation,preserving the needs of the local community, conservation of heritageGsites (both natural and cultural) and their surroundings, and such otheraspects of the ecology and environment which may require attention.Clause 3(1)(i) of the ESZ Notification, in relation to the preparation ofthe ZMP, is extracted below:

H11 “ZMP”

“3. The following activities are to be regulated in the Eco-sensitive Zone, namely:-

(1) Zonal Master Plan for the Eco-sensitive Zone:-

(i) A Zonal Master Plan for the Eco-sensitive Zone shall beprepared by the State Government within a period of two yearsfrom the date of publication of this notification and submitted forapproval to the Central Government in the Ministry of Environmentand Forests...”

5. The ESZ Notification also envisages a Tourism Master Plan[12]to be prepared by the Department of Tourism of the Government for theState of Rajasthan. The TMP would form a component of the ZMP, andis to be based on a detailed Carrying Capacity Study of the ESZ. Further,the Carrying Capacity Study is to be based on the existing infrastructureand not on future projections of any project which requires environmentalor forest clearance. While adverting to the natural and man-made heritagein Mount Abu, the ESZ Notification stipulates that:

“3. The following activities are to be regulated in the Eco-sensitive Zone, namely:- […]

(9) Man-made Heritage: Mount Abu is famous for severaltemples, the most prominent being Dilwara Temples and the mainheritage and historical buildings are Achalgarh Fort, Dilwara JainTemples, Rishav Deo Temple, Neminath Temple, Adinath Temple,Parshwanath Temple, Mahaveer Temple, etc., and later heritagebuildings, structures and precincts. The plans for their conservationshall be prepared and incorporated in the Zonal and Sub-ZonalMaster Plan and the development or construction activities at oraround the heritage sites shall be regulated under the statutoryprovisions of the Rajasthan Monuments, Archaeological Sites andAntiquities Act and in accordance with the Draft ModelRegulations for Conservation of Natural and Manmade HeritageSites formulated by the Central Government in the Ministry ofEnvironment and Forests in 1995.

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(10) Water:

(i) All future and existing buildings, where possible, in the MunicipalArea shall provide roof-top rain water harvesting structurescommensurate with their plinth area and the Institutional andcommercial buildings shall not draw water from existing watersupply schemes in a manner that adversely affects water supplyespecially to local villages or settlements.

(ii) In Non-Municipal Areas rain water harvesting shall beundertaken through such structures as percolation tanks andstorage tanks and only other means. Ground water aquiferrecharge structures shall be constructed wherever such structuresdo not lead to slope instabilities.

(iii) The rain water collected through storm water drains shall beused to recharge the ground water or to clean the waste disposaldrains and sewers.

(iv) The extraction of ground water shall be permitted only for thebona-fide agricultural and domestic consumption of the occupierof the plot and the extraction of ground water for industrial orcommercial or residential estates or complexes shall require priorwritten permission, including of the amount that can be extracted,from the State Ground Water Department. However, the areasrich in ground water may not be diverted for construction activities.

(v) No sale of ground water shall be permitted except with theprior approval of the State Ground Water Department and all stepsshall be taken to prevent contamination or pollution of waterincluding from agriculture.

(vi) The area has three big water bodies namely Upper Kodradam, Lower Kodra dam and Nakki Lake and in addition to thisthe area has around 25 water places, where water remains throughout the year, which include natural nalla, dams, anicuts, seepageand baoris that are spread over entire area and must be protected.

[…]

(13) Development on and protection of hill slopes:

(i) The Zonal Master Plan shall indicate areas on hill slopes wheredevelopment shall not be permitted.

(ii) No development shall be undertaken in areas having a steepslope or areas which fall in fault or hazard zones or areas fallingon the spring lines and first order streams or slopes with a highdegree of erosion as identified by the State Government on thebasis of available scientific evidence.

(iii) No development on existing steep hill slopes or slopes with ahigh degree of erosion shall be permitted.”

6. Under Clause 4 of the ESZ Notification, the Central Governmenthas to constitute a Monitoring Committee. In pursuance of the ESZNotification, a Monitoring Committee was constituted by the UnionGovernment through MoEF&CC on 10 December 2009. The constitutionof the Monitoring Committee was revised on 24 January 2012 and 5May 2015.

7. The appellant has a grievance that when a draft of ZMP 2030was published, the status of his land was incorrectly changed from“Residential” and “Tourist Facility” to “Agricultural Zone”. The appellantchallenged this before the Chairman of the Monitoring Committee, theMoEF&CC and the State of Rajasthan. Based on it, the status of theappellant’s land was again changed back to “Residential” and “TouristFacility”. Thereafter, ZMP 2030 was notified by the State of Rajasthanon 29 October 2015, following the approval of the MoEF&CC on 28September 2015.

C Proceedings before NGT

8. The ZMP 2030 was challenged by the first respondent by hisoriginal application on the ground that it is not in conformity with ESZNotification, since it fails to discourage construction activities at or nearthe heritage sites, conserve the existing water bodies and permits changeof land use by illegal structures. Since the first respondent’s originalapplication mentioned the appellant’s land, the appellant was allowed tointervene in the proceedings by the NGT in its order dated 10 April2017.

9. On 26 November 2018, the NGT issued an order which notedthat the first respondent’s original application contended, inter alia, thatZMP 2030 had permitted illegal change of land use, in direct contradictionto the ESZ Notification, in thirteen locations, which included theappellant’s land. To assess the claims made in the first respondent’soriginal application, the NGT constituted an Expert Committee consisting A

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Aof two representatives of MoEF&CC, a representative of the School ofPlanning and Architecture, Delhi (since it had been engaged by the Stateof Rajasthan as a consultant), and a representative of Central PollutionControl Board[13]. The mandate of the Expert Committee was as follows:

“21. The Committee will undertake comparison of ZMP 2030, inBterms of letter of MoEF&CC dated 28.09.2015 and ESZNotification dated 25.06.2009 and point out the aberrations in somebesides comparing ZMP 2030 map with reference to pre-existing2010 map in the light of ESZ notification. Thirteen (13) locationsnoted above must also be specifically looked into. The ExpertCommittee may also look into the suggestions relating to prohibitingCuse of plastics, burning of garbage/or any other waste, properlaying of high tension lines for protecting animals and birds lifeparticularly in Salim Ali Bird Sanctuary area, preventing forestfire, conservation of Nakki lake and water quality management,siting and operation of Solid Waste processing plant in accordanceDwith Solid Waste Management Rules, 2016 (with reference tosanctuary area), any other issues relating to environmentmanagement which may become a part of ZMP 2030, includingobservations of this Tribunal in Kasuali case.

22. The Committee will also look into the points of concern raisedEby the applicant in reference to conversion of green areas to non-green areas, permissibility of construction on higher degree slopes,conservation of rocks, water bodies and wildlife and other heritagesites, the issue of water scarcity, carrying-capacity of Mount Abuwith regard to number of tourists and vehicles to be permittedhaving regard to the availability of the infrastructure without relyingFupon future projection, as required in terms of ESZ notification.”10. The Expert Committee submitted a report on 4 September2019, which was not found to be acceptable when it was considered bythe NGT on 7 November 2019. As a consequence, the NGT modifiedthe composition of the Expert Committee, with the following observations:G“8. Though the Committee was to furnish its report within threemonths from the order dated 6.11.2018 report has been filed almostafter more than 9 months on 04.09.2019. We find from the reportthat the Committee has assumed the ZMP to be conclusive on the

ground that suitability analysis test had already been carried outby the State Government. This approach is inconsistent with thedirections of this Tribunal. If the analysis of the State Governmentwas to be treated as final, there was no need for the Committee.”

11. The reconstituted Committee then submitted the ExpertCommittee Report. The Expert Committee enquired into the change inland use through high resolution satellite images, while analysing thedata with particular reference to ten identified sites, including theappellant’s land. The NGT then heard submissions on the ExpertCommittee Report. By its impugned judgment dated 29 July 2021, theNGT observed that the Expert Committee Report was based on authenticdata and on field visits by the Committee and is supported by adequatereasons. The NGT noted that the object of notifying certain areas asESZs is to protect certain specified sensitive areas by restricting andregulating development activities. Such areas may be based on species,geomorphologic features or on the eco-system. The NGT held that itwas necessary to protect bio-diversity zones by creating regulated buffersaround them to protect their flora and fauna, prevent habitat destructionand protect fragile ecology. Adverting to the backdrop of the ESZNotification, the NGT noted that the Supreme Court had in T.N.Godavarman v. Union of India & Ors.[14] (“T.N. Godavarman”)appointed Expert Committees to identify ESZs across India, and whensuch ESZs were eventually identified, Mount Abu was cleared as anESZ as well. The NGT further observed that the object of notifyingESZs is to protect a specified area from the irreversible degradation ofits environment with a view to give effect to the principles of sustainabledevelopment, inter-generational equity and the public trust doctrine inexercise of powers conferred by Section 3(2)(v) of the EP Act.

12. The NGT then proceeded to deal with individual sites underconsideration. The subject matter of the present appeals pertains to anentry in Table 16 of the Expert Committee Report. Table 16 is titled asfollows:

“Suitability of 10 identified sites within Mount Abu ESZ as reviewedby the expert committee based on the site visit/ground verificationas well as interactions with the local residents/Mount AbuMunicipality officials/Town Planning Department officials/otherstakeholders during 16-17 January 2020”

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AThe evaluation of the site in question, i.e., the appellant’s land, istabulated in Table 16 as follows:

BCDEF

13. The NGT noted that the above site (“near STP Plant”) hasnot been found suitable for construction on considerations based on thewild life eco-system. The NGT also accepted the view of the ExpertGCommittee that the conversion of green areas into non-green areas shouldnot be allowed, except in exceptional situations mentioned in the Report,and that the STP must be duly maintained. The NGT, while acceptingthe Expert Committee Report, thus directed that the ZMP 2030 shouldbe brought in conformity within three months.

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14. The findings of the NGT in relation to appellant’s land werechallenged by the appellant in a review application, which was rejectedon 29 July 2021. This has led to the present appeals.

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D Submissions of counsel

15. Mr Mukul Rohatgi, Senior Counsel appearing on behalf of theappellant has urged two submissions:

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(i) Firstly, the NGT, being an adjudicatory body constituted bythe NGT Act, is vested with limited jurisdiction under Section14 to deal with a substantial question of environment arisingout of the statutes enumerated in Schedule I to the NGTAct. The NGT had acted beyond its jurisdiction in directingCthe amendment of the ZMP 2030; and

(ii) Secondly, on merits:

a.The Expert Committee had prepared a draft reportin July 2020[15], which was not placed before the NGTand was obtained by the appellant through a Right toDInformation request on 1 February 2021. In the DraftReport, Table 23 pertains to the suitability of tenidentified sites within the Mount Abu ESZ and itcontained a column containing remarks on the bio-diversity at each of these locations. In this backdrop,Eit was submitted that the appellant’s land was shownto be encompassed by the movement of wild life,more specifically, the sloth bear and panther. In thiscontext, it was urged that a similar situation existedin Table 23 with respect to another site (described as“Sunrise Housing Society”). However, in the ExpertFCommittee Report, the column on bio-diversity ismissing, which hides crucial information on the basisof which the final recommendations were made. Theappellant alleges that the column on bio-diversity ismissing because the Expert Committee Report wasGmanipulated to favor others over the appellant; and G

b.Whereas other similar sites have been grantedclearances in the Expert Committee Report, theappellant has not been cleared. In other words, the 15 “Draft Report”

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168SUPREME COURT REPORTS

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Asubmission is that the Report has proceeded on thebasis of a “pick and choose” process.

16. Opposing these submissions, Mr Amit Sibal, Senior Counselappearing on behalf of the respondents urged the following submissions:

(i) The ESZ Notification, which has been issued in pursuanceBof the intervention of this Court in T.N. Godavarman(supra), recognizes the ecological importance of Mount Abu,which is comprised of tropical dry deciduous forests at alower altitude and evergreen forests at higher altitudes;

(ii) The ZMP 2030 was issued in accordance with the ESZCNotification;

(iii) The Expert Committee included domain experts, townplanners and government officials who proceeded to identifythe issues with the specified sites in Table 16 after carefulanalysis and site visits; D(iv)The Expert Committee Report is founded on theprecautionary principle and as it is based on a scientificapproach, it must warrant deference;

(v) Schedule I to the NGT Act, inter alia, refers to the ForestConservation Act 1980[16] and the EP Act;E(vi)The ESZ notification has been issued in exercise of powersconferred by the EP Act;

(vii) The order of the NGT dated 7 November 2019 did notaccept the report of the initial Expert Committee, andreconstituted it. This order has attained finality since it wasFnot challenged by the appellants;

(viii) The appellant is relying upon the Draft Report, which wasnot in the public domain since it was an incomplete report.Moreover, the Draft Report contains endorsements as againstthe site in question to the effect that it was not suitable. Further,Gthere is a valid distinction between the site in question andothers (such as the “Sunset Road Scheme” and “SunriseHousing Society”) where construction has been allowed. Inthe case of the “Sunset Road Scheme”, the land use wasfor residential purposes while on the contrary, the appellant

has admitted to converting the site in question for tourismand residential buildings under the ZMP 2030; and

(ix) While on the one hand, the Expert Committee whichcomprises, inter alia, of environmental experts hadconsidered each of the sites in Table 16 of the ExpertCommittee Report, the appellant has brought on record noevidence to establish any error or perversity in the Reportwhich was accepted by the NGT.

E Jurisdiction of NGT

17. Sub-Section (1) of Section 14[17] of the NGT Act provides thatthe NGT shall have the jurisdiction over all civil cases where a substantialquestion relating to the environment, including the enforcement of anylegal right relating to the environment is involved and such question arisesout of the implementation of the enactments specified in Schedule I tothe NGT Act. Under sub-Section (2) of Section 14, the NGT isempowered to hear disputes set out in sub-Section (1), and pass ordersthereon. Section 15(1) further provides for the reliefs which may begranted by the NGT, and reads as follows:

“15. Relief, compensation and restitution.—(1) The Tribunalmay, by an order, provide,—

(a) relief and compensation to the victims of pollution and otherenvironmental damage arising under the enactments specified inthe Schedule I (including accident occurring while handling anyhazardous substance); (b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas, asthe Tribunal may think fit.”

17 “14. Tribunal to settle disputes.—(1) The Tribunal shall have the jurisdiction overall civil cases where a substantial question relating to environment (including enforcementof any legal right relating to environment), is involved and such question arises out ofthe implementation of the enactments specified in Schedule I.

(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.

(3) No application for adjudication of dispute under this section shall be entertained bythe Tribunal unless it is made within a period of six months from the date on which thecause of action for such dispute first arose:Provided that the Tribunal may, if it is satisfied that the applicant was prevented bysufficient cause from filing the application within the said period, allow it to be filedwithin a further period not exceeding sixty days.”

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A18. Among the statutes which are delineated in Schedule I are theFC Act (Entry 3) and the EP Act (Entry 5). There can be no manner ofdoubt that the original application filed by the first respondent before theNGT in the present case implicated a substantial question relating to theenvironment. The ‘substantial question’ arose from the provisionscontained in the ESZ Notification in relation to the ESZ in Mount Abu.BThe ESZ Notification traces its origin to the EP Act, under which theUnion Government through MoEF&CC is empowered to issue it. In theexercise of its jurisdiction, the NGT is empowered under Section 15(1)(c)to provide for the restoration of the environment in such area or areas.The ESZ Notification in Clause 3(1) provides for the ZMP for the ESZCin this context. Assessing the conformity of the ZMP 2030 with theterms of the ESZ Notification is clearly within the remit of the NGT.

19. In Mantri Techzone (P) Ltd. v. Forward Foundation[18], athree-Judge Bench of this Court noted that Section 15(1)(c) of the NGTAct affords broad powers to the NGT. Speaking for the Court, Justice SDAbdul Nazeer held:

“43. Section 15(1)(c) of the Act is an entire island of power andjurisdiction read with Section 20 of the Act. The principles ofsustainable development, precautionary principle and polluter pays,propounded by this Court by way of multiple judicialEpronouncements, have now been embedded as a bedrock ofenvironmental jurisprudence under the NGT Act. Therefore,wherever the environment and ecology are being compromisedand jeopardized, the Tribunal can apply Section 20 for takingrestorative measures in the interest of the environment.”F20. In another recent judgment in Municipal Corporation ofGreater Mumbai v. Ankita Sinha and Others[19], a three-Judge Benchof this Court held that the NGT can also exercise suo motu jurisdiction.While elaborating on the jurisdiction of the NGT in general, JusticeHrishikesh Roy held:

G“27. The paragraph 2 of the Statement of Objects and Reasons[of the NGT Act] refers to the United Nations Conference on theHuman Environment held at Stockholm in June 1972 which calledupon governments and peoples to exert common efforts for the 18 (2019) 18 SCC 494H19 2021 SCC OnLine SC 897

preservation and improvement of the human environment when itinvolved people and for their posterity. Therefore, the municipallaw enacted with such a laudatory objective of not only preventingdamage to the environment but also to protect it, must be providedwith the wherewithal to discharge its protective, preventive andremedial function towards protection of the environment. Themandate and jurisdiction of the NGT is therefore conceivedto be of the widest amplitude and it is in the nature of a suigeneris forum.

[…]

36. The laudatory objectives for creation of the NGT would imploreus to adopt such an interpretive process which will achieve thelegislative purpose and will eschew procedural impediment or soto say incapacity. The precedents of this Court, suggest aconstruction which fulfills the object of the Act [SarahMathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC62, New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008)3 SCC 279]. The choice for this Court would be to leantowards the interpretation that would allow fructification ofthe legislative intention and is forward looking. Theprovisions must be read with the intention to accentuatethem, especially as they concern protections of rights underArticle 21 and also deal with vital environmental policy andits regulatory aspects.

[…]

38. While on the statutory provisions, it is seen that the CentralGovernment has framed the National Green Tribunal (Practice &Procedure) Rules, 2011 (for short “the NGT Rules”). For ourpurpose, Rule 24 is important which reads thus:

“24. Order and directions in certain cases - The Tribunal maymake such orders or give such directions as may be necessary orexpedient to give effect to its order or to prevent abuse of itsprocess or to secure the ends of justice.”

39. The said Rules make it clear that the NGT has beengiven wide discretionary powers to secure the ends ofjustice. This power is coupled with the duty to be exercisedfor achieving the objectives. The intention understandably AB

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Abeing to preserve and protect the environment and thematters connected thereto.

40. By choosing to employ a phrase of wide import, i.e. securethe ends of justice, the legislature has nudged towards a liberalinterpretation. Securing justice is a term of wide amplitude andBdoes not simply mean adjudicating disputes between two rivalentities. It also encompasses inter alia, advancing causes ofenvironmental rights, granting compensation to victims ofcalamities, creating schemes for giving effect to theenvironmental principles and even hauling up authoritiesfor inaction, when need be.

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41. Moreover, unlike the civil courts which cannot travel beyondthe relief sought by the parties, the NGT is conferred with powerof moulding any relief. The provisions show that the NGT isvested with the widest power to appropriate relief as maybe justified in the facts and circumstances of the case, evenDthough such relief may not be specifically prayed for by theparties.”

21. The NGT has not acted in excess of or beyond its jurisdictionin testing ZMP 2030 on the anvil of the ESZ Notification. Having foundEthat the report of the earlier Expert Committee appointed by it was notacceptable while adjudicating on the issue on 7 November 2019, theNGT constituted another Expert Committee. The Committee comprisedof experts in the area of the environment as well as representatives ofthe CPCB and the Rajasthan Pollution Control Board. The ExpertCommittee was tasked with submitting a report to the NGT to aid it inFdischarging its functions of assessing the conformity of the ZMP 2030with the terms of the ESZ Notification. On the submission of the ExpertCommittee Report, the NGT heard objections to it and delivered areasoned order on why it was accepting the recommendations made inthe Report. Hence, there is no merit in the submission that the NGT hasGacted beyond its jurisdiction.

F Merits of Expert Committee Report

22. The second limb of the appellant’s submission proceeds onmerits. There has been a misconceived attempt on the part of theappellant to advert to the Draft Report which was prepared by the ExpertHCommittee. The Draft Report was in the realm of an internal document

and was not in the public domain. Evidently, the Draft Report was asubject matter of deliberations, and it is only the final report which wassubmitted to the NGT that represented the views of the ExpertCommittee. Hence, there is no merit in the appellant’s plea which isbased on the Draft Report.

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23. The Expert Committee Report has carefully analyzed ten sitesin Table 16. Since the appellant’s plea of discrimination is based on theobservation pertaining to the “Sunset Road Scheme” and “SunriseHousing Society”, it would be material to extract the observations of theExpert Committee on the above two sites. The relevant part of Table 16in relation to those sites is extracted below:

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A24. From the above extract, it is evident that the land used by theSunset Road Scheme is described to be residential (partly built, partlyvacant) and as regards the Sunrise Housing Society, the land use isdescribed to be vacant. As regards the disputed site in question in thisappeal (“near STP plant”), the Expert Committee has furnished validreasons for determining that construction must not be allowed so as toBpreserve the eco-system of the region. The Expert Committee has notedthat while the proposed site for residential buildings covers the land oflow slopes which is stable, it also covers lands with a high slope domainwhich are not suitable for construction. At places with a high slope domain,the landscape was noted to be fragile in terms of soil erosion. Further,Cthe Expert Committee opined that the proposed tourism facility centremay disturb the wild life eco-system. Additionally, although the low slopedomain may be suitable for construction, the site is a habitat for wildlifeand footprints of the sloth bear were also observed during the field visit.It was in this context that the Expert Committee determined thatconstruction must not be allowed on the site to preserve the eco-system.DIn comparison, the observations contained in Table 16 with reference tothe “Sunset Road Scheme” and the “Sunrise Housing Society” sitesclearly indicate that there is no discrimination against the appellant sincethere is a material difference in the location and suitability of the sitesfor construction.E

G Precautionary Principle

25. The report of the Expert Committee is consistent with theprecautionary principle. The report has hence been correctly acceptedby the NGT since it is mandated to follow the precautionary principleunder Section 20 of the NGT Act. Section 20 of the NGT Act statesFthus:

“20. Tribunal to apply certain principles.—The Tribunal shall,while passing any order or decision or award, apply the principlesof sustainable development, the precautionary principle and thepolluter pays principle.”G

26. The precautionary principle finds its clearest elaboration inPrinciple 15 of the Rio Declaration on Environment and Development1992, which states:

“In order to protect the environment, the precautionary approachshall be widely applied by States according to their capabilities.H

Where there are threats of serious or irreversible damage, lack offull scientific certainty shall not be used as a reason for postponingcost-effective measures to prevent environmental degradation.”

27. In M.C. Mehta v. Union of India[20], a two-Judge Bench ofthis Court noted the import of this principle in Indian jurisprudence byhighlighting that it requires the State to act for preventing actualenvironmental harm, even in the face of scientific uncertainty. The Courtheld:

“48. Development and the protection of environment are notenemies. If without degrading the environment or minimisingadverse effects thereupon by applying stringent safeguards, it ispossible to carry on development activity applying the principlesof sustainable development, in that eventuality, development hasto go on because one cannot lose sight of the need for developmentof industries, irrigation resources and power projects etc. includingthe need to improve employment opportunities and the generationof revenue. A balance has to be struck…Principle 15 of theRio Conference of 1992 [Ed.: Cited in (1999) 2 SCC 718,733 in para 33] relating to the applicability of precautionaryprinciple, which stipulates that where there are threats ofserious or irreversible damage, lack of full scientificcertainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation,is also required to be kept in view. In such matters, many atimes, the option to be adopted is not very easy or in astraitjacket. If an activity is allowed to go ahead, there maybe irreparable damage to the environment and if it isstopped, there may be irreparable damage to economicinterest. In case of doubt, however, protection ofenvironment would have precedence over the economicinterest. Precautionary principle requires anticipatory actionto be taken to prevent harm. The harm can be preventedeven on a reasonable suspicion. It is not always necessarythat there should be direct evidence of harm to theenvironment.”

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A28. In Research Foundation for Science Technology NationalResource Policy v. Union of India[21], a two-Judge Bench of this Courtnoted that the precautionary principle is part of the Indian jurisprudence,arising from Articles 47, 48-A and 51-A(g) of the Constitution. The Courtheld:

B“16. The legal position regarding applicability of the precautionaryprinciple and polluter-pays principle which are part of the conceptof sustainable development in our country is now well settled. InVellore Citizens’ Welfare Forum v. Union of India [(1996) 5 SCC647] a three-Judge Bench of this Court, after referring to theprinciples evolved in various international conferences and to theCconcept of “sustainable development”, inter alia, held that theprecautionary principle and polluter-pays principle have nowemerged and govern the law in our country, as is clear from Articles47, 48-A and 51-A(g) of our Constitution and that, in fact, in thevarious environmental statutes including the EnvironmentD(Protection) Act, 1986, these concepts are already implied. Theseprinciples have been held to have become part of our law. Further,it was observed in Vellore Citizens’ Welfare Forum case [(1996)5 SCC 647] that these principles are accepted as part of thecustomary international law and hence there should be no difficultyin accepting them as part of our domestic law…”E29. This position has been reiterated by a three-Judge Bench ofthis Court in Hospitality Assn. of Mudumalai v. In Defence ofEnvironment & Animals[22]. The Court has held:

“39…As was held by this Court in M.C. Mehta (Badkhal &FSurajkund Lakes Matter) v. Union of India [M.C. Mehta (Badkhal& Surajkund Lakes Matter) v. Union of India, (1997) 3 SCC 715]the “precautionary principle” has been accepted as a partof the law of our land. Articles 21, 47, 48-A and 51-A(g) ofthe Constitution give a clear mandate to the State to protectand improve the environment and to safeguard the forestsGand wildlife of the country. It is the duty of every citizen ofIndia to protect and improve the natural environmentincluding forests and wildlife and to have compassion for 21 (2005) 10 SCC 510H22 (2020) 10 SCC 589

living creatures. The precautionary principle makes itmandatory for the State Government to anticipate, preventand attack the causes of environmental degradation. In thislight, we have no hesitation in holding that in order to protect theelephant population in the Sigur Plateau region, it was necessaryand appropriate for the State Government to limit commercialactivity in the areas falling within the elephant corridor.”

30. In Municipal Corporation of Greater Mumbai (supra),this Court elaborated on the precautionary principle in the following terms:

“79. The principle set out above must apply in the widestamplitude to ensure that it is not only resorted to foradjudicatory purposes but also for other ‘decisions’ or‘orders’ to governmental authorities or polluters, when theyfail to “to anticipate, prevent and attack the causes ofenvironmental degradation” [Vellore Citizens (supra), S.Jagannathan v. Union of India, (1997) 2 SCC 87, KarnatakaIndustrial Areas Development Board v. C Kenchappa, (2006)6 SCC 371]. Two aspects must therefore be emphasized i.e.that the Tribunal is itself required to carry out preventiveand protective measures, as well as hold governmental andprivate authorities accountable for failing to upholdenvironmental interests. Thus, a narrow interpretation forNGT’s powers should be eschewed to adopt one which allowsfor full flow of the forum’s power within the environmental domain.

80. It is not only a matter of rhetoric that the Tribunal is to remainever vigilant, but an important legal onus is cast upon it to act withpromptitude to deal with environmental exigencies. Theresponsibility is not just to resolve legal ambiguities but to arrive ata reasoned and fair result for environmental problems which areadversarial as well as nonadversarial.”

31. The precautionary principle requires the State to act in advanceto prevent environmental harm from taking place, rather than by adoptingmeasures once the harm has taken place. In deciding when to adoptsuch action, the State cannot hide behind the veil of scientific uncertaintyin calculating the exact scientific harm. In H.P. Bus-Stand A

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AManagement & Development Authority v. Central EmpoweredCommittee[23], a three-Judge Bench of this Court emphasised the dutyof the State to create conceptual, procedural and institutional structuresto guide environmental regulation in compliance with the “environmentalrule of law”. The Court noted that such regulation must arise out of amuti-disciplinary analysis between policy, regulatory and scientificBperspectives. The Court held:

“49. The environmental rule of law, at a certain level, is a facet ofthe concept of the rule of law. But it includes specific featuresthat are unique to environmental governance, features which aresui generis. The environmental rule of law seeks to createCessential tools — conceptual, procedural and institutionalto bring structure to the discourse on environmentalprotection. It does so to enhance our understanding ofenvironmental challenges — of how they have been shapedby humanity’s interface with nature in the past, how theyDcontinue to be affected by its engagement with nature inthe present and the prospects for the future, if we were notto radically alter the course of destruction which humanity’sactions have charted. The environmental rule of law seeksto facilitate a multi-disciplinary analysis of the nature andconsequences of carbon footprints and in doing so it bringsEa shared understanding between science, regulatorydecisions and policy perspectives in the field ofenvironmental protection. It recognises that the “law”element in the environmental rule of law does not makethe concept peculiarly the preserve of lawyers and Judges.FOn the contrary, it seeks to draw within the fold allstakeholders in formulating strategies to deal with currentchallenges posed by environmental degradation, climatechange and the destruction of habitats. The environmentalrule of law seeks a unified understanding of these concepts.There are significant linkages between concepts such asGsustainable development, the polluter pays principle andthe trust doctrine. The universe of nature is indivisible andintegrated. The state of the environment in one part of the earthaffects and is fundamentally affected by what occurs in another

part. Every element of the environment shares a symbioticrelationship with the others. It is this inseparable bond and connectwhich the environmental rule of law seeks to explore andunderstand in order to find solutions to the pressing problems whichthreaten the existence of humanity. The environmental rule oflaw is founded on the need to understand the consequencesof our actions going beyond local, State and nationalboundaries. The rise in the oceans threatens not justmaritime communities. The rise in temperatures, dilutionof glaciers and growing desertification have consequenceswhich go beyond the communities and creatures whosehabitats are threatened. They affect the future survival ofthe entire eco-system. The environmental rule of lawattempts to weave an understanding of the connections inthe natural environment which make the issue of survivala unified challenge which confronts human societieseverywhere. It seeks to build on experiential learnings ofthe past to formulate principles which must become thebuilding pillars of environmental regulation in the presentand future. The environmental rule of law recognises theoverlap between and seeks to amalgamate scientificlearning, legal principle and policy intervention.Significantly, it brings attention to the rules, processes andnorms followed by institutions which provide regulatorygovernance on the environment. In doing so, it fosters aregime of open, accountable and transparent decisionmaking on concerns of the environment. It fosters theimportance of participatory governance — of the value ingiving a voice to those who are most affected byenvironmental policies and public projects. The structuraldesign of the environmental rule of law composes ofsubstantive, procedural and institutional elements. The toolsof analysis go beyond legal concepts. The result of the frameworkis more than just the sum total of its parts. Together, the elementswhich it embodies aspire to safeguard the bounties of nature againstexistential threats. For it is founded on the universal recognitionthat the future of human existence depends on how we conserve,protect and regenerate the environment today.”

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AThe Court also acknowledged the difficulty faced in implementingsuch processes in the face of scientific uncertainty. However, it notedthat Courts cannot be stupefied into inaction due to scientific uncertaintybut must take decisions to protect the environment based on whateverinformation is available. The Court held:

B“53. However, even while using the framework of an environmentalrule of law, the difficulty we face is this — when adjudicatingbodies are called on to adjudicate on environmental infractions,the precise harm that has taken place is often not susceptible toconcrete quantification. While the framework providesvaluable guidance in relation to the principles to be kept inCmind while adjudicating upon environmental disputes, itdoes not provide clear pathways to determine the harmcaused in multifarious factual situations that fall for judicialconsideration. The determination of such harm requiresaccess to scientific data which is often times difficult to comeDby in individual situations.

54…The point, therefore, is simply this — the environmental ruleof law calls on us, as Judges, to marshal the knowledge emergingfrom the record, limited though it may sometimes be, to respondin a stern and decisive fashion to violations of environmental law.EWe cannot be stupefied into inaction by not having access to complete details about the manner in which anenvironmental law violation has occurred or its fullimplications. Instead, the framework, acknowledging theimperfect world that we inhabit, provides a roadmap to dealwith environmental law violations, an absence of clearFevidence of consequences notwithstanding.”

32. The precautionary principle envisages that the State cannotrefuse to act to preserve the environment simply because all the scientificGdata may not be available. If there is some data to suggest thatenvironmental degradation is possible, the State must step into action toprevent it from taking place. Indeed, it was this thought that compelledthis Court in T.N. Godavarman (supra) to direct the State to identifyESZs across India, so that steps can be taken to identify areas wherethere is a greater possibility of environmental degradation and a plan isH

put in place to prevent such degradation before it actually makes theharm irreversible.

33. Mount Abu was identified as an ESZ, under the ESZNotification. The reason for doing this is because the State recognizedthat environmental degradation of the fragile eco-system is a realpossibility in Mount Abu and the area surrounding it if action is notimmediately taken. A significant amount of soil erosion, air and waterpollution has already taken place due to the developmental activities.The recitals in the ESZ Notification recognize the ecological importanceof Mount Abu since it contains both tropical dry deciduous forests andevergreen forests; its flora and fauna comprise of several endemic andrare species; and it also contains not only natural heritage such as Nakkilake but also man-made heritage sites such as the Dilwara temples. TheESZ notification required, inter alia, the State of Rajasthan to preparethe ZMP 2030, so as to ensure that future development activity in theregion could be planned while accounting for potential environmentaldegradation, following the precautionary principle. The ESZ notificationis backed by a statutory mandate of Union legislation. The Notificationis an enforceable charter for the preservation of the fragile eco-systemof Mount Abu. Every authority is duty bound to comply with its termsand any action in breach must peril invalidation.

H Conclusion

34. Therefore, we hold that the NGT’s judgment and order dated10 March 2021 and 29 July 2021 correctly directed the ZMP 2030 to bemodified to bring it into conformity with the ESZ Notification and theprecautionary principle. Specifically, it correctly upheld the ExpertCommittee Report’s recommendation that no construction should beallowed to take place on the appellant’s land.

35. For the above reasons, we have come to the conclusion thatthere is no merit in the present appeal and it shall accordingly standdismissed.

Ankit Gyan

Appeal dismissed.

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