THE DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA versus AAM AADMI LOKMANCH & ORS. on 14 July 2020

[2020] 6 S.C.R.

ATHE DIRECTOR GENERAL (ROAD DEVELOPMENT)NATIONAL HIGHWAYS AUTHORITY OF INDIA

v.

AAM AADMI LOKMANCH & ORS.

B(Civil Appeal No. 6932 of 2015)

JULY 14, 2020

[R. F. NARIMAN, S. RAVINDRA BHAT ANDV. RAMASUBRAMANIAN, JJ.]

National Green Tribunal Act, 2010 – ss. 14, 15, 17 andCSchedules – Environment Protection Act, 1986 – Jurisdiction of theNGT – Victim was driving a car with her young daughter on theHighway – An over-mining resulted in the destruction of a small hillby the side of the National Highway – The resultant debris and apart of the hill collapsed and slid down to the road, claiming theDlives of the victim and her daughter – The NGT imposed a jointpenalty of Rs.50 lakhs for causing environmental damage on NHAIand the persons who carried out the cutting of the hill – Further,they were also directed to pay jointly and severally amount ofRs. 15 lakhs towards compensation to the legal representatives ofthe deceased and her daughter – Also, an amount of Rs. 10 lakhsEwas ordered to be deposited for plantation of trees in order to restoredamage caused to environment – It was contended that NGT hasnarrow and circumscribed jurisdiction in regard to issuing directionsas well as ordering compensation – Held: A conjoint reading of ss.14, 15, and the Schedules would lead one to infer that the NGT hasFcircumscribed jurisdiction to deal with, adjudicate, and whereverneeded, direct measures such as payment of compensation, or makerestitutionary directions in cases where the violation (i.e. harmcaused due to pollution or exposure to hazards, etc.) are the resultof an infraction of any enactment listed in the first schedule –However, the wide language of s.15(4) enables the Tribunal (NGT)Gto direct, inter alia, payment of compensation,”having regard to thedamage to public health, property and environment” – Thisinterpretation is borne out by a reading of s.17(2) regarding theapportionment of liability for payment of compensation – Underss.15(1)(b) and 15(1)(c), the NGT has the power to make directionsH

and provide for “restitution of property damaged and for restitutionof the environment for such area as the Tribunal may think fit” –Further, s.17(1) refers to first schedule enactments, it talks of deathof, or injury to, any person “or damage to any property orenvironment” which “has resulted from an accident or the adverseimpact of an activity or operation or process, under any enactment”in Schedule I – One of the enactments is Environment ProtectionAct, 1986 – Environmental clearance is necessary even for minormineral extraction where the area of operation is less than 5 hectares– In the instant case, there was violation of EPA, because there wasmining lease covered an area in excess of 5 hectares – There isnothing on record to show that the relevant clearance was obtained– Therefore, the facts of the present case disclose violation of theEPA – This means that the NGT’s jurisdiction u/s. 15(1)(a) and s.17cannot be disputed and NGT correctly assumed jurisdiction, havingregard to the nature of the accident in the facts of the case.

National Green Tribunal Act, 2010 – Environment ProtectionAct, 1986 – National Highways Act, 1956 – National HighwaysAuthority of India Act, 1988 – An over-mining resulted in thedestruction of a small hill by the side of the National Highway –The resultant debris and a part of hill collapsed and slid down tothe road, claiming lives of a woman and her daughter – NationalGreen Tribunal directed payment of compensation towards deathand damages towards restitution – Propriety of – Held: A statutorycorporation or local authority can be held liable in tort for injuryoccasioned on account of omission to oversee, or defectivesupervision of its activities contracted out to another agency – Inthe instant case, having regard to the duty imposed on the NHAI byvirtue of ss. 4 and 5 of the Highway Act r/w. s. 16 of the NHAI Act,there can be no manner of doubt that the NHAI was responsible forthe maintenance of the highway, including the stretch upon whichaccident occurred – The report of Sub-Divisional Officer highlightedthe deficiencies, also NHAI’s correspondence with the personcarrying out extraction of minor minerals by cutting hills, revealthat authorities were aware of the danger and likelihood of risk tohuman life – The failure of the NHAI to ensure remedial action andlikewise failure by person carrying out mineral extraction, to takemeasures to prevent the accident, prima facie disclose their liability– Therefore, the directions in this regard by the NGT, making NHAI

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Aand the person carrying out extraction of mineral to pay Rs. 15lakhs to legal representatives of the deceased is justified – Further,the restitutionary order by the NGT, cannot be faulted.

National Green Tribunal Act, 2010 – Environment ProtectionAct, 1986 – National Green Tribunal concluded that no developmentBand construction should be carried out within 100 feet of a ‘lowestslope i.e., incline of any hill within its territorial limits, as well ashill-tops’ – Propriety of – Held: The decisions of the Supreme Courtin All Dimasa Students Union case, Mantri Technoze Pvt. Ltd. Case,the Hanuman Laxman Aroskar case and the Tamil Nadu PollutionControl Board case all show that the NGT resorted to the appointmentCof technical and scientific experts in the relevant field, who studiedthe issue, made site inspections, and furnished reports – Such reportswere subjected to discussion by the parties before the NGT, whowere also given the opportunity of objecting to or makingrepresentations against such reports – Based on a final considerationDof all these materials, and the submissions of parties before it, theNGT proceeded to issue directions – However, in the instant case,what NGT had before it was the report of the SDM and a reportcommissioned about the nature of the incident – Based on theselimited inputs, without any rationale and based on no scientific ortechnical evidence, or experts’ opinion, the Tribunal concluded thatEdevelopment and construction should not be carried out within 100feet of ‘lowest slope i.e. incline of any hill within its territorial limits,as well as hill-tops’ – As a result, the directions issued by the Tribunalwere improper and procedurally indefensible – Therefore, the saiddirections are set aside.F

National Green Tribunal Act, 2010 – Environment ProtectionAct, 1986 – The order/ notification dated 14.11.2017 of the State ofMaharashtra, issued u/s. 154 of the Maharashtra Regional andTown Planning Act, 1966 – Legality of – Held: The State ofMaharashtra has not shown any material or file containing theGreasons behind the directive of 14.11.2017 – These directions wereconsequential to, and solely based on the directions of the NGT –The NGT directions with regard to no development and constructionwithin 100 feet of a ‘lowest slope i.e., incline of any hill within itsterritorial limits, as well as hill tops’, were not based on any scientificevidence or report of any technical expert – The impugnedH

notification does not specify what constitutes ‘hills’ – This makesthe directions not only vague but also makes them arbitrary as theycan be applied at will by the concerned authorities – These directionsin the notification, only underlines the lack of any application ofmind on the part of the State – Consequently the directions issuedunder the notification u/s. 154 (dated 14.11.2017) are quashed.

Disposing of the appeals, the Court

HELD: Jurisdiction of the NGT

1. A conjoint reading of Sections 14, 15, and the Schedulesof National Green Tribunal Act, 2010 would lead one to infer thatthe NGT has circumscribed jurisdiction to deal with, adjudicate,and wherever needed, direct measures such as payment ofcompensation, or make restitutionary directions in cases wherethe violation (i.e. harm caused due to pollution or exposure tohazards, etc.) are the result of infraction of any enactment listedin the first schedule. Yet, that interpretation, in the opinion ofthis court, is not warranted. [Para 36][1085-D-E]

2. The reference to Schedule II, in Section 15(4) is notmerely by way of events which are actionable in relation to harmcaused due to the acts resulting in violation of any enactmentunder Schedule I. The wide language of that provision enablesthe tribunal (NGT) to direct, inter alia, payment of compensation,“having regard to the damage to public health, property, andenvironment”. This interpretation is borne out by a reading ofSection 17(2) regarding the apportionment of liability for paymentof compensation. [Para 37][1085-F]

3. It is noteworthy that this court clearly held that underSection 15(1)(b) and 15(1)(c), the NGT has the power to makedirections and provide for “restitution of property damaged andfor restitution of the environment for such area or areas as theTribunal may think fit. It is noteworthy that Section 15(1)(b) & (c)have not been made relatable to Schedule I enactments of the Act.”Though a direction for compensation under Section 15(1)(a) isrelatable to violation of enactments specified under the firstSchedule, the power under Section 17 appears to be cast in widerterms. [Para 43][1089-F]

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A4. Section 17 (1) refers to first schedule enactments; it talksof the death of, or injury to, any person “or damage to any propertyor environment”which “has resulted from an accident or theadverse impact of an activity or operation or process, under anyenactment” in Schedule I. One of the enactments is theEnvironment Protection Act, 1986 (EPA). [Para 44][1089-G-H]B

5. By virtue of a notification dated 14.08.2018 published bythe Government, environmental clearance is necessary even forminor mineral extraction where the area of operation is less than5 hectares; the procedure has been outlined under Appendix XIof that notification. Clearly, therefore, mining of even minorCminerals, when resorted to on a large scale (i.e., where morethan a few leases or permits are granted), has a potential impacton the environment. In the facts of this case, the State had grantedno less than 62 minor mineral permits in the vicinity;unauthorized activity (in the form inter alia, of over-mining andDpiling of debris) had resulted in the imposition of penalty. Clearly,there was violation of the EPA in the present case, because theperson carrying out mineral extraction i.e. fifth respondent'smining lease covered an area in excess of 5 hectares; it fell withinthe regulatory notification of 2006. There is nothing on record toshow that the relevant clearance was obtained by fifth respondent.EPlainly, therefore, the facts of the present case disclosed violationof the EPA- an enactment listed in Schedule I of the NGT Act.This meant that the NGT’s jurisdiction under Section 15(1)(a)and Section 17 could not have been disputed. [Para 50][1096-F-G; 1097-A-B]F

6. The EPA effectively enunciates the critical legislativepolicy for environment protection. It changes the narrative andemphasis from a narrow concept of pollution control to a widerfacet of environment protection. The expansive definition ofenvironment that includes water, air and land “and the interrelationGwhich exist among and between water, air and land, other humancreatures, plants, micro-organisms and property” gives anindication of the wide powers conferred on the CentralGovernment. A wide net is cast over the environment relatedlaws. The EPA also empowers the central government to H

comprehensively control environmental pollution by industrialand related activities. For these reasons, and in view of the abovediscussion, it is held that the NGT correctly assumed jurisdiction,having regard to the nature of the accident in the facts of thiscase. [Para 51][1097-D-F]

Was the direction to pay compensation towards death, anddamages towards restitution justified?

7. Having regard to the duty imposed on the NHAI by virtueof Sections 4 and 5 of the National Highways Act, 1956 read withSection 16 of the NHAI Act, there can be no manner of doubtthat the NHAI was responsible for the maintenance of the highway,including the stretch upon which the accident occurred. Thereport of the sub-divisional officer clearly shows that inspectionreports were furnished to the NHAI shortly before the incident,highlighting the deficiencies; also, the NHAI’s correspondencewith fifth respondent, and the local administration, reveal that itwas aware of the danger and likelihood of risk to human life, andthe foreseeability of the event that actually occurred later. Further,letters addressed by the local administration and the NHAI tofifth respondent similarly show that it was incumbent upon him totake remedial action. The failure of the NHAI to ensure remedialaction, and likewise the failure by fifth respondent to takemeasures to prevent the accident, prima facie, disclose theirliability. [Para 65][1110-G-H; 1111-A-B]

8. The section 18(1) clearly implies that an applicationwithout impleading the legal heirs cannot be rejected. At the most,the tribunal has to implead all legal heirs. In the present case,that procedure was not followed. However, the legal heirs haveinstituted a suit. The ends of justice would be served if a directionis issued to the concerned Court to revive and continue hearingthat suit. The directions in this regard by the NGT, towardspayment of compensation are to be regarded as indicative of aprima facie determination. Consequently, the direction to theNHAI and fifth respondent, jointly making them liable to pay 15lakhs is justified. It is clarified that the civil suit will now proceed,and based on evidence, the court would finally decide the issueof liability, and make such further consequential orders or decreesas may be found necessary in this regard, towards apportioning A

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Aof liability of the NHAI, fifth respondent, the state or any otherparty (including the concessionaire). This court’s order shall notbe treated as conclusive; the trial court shall independentlyproceed to evaluate the evidence and hear the parties on themerits of their submissions. The restitutionary order by the NGT,directing payment by fifth respondent and NHAI of 10 lakhs too,Bin this court’s opinion, cannot be found to be at fault. It is upheld.The NHAI and fifth respondent shall comply with the directionsof the NGT and deposit the sum of 15 lakhs with the said courtwithin four weeks, in equal proportion. The sum 10 lakhs shallbe deposited in the same proportion, in court, to be disbursed toCthe state government for restoring the environment and carryingout afforestation/planting of trees, etc. [Para 67][1111-F-H; 1112-A-C]

Correctness of NGT’s directions contained in Para 17 (e)of its impugned order, and the legality of the order/notification ofDthe State of Maharashtra, issued under Section 154, MaharashtraRegional and Town Planning Act, 1966.

9. Turning next to the question of the correctness of thegeneral directions contained in Para 17(e) of the NGT’s order,this court has no manner of doubt that such directions wereEimproper and not justified in the facts of this case. What the NGThad before it, was the report of the SDM and a reportcommissioned about the nature of the incident. Based on theselimited inputs, the tribunal concluded- without any rationale andbased on no scientific or technical evidence, or experts’ opinion,that development and construction should not be carried outFwithin 100 feet of a “lowest slope i.e. incline of any hill within itsterritorial limits, as well as hill-tops”. The decisions of this court,including the All Dimasa Students Union case; Mantri TechnozePvt. Ltd case; the Hanuman Laxman Aroskar case; and the TamilNadu Pollution Control Board case all show that the NGT resortedGto the appointment of technical and scientific experts in therelevant field, who studied the issue, made site inspections andfurnished reports. Such reports were subjected to discussion bythe parties before the NGT, who were also given the opportunityof objecting to or making representations against such reports.Based on a final consideration of all these materials, and theH

DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYSAUTH. OF INDIA v. AAM AADMI LOKMANCH

submissions of parties before it, the NGT proceeded to issuedirections. This procedure was wholly overlooked by the NGT inthe present case. As a result, it is held that the said tribunal’sdirections were improper and are procedurally indefensible. Thedirections contained in Para 17(e) are therefore set aside.[Para 76][1118-G-H; 1119-A-C]

10. In the present case, the State of Maharashtra has notshown any material or file containing the reasons behind thedirective of 14.11.2017. It is not in dispute that the direction wasconsequential to, and solely based on the directions of the NGTin Para 17(e). As noticed earlier, those directions were not basedon any scientific evidence or report of any technical expert.Furthermore, even the impugned notification does not specifywhat constitutes “hills”, and how they can be applied in townsand communities set in undulating areas and hilly terrain. This isnot only vague, but makes the directions arbitrary as they can beapplied at will by the concerned authorities. More importantly,they amount to a blanket change of all regional and developmentplans. While such directions can be issued, if situations so warrant,such as in extraordinary or emergent circumstances, the completeabsence of any reasons as to why the State issued them, coupledwith the lack of any supporting expert report or input, renders itan arbitrary exercise. That they are based only on the NGT’sorders, only underlines the lack of any application of mind on thepart of the State, while issuing them. [Para 90][1130-E-G]

State of Tamil Nadu v. M/s. Hind Stone & Ors (1981) 2SCC 205 : [1981] 2 SCR 742; Lafarge Umiam Mining(Pvt.) Ltd. v. Union of India & Ors. (2011) 7 SCC338 : [2011] 7 SCR 954; State of Meghalaya and Ors.v. All Dimasa Students Union, Dima-Hasao DistrictCommittee & Ors. (2019) 8 SCC 177 : [2019] 8 SCR297; Mantri Technoze Pvt. Ltd. v Forward Foundation(2019) 18 SCC 494; M.C. Mehta v. Union of India(2004) 12 SCC 118 : [2004] 3 SCR 126; Deepak Kumarv. State of Haryana (2012) 4 SCC 629 : [2012] 4 SCR819; Municipal Corpn. of Delhi v. Sushila Devi (1999)4 SCC 317 : [1999] 2 SCR 1198; PTC India v. CentralElectricity Regulatory Commission (2010) 4 SCC 603 :

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[2010] 3 SCR 609; T. Vijayalakshmi v. Town PlanningMember (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534;Pune Municipal Corpn. v. Promoters and Builders Assn(2004) 10 SCC 796 : [2004] 2 Suppl. SCR 207;Machavarapu Srinivasa Rao v. Vijayawada, Guntur,Tenali, Mangalagiri Urban Development Authority(2011) 12 SCC 154 : [2011] 12 SCR 639; MIG CricketClub v. Abhinav Sahakar Education Society (2011) 9SCC 97 : [2011] 11 SCR 141; Shri. Sitaram Sugar MillsCompany v. Union of India (1990) 3 SCC 223 : [1990]1 SCR 909; Cellular Operators Association v. TelecomRegulatory Authority of India (2016) 7 SCC 703 : [2016]9 SCR 1 – relied on.

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Tamil Nadu Pollution Control Board v. Sterlite Industries(I) Ltd. & Ors. (2019) SCC OnLine SC 221; HanumanLaxman Aroskar v. Union of India (2019) 15 SCCD401 : [2019] 5 SCR 916; Hinch Lal Tiwari v. KamalaDevi (2001) 6 SCC 496 : [2001] 1 Suppl. SCR 23;Jitendra Singh v. Ministry of Environment & Ors (2019)SCC OnLine SC 1510; Rajkot Municipal Corpn. v.Manjulben Jayantilal Nakum (1997) 9 SCC 552 :[1997] 1 SCR 304; Vadodara Municipal CorporationEv. Purshottam V. Muranji (2014) 16 SCC 14 : [2014] 7SCR 810 – referred to.

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Diplock L.J. in Griffiths v. Liverpool Corporation [1967]1 Q.B. 374; Burnside v. Emerson [1968] 1 W.L.R.1490; Haydon v. Kent County Council [1978] Q.B. 343;Stovin v Wise (1996) 3 All ER 801; Gorringe v.Calderdale Metropolitan Borough Council (2004) 1WLR 1057; Robinson v. Chief Constable of WestYorkshire Police (2019) 2 All ER 1041; Yetkin v.Mahmood 2011 QB 827;Securities Exchange–Commission v. Chenery Corp. 332 U.S. 194 (1947) referred to.

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Case Law Reference

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DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYSAUTH. OF INDIA v. AAM AADMI LOKMANCH

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6932of 2015.

From the Judgment and Order dated 19.05.2015 of the NationalGreen Tribunal, (Western Zone), Bench, Pune in Application No. 04 of2014.

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With

Civil Appeal Nos.5971 of 2019, 4379 of 2018, 2741 of 2020, 6862of 2018, 2742 of 2020, 11803 of 2018, 2743, 2744 of 2020.

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P. S. Narashimha, Shyam Divan, Sidharth Dave, Sr. Advs.,Ms. Neetica Sharma, Dhruv Nayar, Ms. Aadti Tirpedi, M/s. M. V. Kini& Associates, Kunal Cheema, Vilas Giri, Ms. Aditi Parkhi, AbhimanyuBhandari, Ms. Roohina Dua, Cheitanya Madan, Naveen Kumar, SauravKirpal, Ankur Saigal, Mahesh Agarwal, Anshuman Srivastava, Anirudh H

ABhatia, Rishi Agrawala, Ms. Ayushi Amodh, Shaishir S. Divatia,Ms. Aashna Agrawal, E. C. Agrawala, Vijay Kumar Verma, Mata D.Sagar, Tarun Verma, Amol Chitale, Mrs. Pragya Baghel, Ms. ShilpaChouhan, Jitender Chaudhary, Shawahiq Siddiqui, Rajesh Singh, RahulChitnis, Aaditya A. Pande, Sachin Patil, Bhakti Vardhan Singh, NishantRamakantrao Katneshwarkar, Ms. Bharti Tyagi, Arvind S. Avhad, KarriBVenkata Reddy, Ms. Aparna Jha, V. N. Raghupathy, Manendra Pal Gupta,V. K. Verma, Rajesh Kumar, Advs. for the appearing parties.

Respondent-in-person

The Judgment of the Court was delivered byCS. RAVINDRA BHAT, J.

1. Leave granted in SLP (C) Nos. 28178/2018, 1706/2019, DiaryNo. 19018 of 2018 and 1632 of 2019. With consent of counsel for theparties, they were tagged with the companion civil appeals and heardfinally.D

2. On 06 June, 2013, when Ms. Vishakha Wadekar, was drivingher car with her young daughter, Sanskruti Wadekar she had no inklingthat danger lurked round the corner of the highway; over-mining at theheight of 75 x 30 ft, in Gut No. 112, resulted in the destruction of a smallhill by the side of the national highway. The resultant debris and a part ofEthe hill collapsed and slid down to the road, claiming the lives ofMs. Vishakha and her daughter. The directions made by the Pune benchof the National Green Tribunal, on an application by a registeredorganization, (the respondent in the appeal, the Aam Aadmi Lokmanch,hereafter “Lokmanch”) are the subject matter of the appeals (CA 6932/2015 by NHAI; CA 5971/2019; CA 11803/2018 and CA 6862/2018)Fbefore this court. The other appeals by special leave question thejudgments and orders of the Bombay High Court, which upheld theregulations framed pursuant to the order of the NGT. The High Courtnegatived the challenge to those regulations in the writ petitions presentedbefore it.G

3. The facts in brief are that the National Highways Authority ofIndia (hereafter “NHAI”) had entered into an agreement with M/s P.S.Toll Road (Pvt.) Ltd., a unit/undertaking of Reliance Infrastructure Ltd.(which is arrayed as the ninth respondent; PS Toll Road (Pvt.) Ltd.hereafter referred to as “the concessionaire”) on 10.03.2010 for theHmaintenance and operation of the Pune-Satara section of National Highway No. 4, to an extent of 140 kms. The scope of the agreementincluded construction of the project (i.e. the highway stretch) as well asits operation and maintenance for a period of 24 years. The agreementincluded stipulations mandating safety to the highway users (clause18.1.1). The NHAI was duty bound to appoint experienced safetyconsultants for carrying out safety audits of Project Highways (clause18.1.2), the expenditure for which was to be borne by the concessionaire(clause 18.1.3). An elaborate highway monitoring mechanism was alsocontemplated by the agreement (clause 19.1) through which by theseventh of each month, an independent engineer was to furnish a reportafter due inspection (of the operation and maintenance arrangements),containing defects or deficiencies (clauses 19.2). Additionally, theindependent engineer was to require the concessionaire to carry outspecified tests for confirming that the highway was operated inaccordance with applicable standards (clause 19.3). Other stipulationsincluded, inter alia, requirements that the concessionaire had to carryout remedial measures (Clause 19.4.1) within a period of 15 days afterreceipt of the report of the independent engineer. The concessionairewas put to terms in that if relevant repairs or remedial measures werenot undertaken, the NHAI could recover damages in terms of Clause17.8.[1]Another obligation cast on the concessionaire was to send a periodicreport of various occurrences, including “unusual occurrences on theProject Highway” such as death or injury to any person (clause 19.6),any obstruction, or “flooding of Project Highway”.

4. In the meanwhile, the fifth respondent (who has filed CA 5971/2019 against the NGT’s order, hereafter referred to as “Rathod”) on03.01.2011 applied to the Government of Maharashtra for a license to 1 In terms of Clause 19.4.2, the measure of damages which NHAI could recover wascalculable in terms of each days delay in complying with the remedial measures suggestedby the engineer, based on the “higher (a) 0.5% of the Average Daily Fee and (b) 0.1%of the cost of such repair or repair estimated by the Independent Engineer” The sameclause (17.8.1) stated that:

“Notwithstanding anything contained in this agreement, should the actual traffic exceedthe design capacity during any year or part thereof and the Concessionaire fails torepair or rectify any defect or deficiency set forth in the Maintenance Requirementswithin the period specified therein, it shall be deemed to be in breach of this agreementand the Authority shall be entitled from such date to recover damages, to be calculatedand paid for each day of the delay until the breach is cured, at the higher of (a) 5% (fivepercent) of Average daily fee and 1% (one percent) of the cost of such repair orrectification as estimated by the Independent Engineer, for the balance period of theconcession. The recovery of such damages shall be without prejudice to the rights ofthe Authority under this agreement, including the right of termination thereof.”

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Aextract minor minerals. This license was sought in respect of land bearingsurvey number 112A to look more to an extent of 5 acres and 93 cents.The license was granted by the appropriate authority of the government.By clause 1 of the terms of this license, the period of the license wastwo months; clause 5 stated that for extraction and minor minerals digging,work could not exceed more than 20 feet down side of the land surface.B

5. Apparently soon after the license was taken over, certaindemands were made regarding construction of a connecting road to thevillage. The materials on record by way of letters written to the localpanchayat are to the effect that as a result of construction of the highwayand due to the passage of time the existing road had been washed away.CConsequently, the 2 km stretch from the left side of the new tunnel goingup to the village was virtually non-existent. The panchayat requestedthat the road should be strengthened and widened.

6. On 31.01.2011, the local authorities of the State governmentissued a show cause notice to Rathod alleging that debris were storedDillegally on the site. It was alleged that this was contrary to Section 48 ofthe Maharashtra Land Revenue Code, 1966 (hereafter “land revenuecode”). Again, on 16.06.2011, the local panchayat issued a notice (whichis on the record) stating that as a result of mineral extraction, the naturalflow of rainwater was being obstructed. The notice also added that twoEheavy machines in non-performing condition were lying idle on the landand two JCB machines were also stationed there. Rathore evidentlyreceived these notices; this is attested by his replies to the Tehsildar andother local authorities. After obtaining a report from the local officials,the Tehsildar, Bhor issued an order directing payment of ` 1,271,200 byRathod for violation of the land revenue code on account of illegalFextraction and use of minor minerals.

7. This activity of excavation and piling of debris, did not gounnoticed on the part of NHAI; it wrote to the Collector of Pune, pointingout that:

“…large scale and indiscriminate excavation in the upper sideGhills of New Katraj Tunnel at both ends is in progress. Due tothis excavation, drainage system above and near tunnel hasbeen affected. This may lead to seepage of water inside tunnelroof thereby collapse of walls and ceiling of tunnel resultingin collapse of tunnel and may lead to major mishap. TheHcollapse in tunnel will block the entire traffic of NH4 from Mumbai/Pune to Bangalore and vice versa leading to chaoticsituation.”

The letter also mentioned specifically that Rathod had been notified;it sought action from the state government.

8. In the early hours of the morning of 6[th] June, 2013, due to themonsoon, there was heavy rainfall at Mauje Shindewadi Tehsil, Bhorand the surrounding areas. Water flowing through the hills at MaujeShindewadi entered the road near the octroi post of the Pune MunicipalCorporation, at Mauje Shindewadi Tehsil Bhor, District Pune, on NH-4,with great force. This created an obstacle in the form of a large sheet ofwater. Under these conditions, when the Alto car driven by VishakhaWadekar and her daughter Sanskruti, was obstructed, they alighted towade across to safety; however, the water gushed with great intensityand swept them away, resulting in their death. The resulting magisterialinquiry under Section 176, Code of Criminal Procedure resulted in areport dated 04.10.2013. The Sub-Divisional Magistrate who inquiredinto the incident appointed an expert, whose report was considered; healso visited the site and held several hearings. During the hearings,pursuant to notices issued to various parties, the statements of Rathod,the local police authorities, eyewitnesses (Abhay Arvind Ranade, VineetVasant George and relatives of the deceased), the Project Director(General Manager) of NHAI, the team leader of the independentengineering firm associated with checking quality of maintenance of thehighway, etc. were recorded.

9. Soon after the incident, the Lokmanch, through its president,filed an application under Section 14(1) read with Sections 16 and 18 ofthe National Green Tribunal Act, 2010 (hereafter “the NGT Act”), seekingmandatory injunction to restore natural contours at the foot base of thehill that had been destroyed by Rathod. Besides, general relief by wayof directions to other respondents to take necessary action for theprotection of hills from destruction and for maintaining foot base designof the hills in the natural survey was sought.

10. The material produced before the NGT by the State ofMaharashtra in the form of an affidavit revealed that large scaledestruction of hills by individuals and concerns who had been given shortterm mining licenses, had occurred. According to the affidavit, therewere 62 cases, and in many cases “hill-cutting” was resorted to by A

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Adevelopers. The state had apparently imposed fines and penalties forthese illegal activities.

11. The NGT, in its impugned order, commenting on the role ofRathod, held as follows, while justifying the imposition of liability uponthat respondent:B

“It appears from the record that land Survey No. 112, is ownedby the Respondent Nos. 5 and 6 and their family members.There are hills in the said land. They illegally cut hills withoutpermission and extract minor mineral, which reduced heightof hill, circumference of the hill and or peripheral nature,Csurface of the hill in question. Acts of the Respondent Nos. 5and 6 made the area of hill fragile, susceptible to danger tothe ecology and support of natural soil. In such a case, mererecovery of additional royalty would not be a proper remedialmeasure. At many places, the hill cutting is noticed prior toand after the pathetic incident and now inquiry is undertakenDby the concerned revenue officials.”

12. Thereafter, the NGT based on its reasoning that the regulationof some activities, especially involving anything affecting hills has to bestrictly regulated, directed as follows:

E“12. The question may arise as to what is the meaning ofexpression ‘Hill’. General perception is that it woulddepend upon ocular assessment of the area, which isrounded land that is higher than the land surrounded byit, but is not expected to be as high as mountain. In otherwords, it is usually rounded natural elevation of land, lowerFthan a mountain. There is no particular definition of theword ‘Hill’. The Oxford Dictionary gives meaning of word‘Hill’ as follows:

Hill - noun a naturally raised area of land, not as high orcraggy as a mountain, a sloping stretch of road: they wereGclimbing a steep hill in low gear, a heap or mound ofsomething, a hill of sliding shingle.

The wordbook has given meaning of expression ‘Hill’ asfollows:

231 “Hill is an elevation of the earth’s surface that has aHdistinct summit. It has much less surface area than a

mountain and is lower in elevation. Hills rise less than 305metres above the surrounding area, whereas mountainsalways exceed that height. However, a hill is not simplySmall Mountain. It is formed in a considerably differentway.

Hills may be classified according to the way they wereformed and the kinds of materials they are made of. Therearetwo types, constructional and destructional.Constructional hills are created by a built-up of rock debrisor sand deposited by glaciers and wind. Oval-shapedlandforms called drumlins and sand dunes are samples ofthis type. Destructional hills are shaped by the deep erosionof areas that were raised by disturbances in the earth’scrust. Such hills may consist of limestone overlying layersof more easily eroded rock.”

13. Draft Development Control Regulation Plan (DCR) ofPune is yet not approved by the PMC or Government. Thecutting of hill by the Respondent Nos. 5 and 6, createddestruction to render a part of land useless, includingdevelopment thereof for plantation of trees. It goes withoutsaying that the destruction of hill could not have occurredwithout connivance or at least purposeful act or omission bythe Project Proponent i.e. NHAI (Respondent No. 9). It is inthe affidavit of Mr. Rajeskumar Kundal, that agreementrequires to take necessary steps for stoppage of illegalconstruction activity at Katraj hill top. However, a Noticedated 25th April, 2011, was issued to the Respondent No. 5and copy of the same was marked to the Tehsildar, Bhor beforeoccurrence of the incident. The Collector, Pune was requestedto look into the matter. The authorities were thus, asked totake appropriate steps for stoppage of illegal activity in orderto avoid major mishap and to ensure not to occur. They statedthat one Mrs. Vishakha Vadekar, and her daughter died dueto water flow, which gushed from the hill top and poured onthe road.

14. We do not find any significant material to show that theRespondent No. 9 (NHAI) has taken reasonable steps to avoidthe untoward incident. We do not find copies of the complaintmade by NHAI to the authority. Assuming for a moment that A

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such communications were made at the fag end of April, 2011,yet, it was responsibility of NHAI to persuade said authorityor the higher authority about inaction after 2011. The incidentof raining in which Mrs. Vishakha Vadekar and her daughterhad flown away, is said to have occurred on 10th July, 2013.Obviously, the Respondent No. 9, appears to have kept silencefor about two (2) years, inspite of knowledge that the workof hill cutting was going on. In our opinion, NHAI(Respondent No. 9) perhaps was likely to be impliedlybenefited due to the illegal act of hill cutting due to availabilityof murum, stones and soil for the work for its project. Thecontractor of NHAI was, therefore, interested in keeping thefingers crossed.

15. Considering probability and circumstances appearing onrecord, we have no hesitation in holding that there took placedegradation of environment to large extent due to hill cuttingat Katraj. We have further no hesitation in holding that thehill cutting occurred due to illegal acts of the RespondentNos. 5, 6 and with or due to act of omission of the RespondentNo. 9. They are liable to pay compensation to the legalrepresentatives of the victims of incident in question. Theyare also liable to pay restitution charges and penalty forcausing damage to the environment, in order to avoid suchincident in future.

16. We deem it proper to give certain further directions to theconcerned authority. In keeping with these findings, we direct:

17. a) The Respondent Nos. 5, 6 and 9 shall pay amount ofRs. 50 Lakhs as joint penalty imposed on them for causingenvironmental damage in the nearby area of Katraj, due tothe hill-cutting.

b) This amount shall be deposited with Collector (Pune) withinsix (6) weeks, else Collector can recover the amount as arrearsof Land Revenue. This amount shall be deposited by Collectorin special escrow account, and the amount be spent forenvironmental protection and conservation activities, includinghill protection and conservation in the district.

c) The Respondent Nos. 5, 6 and 9 shall jointly and severallypay amount of Rs. 15 Lakhs towards compensation to the legalrepresentatives of deceased Mrs. Vishakha Vadekar, and herdaughter if identity of legal representatives is proved beforethe Collector. The above three (3) Respondents shallimmediately within four (4) weeks, deposit such amount inthe office of Collector, Pune for payment to the legalrepresentatives of deceased in the incident. The Collector mayissue a publication for locating legal representatives of abovedeceased women for payment of compensation and pay tothem compensation after satisfaction of identity of the legalrepresentatives by making due proportion as provided underthe relevant provisions of the Succession Act.

d) The Respondent Nos. 5, 6 and 9 shall also deposit amountof Rs. 10 Lakhs with the office of Collector for plantation oftrees in order to restore damage caused to environment,though it may not be a sufficient remedy.

e) The Respondent Nos. 1, 2, 3, 4, 7 and 8 shall giveinstructions to the concerned revenue officials working withinall districts to have regular vigil within their areas to verifywhether fringes or nearby any hill or hill-top construction is/are noticed and if found to be so, due inquiry may be madeas to whether it is authorized or unauthorized. So also,instructions may be issued to the Municipal authorities toensure that no construction permission shall be given to anyconstruction/development work, which is being proposed andis located at a distance may be of 100 ft. away from lowestslope i.e. incline of any hill within its territorial limits, as wellas hill-tops, except for Bamboo cottages.

f) In case of emergency or public purpose, the Hill cuttingmay be done by the concerned office of the Collector/Commissioner by passing a reasoned order or if so requiredby Law as provided under the Environment (Protection) Act,1986 and the Regulations thereunder.”

Rathod, the NHAI and three other appellants (Patel India PvtLtd, Fern Constructions (India) Ltd and D.B. Realty Ltd.) have preferredappeals against the impugned order of the NGT; their grievance is from AB

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Athe general directions issued in the impugned order, implicating buildingsnear hills.

13. In the second set of matters, i.e. the appeals by special leave,the facts are that acting on the directions of the NGT, the State ofMaharashtra invoked its powers under Section 154 of the MaharashtraBRegional and Town Planning Act, 1966 (for short “MRTP Act”) anddirected, by a notification/circular dated 14.11.2017 that development(relating to construction) was impermissible in an area abutting hills upto 100 feet.

14. By the impugned common judgment, the High Court held thatCthere was no denial that the power to issue such directions or circularsexisted by way of the amended Section 154 and that such power wasessential. The court further held that no individual or entity could claimany absolute right and contend that he could develop or constructanywhere and that the directions contained in the notificationsupplemented bye-laws and building codes already in place in MumbaiDand Pune. It was also observed that:

“In Regulation 2 we have the definitions and as far as Part IIis concerned, that is general planning and buildingrequirements. Regulation 11.1 says that no piece of land shallbe used as site for construction of building if the site is hillyEand having gradient more than 1:5. Thus, these stipulationsare already in place. What the National Green Tribunalbrought to the notice of the authorities is in-discriminablecutting of hills in the Katraj Ghat. This unauthorizedconstruction by breaking of hills resulted in an accident. ThatFis why the NGT directed that on hill tops and hill slopes andthe portion at the foot of the hill and surrounding 100 feet,no construction activity should be permitted and nodevelopment permission be issued and such directions beissued to the Municipal Corporations and Municipal Councils.Bearing in mind that there are in place legal provisionsGrestricting the development activity on hill top and hill slopezones, all that the NGT and this Government Resolution directsis that in cases where there has already been a permitteddevelopment activity within 100 feet of the hill, then, nopermission for additional construction be granted nor anyHdevelopment be permitted by sanctioning additional Floor

Space Index (FSI) or Transferable Development Rights (TDR).In the event in sanctioned development plans if area of theabove nature is in buildable zone, then, for carrying outdevelopment in such zone and while granting individualdevelopment permissions, an area of 100 feet surroundingthe hills should be demarcated as non-buildable. It can beused as open space, road etc. We are surprised that an orderand direction of the NGT traceable to and in accordance withthe planning law it challenged before us. Further, thedirections of the State Government, which are but reiterationof the existing regulations, are under challenge. The impugnedGovernment Resolution is in consonance with the provisionsof the MRTP Act and the constitutional mandate enshrined inArticle 21 and 48 thereof.

24. We are not in agreement with Dr. Sathe, Mr. Godbole andDr. Saraf that merely because such directions are issued inexercise of the powers conferred by sub-section (1) of section154, the development Plan for the limits of the MunicipalCorporations, namely Pune and Mumbai is altered ormodified. We are also not impressed by their argument that bysuch a Government Resolution, a modification is broughtabout in the Development Control Regulations and all this iswithout recourse to the specific powers conferred by theMRTP Act. In other words, these are bypassed and by aGovernment Resolution, the above stand amended. In thatregard our attention has been invited to the provisions in theMRTP Act enabling modifications or changes in theDevelopment Plan and the procedure prescribed in that behalf.

25. We do not see any modification to the plan being broughtabout by the subject Government Resolution. If at all, thedirections therein complement the provisions of theDevelopment Control Regulations for the cities of the Mumbaiand Pune or the concerned Municipal Corporation/MunicipalCouncil areas. As it is, there was no permission to constructbuildings other than a electric sub-stations, water works etc.on hill tops. As far as these slopes are concerned, by theirvery nature, a hill slides down and if the slope is steep, then,no construction activity can be carried out. There is no AB

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guarantee or assurance that any construction activity in suchareas would be able to withstand a landslide or accidents,resulting from erosion of the hills on account of naturalreasons. It is experienced that human intervention isnecessarily not responsible for a landslide, mudslide etc. Onaccount of natural causes and calamities, such events canoccur. Apart from that, the occurrence increases because ofhuman intervention including a construction activity carriedout at the foot of the hill or on top thereof. It is also possibleif the hill is cut from its sides indiscriminately. It is also possibleif there is damage to a hill while extracting minor minerals.The hill then becomes uneven. Then, it is not possible to preventany calamity. Hence, in order to take care of the naturalcalamities and which have occurred in various places in theState of Maharashtra recently and also on account ofunrestricted and unregulated breaking and cutting of the hillsresulting in accidents endangering human life and safety thatthese supplemental directions have been issued. If they arefor efficient administration of the Act and if they subservelarger public interest, then no fault can be found with theGovernment Resolution. Each of the operative directions,namely, serial Nos. 1, 2 and 3 of this Government Resolutionsubserve this object and purpose. If the GovernmentResolution has been issued after the attention of theGovernment has been invited to an accident in Katraj Ghatoccurring due to unauthorized and illegal cutting of hills,then, it is not as if the State Government has construed it as acommand or a binding order and issued the subjectGovernment Resolution. The attention of the State Governmentbeing invited to such illegal and unauthorized so alsouncontrolled, unregulated and unrestricted hill-cutting, thatin order to prevent the same, the Government stepped in. Ittook recourse to its power conferred by section 154 of theMRTP Act in order to prevent future occurrences of this nature.If accidents and calamities can be prevented by timelyintervention of the State Government in this manner, then, wedo not think that on the specious and unsubstantiated pleasof the petitioners, we should strike down the GovernmentResolution.”

15. The NHAI in its appeal contends that the NGT fell into errorin issuing sweeping directions against it without considering that was noevidence to establish that it was in any way responsible for the degradationof the environment, which led to the tragedy. It is urged by Senior CounselMr P.S. Narasimha that the NGT’s findings are contrary to establishedfacts and have also resulted in grave miscarriage of justice. He highlightedthat there was no material on record to establish that the NHAI was inany way culpable or had failed to perform a public duty or neglected toavert a foreseeable calamity. Elaborating on this, it was urged that theillegal mining activity was not carried on within the right-of-way or thecarriageway of the highway. What occurred was the result of an act ofGod, i.e. extremely heavy rains, which resulted in flooding on the highwaycaused entirely on account of the debris collected which acted to obstructthe smooth flow of water.

16. It was highlighted that in any case, the NHAI could not beheld responsible or made liable for the occurrence which led to thetragedy. Mr Narasimha also argued that the NGT did not return anyfinding that the construction of the highway was in any way contrary toenvironmental clearances or permissions secured by the NHAI.Therefore, the findings of the Tribunal in so far as they pertained to theneglect or alleged omission of the NHAI, were contrary to law. Heurged that the findings were illogical and irrational, and deserve to be setaside.

17. The NHAI also highlights that it wrote letters to the localadministration on 24.04.2011 and 15.07.2011, seeking its intervention onaccount of the illegal mining and activities and hill destruction, for whichRathod was responsible. However, the State government did not takeany action. Likewise, Rathod did not take any remedial steps or ceasethe activity. The resultant tragedy entirely on account of the omissionsof the state’s authorities to take action and the neglect and culpablenegligence on the part of Rathod, was the cause of the tragedy and theevents which led to the loss of two lives. It was also emphasized that thedirection to pay compensation was contrary to legal principles andundermined the law. It was argued that neither the NHAI nor itsconcessionaire had any control over the activities of the state, whichgranted the mining licences. Rathod, the licensee, had continued illegalmining in the vicinity causing the accumulation of debris. This in turn,resulted in the obstruction of a culvert which resulted in collection of a A

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Alarge volume of water. A huge sheet of water gushed out into the highway,sweeping away the car, tragically resulting in the death of two individuals.It was argued that in these circumstances, the NHAI could not be saddledwith the responsibility of either paying damages to the dependents andlegal representatives of the deceased nor could it be made liable to restorethe environment through the payment of 50 lakhs or any part of it.B

18. Rathod urges that the NGT’s findings against him are contraryto law. He argues that the NGT did not implead those who had standing,i.e. the legal representatives of the deceased; in fact, they had filed acivil suit, claiming compensation against him, as well as the NHAI andthe state, for alleged negligence and tortious liability. In those proceedings,Cthe court is bound to record evidence and render findings based on thefacts. The NGT could not thus have unilaterally, based on a one-sidedview of the materials, held that he was liable.

19. It was submitted that the allegation that Rathod was primarilyresponsible for degradation of the hill, which clogged the culverts andDwater channels, resulting in the tragedy, was contrary to the facts.Mr. Vijay Verma, counsel for Rathod, relied on some portions of themagisterial report to say that the NHAI had the report of an independentengineer, who had pointed to certain deficiencies on the part of theconcessionaire. Therefore, to hold him responsible for the tragedy, andEdirect him to pay a huge sum of 15 lakh and further pay amounts towardsenvironmental damage, was unwarranted.

20. It was argued that the NGT could not have issued directionswith respect to payment of any sums, in the absence of any applicationby the legal representatives of the deceased. It is further argued inFRathod’s appeal that apart from issuing notice for recovery of amountstowards alleged illegal mining, neither the state authorities nor the NHAItook any positive remedial action for strengthening the culvert and thecatch water drains which were in disrepair, and constructed on the hillabove the tunnel for drainage of rainwater. The masonry on the culvertfor draining water was choked due to lack of maintenance. SuchGmaintenance was the sole responsibility of the concessionaire and forthat, the NHAI had to be held liable. It is also highlighted that Section 18of the NGT Act mandates that the procedure established by the statuteto exercise jurisdiction had to be followed. Since the legal heirs of thedeceased had not applied to the NGT for any relief and had insteadHapproached the civil court claiming compensation on account of wilful neglect and culpable inaction on the part of NHAI, the NGT ought tohave left the matter for proper decision in accordance with the evidenceled. Instead the NGT took upon itself the task of a judging the appellantas one of those responsible for the incident. It is emphasised that themining activity carried on was in accordance with the license and ifthere was any irregularity that was cured on payment of fine. So far asthe collection of debris which ultimately led to the overflow of water andthe deaths of two individuals goes, it is argued that the proper functioningof the drainage system would have ensured that such collection of vastquantities of water would not have occurred. Therefore, the inaction ofthe NHAI in taking timely action and intervening with the state authorities,led to the tragic incident. The responsibility for this incident could nothave been placed at the doorstep of Rathod. The actions of Rathod, it isstated were too remote and could not have been the subject of damagesat all.

21. In the appeals (by special leave as well as the statutory appealsby third parties), where the grievance is on account of the directionsissued by the State of Maharashtra under Section 154 of the MRTP Act,the third party appellants challenge the order of the NGT arguing thatthe provisions of the NGT Act, especially sections 14, and 19 do notauthorise that tribunal to issue sweeping and unilateral directions requiringstoppage and cessation of all manner of building activity or developmentswithin hundred feet of hill slopes. It is highlighted that such sweepingdirections are illogical and are not based on any scientific study or analysis.It is argued that the NGT has issued general directions couched in avague manner in para 17 (e) of its order.

22. These appellants argue that the Bombay High Court also fellinto error and did not appreciate that the entire basis of the Directions/Resolution of 14.11.2017 by the State of Maharashtra were the directionsissued by the NGT. Highlighting various provisions of the MRTP Act,learned counsel argued that wherever development codes wereformulated, they were in accordance with established principles, afterfollowing the prescribed procedure. Based upon these codes and thebuilding regulations framed by various town planning departments,clearances and permissions/approval for development and constructionwere issued. It was argued that the mandatory and sweeping nature ofthe directions in para 17 (e) by the NGT has resulted in these directions AB

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Abeing embodied in the impugned resolution, which has a catastrophiceffect on those clearances.

23. Learned senior counsel, Mr. Shyam Divan, highlights that apartfrom the fact that the definition of ‘hill’ is vague, and even the regulationsunder the MRTP Act are silent in this regard, the NGT failed to considerBthat the impact of its directions and the impugned notification, in hillyterrains where the population is concentrated in particular areas, in smalltowns, semi urban and rural areas would be devastating inasmuch as allnature of buildings would be banned. It is pointed out that hill developmentis based upon consideration of individual local soil conditions, the stabilityof the surrounding terrain, etc. All these are taken into account byCindividual local town planning authorities when they permit or refusepermission to individual development or construction projects. The uniformadoption of the “no construction within the hundred feet area” rule, it issubmitted, is completely contrary to well-established principles of townplanning.D24. It is argued that the directions issued by the state governmentimpugned in the writ petitions before the Bombay High Court, are contraryto the provisions of the MRTP Act inasmuch as they amount tosupplanting provisions of the existing master plan and other developmentcodes, which have the force of law and were framed after widespreadEconsultations. It is pointed out that the provisions of the MRTP Act requirethat any change in such codes or master plans would have to be madeafter mandatory due consideration of objections, which are to be precededby publication of the proposals. By directing the state government tofollow the order in paragraph 17(e), the NGT in fact made directionscontrary to law. It is argued that the state also acted contrary to theFexpress provisions of the MRTP Act inasmuch as it did not follow theprocedure required by the Act to change the master plan and thedevelopment codes.

25. It is further submitted that the NGT’s directions were thebasis of the state government’s notification. It was argued that the stateGgovernment’s blind adherence to these directions amounted to abdicationof its duties, was in contravention of express provisions of the MRTPAct and also amounted to acting on the dictates of another authority. Itwas submitted that for these reasons, the impugned notification cannotbe sustained. Counsel relied on the decision of this court in Tamil NaduHPollution Control Board v. Sterlite Industries (I) Ltd. & Ors.[2] to

highlight that the NGT has a narrow and circumscribed jurisdiction inregard to issuing directions as well as ordering compensation.

26. The Lokmanch justified the order of the NGT and blamed theNHAI, the concessionaire, Rathod and the state government for nottaking adequate and timely measures in public interest. It is alleged thatproper channels were not created and maintained alongside the highwayto avoid water clogging on the main carriageway. It is argued that existingwater channels were extremely narrow and were incapable of handlingsignificant volumes, and that even those channels were clogged due toconstruction debris which had fallen on the sides. It is pointed out thatunder Section 4 of the National Highways Act, 1956 (hereafter “HighwaysAct”) “highways” include lands appurtenant thereto, all bridges, culverts,tunnels, causeways and other structures constructed on or over thehighway and all fences, trees, posts, etc. The duty of keeping them ingood repair, clearly was that of the NHAI and the concessionaire.

27. So far as the Rathod’s role is concerned, learned counsel,Ms. Shilpa Chohan, submitted that the NGT acted well within its rightsand acted within its jurisdiction in entertaining and proceeding with theapplication, under Sections 14 read with 16 and 18 of the NGT Act. TheLokmanch sought mandatory injunction to restore the natural contour atthe foot base of the hills, particularly the hill that was destroyed by theprivate respondents. It was submitted that apart from the enquiry reportof the magistrate /sub-divisional officer, a report was also commissionedby the NGT through the local tehsildar; that report dated 15.09.2014disclosed that unauthorised hill destruction under the pretext of minormineral extraction was widespread during 2011-2013. This report showedthat as many as 62 cases of hill destruction (mostly indulged in bydevelopers), came to light. Many of these occurred without obtainingany permit or authorisation and were plainly illegal.

28. It is argued further that the private respondents were permittedto extract minor minerals only for a short period. However, they exceedednot only the permit, but also went further and destroyed the hill for thepurpose of mining minerals. This over-mining as well as hill destructionwas not within the permission or the terms of the license. It is highlightedthat “hill cutting” or hill destruction causes shortening of hills, poses apotential danger of soil erosion and reduces vegetation, forestry, floraand fauna, and deprives natural support to the earth, therefore ultimately 2 2019 SCC OnLine SC 221.

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Aposing an environmental hazard to nearby areas, including residentialareas. It is argued that the destruction of hills results in the distortion ofthe flow of streams and rivers, which change their courses resulting inheavy loss to human life and also to flora and fauna, besides at times,destruction of property. It is submitted that the NGT’s decision requiringpayment of compensation was within its jurisdiction; to support this,Blearned counsel relied upon the provisions of Schedule II to the NGTAct, particularly referring to the heads of compensation relief for damagesthat can be claimed and granted, i.e. death, permanent, temporary, ortotal, or partial disability or other injury, damages to private property,expenses incurred by the government for any administrative or legalCaction, or to cope with any harm or damage, including compensation forenvironmental degradation and restoration of the quality of theenvironment. It was submitted that the statutory basis for calculatingthese damages under Schedule II to the NGT Act is provided by Section15, which empowers the NGT to provide relief and compensation tovictims of pollution in terms of Schedule I for restitution of property,Drestitution of environment, and also importantly Section 17, whichempowers the NGT to direct the payment of compensation on accountof death of or injury to any person or damage to property, under all anyof the heads specified in Schedule II, which is the result of any accidentor is an adverse impact of any activity or operational process. It isEsubmitted that there is nothing in the enactment which confines thejurisdiction of the NGT to adjudicate complaints, especially those relatingto fatalities caused by environmental damage, to applications initiated bylegal representatives or persons directly affected. It is submitted that ifa particular accident or incident is so widespread as to affect an entirearea, it would be well within the jurisdiction of the NGT to entertain anFapplication made by anyone. Learned counsel highlighted the differencein phraseology between Sections 15 and 17 on the one hand, and Section18 on the other. It is submitted that Section 18(2) clearly is withoutprejudice to the provisions contained in Section 16 and primary jurisdictioncan be invoked by the Tribunal upon being moved by anyone in thisGregard.

29. Ms. Chohan cited the decision of this court in Mantri TechnozePvt. Ltd. v Forward Foundation[3 ]to say that the NGT could legitimatelyissue directions which are binding on all other statutory authorities. Shealso relied on Section 33 of the NGT Act, emphasizing that the enactmentH3 2019 (18) SCC 494

overrides all other enactments. Reliance was also placed on the decisionin Hanuman Laxman Aroskar v. Union of India.[4]

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30. The State of Maharashtra supported the arguments made onbehalf of the Lokmanch. It was pointed out that the jurisdiction to issuegeneral directions to preserve and protect the environment, throughrestitution orders is found in Section 15(1)(c) of the NGT Act. It is alsosubmitted that the power and jurisdiction to order compensation in thecase of death, is independent and can be invoked in case of fatal accidents,as is evident from the provisions of Schedule II. The state further arguesthat the judgment of the Bombay High Court too is unexceptionable,inasmuch as it correctly appreciated and upheld the exercise of regulatorypower under Section 154 of the MRTP Act. Counsel urged that the saidprovision was amended in 2015 and in the absence of any challenge to it,the exercise of power after due consideration of relevant factors, couldnot be countenanced.

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31. Four issues arise for consideration. Firstly, the jurisdiction ofthe NGT to award compensation; secondly the merits and soundness ofthe NGT’s decision to award compensation and the legal principlesapplicable; thirdly, the NGT’s wide directions with respect to the ban onconstruction in and around foothills and lastly, the vires of the directions/notifications issued under Section 154, MRTP Act.

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32. The relevant provisions of the NGT Act are extracted below:

“2. Definitions. — (1) In this Act, unless the context otherwise F

requires

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(m) “substantial question relating to environment” shallinclude an instance where—

(i) there is a direct violation of a specific statutoryGenvironmental obligation by a person by which—

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(A) the community at large other than an individual orgroup of individuals is affected or likely to be affected by theenvironmental consequences; or (B) the gravity of damage to the environment or propertyis substantial; or

(C) the damage to public health is broadly measurable;

(ii) the environmental consequences relate to a specificactivity or a point source of pollution; XXXXXX

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14. Tribunal to settle disputes.—(1) The Tribunal shall havethe jurisdiction over all civil cases where a substantialquestion relating to environment (including enforcement ofany legal right relating to environment), is involved and suchquestion arises out of the implementation of the enactmentsspecified in Schedule I.

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

(3) No application for adjudication of dispute under thissection shall be entertained by the Tribunal unless it is madewithin a period of six months from the date on which the causeof action for such dispute first arose:

Provided that the Tribunal may, if it is satisfied that theapplicant was prevented by sufficient cause from filing theapplication within the said period, allow it to be filed withina further period not exceeding sixty days.”

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

(a) relief and compensation to the victims of pollution andother environmental damage arising under the enactmentsspecified in the Schedule I (including accident occurringwhile handling any hazardous substance); (b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas,

as the Tribunal may think fit.

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(2) The relief and compensation and restitution of propertyand environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payableunder the Public Liability Insurance Act, 1991 (6 of 1991).

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(3) No application for grant of any compensation or relief orrestitution of property or environment under this section shallbe entertained by the Tribunal unless it is made within a periodof five years from the date on which the cause for suchcompensation or relief first arose:

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Provided that the Tribunal may, if it is satisfied that theapplicant was prevented by sufficient cause from filing theapplication within the said period, allow it to be filed withina further period not exceeding sixty days.

(4) The Tribunal may, having regard to the damage to publichealth, property and environment, divide the compensationor relief payable under separate heads specified in ScheduleII so as to provide compensation or relief to the claimantsand for restitution of the damaged property or environment,as it may think fit.

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(5) Every claimant of the compensation or relief under thisAct shall intimate to the Tribunal about the application filedto, or, as the case may be, compensation or relief receivedfrom, any other court or authority.”

“16. Tribunal to have appellate jurisdiction.—Any personaggrieved by, F

(a) an order or decision, made, on or after the commencementof the National Green Tribunal Act, 2010, by the appellateauthority under Section 28 of the Water (Prevention andControl of Pollution) Act, 1974 (6 of 1974); G

(b) an order passed, on or after the commencement of theNational Green Tribunal Act, 2010, by the StateGovernment under Section 29 of the Water (Preventionand Control of Pollution) Act, 1974 (6 of 1974);

(c) directions issued, on or after the commencement of theNational Green Tribunal Act, 2010, by a Board, underH

1080SUPREME COURT REPORTS

ASection 33-A of the Water (Prevention and Control ofPollution) Act, 1974 (6 of 1974); (d) an order or decision made, on or after the commencementof the National Green Tribunal Act, 2010, by the appellateauthority under Section 13 of the Water (Prevention andBControl of Pollution) Cess Act, 1977 (36 of 1977); (e) an order or decision made, on or after the commencementof the National Green Tribunal Act, 2010, by the StateGovernment or other authority under Section 2 of theForest (Conservation) Act, 1980 (69 of 1980);C(f) an order or decision, made, on or after the commencementof the National Green Tribunal Act, 2010, by the AppellateAuthority under Section 31 of the Air (Prevention andControl of Pollution) Act, 1981 (14 of 1981); (g) any direction issued, on or after the commencement ofDthe National Green Tribunal Act, 2010, under Section 5of the Environment (Protection) Act, 1986 (29 of 1986); (h) an order made, on or after the commencement of theNational Green Tribunal Act, 2010, grantingenvironmental clearance in the area in which anyindustries, operations or processes or class of industries,Eoperations and processes shall not be carried out or shallbe carried out subject to certain safeguards under theEnvironment (Protection) Act, 1986 (29 of 1986);

(i) an order made, on or after the commencement of theNational Green Tribunal Act, 2010, refusing to grantFenvironmental clearance for carrying out any activity oroperation or process under the Environment (Protection)Act, 1986 (29 of 1986); (j) any determination of benefit sharing or order made, onor after the commencement of the National Green TribunalGAct, 2010, by the National Biodiversity Authority or aState Biodiversity Board under the provisions of theBiological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which theorder or decision or direction or determination isHcommunicated to him, prefer an appeal to the Tribunal:

Provided that the Tribunal may, if it is satisfied that theappellant was prevented by sufficient cause from filing theappeal within the said period, allow it to be filed under thissection within a further period not exceeding sixty days.

17. Liability to pay relief or compensation in certain cases.

(1) Where death of, or injury to, any person (other than aworkman) or damage to any property or environment hasresulted from an accident or the adverse impact of an activityor operation or process, under any enactment specified inSchedule I, the person responsible shall be liable to pay suchrelief or compensation for such death, injury or damage,under all or any of the heads specified in Schedule II, as maybe determined by the Tribunal.

(2) If the death, injury or damage caused by an accident orthe adverse impact of an activity or operation or process underany enactment specified in Schedule I cannot be attributed toany single activity or operation or process but is the combinedor resultant effect of several such activities, operations andprocesses, the Tribunal may, apportion the liability for reliefor compensation amongst those responsible for such activities,operations and processes on an equitable basis.

(3) The Tribunal shall, in case of an accident, apply theprinciple of no fault

18. Application or appeal to Tribunal.

(1) Each application under sections 14 and 15 or an appealunder section 16 shall, be made to the Tribunal in such form,contain such particulars, and, be accompanied by suchdocuments and such fees as may be prescribed.

(2) Without prejudice to the provisions contained in section16, an application for grant of relief or compensation orsettlement of dispute may be made to the Tribunal by—

(a) the person, who has sustained the injury; or (b) the owner of the property to which the damage hasbeen caused; or A

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(c) where death has resulted from the environmentaldamage, by all or any of the legal representatives of thedeceased; or (d) any agent duly authorised by such person or owner ofsuch property or all or any of the legal representatives ofthe deceased, as the case may be; or (e) any person aggrieved, including any representativebody or organisation; or (f) the Central Government or a State Government or aUnion territory Administration or the Central PollutionControl Board or a State Pollution Control Board or aPollution Control Committee or a local authority, or anyenvironmental authority constituted or established underthe Environment (Protection) Act, 1986 (29 of 1986) orany other law for the time being in force:

Provided that where all the legal representatives of thedeceased have not joined in any such application forcompensation or relief or settlement of dispute, theapplication shall be made on behalf of, or, for the benefitof all the legal representatives of the deceased and thelegal representatives who have not so joined shall beimpleaded as respondents to the application:

Provided further that the person, the owner, the legalrepresentative, agent, representative body or organisationshall not be entitled to make an application for grant ofrelief or compensation or settlement of dispute if suchperson, the owner, the legal representative, agent,representative body or organisation have preferred anappeal under section 16.

(3) The application, or as the case may be, the appeal filedbefore the Tribunal under this Act shall be dealt with by itas expeditiously as possible and endeavour shall be madeby it to dispose of the application, or, as the case may be,the appeal, finally within six months from the date of filingof the application, or as the case may be, the appeal, afterproviding the parties concerned an opportunity to be heard.

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29. Bar of jurisdiction.—(1) With effect from the date ofestablishment of the Tribunal under this Act, no civil courtshall have jurisdiction to entertain any appeal in respectof any matter, which the Tribunal is empowered to determineunder its appellate jurisdiction.

(2) No civil court shall have jurisdiction to settle disputeor entertain any question relating to any claim for grantingany relief or compensation or restitution of propertydamaged or environment damaged which may beadjudicated upon by the Tribunal, and no injunction inrespect of any action taken or to be taken by or before theTribunal in respect of the settlement of such dispute or anysuch claim for granting any relief or compensation orrestitution of property damaged or environment damagedshall be granted by the civil court.”

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“33. Act to have overriding effect.—The provisions of thisAct, shall have effect notwithstanding anything inconsistentcontained in any other law for the time being in force or inany instrument having effect by virtue of any law otherthan this Act.”

33. A plain reading of the above provisions of the NGT Act wouldreveal that the tribunal possesses two kinds of power and jurisdiction:one, primary jurisdiction under Sections 14-15, and appellate jurisdictionunder Section 16. Under Section 14, the NGT has the power to adjudicateupon disputes relating to “civil cases where a substantial questionrelating to environment (including enforcement of any legal rightrelating to environment), is involved” relating to the implementationof “the enactments specified in Schedule I” [Section 14 (1)]. Theother provisions [Sections 14(2) and (3)] are incidental to the primaryjurisdiction under Section 14(1). Section 15, on the other hand, is couchedin wide terms. Section 15(1) provides that compensation or damagescan be given by the NGT to “victims of pollution and otherenvironmental damage arising under the enactments specified inthe Schedule I” [Section 15 (1)(a)]; for restitution of property damaged[Section 15(1)(b)] and for restitution of the environment for such areaor areas [Section 15(1)(c)]. Section 15(2) is procedural; Section 15(3)

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Aprescribes the period of limitation for applications. Section 15(4) enablesthe NGT to, having regard to the damage to public health, property andenvironment, “divide the compensation or relief payable under separateheads specified in Schedule II so as to provide compensationBor relief to the claimants and for restitution of the damagedproperty or environment, as it may think fit.”

34. The enactments specified under Schedule I are the Water(Prevention and Control of Pollution) Act, 1974; the Water (Preventionand Control of Pollution) Cess Act, 1977; the Forest (Conservation) Act,C1980; the Air (Prevention and Control of Pollution) Act, 1981; theEnvironment (Protection) Act, 1986; the Public Liability Insurance Act,1991; and the Biological Diversity Act, 2002.

35. Schedule II reads as follows:

“SCHEDULE II [See sections 15(4) and 17(1)] HEADSDUNDER WHICH COMPENSATION OR RELIEF FORDAMAGE MAY BE CLAIMED

(a) Death;

(b) Permanent, temporary, total or partial disability or otherinjury or sickness;E(c) Loss of wages due to total or partial disability or permanentor temporary disability; (d) Medical expenses incurred for treatment of injuries orsickness;F(e) Damages to private property; (f) Expenses incurred by the Government or any localauthority in providing relief, aid and rehabilitation to theaffected persons; G(g) Expenses incurred by the Government for anyadministrative or legal action or to cope with any harm ordamage, including compensation for environmentaldegradation and restoration of the quality of environment; (h) Loss to the Government or local authority arising out of,or connected with, the activity causing any damage;H

(i) Claims on account of any harm, damage or destruction tothe fauna including milch and draught animals and aquaticfauna; (j) Claims on account of any harm, damage or destruction toflora including aquatic flora, crops, vegetables, trees andorchards; (k) Claims including cost of restoration on account of anyharm or damage to environment including pollution of soil,air, water, land and eco-systems;

(l) Loss and destruction of any property other than privateproperty; (m) Loss of business or employment or both; (n) Any other claim arising out of, or connected with, anyactivity of handling of hazardous substance.”

36. A conjoint reading of Sections 14, 15 and the Schedules wouldlead one to infer that the NGT has circumscribed jurisdiction to dealwith, adjudicate, and wherever needed, direct measures such as paymentof compensation, or make restitutionary directions in cases where theviolation (i.e. harm caused due to pollution or exposure to hazards, etc.)are the result of infraction of any enactment listed in the first schedule.Yet, that, interpretation, in the opinion of this court, is not warranted.

37. The reference to Schedule II, in Section 15(4) is not merelyby way of events which are actionable in relation to harm caused due tothe acts resulting in violation of any enactment under Schedule I. Thewide language of that provision enables the tribunal (NGT) to direct,inter alia, payment of compensation, “having regard to the damageto public health, property and environment”. This interpretation isborne out by a reading of Section 17(2) regarding the apportionment ofliability for payment of compensation.

38. In the decision of this court reported as Hinch Lal Tiwari v.Kamala Devi[5], this court held that ponds constituted public utility andwere meant for common use. The court held that ponds could not beallotted or commercialised, and that filling up of ponds was illegal.Recently, in Jitendra Singh v. Ministry of Environment & Ors[6], the 5 2001 (6) SCC 496

6 2019 SCC OnLine SC 1510

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ACourt quoted and applied the observations in Hinch Lal (supra), in thecontext of an appeal directed against an order of the NGT which hadsummarily dismissed an application under Sections 14 and 15 of theNGT Act seeking directions to cease the filling up of ponds in the GreaterNoida Industrial Development Area.

B39. Long ago, in State of Tamil Nadu v. M/s. Hind Stone &Ors[7], this court made following observations:

“6. Rivers, Forests, Minerals and such other resourcesconstitute a Nation’s natural wealth. These resources are notto be frittered away and exhausted by any one generation.CEvery generation owes a duty to all succeeding generationsto develop and conserve the natural resources of the nationin the best possible way. It is in the interest of mankind. It is inthe interest of the nation. It is recognised by Parliament.Parliament has declared that it is expedient in the publicinterest that the Union should take under its control theDRegulation of mines and the development of minerals. It hasenacted the Mines and Minerals (Regulation andDevelopment) Act, 1957 ...”

40. Likewise, in Lafarge Umiam Mining (Pvt.) Ltd. v. Union ofIndia & Ors.[8] these pertinent observations were made:E

“75. Universal human dependence on the use ofenvironmental resources for the most basic needs renders itimpossible to refrain from altering the environment. As a result,environmental conflicts are ineradicable and environmentalprotection is always a matter of degree, inescapably requiringFchoices as to the appropriate level of environmental protectionand the risks which are to be regulated. This aspect isrecognised by the concepts of “sustainable development”. Itis equally well settled by the decision of this Court in NarmadaBachao Andolan Vs. Union of India that environment hasGdifferent facets and care of the environment is an ongoingprocess. These concepts Rule out the formulation of an across-the-board principle as it would depend on the facts of eachcase whether diversion in a given case should be permitted 7 1981 (2) SCC 205H8 2011(7) SCC 338

or not, barring “no go” areas (whose identification wouldagain depend on undertaking of due diligence exercise). Insuch cases, the margin of appreciation doctrine would apply.”

41. Recently, in State of Meghalaya and Ors. vs. All DimasaStudents Union, Dima-Hasao District Committee & Ors.[9] this courthad affirmed a part of the decision of the NGT issuing directions inrespect of large-scale mining in the state of Meghalaya, on the groundthat it had an adverse impact on the environment. This was despite thefact that mining and the subject of mines is not specified in the list ofenactments under the first schedule. The court also approved the NGT’sdirections, appointing experts, to assess the impact of such mining on theenvironment.

42. The legal position and jurisdiction of NGT was considered bythis court in Mantri Techzone (supra) where it was held that the NGThas “special jurisdiction” for “enforcement of environmental rights.”It was held that:

“41. The jurisdiction of the Tribunal is provided underSections 14, 15 and 16 of the Act. Section 14 provides thejurisdiction over all civil cases where a substantial questionrelating to environment (including enforcement of any legalright relating to environment) is involved. However, suchquestion should arise out of implementation of the enactmentsspecified in Schedule I.

42. The Tribunal has also jurisdiction under Section 15(1)(a)of the Act to provide relief and compensation to the victims ofpollution and other environmental damage arising under theenactments specified in Schedule I. Further, under Section15(1)(b) and 15(1)(c) the Tribunal can provide for restitutionof property damaged and for restitution of the environmentfor such area or areas as the Tribunal may think fit. It isnoteworthy that Section 15(1)(b) & (c) have not been maderelatable to Schedule I enactments of the Act. Rightly so, thisgrants a glimpse into the wide range of powers that theTribunal has been cloaked with respect to restoration of theenvironment.

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43. Section 15(1)(c) of the Act is an entire island of powerand jurisdiction read with Section 20 of the Act. The principlesof sustainable development, precautionary principle andpolluter pays, propounded by this Court by way of multiplejudicial pronouncements, have now been embedded as abedrock of environmental jurisprudence under the NGT Act.Therefore, wherever the environment and ecology are beingcompromised and jeopardized, the Tribunal can apply Section20 for taking restorative measures in the interest of theenvironment.

B

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44. The NGT Act being a beneficial legislation, the powerbestowed upon the Tribunal would not be read narrowly. Aninterpretation which furthers the interests of environment mustbe given a broader reading. (See Kishsore Lal v. Chairman,Employees’ State Insurance Corpn. (2007) 4 SCC 579, para17). The existence of the Tribunal without its broad restorativepowers under Section 15(1)(c) read with Section 20 of theAct, would render it ineffective and toothless, and shall betraythe legislative intent in setting up a specialized Tribunalspecifically to address environmental concerns. The Tribunal,specially constituted with Judicial Members as well as withExperts in the field of environment, has a legal obligation toprovide for preventive and restorative measures in the interestof the environment.

C

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45. Section 15 of the Act provides power & jurisdiction,independent of Section 14 thereof. Further, Section 14(3)juxtaposed with Section 15(3) of the Act, are separateFprovisions for filing distinct applications before the Tribunalwith distinct periods of limitation, thereby amply demonstratingthat jurisdiction of the Tribunal flows from these Sections (i.e.Sections 14 and 15 of the Act) independently. The limitationprovided in Section 14 is a period of 6 months from the dateGon which the cause of action first arose and whereas in Section15 it is 5 years. Therefore, the legislative intent is clear tokeep Section 14 and 15 as self-contained jurisdictions.

46. Further, Section 18 of the Act recognizes the right to fileapplications each under Sections 14 as well as 15. Therefore,it cannot be argued that Section 14 provides jurisdiction to H

the Tribunal while Section 15 merely supplements the samewith powers. As stated supra the typical nature of the Tribunal,its breadth of powers as provided under the statutory provisionsof the Act as well as the Scheduled enactments, cumulatively,leaves no manner of doubt that the only tenable interpretationto these provisions would be to read the provisions broadly infavour of cloaking the Tribunal with effective authority. Aninterpretation that is in favour of conferring jurisdictionshould be preferred rather than one taking away jurisdiction.

47. Section 33 of the Act provides an overriding effect to theprovisions of the Act over anything inconsistent contained inany other law or in any instrument having effect by virtue oflaw other than this Act. This gives the Tribunal overridingpowers over anything inconsistent contained in the KIAD Act,Planning Act, Karnataka Municipal Corporations Act, 1976(“KMC Act”); and the Revised Master Plan of Bengaluru,2015 (“RMP”). A Central legislation enacted under Entry 13of List I Schedule VII of the Constitution of India will havethe overriding effect over State legislations. The corollary isthat the Tribunal while providing for restoration ofenvironment in an area, can specify buffer zones aroundspecific lakes & water bodies in contradiction with zoningregulations under these statutes or the RMP.”

43. It is noteworthy that this court clearly held that under Section15(1)(b) and 15(1)(c), the NGT has the power to make directions andprovide for “restitution of property damaged and for restitution ofthe environment for such area or areas as the Tribunal may thinkfit. It is noteworthy that Section 15(1)(b) & (c) have not been maderelatable to Schedule I enactments of the Act.” Though a directionfor compensation under Section 15(1)(a) is relatable to violation ofenactments specified under the first schedule, the power under Section17 appears to be cast in wider terms.

44. As noticed earlier, Section 17 (1) refers to first scheduleenactments; it talks of death of, or injury to, any person”or damage toany property or environment”which “has resulted from an accidentor the adverse impact of an activity or operation or process, underany enactment” in Schedule I. One of the enactments is the EnvironmentProtection Act, 1986 (hereafter “EPA”).

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A45. The definition of “environment” under the EPA is wide and isan inclusive one:”environment” includes water, air and land and theinter- relationship which exists among and between water, air andland, and human beings, other living creatures, plants, micro-organism and property”.[10] Similarly, “environmental pollutant” and“environmental pollution” are defined as follows:B

“environmental pollutant” means any solid, liquid or gaseoussubstance present in such concentration as may be, or tendto be, injurious to environment;[11]

“environmental pollution” means the presence in theCenvironment of any environmental pollutant;[12]

Section 3 (1) of the EPA confers upon the Central Government,wide power in relation to protection of the environment:

“3. POWER OF CENTRAL GOVERNMENT TO TAKEMEASURES TO PROTECT AND IMPROVE ENVIRONMENT.-D(1) Subject to the provisions of this Act, the CentralGovernment, shall have the power to take all such measuresas it deems necessary or expedient for the purpose ofprotecting and improving the quality of the environment andpreventing controlling and abating environmental pollution.”

E46. Long back, in M.C. Mehta v. Union of India[13] this courtrecognized the potential harm to the environment caused by miningoperations:

“Legal parameters

45. The natural sources of air, water and soil cannot be utilisedFif the utilisation results in irreversible damage to environment.There has been accelerated degradation of environmentprimarily on account of lack of effective enforcement ofenvironmental laws and non-compliance of the statutorynorms. This Court has repeatedly said that the right to live isGa fundamental right under Article 21 of the Constitution andit includes the right to enjoyment of pollution-free water and 10 Section 2 (a) EPA11 Section 2 (b) EPA12 Section 2 (c) EPAH13 (2004) 12 SCC 118

air for full enjoyment of life. (See Subhash Kumar v. State ofBihar [(1991) 1 SCC 598.)

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47. The mining operation is hazardous in nature. It impairsecology and people’s right to natural resources. The entireprocess of setting up and functioning of mining operationrequires utmost good faith and honesty on the part of theintending entrepreneur. For carrying on any mining activityclose to township which has tendency to degrade environmentand is likely to affect air, water and soil and impair the qualityof life of inhabitants of the area, there would be greaterresponsibility on the part of the entrepreneur. The fullestdisclosures including the potential for increased burdens onthe environment consequent upon possible increase in thequantum and degree of pollution, has to be made at the outsetso that the public and all those concerned includingauthorities may decide whether the permission can at all begranted for carrying on mining activity. The regulatoryauthorities have to act with utmost care in ensuring complianceof safeguards, norms and standards to be observed by suchentrepreneurs. When questioned, the regulatory authoritieshave to show that the said authorities acted in the mannerenjoined upon them. Where the regulatory authorities, eitherconnive or act negligently by not taking prompt action toprevent, avoid or control the damage to environment, naturalresources and people’s life, health and property, the principlesof accountability for restoration and compensation have tobe applied.”

47. Acting under the provisions of the EPA, the Central Governmenthad issued a notification on 14.09.2006, mandating Environmental ImpactAssessment (EIA) in exercise of its power under Section 3(2) of theEPA read with Rule 5 of the rules framed thereunder. In terms of thisnotification, environment impact assessment and clearance wasnecessary for different processes and industries. Mining too, was includedas part of the notification; the only exception was that minor mineralleases for an area below five hectares were exempted. Clearly, therefore,the Central Government included within the purview of the EPA, majorand minor mineral extraction.

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A48. Several irregularities were noticed over a period of time, withregard to minor mineral extraction, including sand, and there was needfor introducing stringent regulations for those activities. A report of thethen Ministry of Environment and Forests (MoEF, now MoEF&CC)submitted in 2010 was critical of the prevailing norms. As a result, thiscourt and the NGT issued orders and directives making ECs compulsoryBfor projects less than five hectares. The Central Government too initiatedmeasures.

49. The following observations of this court were made in DeepakKumar v. State of Haryana[14] :

C“18. Comments and inputs from various States and expertswere also invited so as to prepare a report for considerationof MoEF. Based on the discussion held and subsequent inputsreceived, a draft report was prepared and circulated to allmembers for their further inputs. The report was furtherdiscussed on 29-1-2010 for its finalisation. The observations/Dcomments made during the meeting were incorporated in thereport and it was again circulated to all members for theirconsideration. The report so circulated was ultimately finalised.The decision taken by MoEF affects generally the mining ofminor minerals including the riverbed mining throughout theEcountry.

19. For an easy reference, we may extract the issues andrecommendations made by MoEF, which are as follows:

“4.0. Issues and recommendations

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It may thus be observed that minerals have been classifiedinto major and minor minerals based on their end use ratherthan level of production, level of mechanisation, export andimport, etc. There do exist some minor mineral mines of silicasand and limestone where the scale of mechanisation and levelGof production is much higher than those of industrial mineralmines. Further, in terms of the economic cost and revenue, ithas been estimated that the total value of minor mineralsconstitutes about 10% of the total value of mineral production

whereas the value of non-metallic minerals comprises only3%. It is, therefore, evident that the operation of mines ofminor minerals need to be subject to some regulatoryparameters as that of mines of major minerals.

Further, unlike India there does not exist any suchsystem based on end usage in other countries for classifyingminerals into major and minor categories. Thus, there is aneed to relook at the definition of ‘minor minerals’ per se.

It is, therefore, recommended that the Ministry of Minesalong with Indian Bureau of Mines, in consultation with theState Governments may re-examine the classification ofminerals into major and minor categories so that the regulatoryaspects and environment mitigation measures areappropriately integrated for ensuring sustainable andscientific mining with least impacts on environment.

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4.5. Requirement of mine plan for minor minerals

At present, most of the State Governments have not madeit mandatory for preparation of mining plan in respect of minorminerals. In some States like Rajasthan, eco-friendly miningplans are prepared, which are approved by the State MiningDepartment. The eco-friendly mining plans so prepared,though conceptually welcome, are observed to be deficientand need to be made comprehensive in a manner as is beingdone for major minerals. Besides, the aspects of reclamationand rehabilitation of mined out areas, progressive mine closureplan, as in vogue for major minerals could be introduced forminor minerals as well.

It is recommended that provision for preparation andapproval of mine plan, as in the case of major minerals mayappropriately be provided in the rules governing the miningof minor minerals by the respective State Governments. Theseshould specifically include the provision for reclamation andrehabilitation of mined out area, progressive mine closure planand post mine land use.

4.6. Creation of separate corpus for reclamation/rehabilitationof mines of minor minerals A

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Mining of minor minerals, in our country, is by and large anunorganised sector and is practised in haphazard andunscientific manner. At times, the size of the leasehold is alsotoo small to address the issue of reclamation and rehabilitationof mined out areas. It may, therefore, be desirable that beforethe concept of mine closure plan for minor minerals isadopted, the existing abandoned mines may be reclaimed andrehabilitated with the involvement of the State Government.There is thus, a need to create a separate corpus, which maybe utilised for reclamation and rehabilitation of mined outareas. The respective State Governments may work out asuitable mechanism for creation of such corpus on the ‘polluterpays’ principle. An organisational structure may also need tobe created for undertaking and monitoring these activities.

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4.8. Uniform minor mineral concession rules D

The economic value of the minor minerals excavated in thecountry is estimated to contribute to about 9% of the totalvalue of the minerals whereas the non-metallic mineralscontribute to about 2.8%. Keeping in view the large extent ofmining of minor minerals and its significant potential toadversely affect the environment, it is recommended that modelmineral concession rules may be framed for minor mineralsas well and the minor minerals may be subjected to a simplerregulatory regime, which is, however, similar to major mineralsregime.

E

F4.9. Riverbed mining

4.9.1. Environment damage being caused by unregulatedriverbed mining of sand, bazari and boulders is attractingconsiderable attention including in the courts. The followingrecommendations are therefore made for the riverbed mining:

G

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5.0. Conclusion

Mining of minor minerals, though individually, because ofsmaller size of mine leases is perceived to have lesser impactas compared to mining of major minerals. However, the activity H

as a whole is seen to have significant adverse impacts onenvironment. It is, therefore, necessary that the mining of minorminerals is subjected to simpler but strict regulatory regimeand carried out only under an approved framework of miningplan, which should provide for reclamation and rehabilitationof the mined out areas. Further, while granting mining leasesby the respective State Governments location of any eco-fragile zone(s) within the impact zone of the proposed miningarea, the linked rules/notifications governing such zones andthe judicial pronouncements, if any, need be duly noted. TheUnion Ministry of Mines along with the Indian Bureau ofMines and respective State Governments should thereforemake necessary provisions in this regard under the Minesand Minerals (Development and Regulation) Act, 1957,Mineral Concession Rules, 1960 and adopt model guidelinesto be followed by all States.”

(emphasis supplied)

20. The Report clearly indicates that operation of mines ofminor minerals needs to be subjected to strict regulatoryparameters as that of mines of major minerals. It was alsofelt necessary to have a relook to the definition of “minorminerals” per se. The necessity of the preparation of“comprehensive mines plan” for contiguous stretches ofmineral deposits by the respective State Governments may alsobe encouraged and the same be suitably incorporated in theMineral Concession Rules, 1960 by the Ministry of Mines.

21. Further, it was also recommended that the States, UnionTerritories would see that mining of minor minerals issubjected to simpler but strict regulatory regime and carriedout only under an approved framework of mining plan, whichshould provide for reclamation and rehabilitation of minedout areas. Mining plan should take note of the level ofproduction, level of mechanisation, type of machinery usedin the mining of minor minerals, quantity of dieselconsumption, the number of trees uprooted, export and importof mining minerals, environmental impact, restoration of floraand host of other matters referred to in the 2010 Rules. Aproper framework has also to be evolved on cluster of mining ABC

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Aof minor minerals for which there must be a RegionalEnvironmental Management Plan. Another important decisiontaken was that while granting of mining leases by therespective State Governments, location of any eco-fragilezone(s) within the impact zone of the proposed mining area,the linked rules/notifications governing such zones and theBjudicial pronouncements, if any, need to be duly noted.

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28. The Central Government also should take steps to bringinto force the Minor Minerals Conservation and DevelopmentCRules, 2010 at the earliest. The State Governments and UTsalso should take immediate steps to frame necessary rulesunder Section 15 of the Mines and Minerals (Developmentand Regulation) Act, 1957 taking into consideration therecommendations of MoEF in its Report of March 2010 andmodel guidelines framed by the Ministry of Mines, GovernmentDof India. Communicate the copy of this order to MoEF,Secretary, Ministry of Mines, New Delhi; Ministry of WaterResources, Central Government Water Authority; the ChiefSecretaries of the respective States and Union Territories, whowould circulate this order to the Departments concerned.

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29. We, in the meanwhile, order that leases of minor mineralsincluding their renewal for an area of less than five hectaresbe granted by the States/Union Territories only after gettingenvironmental clearance from MoEF. Ordered accordingly.”

50. By virtue of a notification,[15] environmental clearance isFnecessary even for minor mineral extraction where the area of operationis less than 5 hectares; the procedure has been outlined under AppendixXI of that notification. Clearly, therefore, mining of even minor minerals,when resorted to on a large scale (i.e. where more than a few leases orpermits are granted), has a potential impact on the environment. In theGfacts of this case, the state had granted no less than 62 minor mineralpermits in the vicinity; unauthorized activity (in the form inter alia, ofover-mining and piling of debris) had resulted in the imposition of thepenalty. Clearly, there was violation of the EPA in the present case, 15 No. 3181 dated 14 August, 2018, published by the Government of India, in theHOfficial Gazette because Rathod’s mining lease covered an area in excess of 5 hectares;it fell within the regulatory notification of 2006. There is nothing on recordto show that the relevant clearance was obtained by Rathod. Plainly,therefore, the facts of the present case disclosed violation of the EPA-an enactment listed in Schedule I of the NGT Act. This meant that theNGT’s jurisdiction under Section 15(1)(a) and Section 17 could not havebeen disputed.

51. This court is of the considered opinion that the expression“environment” and “environmental pollution” have to be given a broadermeaning, having regard to Parliamentary intent to ensure the objectiveof the EPA. It effectuates the principles underlying Article 48A of theConstitution of India. The EPA is in essence, an umbrella legislationenacting a broad framework for the central government to coordinatethe activities of various central and state authorities established underother laws, such as the Water Act and Air Act. The EPA also effectivelyenunciates the critical legislative policy for environment protection. Itchanges the narrative and emphasis from a narrow concept of pollutioncontrol to a wider facet of environment protection. The expansivedefinition of environment that includes water, air and land “and theinterrelation which exist among and between water, air and land,other human creatures, plants, micro-organisms and property” givean indication of the wide powers conferred on the Central Government.A wide net is cast over the environment related laws. The EPA alsoempowers the central government to comprehensively controlenvironmental pollution by industrial and related activities. For thesereasons, and in view of the above discussion, it is held that the NGTcorrectly assumed jurisdiction, having regard to the nature of the accidentin the facts of this case.

II. Was the direction to pay compensation towards death, anddamages towards restitution justified?

52. In the present case, the deceased were concededly travellingon the highway. The incident of flooding occurred, and was caused dueto clogging of the water channels. The report of the sub divisionalmagistrate indicated that the Inspecting Engineer (Arvi Associates, afirm) had given a report after inspection. On behalf of the independentengineering firm appointed by the NHAI, an oral deposition was givenbefore the sub-divisional officer. It was stated that the roadside channeland culvert from where water is disposed of, had been rendered screen A

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Ablinded and a pipeline of 1.2 m diameter existed there for disposal ofwater. The necessity of remedial action was communicated to theconcessionaire, before the occurrence of the accident. It was also statedthat in terms of the instructions of the NHAI, the concessionaire wasinformed about the deficiency on 15.05.2013 and by a further letter dated04.06.2013. An action plan for completing pre-monsoon work was soughtBfrom the concessionaire. However, the concessionaire did not submit anaction plan despite lapse of one month.

53. The SDO’s report noted that the culvert had been constructedfrom the new tunnel and was existing from 2004. Apparently a 1mdiameter pipe was positioned in the culvert and had made a causeway.COne hotel also had constructed an approach road and placed a 950 MMpipe. The existing drainage capacity of the octroi post and the hotel wasinsufficient due to heavy rains as a result of which rainwater was nottotally drained. This water started accumulating on the road. Certainramps were also constructed by Tata Motors for its convenience; theyDwere removed by the concessionaire; nevertheless, the ramps wereprepared again. The existing cross drainage provision was of a sub-culvert -type structure and the size at the time of the old highway was1m x 1 m. The report further observed that the natural drainage andsides of hills of the highway was adversely affected and had beentampered with. The disposal of water on the right side overhead of theEtunnel through the cross train on the old highway via the catch drain andsubsequently the channels for the water flow were choked due todevelopment work and adversely affected the clearance of rain water.The report indicates that after the accident on 06.06.2013, the localadministration cleared the debris which had created obstacles, to facilitateFthe free flow of water into the catch drain culvert and further flow ofwater.

54. The legal position regarding highways is outlined in twoenactments, i.e. the National Highways Act, 1956 (“the Highways Act”)and the NHAI Act. The provisions of the Highways Act, to the extentGthey are relevant are as follows:

“4. National highways to vest in the Union. — All nationalhighways shall vest in the Union, and for the purposes of thisAct “highways” include—

(i) all lands appurtenant thereto, whether demarcated or not; H

(ii) all bridges, culverts, tunnels, causeways, carriagewaysand other structures constructed on or across such highways;and

(iii) all fences, trees, posts and boundary, furlong andmilestones of such highways or any land appurtenant to suchhighways.

5. Responsibility for development and maintenance ofnational highways.—It shall be the responsibility of the CentralGovernment to develop and maintain in proper repair allnational highways; but the Central Government may, bynotification in the Official Gazette, direct that any functionin relation to the development or maintenance of any nationalhighway shall, subject to such conditions, if any, as may bespecified in the notification, also be exercisable by theGovernment of the State within which the national highway issituated or by any officer or authority subordinate to theCentral Government or to the State Government.

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8A. Power of Central Government to enter into agreements—for development and maintenance of national highways (1) Notwithstanding anything contained in this Act, the CentralGovernment may enter into an agreement with any person inrelation to the development and maintenance of the whole orany part of a national highway.

(2) Notwithstanding anything contained in section 7, theperson referred to in sub-section (1) is entitled to collect andretain fees at such rate, for services or benefits rendered byhim as the Central Government may, by notification in theOfficial Gazette, specify having regard to the expenditureinvolved in building, maintenance, management and operationof the whole or part of such national highway, interest on thecapital invested, reasonable return, the volume of traffic andthe period of such agreement.

(3) A person referred to in sub-section (1) shall have powersto regulate and control the traffic in accordance with theprovisions contained in Chapter VIII of the Motor VehiclesAct, 1988 (59 of 1988) on the national highway forming

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Asubject-matter of such agreement, for proper managementthereof.”

55. Section 16 of the NHAI Act spells out the functions of theNHAI; it reads as follows:

“16. Functions of the Authority.— (1) Subject to the rules madeBby the Central Government in this behalf, it shall be thefunction of the Authority to develop, maintain and managethe national highways and any other highways vested in, orentrusted to, it by the Government. rules made by the CentralGovernment in this behalf, it shall be the function of theCAuthority to develop, maintain and manage the nationalhighways and any other highways vested in, or entrusted to,it by the Government.”

56. Acting in furtherance of its powers, the NHAI entered into anagreement with the concessionaire for the construction, operation andDmaintenance of the highway in question (i.e. the stretch of 140 kms onwhich the accident occurred). The question is whether the NHAI, whichindisputably owns and controls the highway, and on whose behalf it wasconstructed, and for which the maintenance and operation agreementwas entered into, led to a duty of care, to the users (of the highway).

E57. This issue had arisen in Rajkot Municipal Corpn. v.Manjulben Jayantilal Nakum[16 ]in the context of certain facts. Thedeceased used to travel on a railway season ticket to Rajkot to attend tohis office work. One day whilst he was on the footpath on the way to hisoffice, a roadside tree suddenly fell on him, resulting in serious injurieson the head and other parts of the body, and later died in the hospital.FThe High Court allowed the writ petition. This court noted the distinctionbetween a common law duty of care owed to members of the public,and whether liability could be imposed upon a local authority for breachof its statutory duty. The court noticed previous English decisions[17] andstated thatG“18. The question emerges as to when would the breach ofstatutory duty under a particular enactment give rise to tortiousliability? The statutory duty gives rise to civil action. The 16 (1997) 9 SCC 55217 Gorris v. Scott [(1874) 9 Exch 125] and Kilgollan v. William Cooke & Co. Ltd. (1956)H2 All ER 294, CA]

statutory negligence is sui generis and independent of anyother form of tortious liability. It would, therefore, be ofnecessity to find out from the construction of each statutoryduty whether the particular duty is general duty in public lawor private law duty towards the plaintiff. The plaintiff mustshow that (a) the injury suffered is within the ambit of statute;(b) statutory duty imposes a liability for civil action; (c) thestatutory duty was not fulfilled; and (d) the breach of dutyhas caused him injury. These essentials are required to beconsidered in each case. The action for breach of statutoryduty may belong to the category of either strict or absoluteliability which is required, therefore, to be considered in thenature of statutory duty the defendant owes to the plaintiff;whether or not the duty is absolute; and the public policyunderlying the duty. In most cases, the statute may not giverise to cause of action unless it is breached and it has causeddamage to the plaintiff, though occasionally the statute maymake breach of duty actionable per se. The burden, therefore,is on the plaintiff to prove on balance of probabilities thatthe defendant owes that duty of care to the plaintiff or classof persons to whom he belongs, that defendant was negligentin the performance or omission of that duty and breach ofduty caused or materially contributed to his injury and thatduty of care is owed on the defendant. If the statute requirescertain protection on the principle of volenti non fit injuria,the liability stands excluded. The breach of duty created by astatute, if it results in damage to an individual prima facie, istort for which the action for damages will lie in the suit. Onewould often take the Act, as a whole, to find out the object ofthe law and to find out whether one has a right and remedyprovided for breach of duty. It would, therefore, be of necessityin every case to find the intention of legislature in creatingduty and the resultant consequences suffered from the actionor omission thereof, which are required to be considered. Noaction for damages lies if on proper construction of statute,the intention is that some other remedy is available. One ofthe tests in determining the intention of the statute is toascertain whether the duty is owed primarily to the generalpublic or community and only incidentally to an individual AB

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or primarily to the individual or class of individuals and onlyincidentally to the general public or the community. If thestatute aims at duty to protect a particular citizen or particularclass of citizens to which the plaintiff belongs, it prima faciecreates at the same time corelative right vested in those citizensof which plaintiff is one; he has remedy for enforcement,namely, the action for damages for any loss occasioned dueto negligence or for failure of it. But this test is not alwaysconclusive.

19. Duty may be of such paramount importance that it is owedto all the public. It would be wrong to think that on an action,the duty could be enforced by way of damages when duty isowed to a section of public and cannot be enforced if anindividual sustains damages to whom the Corporation owesno duty and no private interest is infringed. Breach ofstatutory duty, therefore, requires to be examined in the contextin which the duty is created not towards the individual, buthas its effect on the right of individual vis-à-vis the society.Statutory duty generally is towards public at large and nottowards an individual or individuals and the corelative rightis vested in the public and not in private person, even thoughthey may suffer damages. The duty in such a case is to beenforced by way of criminal prosecution or by way ofinjunction at the suit under Section 192 of CPC or with leaveof court under Order I, Rule 8 CPC by public-spirited personor in any appropriate manner to enforce the right and not byway of private action for damages. In that situation, thelegislature, while recognising the private right vested in aninjured individual, may intend that it shall be maintained solelyby some special remedy provided for a particular case andnot by ordinary method of an action for damages as penaltyor compensation.

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24. Generally, a public authority entrusted with no statutoryobligation to exercise a power, does not come under commonlaw duty of care to do so but by conduct the public authoritymay place itself in such a situation that it attracts the duty ofcare which calls for exercise of the power. Common illustration is provided by an action in which an authority in the exerciseof its functions, if it had created a danger, thereby subjectingitself to a duty of care for the safety of others which must bedischarged by an exercise of its statutory power or by givingnecessary warnings. It is the conduct of the authority increating the danger that attracts the duty of care as envisagedin Sheppard v. Borough of Glossop [(1921) 3 KB 132 : 1921All ER Rep 61, CA]. The statute does not by itself give rise toa civil action but it forms the formulation on which the commonlaw can build a cause of action….

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39. It can be seen that ordinarily the principle of the law ofnegligence applies to public authorities also. They are liableto damages because by a negligent act or failure to act whenthey are under a duty to act or for a failure to consider whetherto exercise a power conferred on them with the intention thatit would be exercised if and when public interest requires it.Where the public authority has decided to exercise a powerand has done it negligently a person who has acted in relianceon what the public authority has done, may have no difficultyin proving that the damages which he has suffered have beencaused by the negligence. Where the damage has resultedfrom a negligent failure to act there may be greater difficultyin proving causation and requires examination in greaterdetail. …”

58. In the UK, the duty of a highway authority was described byDiplock L.J. in Griffiths v. Liverpool Corporation[18] as follows:

“The duty at common law to maintain, which includes a dutyto repair a highway, was not based in negligence but innuisance. It was an absolute duty to maintain, not merely aduty to take reasonable care to maintain, and the statutoryduty which replaced it was also absolute.”

Again, Diplock, LJ stated in Burnside v. Emerson[19] describedthe duty as follows:

18 [1967] 1 Q.B. 374

19 [1968] 1 W.L.R. 1490

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A“in such good repair as renders it reasonably passable forthe ordinary traffic of the neighbourhood at all seasons ofthe year without danger caused by its physical condition.”

59. Later, in Haydon v. Kent County Council[20] Lord DenningM.R. explained that while the duty to maintain the highway meant anBabsolute duty to ensure that it was in a condition to be used as a highwayand to ensure safety, it did not include the duty to ensure at all times thatthe road surface was kept clean. It was clarified however, that the issuehad to be considered in each case, and it was to be considered whetherthe authority had taken reasonable steps to keep it in good repair afterbeing notified about obstruction:C

“If section 41 is to be construed as capable of imposing aduty to take remedial measures to deal with ice and snow ona highway, or footway, which is in good physical repair, sothat whether in particular circumstances that duty has arisenis to be decided ‘as a question of fact and degree,’ it wouldDseem that the facts relevant to determining whether the dutyhas arisen would be essentially similar to those relevant todeciding whether a breach of the duty has been proved andwhether the statutory defence under section 58 has been madeout. Parliament did not define those facts for the purpose ofEsection 41. The concept of the passing of sufficient time tomake it prima facie unreasonable for the highway authorityto have failed to take remedial measures must presupposesome idea of the amount and nature of the resources fordealing with snow and ice which are or ought to be availableto the authority, and of the order of priority among differentFcarriageways and footways which guides or which ought toguide the authority; and of the necessary degree of urgencyin using those resources. No such guidance is given in thestatute with reference to proof of the arising of the duty.”

60. In Stovin v Wise[21], the defendant emerged from a side roadGand ran down the plaintiff, because she was not keeping a proper look-out. When she was sued for damages, the defendant joined the CountyCouncil as a third party because the visibility at the intersection waspoor and they said that the Council, which had the duty to maintain the20 [1978] Q.B. 343H21 1996 (3) All ER 801

road should have done something to improve it. The council had statutorypowers which would have enabled the necessary work to be done andthere was evidence that the relevant officers had decided in principlethat it should be done, but they had not taken steps to do it. The House ofLords held that there was no duty of care in private law based on thestatutory duty, and that “Drivers of vehicles must take the highwaynetwork as they find it”. It was held that statutory power could not beconverted into a common law duty. The council had done nothing which,apart from statute, would have attracted a common law duty of care. Ithad done nothing at all. The only basis on which it was a candidate forliability was that Parliament had entrusted it with general responsibilityfor the highways and given it the power to improve them and take othermeasures for the safety of their users.Lord Hoffmann observed,

“In summary, therefore, I think that the minimum preconditionsfor basing a duty of care upon the existence of a statutorypower, if it can be done at all, are, first, that it would in thecircumstances have been irrational not to have exercised thepower, so that there was in effect a public law duty to act,and secondly, that there are exceptional grounds for holdingthat the policy of the statute requires compensation to be paidto persons who suffer loss because the power was notexercised.”

61. Stovin (supra) and its enunciation that the existence of apublic duty did not per se extend to a private duty of care to take specialmeasures, unless exceptional features were proved, was followed inGorringe v. Calderdale Metropolitan Borough Council[22]. The entirelaw was re-examined and the correct position, restated in a recentjudgment by the UK Supreme Court in Robinson v. Chief Constableof West Yorkshire Police[23], which observed as follows:

“32 At common law, public authorities are generally subjectto the same liabilities in tort as private individuals and bodies:see, for example, Entick v Carrington (1765) 2 Wils KB 275and Mersey Docks and Harbour Board v Gibbs (1866) LR 1HL 93. Dicey famously stated that “every official, from thePrime Minister down to a constable or a collector of taxes, isunder the same responsibility for every act done without legal 22 2004 (1) WLR 1057

23 2019 (2) All ER 1041

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justification as any other citizen”: The Law of the Constitution,3rd ed (1889), p 181. An important exception at common lawwas the Crown, but that exception was addressed by the CrownProceedings Act 1947, section 2.

33. Accordingly, if conduct would be tortious if committed bya private person or body, it is generally equally tortious ifcommitted by a public authority: see, for example, DorsetYacht Co Ltd v Home Office [1970] AC 1004, as explained inGorringe’s case 2004 (1) WLR 1057, para 39. That generalprinciple is subject to the possibility that the common law orstatute may provide otherwise, for example by authorisingthe conduct in question: Geddis v Proprietors of BannReservoir (1878) 3 App Cas 430. It follows that publicauthorities are generally under a duty of care to avoid causingactionable harm in situations where a duty of care would ariseunder ordinary principles of the law of negligence, unlessthe law provides otherwise.

34. On the other hand, public authorities, like privateindividuals and bodies, are generally under no duty of careto prevent the occurrence of harm: as Lord Toulson JSC statedin Michael’s case [2015] AC 1732, para 97, “the commonlaw does not generally impose liability for pure omissions”.This “omissions principle” has been helpfully summarised byTofaris and Steel, “Negligence Liability for Omissions andthe Police” [2016] CLJ 128:

“In the tort of negligence, a person A is not under a duty totake care to prevent harm occurring to person B through asource of danger not created by A unless (i) A has assumed aresponsibility to protect B from that danger, (ii) A has donesomething which prevents another from protecting B from thatdanger, (iii) A has a special level of control over that sourceof danger, or (iv) A’s status creates an obligation to protect Bfrom that danger.”

35 As that summary makes clear, there are certaincircumstances in which public authorities, like privateindividuals and bodies, can come under a duty of care toprevent the occurrence of harm: see, for example,

Barrett v Enfield London Borough Council [2001] 2 AC 550and Phelps v Hillingdon London Borough Council [2001] 2AC 619, as explained in Gorringe’s case 2004 (1) WLR 1057,paras 39–40. In the absence of such circumstances, however,public authorities generally owe no duty of care towardsindividuals to confer a benefit upon them by protecting themfrom harm, any more than would a private individual or body:see, for example, Smith v Littlewoods Organisation Ltd [1987]AC 241, concerning a private body, applied in Mitchell vGlasgow City Council [2009] AC 874, concerning a publicauthority.

36 That is so, notwithstanding that a public authority mayhave statutory powers or duties enabling or requiring it toprevent the harm in question. A well known illustration ofthat principle is the decision of the House of Lords in EastSuffolk Rivers Catchment Board v Kent [1941] AC 74. Theposition is different if, on its true construction, the statutorypower or duty is intended to give rise to a duty to individualmembers of the public which is enforceable by means of aprivate right of action. If, however, the statute does not createa private right of action, then “it would be, to say the least,unusual if the mere existence of the statutory duty [or, afortiori, a statutory power] could generate a common lawduty of care”: Gorringe’s case 2004 (1) WLR 1057, para 23.

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40 However, until the reasoning in the Anns case wasrepudiated, it was not possible to justify a rejection of liability,where a prima facie duty of care arose at the first stage of theanalysis from the foreseeability of harm, on the basis thatpublic bodies are not generally liable for failing to exercisetheir statutory powers or duties so as to confer the benefit ofprotection from harm. Instead, it was necessary to haverecourse to public policy in order to justify the rejection ofliability at the second stage. That was accordingly theapproach adopted by the House of Lords and the Court ofAppeal in a series of judgments, including Hill’s case [1989]AC 53. The need to have recourse to public policy for thatpurpose has been superseded by the return to orthodoxy in AB

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Gorringe’s case. Since that case, a public authority’s non-liability for the consequences of an omission can generallybe justified on the basis that the omissions principle is ageneral principle of the law of negligence, and the law ofnegligence generally applies to public authorities in the sameway that it applies to private individuals and bodies.

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41 Equally, concerns about public policy cannot in themselvesoverride a liability which would arise at common law for apositive act carried out in the course of performing a statutoryfunction: the true question is whether, properly construed,the statute excludes the liability which would otherwise arise:Csee Gorringe’s case 2004 (1) WLR 1057, para 38, per LordHoffmann.

42 That is not to deny that what might be described as policyconsiderations sometimes have a role to play in the law ofnegligence. As explained earlier, where established principlesDdo not provide a clear answer to the question whether a dutyof care should be recognised in a novel situation, the courtwill have to consider whether its recognition would be justand reasonable.”

62. In Yetkin v. Mahmood[24], where injury was caused to aEhighway user by shrubs which had overgrown and impeded visibility, thecourt upheld the claim for damages. The court observed as follows:

“…The planting of vegetation in the raised beds of the centralreservation is obviously a reasonable exercise of theauthority’s powers but to plant shrubs which will grow soFlarge as to obscure the view and then not to ensure that theyare trimmed back is a negligent exercise of those powers. Thejudge held that that failure was a cause of this accident. It isnot suggested that he was not right so to hold. I have nodoubt that, in the circumstances of this case, the local authorityGhad a common law duty of care towards the claimant,notwithstanding her own negligence, that that duty wasbreached and that the breach was a cause of the accident.There was no need for the judge to consider whether thedanger created by the bushes amounted to a trap or

enticement. It follows in my judgment that the judge erred indismissing the claim. He should have held that primary liabilitywas established.”

63. A similar approach was indicated by this court in MunicipalCorpn. of Delhi v. Sushila Devi[25] (where a tree fell on a passer-bycausing injury) the court upheld the findings that the municipal corporationwas liable, stating that:

“13. By a catena of decisions, the law is well settled that ifthere is a tree standing on the defendant’s land which is driedor dead and for that reason may fall and the defect is onewhich is either known or should have been known to thedefendant, then the defendant is liable for any injury causedby the fall of the tree (see Brown v. Harrison [1947 WN 191 :63 TLR 484], Quinn v. Scott [(1965) 1 WLR 1004 : (1965) 2All ER 588] and Mackie v. Dumbartonshire County Council[1927 WN 247] ). The duty of the owner/occupier of thepremises by the side of the road whereon persons lawfullypass by, extends to guarding against what may happen justby the side of the premises on account of anything dangerouson the premises. The premises must be maintained in a safestate of repair. The owner/occupier cannot escape the liabilityfor injury caused by any dangerous thing existing on thepremises by pleading that he had employed a competent personto keep the premises in safe repairs. In Municipal Corpn. ofDelhi v. Subhagwanti [AIR 1966 SC 1750] a clock tower whichwas 80 years’ old collapsed in Chandni Chowk, Delhi causingthe death of a number of persons. Their Lordships held thatthe owner could not be permitted to take a defence that heneither knew nor ought to have known the danger. “[T]heowner is legally responsible irrespective of whether thedamage is caused by a patent or a latent defect,” — saidtheir Lordships. In our opinion the same principle is applicableto the owner of a tree standing by the side of a road. If thetree is dangerous in the sense that on account of any diseaseor being dead the tree or its branch is likely to fall and therebyinjure any passer-by then such a tree or branch must beremoved so as to avert the danger to life. It is pertinent to AB

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Anote that it is not the defence of the Municipal Corporationthat vis major or an act of God such as a storm, tempest,lightning or extraordinary heavy rain had occurred causingthe fall of the branch of the tree and hence the Corporationwas not liable.”

BThis approach that a statutory corporation or local authority canbe held liable in tort for injury occasioned on account of omission tooversee, or defective supervision of its activities contracted out to anotheragency, was also followed in Vadodara Municipal Corporation vPurshottam V. Muranji[26].

C64. The terms of the agreement which the NHAI entered intowith the concessionaire clearly contemplated the safety of highway users(Clause 18.1.1) and an elaborate highway monitoring mechanism (Clause19.1). The agreement also required any unusual occurrences to bereported; an independent engineer was required to, and did inspect thehighway. The reports of the inspecting engineer reveal that theDdeficiencies by way of narrowing of water channels, and the unusualcollection of debris, were noted. Even before the incident, the NHAIwas alive to this; it had separately written to Rathod, and later to thelocal administration about it through its letter dated 15.04.2011. Thatletter is revealing; it inter alia, states that:E

“During pre-monsoon rains all the excavated muck hasbeen carried to NH4 alongwith rain water and block Satarabound traffic lane for quite some time. The problem will besevere during heavy rains of July and August.

As such safety of highway and tunnel is completely atFstake due to indiscriminate cutting of hills on upper side oftunnel and both the end.”

65. Having regard to the duty imposed on the NHAI by virtue ofSections 4 and 5 of the Highways Act, read with Section 16 of theNHAI Act, there can be no manner of doubt that the NHAI wasGresponsible for the maintenance of the highway, including the stretchupon which the accident occurred. The report of the sub-divisional officerclearly shows that inspection reports were furnished to the NHAI shortlybefore the incident, highlighting the deficiencies; also, the NHAI’scorrespondence with Rathod, and the local administration, reveal that it H26 2014 (16) SCC 14

was aware of the danger and likelihood of risk to human life, and theforeseeability of the event that actually occurred later. Further, lettersaddressed by the local administration and the NHAI to Rathod similarlyshow that it was incumbent upon him to take remedial action. The failureof the NHAI to ensure remedial action, and likewise the failure by Rathodto take measures to prevent the accident, prima facie, disclose theirliability.

66. The absence of legal representatives or heirs of the deceasedin the proceedings, or the fact that they had initiated independent civilaction, in the opinion of this court, was not an impediment, nor could ithave precluded the NGT from exercising its jurisdiction, given the gravityof the matter and the danger posed to the members of the public. Theinitiation of civil action did not mean that the NGT had to either rejectthe application (as far as it claimed relief for the accident), or await theoutcome of the civil suit. This position is clear from the proviso to Section18(1) which reads as follows:

“Provided that where all the legal representatives ofthe deceased have not joined in any such application forcompensation or relief or settlement of dispute, the applicationshall be made on behalf of, or, for the benefit of all the legalrepresentatives of the deceased and the legal representativeswho have not so joined shall be impleaded as respondents tothe application.”

67. The above provision clearly implies that an application withoutimpleading the legal heirs cannot be rejected. At the most, the tribunalhas to implead all legal heirs. In the present case, that procedure wasnot followed. However, the legal heirs have instituted a suit. The ends ofjustice would be served if that suit (Special Civil Suit No. 890 of 2014before the Court of the Civil Judge Senior Division, Pune) is directed torevive and continue it; a direction is issued to the concerned court (Courtof the Civil Judge Senior Division, Pune). The directions in this regardby the NGT, towards payment of compensation are to be regarded asindicative of a prima facie determination. Consequently, the direction tothe NHAI and Rathod, jointly making them liable to pay 15 lakhs isjustified. It is clarified that the civil suit will now proceed, and based onevidence, the court would finally decide the issue of liability, and makesuch further consequential orders or decrees as may be found necessaryin this regard, towards apportioning of liability of the NHAI, Rathod, the AB

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Astate or any other party (including the concessionaire). This court’s ordershall not be treated as conclusive; the trial court shall independentlyproceed to evaluate the evidence and hear the parties on the merits oftheir submissions. The restitutionary order by the NGT, directing paymentby Rathod and NHAI of 10 lakhs too, in this court’s opinion, cannot befound to be at fault. It is upheld. The NHAI and Rathod shall complyBwith the directions of the NGT and deposit the sum of 15 lakhs with thesaid court within four weeks, in equal proportion. The sum 10 lakhs shallbe deposited in the same proportion, in court, to be disbursed to the stategovernment for restoring the environment and carrying out afforestation/planting of trees etc.CPoint Nos III and IV: Correctness of NGT’s directionscontained in Para 17 (e) of its impugned order, and thelegality of the order/notification of the state of Maharashtra,issued under Section 154, MRTP Act

68. Asto the third point, two issues arise for consideration - firstly,Dthe power of the NGT to issue directions banning development and buildingactivities of the kind contained in Para 17(e) of its impugned order, andsecondly, the correctness of the procedure adopted while issuing suchdirections, in this case.

69. In the All Dimasa Student Union case[27], this court consideredEthe nature of powers and jurisdiction of NGT. The relevant discussion isas follows:

“156. What are the powers and jurisdiction of the Tribunalgiven under the National Green Tribunal Act, 2010 has to belooked into to consider the above submission? Insofar asFjurisdiction of the Tribunal is concerned, we have alreadynoticed Sections 14, 15 and 16 of the Act. Section 19 of theAct deals with procedure and powers of the Tribunal. Section19 which is relevant for the present case is as follows[28 ]:

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27 See f.n. 9 (supra)

28 “19. Procedure and powers of Tribunal.—(1) The Tribunal shall not be bound by theprocedure laid down by the Code of Civil Procedure, 1908 but shall be guided by theprinciples of natural justice.

(2) Subject to the provisions of this Act, the Tribunal shall have power to regulate itsHown procedure.

157. Sub-section (1) of Section 19 provides that the Tribunalshall not be bound by the procedure laid down by the Codeof Civil Procedure but shall be guided by the principles ofnatural justice. What sub-section (1) meant to convey is thatthe Tribunal is not shackled with the procedure laid down byCPC for conducting its proceedings. Sub-section (2) ofSection 19 empowers the Tribunal with powers to regulate itsown procedure. Section 19(2) confers vide powers on theTribunal insofar as its procedure is concerned. Section 19(4)vests some powers as are vested in the civil court, while tryinga suit, in respect of matters enumerated therein. The use ofthe expression “shall not be bound by the procedure laid downby CPC” is not akin to saying that procedure as laid down byCPC is in no manner relevant to the Tribunal. Further, Section19(1) also does not mean that the Tribunal cannot follow anyprocedure given in CPC. One provision of CPC inserted byAct 104 of 1976 with effect from 1-2-1977 is Order 26, whichis relevant for present inquiry. Order 26 Rule 10-A providesas follows:

“10-A. Commission for scientific investigations.—(1)Where any question arising in a suit involves any scientificinvestigation which cannot, in the opinion of the Court, be

(3) The Tribunal shall also not be bound by the rules of evidence contained in the IndianEvidence Act, 1872.

(4) The Tribunal shall have, for the purposes of discharging its functions under this Act,the same powers as are vested in a civil court under the Code of Civil Procedure, 1908,while trying a suit, in respect of the following matters, namely—

(a) summoning and enforcing the attendance of any person and examining himon oath; (b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act,1872, requisitioning any public record or document or copy of such record ordocument from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decision; (g) dismissing an application for default or deciding it ex parte; (h) setting aside any order of dismissal of any application for default or anyorder passed by it ex parte;

(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made orappeal filed under this Act; ABCD

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conveniently conducted before the Court, the Court may, if itthinks it necessary or expedient in the interests of justice soto do, issue a commission to such person as it thinks fit,directing him to inquire into such question and report thereonto the Court.

(2) The provisions of Rule 10 of this Order shall, as faras may be, apply in relation to a Commissioner appointedunder this Rule as they apply in relation to a Commissionerappointed under Rule 9.”

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158. Rule 10-A provides that where any question arising in aCsuit involves any scientific investigation which cannot, in theopinion of the Court, be conveniently conducted before theCourt, the Court may, if it thinks necessary or expedient inthe interests of justice so to do, issue a commission to suchperson as it thinks fit, directing him to inquire into suchquestion and report thereon to the Court. Rule 10-A is enablingDpower to the courts to obtain report from such persons as itthinks fit when any question involves with the scientificinvestigation. The powers under Rule 10-A which are to beexercised by the Court can very well be used by NGT to obtainreports by experts. NGT as per the statutory scheme of NGTEhas to decide several complex questions pertaining to pollutionand environment. The scientific investigation and report byexperts are necessary requirements in appropriate cases tocome to correct conclusion to find out measures to remedythe pollution and environment. We do not, thus, find any dearthof jurisdiction in NGT to appoint a committee to submit aFreport. We may further say that while asking an expert togive a report, NGT is not confined to the four corners of Rule10-A rather its jurisdiction is not shackled by strict terms ofOrder 26 Rule 10-A as per Section 19(1) as noticed above.”

(j) pass an order requiring any person to cease and desist from committing orGcausing any violation of any enactment specified in Schedule I; (k) any other matter which may be prescribed.

(5) All proceedings before the Tribunal shall be deemed to be the judicialproceedings within the meaning of Sections 193, 219 and 228 for the purposes ofSection 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil courtfor the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure,1973.”H

70. The court also took note of Rule 24 of the National GreenTribunal (Practice and Procedure) Rules, 2011 (framed under Sections4(4) and 35 of the NGT Act).[29] This court then held as follows:

“160. Rule 24 empowers the Tribunal to make such orders orgive such directions as may be necessary or expedient to giveeffect to its order or to secure the ends of justice. Rule 24gives wide powers to the Tribunal to secure the ends of justice.Rule 24 vests special power to the Tribunal to pass ordersand issue directions to secure the ends of justice. Use of words“may”, “such orders”, “gives such directions”, “as may benecessary or expedient”, “to give effect to its orders”, “orderto prevent abuse of process”, are words which enable theTribunal to pass orders and the above words confer widediscretion.

163. The object for which the said power is given is not far toseek. To fulfil the objective of the NGT Act, 2010, NGT has toexercise a wide range of jurisdiction and has to possess widerange of powers to do justice in a given case. The power isgiven to exercise for the benefit of those who have right forclean environment which right they have to establish beforethe Tribunal. The power given to the Tribunal is coupled withduty to exercise such powers for achieving the objects. Inthis regard reference is made to the judgment of this Court inL. Hirday Narain v. CIT [L. Hirday Narain v.CIT, (1970) 2SCC 3s55], wherein this Court was examining provisionempowering authority to do something. This Court laid downin para 14: (SCC p. 359)

164. We, thus, are of the considered opinion that there is nolack of jurisdiction in NGT to direct for appointment ofcommittee or to obtain a report from a committee in the givenfacts of the case.”

29 The said rule reads as follows:

“24. Order and directions in certain cases.— The Tribunal may make such orders orgive such directions as may be necessary or expedient to give effect to its order or toprevent abuse of its process or to secure the ends of justice.”

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A71. The power and jurisdiction of the NGT under Sections 15(1)(b)and (c) are not restitutionary, in the sense of restoring the environmentto the position it was before the practise impugned, or before the incidentoccurred. The NGT’s jurisdiction in one sense is a remedial one, basedon a reflexive exercise of its powers. In another sense, based on thenature of the abusive practice, its powers can also be preventive.B

72. As a quasi-judicial body exercising both appellate jurisdictionover regulatory bodies’ orders and directions (under Section 16) and itsoriginal jurisdiction under Sections 14, 15 and 17 of the NGT Act, thetribunal, based on the cases and applications made before it, is an expertregulatory body. Its personnel include technically qualified andCexperienced members. The powers it exercises and directions it canpotentially issue, impact not merely those before it, but also state agenciesand state departments whose views are heard, after which generaldirections to prevent the future occurrence of incidents that impact theenvironment, are issued.

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73. Courts in the US, notably the US Supreme Court, have beenfaced with problems arising from regulatory adjudication. The scope ofsuch decision making which resembles an adjudicatory outcome by courts,was considered in Securities Exchange Commission v. CheneryCorp.[30] This case arose from an order of the Securities ExchangeECommission (SEC) refusing to approve a utility company’s bankruptcyreorganization plan, due to that plan’s favourable treatment ofmanagement’s stock purchases during the reorganization period. TheSEC originally had based its disapproval on its understanding of generalcorporation law principles. The Supreme Court initially struck down thatdecision as a misreading of the principles.On remand, the SEC reaffirmedFits rejection of the reorganization plan. But this time, the SEC relied onits interpretation of the standards of the Public Utility Holding CompanyAct of 1935.When the Supreme Court decided the appeal for the secondtime, it affirmed the SEC’s order. The court clarified that SEC would beallowed to establish such an interpretation by means of a particularizedGorder rather than a general regulation and observed that:

“Not every principle essential to the effective administrationof a statute can or should be cast immediately into the moldof a general rule. Some principles must await their owndevelopment, while others must be adjusted to meet particular,H30 332 U.S. 194 (1947)

unforeseeable situations. In performing its important functionsin these respects, therefore, an administrative agency must beequipped to act either by general rule or by individual order.To insist upon one form of action to the exclusion of the otheris to exalt form over necessity. In other words, problems mayarise in a case which the administrative agency could notreasonably foresee, problems which must be solved despitethe absence of a relevant general rule. Or the agency maynot have had sufficient experience with a particular problemto warrant rigidifying its tentative judgment into a hard andfast rule. Or the problem may be so specialized and varyingin nature as to be impossible of capture within the boundariesof a general rule. In those situations, the agency must retainpower to deal with the problems on a case-to-case basis if theadministrative process is to be effective. There is thus a verydefinite place for the case by case evolution of statutorystandards. And the choice made between proceeding bygeneral rule or by individual, ad hoc litigation is one thatlies primary in the informed discretion of the administrativeagency.”

74. Similar observations were made by this court in PTC India v.Central Electricity Regulatory Commission[31]. The court stated asfollows, after analysing the provisions of the Electricity Act 2003:

“49. On the above analysis of various sections of the 2003Act, we find that the decision-making and regulation-makingfunctions are both assigned to CERC. Law comes into existencenot only through legislation but also by regulation andlitigation. Laws from all three sources are binding. Accordingto Professor Wade, “between legislative and administrativefunctions we have regulatory functions”. A statutoryinstrument, such as a rule or regulation, emanates from theexercise of delegated legislative power which is a part ofadministrative process resembling enactment of law by thelegislature whereas a quasi-judicial order comes fromadjudication which is also a part of administrative processresembling a judicial decision by a court of law.

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A50. Applying the above test, price fixation exercise is reallylegislative in character, unless by the terms of a particular-statute it is made quasijudicial as in the case of tariff fixationunderSection 62 made appealable under Section 111of the2003 Act, though Section 61is an enabling provision for theframing of regulations by CERC. If one takes “tariff” as aBsubject-matter, one finds that under Part VII of the 2003 Actactual determination/fixation of tariff is done by theappropriate Commission underSection 62 whereas Section 61is the enabling provision for framing of regulations containinggeneric propositions in accordance with which the appropriateCCommission has to fix the tariff. This basic scheme equallyapplies to the subject-matter “trading margin” in a differentstatutory context as will be demonstrated by discussionhereinbelow.”

75. The NGT’s directions, though placed in the context of itsDadjudicatory role, have a wider ramification in the sense that its rulingsconstitute the appropriate norm which are to be followed by all thoseengaging in similar activities. Therefore, its orders, contextually in thecourse of adjudication, also establish and direct behaviour appropriatefor future guidance. In these circumstances, given the panoply of theNGT’s powers under the NGT Act, which include considering regulatoryEdirections issued by expert regulatory bodies under the Water (Preventionand Control of Pollution) Act, 1974, the Air (Prevention and Control ofPollution) Act, 1981 and the Biodiversity Act, 2002 it has to be held thatgeneral directions for future guidance, to avoid or prevent injury to theenvironment for appropriate assimilation in relevant rules, can be givenFby the NGT.

76. Turning next to the question of the correctness of the generaldirections contained in Para 17(e) of the NGT’s order, this court has nomanner of doubt that such directions were improper and not justified inthe facts of this case. What the NGT had before it, was the report of theGSDM and a report commissioned about the nature of the incident. Basedon these limited inputs, the tribunal concluded- without any rationaleand based on no scientific or technical evidence, or experts’ opinion, thatdevelopment and construction should not be carried out within 100 feetof a “lowest slope i.e. incline of any hill within its territorial limits,as well as hill-tops”. The decisions of this court, including the All DimasaH

Students Union case (f.n. 9); Mantri Technoze Pvt. Ltd case (f.n.3);the Hanuman Laxman Aroskar case (f.n. 4) and the Tamil NaduPollution Control Board case (f.n. 2) all show that the NGT resortedto the appointment of technical and scientific experts in the relevantfield, who studied the issue, made site inspections and furnished reports.Such reports were subjected to discussion by the parties before the NGT,who were also given the opportunity of objecting to or makingrepresentations against such reports. Based on a final consideration ofall these materials, and the submissions of parties before it, the NGTproceeded to issue directions. This procedure was wholly overlooked bythe NGT in the present case. As a result, it is held that the said tribunal’sdirections were improper and are procedurally indefensible. The directionscontained in Para 17(e) are therefore set aside.

77. To consider the last issue, i.e. validity of the notification/directionissued by the state government, it is necessary to briefly outline provisionsof the MRTP Act. The MRTP Act was framed and enacted for thepurpose of use, planning and development in the regions (of Maharashtra).This was through the establishment of Regional Planning Boards, NewTown Development Authorities and Special Planning Authorities, as thecase may be, for specified “notified areas”. The Act provides for thepreparation of development plans, appointment of Special PlanningAuthorities for notified areas, and creation of new towns for designatedareas by means of development authorities. The MRTP Act also enablescompulsory acquisition of land for public purposes in respect of the plansand for purposes connected therewith. The Act provides for an elaborateprocedure for preparation of the regional plan by a Regional PlanningBoard (“the board”) and development plan by any planning authority.The board has to follow the procedure contained in Chapter II(C). Section16 provides the procedure – the regional boards have to (after necessarysurvey) prepare land-use maps for the region, and prepare a draft regionalplan, after which they have to publish a notice about the plan in theOfficial Gazette, inviting objections and suggestions from any personwith respect to the draft plan. The board has to refer the objections,suggestions and representations received by it to the Regional PlanningCommittee (“the committee” hereafter) appointed under Section 10 forconsideration and report. The committee, after giving a reasonableopportunity of being heard to the affected persons has to submit its reportto the board, after which the board has to prepare the regional plan afterconsidering the suggestions, objections and representations and the report AB

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Aof the committee. This is to be submitted to the State Government forapproval. On approval of the plan by the State Government under Section15, the final regional plan has to be published under Section 17.

78. Chapter III deals with the procedure for preparation ofdevelopment plans by a planning authority. Section 23 provides that theBplanning authority should make a declaration of its intent to prepare sucha plan and publish the same in the Official Gazette, inviting suggestionsor objections from the public within a period of not less than sixty daysfrom the publication of the notice in the Official Gazette. Thereafterunder Section 26, the planning authority has to prepare a draftdevelopment plan, not later than two years from the date of noticeCpublished under Section 23, and publish the notice in the Official Gazettestating that the development plan has been prepared, once again invitingobjections or suggestions from any person with respect to the draft planwithin a period of sixty days from the notice. Section 27 provides thatthe planning authority having regard to, and guided by the proposals Dmade in the regional plan, shall not carry out any modification thereinwithout prior concurrence of the Regional Planning Board. Section 28mandates the planning authority to consider suggestions or objectionsreceived by it under Section 26(1) and provide a reasonable opportunityof being heard to any person including the representatives of theGovernment who may have filed any objections or suggestions, andEthereafter modify or change the plan in such manner, as provided underSection 28(4). Section 29 further provides for modification of the draftdevelopment plan, which is of substantial nature. By this, a planningauthority or the Town Planning Officer is required to publish a notice inthe Official Gazette inviting objections and suggestions from any person Fwith respect to the proposed modification not later than sixty days fromthe date of such notice. The section then requires the authority concernedto consider all objections and suggestions received by it and give areasonable opportunity of being heard to any person includingrepresentatives of government departments who may have filed any

objections or made any suggestions in respect of the draft developmentGplan before making such modifications or changes in the draft developmentplan. Section 30 requires the planning authority to submit the draft planto the State Government for approval, within twelve months from thedate of publication of the notice under Section 26 that the draft plan hasbeen prepared. Section 31 provides that the State Government may,Hafter consulting the Director of Town Planning by notification in the Official Gazette, sanction the draft development plan submitted to it forthe whole area, or separately for any part thereof, either withoutmodification, or subject to such modifications as it may consider proper,or return the draft development plan to the planning authority for modifyingthe plan as it may direct, or refuse to accord sanction. It further providesthat where the modifications proposed to be made by the StateGovernment are of a substantial nature, the State Government has tofollow the procedure contemplated under Section 28 to give a reasonableopportunity of hearing to the objectors before finalizing the modification.

79. Section 37 confers powers on a planning authority to carryout such modification in a final development plan as will not change itscharacter. This power could be exercised by a planning authority afterpublishing a notice in the Official Gazette and in such other manner asmay be determined by it inviting objections and suggestions from anyperson with respect to the proposed modification, not later than onemonth from the date of such notice. This section also enjoins the planningauthority to serve notice on all persons affected by the proposedmodification and, after giving a hearing to any such persons, submit theproposed modification (with amendments, if any) to the State Governmentfor sanction. Section 40 provides for appointment of a Special PlanningAuthority for developing certain notified areas, and Section 40(1)(c)provides that the State Government may, by notification in the OfficialGazette appoint Bombay Metropolitan Region Development Authority(BMRDA) established under the Bombay Metropolitan RegionDevelopment Authority Act, 1974 to be the Special Planning Authorityfor developing any undeveloped area specified in the notification as anotified area. Section 116 then lays down that a Special Planning Authorityshall have all the powers of a planning authority as provided in ChapterVII of the MRTP Act for the special purpose of acquisition of such landin the notified area either by agreement or under the Land AcquisitionAct.

80. So far as plans and developments that were approved beforethe impugned notification was issued, this court is of the opinion thatthey cannot be disturbed and the right of the applicants, be theydevelopers, builders or owners of land or plots, cannot be prejudiced oradversely affected. This is evident from a ruling of this court in T.Vijayalakshmi v. Town Planning Member[32]. This court stated thattown planning legislations (like the MRTP Act) are regulatory; and that A

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Awhen a development plan is in force during the proposal for its amendment,courts should not interfere with them on the assumption that the approvedplan for building or development, would not be eventually permitted. Itwas held that:

“Whether the amendments to the said comprehensiveBdevelopment plan as proposed by the Authority wouldultimately be accepted by the State or not is uncertain. It isyet to apply its mind. Amendments to a development plan mustconform to the provisions of the Act. As noticed hereinbefore,the State has called for objection from the citizens. Ecologicalbalance no doubt is required to be maintained and the courtsCwhile interpreting a statute should bestow seriousconsideration in this behalf, but ecological aspects, it is trite,are ordinarily a part of the town planning legislation. If inthe legislation itself or in the statute governing the field,ecological aspects have not been taken into considerationDkeeping in view the future need, the State and the Authoritymust take the blame therefor. We must assume that these aspectsof the matter were taken into consideration by the Authorityand the State. But the rights of the parties cannot beintermeddled with so long as an appropriate amendment inthe legislation is not brought into force.”E81. This court has ruled, that even modification to an existingdevelopment plan, under the MRTP Act, under Section 37, is in the natureof a legislative function. This court had observed under Pune MunicipalCorpn. v. Promoters and Builders Assn[33]speaking of Section 37 (1)that:F

“4. Reading of this provision reveals that under clause (1),the Planning Authority after inviting objections andsuggestions regarding the proposed amendment and aftergiving notice to all affected persons shall submit the proposedmodification for sanction to the Government. DeliberationGwith the public before making the amendment is over at thisstage. The Government, thereafter, under clause (2) is givenabsolute liberty to make or not to make necessary inquirybefore granting sanction. Again, while according sanction, 32 (2006) 8 SCC 502H33 (2004) 10 SCC 796

the Government may do so with or without modifications. TheGovernment could impose such conditions as it deems fit. It isalso permissible for the Government to refuse the sanction.This is the true meaning of clause (2). It is difficult to upholdthe contrary interpretation given by the High Court. The mainlimitation for the Government is made under clause (1) thatno authority can propose an amendment so as to change thebasic character of the development plan. The proposedamendment could only be minor within the limits of thedevelopment plan. And for such minor changes it is onlynormal for the Government to exercise a wide discretion, bykeeping various relevant factors in mind. Again, if it isarbitrary or unreasonable the same could be challenged. Itis not the case of the respondents herein that the proposedchange is arbitrary or unreasonable. They challenged thesame citing the reason that the Government is not empoweredunder the Act to make such changes to the modification.

5. Making of DCR or amendments thereof are legislativefunctions. Therefore, Section 37 has to be viewed as repositoryof legislative powers for effecting amendments to DCR. Thatlegislative power of amending DCR is delegated to the StateGovernment. As we have already pointed out, the trueinterpretation of Section 37(2) permits the State Governmentto make necessary modifications or put conditions whilegranting sanction. In Section 37(2), the legislature has notintended to provide for a public hearing before accordingsanction. The procedure for making such amendment isprovided in Section 37. Delegated legislation cannot bequestioned for violating the principles of natural justice inits making except when the statute itself provides for thatrequirement. Where the legislature has not chosen to providefor any notice or hearing, no one can insist upon it and it isnot permissible to read natural justice into such legislativeactivity. Moreover, a provision for “such inquiry as it mayconsider necessary” by a subordinate legislating body isgenerally an enabling provision to facilitate the subordinatelegislating body to obtain relevant information from anysource and it is not intended to vest any right in anybody.(Union of India v. Cynamide India Ltd. [(1987) 2 SCC 720], ABC

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ASCC paras 5 and 27. See generally H.S.S.K. Niyami v.Unionof India [(1990) 4 SCC 516] and Canara Bank v. DebasisDas [(2003) 4 SCC 557: 2003 SCC (L&S) 507].) Whileexercising legislative functions, unless unreasonableness orarbitrariness is pointed out, it is not open for the Court tointerfere. (See generally ONGC v. Assn. of Natural GasBConsuming Industries of Gujarat [1990 Supp SCC 397].)Therefore, the view adopted by the High Court does notappear to be correct.

82. This issue was again underscored by this court in MachavarapuSrinivasa Rao v. Vijayawada, Guntur, Tenali, Mangalagiri UrbanCDevelopment Authority,[34 ]where it was held as follows, in respect ofprovisions of the Andhra Pradesh (Urban Areas) Development Act, 1975:

“20. An analysis of the above-noted provisions shows thatonce the master plan or the zonal development plan isapproved by the State Government, no one including the StateDGovernment/Development Authority can use land for anypurpose other than the one specified therein. There is noprovision in the Act under which the Development Authoritycan sanction construction of a building, etc. or use of landfor a purpose other than the one specified in the master plan/Ezonal development plan. The power vested in the DevelopmentAuthority to make modification in the development plan isalso not unlimited. It cannot make important alterations inthe character of the plan. Such modification can be madeonly by the State Government and that too after following theprocedure prescribed under Section 12(3).”F

83. In a decision which concerned change in development planunder the MRTP Act, this court observed that any changes in adevelopment or master plan involve consultations and a high degree ofexpertise, in MIG Cricket Club v. Abhinav Sahakar EducationSociety[35] :G

“28. It is well settled that the user of the land is to be decidedby the authority empowered to take such a decision and thisCourt in exercise of its power of judicial review would notinterfere with the same unless the change in the user is found34 (2011) 12 SCC 154H35 (2011) 9 SCC 97

to be arbitrary. The process involves consideration ofcompeting claims and requirements of the inhabitants inpresent and future so as to make their lives happy, healthyand comfortable. We are of the opinion that town planningrequires high degree of expertise and that is best left to thedecision of the State Government to which the advice of theexpert body is available. In the facts of the present case, wefind that the power has been exercised in accordance withlaw and there is no arbitrariness in the same.”

84. Now, under the provisions of the MRTP Act[36], regional plansand development plans have to take into account features such as soilconservation, preservation of natural features, prevention of floodingetc, while factoring planning for each city or area concerned. In turn,such regional and development plans would constitute the blueprint forlocal town planning authorities to grant or refuse permission to individualapplicants. In these circumstances, the use of Section 154 of the MRTPAct, in the present case, in fact amounted to a modification of all plans -regional, development, etc. Such modification (by way of absoluteprohibition in construction) was not preceded by any manner of publicconsultation, much less previous invitation of objections or considerationof the views of affected parties. It is in this background that one has toconsider the argument of the state, which found favour with the HighCourt, that such notification was issued in public interest.

85. The unamended Section 154 of the MRTP Act read as follows:

“154 Control by the State Government

(1) Every Regional Board, Planning Authority andDevelopment Authority shall carry out such directions or instructionsas may be issued from time to time by the State Government for theefficient administration of this Act.

(2) If in, or his connection with, the exercise of its powersand discharge of its functions by the Regional Board, PlanningAuthority or Development Authority under this Act, any disputearises between the Regional Board, Planning Authority orDevelopment Authority, and the State Government, the decision ofthe State Government on such dispute shall be final.”

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A86. Section 154 (1) was amendment by a substitution (with effectfrom 22.04.2015). The new provision [Section 154 (1)] reads as follows:

“154. (1) Notwithstanding anything contained in this Act orthe rules or regulations made thereunder, the State Governmentmay, for implementing or bringing into effect the Central orBthe State Government programmes, policies or projects or forthe efficient administration of this Act or in the larger publicinterest, issue, from time to time, such directions or instructionsas may be necessary, to any Regional Board, PlanningAuthority or Development Authority and it shall be the dutyof such authorities to carry out such directions or instructionsCwithin the time-limit, if any, specified in such directions orinstructions.”

87. Directions can be issued “notwithstanding” any other provisionsof the Act, “for implementing or bringing into effect the Central orthe State Government programmes, policies or projects or for theDefficient administration of this Act or in the larger public interest,issue, from time to time.” No doubt, the non-obstante clause has anoverriding effect on other provisions of the Act. However, if one keepsin mind that the preparations of regional and development plans are interms of specific provisions which outline detailed procedures that haveEto be necessarily followed, in the absence of which, time and again courtshave intervened and held that such modifications (without followingprescribed procedure or without prescribed consultations) are illegal,the power has to be resorted to for good and adequate reasons. Thedirection, impugned in the present case, on the face of it, is not premisedon any central or state government programmes, policies or projects.FThe impugned notification reads as follows:

GOVERNMENT OF MAHARASHTRA

URBAN DEVELOPMENT DEPARTMENT

Madam Cama Road

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Hutatma Rajguru Chowk

Mantralaya, Mumbai 4000032

Government Resolution No. TPS-1817/ANS-90/97/UD-13

dated 14 November 2017

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The Development schemes are prepared for area in jurisdictionof planning authorities under the Maharashtra RegionalDevelopment and Town Planning Act, 1966. In the context ofunauthorised constructions undertaken by hill cutting, atKatraj Ghat District Pune, the Hon’ble National GreenTribunal, Pune has, by order dated 19 May 2015 inApplication Number 4/2014, issued orders and instructed toinform all Mahanagar Palik/Nagarpalika in the state not togive any development permission for constructions on thehilltop and 100 feet distance from the hill slopes. A provisionalready exists in development control regulations that nodevelopment is permissible on the hilltop and no hill slopeshaving a gradient of more than 1:5. Considering the orderdated 19 May 2015 of the Hon’ble National Green Tribunalin exercise of powers under section 154 of the MaharashtraRegional Town Development and Town Planning Act 1966the following the directions were issued to all planningauthorities in the state:

DIRECTIONS

1. The planning authorities while preparing development planfor area in their jurisdiction or amending them in respectof undeveloped portion abutting the hills upto 100 feetshould be shown as No development/Open spaceReservation.

2. In the event the 100 area abutting hills, has already beendeveloped, in that area no permission be granted foradditional FSI or TDR.

3. In the event the 100 feet area abutting hills is under NoDevelopment Zone as per sanctioned Development plan,then while granting permission for Development for further100 feet area abutting/contiguous thereto should bepermitted only for non-buildable purposes such as openspace, road et cetera.

In the name of and by order of theHon’ble Governor State of Maharashtra”

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A88. There are several authorities for the proposition that thoughan administrative order need not necessarily comply with principles ofnatural justice such as granting hearing, yet, administrative decisions ororders have to be based on some reasons. In Shri. Sitaram Sugar MillsCompany v. Union of India,[37] (which concerned the zoning regulationsfor the purpose of levy sugar under the relevant statutory order, in termsBof the Essential Commodities Act), the Supreme Court held as follows:

“Power delegated by statute is limited by its terms andsubordinate to its objects. The delegate must act in good faith,reasonably, intra vires the power granted, and on relevantconsideration of material facts. All his decisions, whetherCcharacterised as legislative or administrative or quasi-judicial,must be in harmony with the Constitution and other laws ofthe land. They must be “reasonably related to the purposesof the enabling legislation”. If they are manifestly unjust oroppressive or outrageous or directed to an unauthorised endDor do not tend in some degree to the accomplishment of theobjects of delegation, court might well say, “Parliament neverintended to give authority to make such rules; they areunreasonable ultra vires.

A repository of power acts ultra vires either when he acts inEexcess of his power in the narrow sense or when he abuseshis power by acting in bad faith or for an inadmissiblepurpose or on irrelevant grounds or without regard to relevantconsiderations or with gross unreasonableness.”

89. In Cellular Operators Association v. Telecom RegulatoryFAuthority of India,[38 ]this court held that subordinate regulatory legislation,can be set aside in judicial review, if they show no rationale or arearbitrary:

“62. In view of the aforesaid, it is clear that the Quality ofService Regulations and the Consumer Regulations must beGread together as part of a single scheme in order to test thereasonableness thereof. The countervailing advantage toservice providers by way of the allowance of 2% averagecall drops per month, which has been granted under the 2009

37 (1990) 3 SCC 223H38 (2016) 7 SCC 703

Quality of Service Regulations, could not have been ignoredby the impugned Regulation so as to affect the fundamentalrights of the appellants, and having been so ignored, wouldrender the impugned Regulation manifestly arbitrary andunreasonable.

63. Secondly, no facts have been shown to us which wouldindicate that a particular area would be filled with call dropsthanks to the fault on the part of the service providers inwhich consumers would be severely inconvenienced. The mereipse dixit of the learned Attorney General, without any factsbeing pleaded to this effect, cannot possibly make anunconstitutional regulation constitutional. We, therefore, holdthat a strict penal liability laid down on the erroneous basisthat the fault is entirely with the service provider is manifestlyarbitrary and unreasonable. Also, the payment of such penaltyto a consumer who may himself be at fault, and which givesan unjustifiable windfall to such consumer, is also manifestlyarbitrary and unreasonable. In the circumstances, it is notnecessary to go into the appellants’ submissions that call dropstake place because of four reasons, three of which are notattributable to the fault of the service provider, which includessealing and shutting down towers by municipal authoritiesover which they have no control, or whether they areattributable to only two causes, as suggested by the AttorneyGeneral, being network-related causes or user-related causes.Equally, it is not necessary to determine finally as to whetherthe reason for a call drop can technologically be found outand whether it is a network-related reason or a user-relatedreason.

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66. The reason given in the Explanatory Memorandum forcompensating the consumer is that the compensation given isonly notional. The very notion that only notional compensationis awarded, is also entirely without basis. A consumer maywell suffer a call drop after 3 or 4 seconds in a voice call.Whereas the consumer is charged only 4 or 5 paise for suchdropped call, the service provider has to pay a sum of rupeeone to the said consumer.

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SUPREME COURT REPORTS

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SUPREME COURT REPORTS

AThis cannot be called notional at all. It is also not clear as towhy the Authority decided to limit compensation to three calldrops per day or how it arrived at the figure of Re 1 tocompensate inconvenience caused to the consumer. It isequally unclear as to why the calling party alone is providedcompensation because, according to the ExplanatoryBMemorandum, inconvenience is suffered due to theinterruption of a call, and such inconvenience is sufferedboth by the calling party and the person who receives thecall. The receiving party can legitimately claim that hisinconvenience when a call drops, is as great as that of theCcalling party. And the receiving party may need to make thesecond call, in which case he receives nothing, and the callingparty receives Re 1 for the additional expense made by thereceiving party. All this betrays a complete lack of intelligentcare and deliberation in framing such a regulation by theAuthority, rendering the impugned Regulation manifestlyDarbitrary and unreasonable.”

90. In the present case, the State of Maharashtra has not shownany material or file containing the reasons behind the directive of14.11.2017. It is not in dispute that the direction was consequential to,and solely based on the directions of the NGT in Para 17(e). As noticedEearlier, those directions were not based on any scientific evidence orreport of any technical expert. Furthermore, even the impugnednotification does not specify what constitutes “hills”, and how they canbe applied in towns and communities set in undulating areas and hillyterrain. This is not only vague, but makes the directions arbitrary as they Fcan be applied at will by the concerned authorities. More importantly,they amount to a blanket change of all regional and development plans.While such directions can be issued, if situations so warrant, such as inextraordinary or emergent circumstances, the complete absence of anyreasons why the state issued them, coupled with the lack of any supporting expert report or input, renders it an arbitrary exercise. That they areGbased only on the NGT’s orders, only underlines the lack of any applicationof mind on the part of the State, while issuing them.

91. For the above reasons, we hold that the impugned judgmentof the Bombay High Court cannot be sustained; it is set aside.Consequently, the directions in the notification under Section 154 (datedH14.11.2017) are hereby quashed.

92. In view of the above discussions, CA 6932/2015 and CA 5971/2019 are hereby disposed of in terms of the directions in this judgment.The other appeals by special leave by third parties, against the NGT’sorder, and the order of the NGT, are partly allowed in the above terms.There shall be no order on costs.

Ankit Gyan

Appeals disposed of.

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