Case: TATA HOUSING DEVELOPMENT COMPANY LIMITED Vs. AALOK JAGGA

closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries etc., are all judgments which seek to protect the environment. 10. In the matter of enforcement of fundamental rights under Article 21, under public law domain, the Court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the POLLUTER-PAYS PRINCIPLE which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 34. In M.C. Mehta (Badkhal and Surajkund Lakes matter) vs. Union of India and others, (1997) 3 SCC 715 , this Court had observed: 6. Mr. Shanti Bhushan, learned Senior Advocate, appearing for some of the builders had vehemently contended that banning construction within one km radius from Badkhal and Surajkund is arbitrary. According to him, it is not based on technical reasons. He has referred to the directions issued by the Government of India under the Environment Protection Act and has contended that the construction can at the most be banned within 200 to 500 metres as was done by the Government of India in the coastal areas. He has also contended that restriction on construction only in the areas surrounding Surajkund and Badkhal lakes is hit by Article 14 of the Constitution of India as it is not being extended to other lakes in the country. We do not agree with Mr. Shanti Bhushan. The functioning of ecosystems and the status of environment cannot be the same in the country. Preventive measures have to be taken, keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration. Badkhal and Surajkund lakes are popular tourist resorts almost next door to the capital city of Delhi. We have on record the Inspection Report in respect of these lakes by the National Environmental Engineering Research Institute (NEERI) dated 20-4-1996, indicating the surroundings, geological features, land use, and soil types and archaeological significance of the areas surrounding the lakes. According to the report, Surajkund lake impounds water from rain and natural springs. Badkhal Lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types, as explained in the report, show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large- scale construction in the vicinity of these tourist resorts may disturb the rainwater drains, which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed. 35. In Indian Council for Enviro-Legal Action vs. Union of India and others, (1996) 5 SCC 281 , this Court has made the following observations: 41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby seeking to protect the fundamental rights of the citizens is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The courts, in a way, act as the guardian of the peoples fundamental rights, but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though it is not the function of the Court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law. 36. In the aforesaid facts and circumstances of the case, considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, in ouropinion, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco-sensitive zone around a Wildlife and has permitted setting up of high-rise buildings up to 92 meters in the area in question, which is not at all permissible.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. The Notification makes it clear that no new commercial construction of any kind shall be permitted within 0.5 km. from the boundary of protected area or up to the boundary of the eco-sensitive zone. Construction of all types of new buildings and houses up to a distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2 km, construction of low density (ground coverage less than half of the plot size) and low rise building about 15 feet can be permitted20. Given the findings above, recorded by the High Court as to the distance from the Wildlife Sanctuary, we have heard learned counsel for the parties on the issue at length21. It is not in dispute that proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab23. It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters. It has also been pointed out from the respondent side that Naya Gaon forms part of the Greater Mohali Region in the State of Punjab. In the statutory, Greater Mohali Area Development Authority, Regional Plan for Greater Mohali Region in paragraph 14.3.1, it has been mentioned that no development is possible within 5 kms buffer distance from existing forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of forests distributed all over the Greater Mohali Region. These have to be conserved, and the buffer zone recommended should be protected against urban development24. It is also clear that 2-2.75 km area has been ordered as eco-sensitive zone by the MoEF and the notification dated 18.1.2017 has been issued as to the adjacent area towards Chandigarh side of the Sukhna Wildlife Sanctuary27. The Directive Principles of State Policy provide that protection and improvement of environment, safeguarding forest and wildlife have been duly enjoined upon the Government. Those principles have found statutory expression in various enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which have been enforced by this Court in various decisions. The inaction of State to constitutional and statutory duties cannot be permitted. The Court has to issue appropriate directions to fulfil the mandate25. The most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The climate change is impacting wildlife by disrupting the timing of natural events. With warmer temperatures, flowering plants are blooming earlier in the year and migratory birds are returning from their wintering grounds earlier in the spring. Wildlife conservation in India has a long history, dating back to the colonial period when it was rather very restrictive to only targeted species and that too in a defined geographical area. Then, the formation of the Wildlife Board at the national level and enactment of Wildlife Act in 1972 laid the foundation of present day wildlife conservation era in post-independent India. Project Tiger in the 1970s and the Project Elephant in 1992–both with flagship species–attracted global attention. India then also became a member of all major international conservation treaties related to habitat, species and environment like Ramsar Convention, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention on Migratory Species, 1979; Convention on Biological Diversity, 1992, among others26. The human as well as the wildlife are completely dependent upon environment for their survival. Human is completely dependent on the environment. Like the human, the wild life is also dependent on the environment for its survival and also get effected by the environment. The relationship between the human and animal can be understood by the food-chain and food-web. The wildlife is affected by several reasons such as population, deforestation, urbanization, high number of industries, chemical effluents, unplanned land-use policies, and reckless use of natural resources etc.