Pragnesh Shah v. Dr Arun Kumar Sharma & Ors.

(vi) The area has three big water bodies namely Upper Kodra dam, Lower Kodra dam and Nakki Lake and in addition to this the area has around 25 water places, where water remains through out the year, which include natural nalla, dams, anicuts, seepage and baoris that are spread over entire area and must be protected. […] (13) Development on and protection of hill slopes:

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

(ii) No development shall be undertaken in areas having a steep slope or areas which fall in fault or hazard zones or areas falling on the spring lines and first order streams or slopes with a high degree of erosion as identified by the State Government on the basis of available scientific evidence.

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

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

7 The appellant has a grievance that when a draft of ZMP 2030 was published, the status of his land was incorrectly changed from “Residential” and “Tourist Facility” to “Agricultural Zone”. The appellant challenged this before the Chairman of the Monitoring Committee, the MoEF&CC and the State of Rajasthan. Based on it, the status of the appellant‟s land was again changed back to “Residential” and

“Tourist Facility”. Thereafter, ZMP 2030 was notified by the State of Rajasthan on 29 October 2015, following the approval of the MoEF&CC on 28 September 2015. C Proceedings before NGT 8 The ZMP 2030 was challenged by the first respondent by his original application on the ground that it is not in conformity with ESZ Notification, since it fails to discourage construction activities at or near the heritage sites, conserve the existing water bodies and permits change of land use by illegal structures. Since the first respondent's original application mentioned the appellant‟s land, the appellant was allowed to intervene in the proceedings by the NGT in its order dated 10 April

2017.

9 On 26 November 2018, the NGT issued an order which noted that the first respondent‟s original application contended, inter alia, that ZMP 2030 had permitted illegal change of land use, in direct contradiction to the ESZ Notification, in thirteen locations, which included the appellant‟s land. To assess the claims made in the first respondent‟s original application, the NGT constituted an Expert Committee consisting of two representatives of MoEF&CC, a representative of the School of Planning and Architecture, Delhi (since it had been engaged by the State of

Rajasthan as a consultant), and a representative of Central Pollution Control Board13. The mandate of the Expert Committee was as follows:

10 The Expert Committee submitted a report on 4 September 2019, which was not found to be acceptable when it was considered by the NGT on 7 November

2019. As a consequence, the NGT modified the composition of the Expert Committee, with the following observations: "8. Though the Committee was to furnish its report within three months from the order dated 6.11.2018 report has been “CPCB” filed almost after more than 9 months on 04.09.2019. We find from the report that the Committee has assumed the ZMP to be conclusive on the ground that suitability analysis test had already been carried out by the State Government. This approach is inconsistent with the directions of this Tribunal. If the analysis of the State Government was to be treated as final, there was no need for the Committee.”

11 The reconstituted Committee then submitted the Expert Committee Report. The Expert Committee enquired into the change in land use through high resolution satellite images, while analysing the data with particular reference to ten identified sites, including the appellant‟s land. The NGT then heard submissions on the Expert Committee Report. By its impugned judgment dated 29 July 2021, the NGT observed that the Expert Committee Report was based on authentic data and on field visits by the Committee and is supported by adequate reasons. The NGT noted that the object of notifying certain areas as ESZs is to protect certain specified sensitive areas by restricting and regulating development activities. Such areas may be based on species, geomorphologic features or on the eco-system. The NGT held that it was necessary to protect bio-diversity zones by creating regulated buffers around them to protect their flora and fauna, prevent habitat destruction and protect fragile ecology. Adverting to the backdrop of the ESZ Notification, the NGT noted that the Supreme Court had in T.N. Godavarman v. Union of India & Ors.14 (“T.N. Godavarman”) appointed Expert Committees to identify ESZs across India, and when such ESZs were eventually identified, Mount Abu was cleared as an ESZ as well. The NGT further observed that the object of notifying ESZs is to protect a Writ Petition No 202 of 1995 PART C specified area from the irreversible degradation of its environment with a view to give effect to the principles of sustainable development, inter-generational equity and the public trust doctrine in exercise of powers conferred by Section 3(2)(v) of the EP Act.

12 The NGT then proceeded to deal with individual sites under consideration. The subject matter of the present appeals pertains to an entry in Table 16 of the Expert Committee Report. Table 16 is titled as follows: “Suitability of 10 identified sites within Mount Abu ESZ as reviewed by the expert committee based on the site visit/ground verification as well as interactions with the local residents/Mount Abu Municipality officials/Town Planning Department officials/other stakeholders during 16-17 January 2020” The evaluation of the site in question, i.e., the appellant‟s land, is tabulated in Table 16 as follows: Name of Site Location (Lat & long with Accuracy/ Altitude); Slope (o o ) Present land use & Vegetation type/Cover (%) Recommendation (All these construction should comply the norm of 50 m away from forest boundary and from water body and 100 m away from wetland/river Near STP plant o 34'38.14''N o 43'57.77"E (±3m) 1139 m; Two domains of Vacant/agriculture; Open scrub/with tree and shrubs along the hill top and the slopes. This site is considered for the (i) tourism center (ii) residential buildings in the ZMP 2030. The proposed site for residential buildings covers the land of low slopes that are geologically stable as well as the land with a high slope domain that is not land at this site is available. Partially, the site has slope>20° and partially <20°. geologically stable for construction.  At this site, the bedrock is hard and compact with negligible weathering. In the stable slope region, no prominent fractures/joints are developed.  At places the measured slope towards STP site was found >20 degree even the landscape is fragile in terms of soil erodibility. Thus high slope domains must be kept as such.  The proposed tourism facility centre at the gentle slopes may be allowed. But may disturb the wildlife ecosystem.  Although the low slopes domain may be suitable for construction, geologically. But this site is the habitat of the wild animals. For example, footprints of the sloth bear were also observed during the field visit. Therefore, any construction may disturb the wildlife ecosystem. Therefore, any construction must not be allowed to preserve the ecosystem of this region.  The construction may be allowed in the land having gentle, i.e., stable slopes while the steep slope region closes to the cliff of the hill should be kept untouched. Conclusion: Site is not suitable for construction.

13 The NGT noted that the above site (“near STP Plant”) has not been found suitable for construction on considerations based on the wild life eco-system. The NGT also accepted the view of the Expert Committee that the conversion of green areas into non-green areas should not be allowed, except in exceptional situations mentioned in the Report, and that the STP must be duly maintained. The NGT, while accepting the Expert Committee Report, thus directed that the ZMP 2030 should be brought in conformity within three months.

14 The findings of the NGT in relation to appellant‟s land were challenged by the appellant in a review application, which was rejected on 29 July 2021. This has led to the present appeals. D Submissions of counsel 15 Mr Mukul Rohatgi, Senior Counsel appearing on behalf of the appellant has urged two submissions:

(i) Firstly, the NGT, being an adjudicatory body constituted by the NGT Act, is vested with limited jurisdiction under Section 14 to deal with a substantial question of environment arising out of the statutes enumerated in Schedule I to the NGT Act. The NGT had acted beyond its jurisdiction in directing the amendment of the ZMP 2030; and

(ii) Secondly, on merits:

a. The Expert Committee had prepared a draft report in July 202015, which was not placed before the NGT and was obtained by the appellant through a Right to Information request on 1 February 2021. In the Draft Report, Table 23 pertains to the suitability of ten identified sites within the Mount Abu ESZ and it contained a column containing remarks on the biodiversity at each of these locations. In this backdrop, it was submitted that the appellant‟s land was shown to be encompassed by the movement of wild life, more specifically, the sloth bear and panther. In this context, it was urged that a similar situation existed in Table 23 with respect to another site (described as “Sunrise Housing Society”). However, in the Expert Committee Report, the column on bio-diversity is missing, which hides crucial information on the basis of which the final recommendations were made. The appellant alleges that the column on bio-diversity is missing because the Expert Committee Report was manipulated to favor others over the appellant; and b. Whereas other similar sites have been granted clearances in the Expert Committee Report, the appellant has not been cleared. In other words, the submission is that the Report has proceeded on the basis of a “pick and choose” process.

16 Opposing these submissions, Mr Amit Sibal, Senior Counsel appearing on behalf of the respondents urged the following submissions: “Draft Report”

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

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

(iii) The Expert Committee included domain experts, town planners and government officials who proceeded to identify the issues with the specified sites in Table 16 after careful analysis and site visits;

(iv) The Expert Committee Report is founded on the precautionary principle and as it is based on a scientific approach, it must warrant deference;

(v) Schedule I to the NGT Act, inter alia, refers to the Forest Conservation Act and the EP Act;

(vi) The ESZ notification has been issued in exercise of powers conferred by the

(vii) The order of the NGT dated 7 November 2019 did not accept the report of the initial Expert Committee, and reconstituted it. This order has attained finality since it was not challenged by the appellants;

(viii) The appellant is relying upon the Draft Report, which was not in the public domain since it was an incomplete report. Moreover, the Draft Report contains endorsements as against the site in question to the effect that it was not suitable. Further, there is a valid distinction between the site in question and others (such as the “Sunset Road Scheme” and “Sunrise Housing “FC Act”

Society”) where construction has been allowed. In the case of the “Sunset Road Scheme”, the land use was for residential purposes while on the contrary, the appellant has admitted to converting the site in question for tourism and residential buildings under the ZMP 2030; and

(ix) While on the one hand, the Expert Committee which comprises, inter alia, of environmental experts had considered each of the sites in Table 16 of the Expert Committee Report, the appellant has brought on record no evidence to establish any error or perversity in the Report which was accepted by the NGT. E Jurisdiction of NGT 17 Sub-Section (1) of Section 1417 of the NGT Act provides that the NGT shall have the jurisdiction over all civil cases where a substantial question relating to the environment, including the enforcement of any legal right relating to the environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the NGT Act. Under sub-Section (2) of Section 14, the NGT is empowered to hear disputes set out in sub-Section (1), and pass orders “14. Tribunal to settle disputes.—(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. (2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon. (3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.” thereon. Section 15(1) further provides for the reliefs which may be granted by the NGT, and reads as follows:

3) and the EP Act (Entry 5). There can be no manner of doubt that the original application filed by the first respondent before the NGT in the present case implicated a substantial question relating to the environment. The „substantial question‟ arose from the provisions contained in the ESZ Notification in relation to the ESZ in Mount Abu. The ESZ Notification traces its origin to the EP Act, under which the Union Government through MoEF&CC is empowered to issue it. In the exercise of its jurisdiction, the NGT is empowered under Section 15(1)(c) to provide for the restoration of the environment in such area or areas. The ESZ Notification in Clause 3(1) provides for the ZMP for the ESZ in this context. Assessing the conformity of the ZMP 2030 with the terms of the ESZ Notification is clearly within the remit of the NGT.

19 In Mantri Techzone (P) Ltd. v. Forward Foundation18, a three-Judge Bench of this Court noted that Section 15(1)(c) of the NGT Act affords broad powers to the NGT. Speaking for the Court, Justice S Abdul Nazeer held:

20 In another recent judgment in Municipal Corporation of Greater Mumbai v. Ankita Sinha and Others19, a three-Judge Bench of this Court held that the NGT can also exercise suo motu jurisdiction. While elaborating on the jurisdiction of the NGT in general, Justice Hrishikesh Roy held:

39. The said Rules make it clear that the NGT has been given wide discretionary powers to secure the ends of justice. This power is coupled with the duty to be exercised for achieving the objectives. The intention understandably being to preserve and protect the environment and the matters connected thereto.

40. By choosing to employ a phrase of wide import, i.e. secure the ends of justice, the legislature has nudged towards a liberal interpretation. Securing justice is a term of wide amplitude and does not simply mean adjudicating disputes between two rival entities. It also encompasses inter alia, advancing causes of environmental rights, granting compensation to victims of calamities, creating schemes for giving effect to the environmental principles and even hauling up authorities for inaction, when need be.

41. Moreover, unlike the civil courts which cannot travel beyond the relief sought by the parties, the NGT is conferred with power of moulding any relief. The provisions show that the NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties.” (emphasis supplied)

21 The NGT has not acted in excess of or beyond its jurisdiction in testing ZMP 2030 on the anvil of the ESZ Notification. Having found that the report of the earlier Expert Committee appointed by it was not acceptable while adjudicating on the issue on 7 November 2019, the NGT constituted another Expert Committee. The Committee comprised of experts in the area of the environment as well as representatives of the CPCB and the Rajasthan Pollution Control Board. The Expert Committee was tasked with submitting a report to the NGT to aid it in discharging its functions of assessing the conformity of the ZMP 2030 with the terms of the ESZ Notification. On the submission of the Expert Committee Report, the NGT heard objections to it and delivered a reasoned order on why it was accepting the recommendations made in the Report. Hence, there is no merit in the submission that the NGT has acted beyond its jurisdiction. F Merits of Expert Committee Report 22 The second limb of the appellant‟s submission proceeds on merits. There has been a misconceived attempt on the part of the appellant to advert to the Draft Report which was prepared by the Expert Committee. The Draft Report was in the realm of an internal document and was not in the public domain. Evidently, the Draft

Report was a subject matter of deliberations, and it is only the final report which was submitted to the NGT that represented the views of the Expert Committee. Hence, there is no merit in the appellant‟s plea which is based on the Draft Report.

23 The Expert Committee Report has carefully analyzed ten sites in Table 16. Since the appellant‟s plea of discrimination is based on the observation pertaining to the “Sunset Road Scheme” and “Sunrise Housing Society”, it would be material to extract the observations of the Expert Committee on the above two sites. The relevant part of Table 16 in relation to those sites is extracted below: Name of Site Location (Lat & long with Accuracy/ Altitude); Slope (oo ) Present land use & Vegetation type/Cover (%) Recommendation (All these construction should comply the norm of 50 m away from forest boundary and from water body and 100 m away from wetland/river Sunset Road Scheme 24o 35'11.49''N 72o 42'13.79"E (±3m) 1169 m; Most of the land at this site has slope <20° Residential (Partly built/partly vacant); Open scrub/isolated trees (<10%) This site is stable with the granite as basement rock.  This site is close to the forest land. Therefore, the ESZ criteria of a buffer zone with forest and water stream must comply before the start of any construction activity.  Already existing provision for farm house in state of Rajasthan may be made applicable with allowance of 1o% of total area of construction as built up area or 5000 sq ft. (whichever is less) subject to NOC from Forest PART F dept. Conclusion: Site is suitable for construction. Sunrise Housing Society 24o 34'55.26''N 72o 43'38.12"E (±3m) 1137 m; Most of the land at this site has slope <20° Vacant; Open scrub with isolated trees (>20%) The basement rock is granite and is well exposed at this location with very thin soil cover.  The site is near a local natural stream (Nala). Therefore, the ESZ criteria of the buffer zone with water stream and forest must be complied before any constructional activity as per norms.  Site is surrounded by habitation so it may cater to the residential needs of the local people.  Thus, this site is stable and suitable for the construction of the residential complex.  Construction may be allowed following criteria laid down in ESZ. Conclusion: Site is suitable for construction.

24 From the above extract, it is evident that the land used by the Sunset Road Scheme is described to be residential (partly built, partly vacant) and as regards the Sunrise Housing Society, the land use is described to be vacant. As regards the disputed site in question in this appeal (“near STP plant”), the Expert Committee has furnished valid reasons for determining that construction must not be allowed so as to preserve the eco-system of the region. The Expert Committee has noted that while the proposed site for residential buildings covers the land of low slopes which is stable, it also covers lands with a high slope domain which are not suitable for construction. At places with a high slope domain, the landscape was noted to be fragile in terms of soil erosion. Further, the Expert Committee opined that the proposed tourism facility centre may disturb the wild life eco-system. Additionally, although the low slope domain may be suitable for construction, the site is a habitat for wildlife and footprints of the sloth bear were also observed during the field visit. It was in this context that the Expert Committee determined that construction must not be allowed on the site to preserve the eco-system. In comparison, the observations contained in Table 16 with reference to the “Sunset Road Scheme” and the “Sunrise Housing Society” sites clearly indicate that there is no discrimination against the appellant since there is a material difference in the location and suitability of the sites for construction. G Precautionary Principle 25 The report of the Expert Committee is consistent with the precautionary principle. The report has hence been correctly accepted by the NGT since it is mandated to follow the precautionary principle under Section 20 of the NGT Act. Section 20 of the NGT Act states thus:

26 The precautionary principle finds its clearest elaboration in Principle 15 of the Rio Declaration on Environment and Development 1992, which states: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

27 In M.C. Mehta v. Union of India20, a two-Judge Bench of this Court noted the import of this principle in Indian jurisprudence by highlighting that it requires the State to act for preventing actual environmental harm, even in the face of scientific uncertainty. The Court held:

28 In Research Foundation for Science Technology National Resource Policy v. Union of India21, a two-Judge Bench of this Court noted that the precautionary principle is part of the Indian jurisprudence, arising from Articles 47, 48-A and 51-A(g) of the Constitution. The Court held:

29 This position has been reiterated by a three-Judge Bench of this Court in Hospitality Assn. of Mudumalai v. In Defence of Environment & Animals22. The Court has held: “39…As was held by this Court in M.C. Mehta (Badkhal & Surajkund Lakes Matter) v. Union of India [M.C. Mehta (Badkhal & Surajkund Lakes Matter) v. Union of India, (1997) 3 SCC 715] the “precautionary principle” has been accepted as a part of the law of our land. Articles 21, 47, 48-A and 51-A(g) of the Constitution give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wildlife and to have compassion for living creatures. The precautionary principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. In this light, we have no hesitation in holding that in order to protect the elephant population in the Sigur Plateau region, it was necessary and appropriate for the State Government to limit commercial activity in the areas falling within the elephant corridor.”

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

31 The precautionary principle requires the State to act in advance to prevent environmental harm from taking place, rather than by adopting measures once the harm has taken place. In deciding when to adopt such action, the State cannot hide behind the veil of scientific uncertainty in calculating the exact scientific harm. In H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee23, a three-Judge Bench of this Court emphasised the duty of the State to create conceptual, procedural and institutional structures to guide environmental regulation in compliance with the “environmental rule of law”. The Court noted that such regulation must arise out of a muti-disciplinary analysis between policy, regulatory and scientific perspectives. The Court held:

54…The point, therefore, is simply this — the environmental rule of law calls on us, as Judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding.”

32 The precautionary principle envisages that the State cannot refuse to act to preserve the environment simply because all the scientific data may not be available. If there is some data to suggest that environmental degradation is possible, the State must step into action to prevent it from taking place. Indeed, it was this thought that compelled this Court in T.N. Godavarman (supra) to direct the State to identify ESZs across India, so that steps can be taken to identify areas where there is a greater possibility of environmental degradation and a plan is put in place to prevent such degradation before it actually makes the harm irreversible.

33 Mount Abu was identified as an ESZ, under the ESZ Notification. The reason for doing this is because the State recognized that environmental degradation of the fragile eco-system is a real possibility in Mount Abu and the area surrounding it if action is not immediately taken. A significant amount of soil erosion, air and water pollution has already taken place due to the developmental activities. The recitals in the ESZ Notification recognize the ecological importance of Mount Abu since it contains both tropical dry deciduous forests and evergreen forests; its flora and fauna comprise of several endemic and rare species; and it also contains not only natural heritage such as Nakki lake but also man-made heritage sites such as the Dilwara temples. The ESZ notification required, inter alia, the State of Rajasthan to prepare the ZMP 2030, so as to ensure that future development activity in the region could be planned while accounting for potential environmental degradation, following the precautionary principle. The ESZ notification is backed by a statutory mandate of Union legislation. The Notification is an enforceable charter for the preservation of the fragile eco-system of Mount Abu. Every authority is duty bound to comply with its terms and any action in breach must peril invalidation. H Conclusion

34 Therefore, we hold that the NGT‟s judgment and order dated 10 March 2021 and 29 July 2021 correctly directed the ZMP 2030 to be modified to bring it into conformity with the ESZ Notification and the precautionary principle. Specifically, it correctly upheld the Expert Committee Report‟s recommendation that no construction should be allowed to take place on the appellant‟s land.

35 For the above reasons, we have come to the conclusion that there is no merit in the present appeal and it shall accordingly stand dismissed. ……….… ..................................................... J. [Dr Dhananjaya Y Chandrachud].…..….… ..................................................... J. [A S Bopanna] New Delhi January 12, 2022