THE DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA versus AAM AADMI LOKMANCH & ORS.
[2020] 6 S.C.R. 1050, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Arguments
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THE DIRECTOR GENERAL (ROAD DEVELOPMENT)
NATIONAL HIGHWAYS AUTHORITY OF INDIA
v.
AAM AADMI LOKMANCH & ORS.
(Civil Appeal No. 6932 of 2015)
JULY 14, 2020
[R. F. NARIMAN, S. RAVINDRA BHAT AND
V. RAMASUBRAMANIAN, JJ.]
National Green Tribunal Act, 2010 – ss. 14, 15, 17 and
Schedules – Environment Protection Act, 1986 – Jurisdiction of the
NGT – Victim was driving a car with her young daughter on the
Highway – An over-mining resulted in the destruction of a small hill
by the side of the National Highway – The resultant debris and a
part of the hill collapsed and slid down to the road, claiming the
lives of the victim and her daughter – The NGT imposed a joint
penalty of Rs.50 lakhs for causing environmental damage on NHAI
and the persons who carried out the cutting of the hill – Further,
they were also directed to pay jointly and severally amount of
Rs. 15 lakhs towards compensation to the legal representatives of
the deceased and her daughter – Also, an amount of Rs. 10 lakhs
was ordered to be deposited for plantation of trees in order to restore
damage caused to environment – It was contended that NGT has
narrow and circumscribed jurisdiction in regard to issuing directions
as well as ordering compensation – Held: A conjoint reading of ss.
14, 15, and the Schedules would lead one to infer that the NGT has
circumscribed jurisdiction to deal with, adjudicate, and wherever
needed, direct measures such as payment of
compensation, or make
restitutionary directions in cases where the violation (i.e. harm
caused due to pollution or exposure to hazards, etc.) are the result
of an infraction of any enactment listed in the first schedule –
However, the wide language of s.15(4) enables the Tribunal (NGT)
to direct, inter alia, payment of compensation,”having regard to the
damage to public health, property and environment” – This
interpretation is borne out by a reading of s.17(2) regarding the
apportionment of liability for payment of compensation – Under
ss.15(1)(b) and 15(1)(c), the NGT has the power to make directions
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and provide for “restitution of property damaged and for restitution
of the environment for such area as the Tribunal may think fit” –
Further, s.17(1) refers to first schedule enactments, it talks of death
of, or injury to, any person “or damage to any property or
environment” which “has resulted from an accident or the adverse
impact of an activity or operation or process, under any enactment”
in Schedule I – One of the enactments is Environment Protection
Act, 1986 – Environmental clearance is necessary even for minor
mineral extraction where the area of operation is less than 5 hectares
– In the instant case, there was violation of EPA, because there was
mining lease covered an area in excess of 5 hectares – There is
nothing on record to show that the relevant clearance was obtained
– Therefore, the facts of the present case disclose violation of the
EPA – This means that the NGT’s jurisdiction u/s. 15(1)(a) and s.17
cannot be disputed and NGT correctly assumed jurisdiction, having
regard to the nature of the accident in the facts of the case.
National Green Tribunal Act, 2010 – Environment Protection
Act, 1986 – National Highways Act, 1956 – National Highways
Authority of India Act, 1988 – An over-mining resulted in the
destruction of a small hill by the side of the National Highway –
The resultant debris and a part of hill collapsed and slid down to
the road, claiming lives of a woman and her daughter – National
Green Tribunal directed payment of
compensation towards death
and damages towards restitution – Propriety of – Held: A statutory
corporation or local authority can be held liable in tort for injury
occasioned on account of omission to oversee, or defective
supervision of its activities contracted out to another agency – In
the instant case, having regard to the duty imposed on the NHAI by
virtue 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 for
the maintenance of the highway, including the stretch upon which
accident occurred – The report of Sub-Divisional Officer highlighted
the deficiencies, also NHAI’s correspondence with the person
carrying out extraction of minor minerals by cutting hills, reveal
that authorities were aware of the danger and likelihood of risk to
human life – The failure of the NHAI to ensure remedial action and
likewise failure by person carrying out mineral extraction, to take
measures to prevent the accident, prima facie disclose their liability
– Therefore, the directions in this regard by the NGT, making NHAI
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
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and the person carrying out extraction of mineral to pay Rs. 15
lakhs to legal representatives of the deceased is justified – Further,
the restitutionary order by the NGT, cannot be faulted.
National Green Tribunal Act, 2010 – Environment Protection
Act, 1986 – National Green Tribunal concluded that no development
and construction should be carried out within 100 feet of a ‘lowest
slope i.e., incline of any hill within its territorial limits, as well as
hill-tops’ – Propriety of – Held: The decisions of the Supreme Court
in All Dimasa Students Union case, Mantri Technoze Pvt. Ltd. Case,
the Hanuman Laxman Aroskar case and the Tamil Nadu Pollution
Control Board case all show that the NGT resorted to the appointment
of technical and scientific experts in the relevant field, 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 making
representations against such reports – Based on a final consideration
of all these materials, and the submissions of parties before it, the
NGT proceeded to issue directions – However, in the instant case,
what NGT had before it was the report of the SDM and a report
commissioned about the nature of the incident – Based on these
limited inputs, without any rationale and based on no scientific or
technical evidence, or experts’ opinion, the Tribunal
concluded that
development and construction should not be carried out within 100
feet 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 Tribunal
were improper and procedurally indefensible – Therefore, the said
directions are set aside.
National Green Tribunal Act, 2010 – Environment Protection
Act, 1986 – The order/ notification dated 14.11.2017 of the State of
Maharashtra, issued u/s. 154 of the Maharashtra Regional and
Town Planning Act, 1966 – Legality of – Held: The State of
Maharashtra has not shown any material or file containing the
reasons behind the directive of 14.11.2017 – These directions were
consequential to, and solely based on the directions of the NGT –
The NGT directions with regard to no development and construction
within 100 feet of a ‘lowest slope i.e., incline of any hill within its
territorial limits, as well as hill tops’, were not based on any scientific
evidence or report of any technical expert – The impugned
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notification does not specify what constitutes ‘hills’ – This makes
the directions not only vague but also makes them arbitrary as they
can be applied at will by the concerned authorities – These directions
in the notification, only underlines the lack of any application of
mind on the part of the State – Consequently the directions issued
under 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 Schedules
of National Green Tribunal Act, 2010 would lead one to infer that
the NGT has circumscribed jurisdiction to deal with, adjudicate,
and wherever needed, direct measures such as payment of
compensation, or make restitutionary directions in cases where
the violation (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. [Para 36][1085-D-E]
2. The reference to Schedule II, in Section 15(4) is not
merely by way of events which are actionable in relation to harm
caused due to the acts resulting in violation of any enactment
under Schedule I. The wide language of that provision enables
the tribunal (NGT) to direct, inter alia, payment of compensation,
“having regard to the damage to public health, property, and
environment”. This interpretation is borne out by a reading of
Section
17(2) regarding the apportionment of liability for payment
of compensation. [Para 37][1085-F]
3. It is noteworthy that this court clearly held that under
Section 15(1)(b) and 15(1)(c), the NGT has the power to make
directions and provide for “restitution of property damaged and
for restitution of the environment for such area or areas as the
Tribunal 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) is
relatable to violation of enactments specified under the first
Schedule, the power under Section 17 appears to be cast in wider
terms. [Para 43][1089-F]
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
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4. Section 17 (1) refers to first schedule enactments; it talks
of the death of, or injury to, any person “or damage to any property
or environment”
which “has resulted from an accident or the
adverse impact of an activity or operation or process, under any
enactment” in Schedule I. One of the enactments is the
Environment Protection Act, 1986 (EPA). [Para 44][1089-G-H]
5. By virtue of a notification dated 14.08.2018 published by
the Government, environmental clearance is necessary even for
minor mineral extraction where the area of operation is less than
5 hectares; the procedure has been outlined under Appendix XI
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 or permits are granted), has a potential impact
on the environment. In the facts of this case, the State had granted
no less than 62 minor mineral permits in the vicinity;
unauthorized activity (in the form inter alia, of over-mining and
piling of debris) had resulted in the imposition of penalty. Clearly,
there was violation of the EPA in the present case, because the
person carrying out mineral extraction i.e. fifth respondent's
mining lease covered an area in excess of 5 hectares; it fell within
the regulatory notification of 2006. There is nothing on record to
show that the relevant clearance was obtained by fifth respondent.
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 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]
6. The EPA effectively enunciates the critical legislative
policy for environment protection. It changes the narrative and
emphasis from a narrow concept of pollution control to a wider
facet of environment protection. The expansive definition of
environment that includes water, air and land “and the interrelation
which exist among and between water, air and land, other human
creatures, plants, micro-organisms and property” gives an
indication of the wide powers conferred on the Central
Government. A wide net is cast over the environment related
laws. The EPA also empowers the central government to
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comprehensively control environmental pollution by industrial
and related activities. For these reasons, and in view of the above
discussion, it is held that the NGT correctly assumed jurisdiction,
having regard to the nature of the accident in the facts of this
case. [Para 51][1097-D-F]
Was the direction to pay compensation towards death, and
damages towards restitution justified?
7. Having regard to the duty imposed on the NHAI by virtue
of Sections 4 and 5 of the National Highways Act, 1956 read with
Section 16 of the NHAI Act, there can be no manner of doubt
that the NHAI was responsible for the maintenance of the highway,
including the stretch upon which the accident occurred. The
report of the sub-divisional officer clearly shows that inspection
reports were furnished to the NHAI shortly before the incident,
highlighting the deficiencies; also, the NHAI’s correspondence
with fifth respondent, and the local administration, reveal that it
was aware of the danger and likelihood of risk to human life, and
the foreseeability of the event that actually occurred later. Further,
letters addressed by the local administration and the NHAI to
fifth respondent similarly show that it was incumbent upon him to
take remedial action. The failure of the NHAI to ensure remedial
action, and likewise the failure by fifth respondent to take
measures to prevent the accident, prima facie, disclose their
liability. [Para 65][1110-G-H; 1111-A-B]
8. The section 18(1)
clearly implies that an application
without 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 have
instituted a suit. The ends of justice would be served if a direction
is issued to the concerned Court to revive and continue hearing
that suit. The directions in this regard by the NGT, towards
payment of compensation are to be regarded as indicative of a
prima facie determination. Consequently, the direction to the
NHAI and fifth respondent, jointly making them liable to pay 15
lakhs is justified. It is clarified that the civil suit will now proceed,
and based on evidence, the court would finally decide the issue
of liability, and make such further consequential orders or decrees
as may be found necessary in this regard, towards apportioning
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of liability of the NHAI, fifth respondent, the state or any other
party (including the concessionaire). This court’s order shall not
be treated as conclusive; the trial court shall independently
proceed to evaluate the evidence and hear the parties on the
merits of their submissions. The restitutionary order by the NGT,
directing payment by fifth respondent and NHAI of  10 lakhs too,
in this court’s opinion, cannot be found to be at fault. It is upheld.
The NHAI and fifth respondent shall comply with the directions
of the NGT and deposit the sum of  15 lakhs with the said court
within four weeks, in equal proportion. The sum  10 lakhs shall
be deposited in the same proportion, in court, to be disbursed to
the state government for restoring the environment and carrying
out 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 of
the State of Maharashtra, issued under Section 154, Maharashtra
Regional and Town Planning Act, 1966.
9. Turning next to the question of the correctness of the
general directions contained in Para 17(e) of the NGT’s order,
this court has no manner of doubt that such directions were
improper and not justified in the facts of this case. What the NGT
had before it, was the report of the SDM and a report
commissioned about the nature of the incident. Based on
these
limited inputs, the tribunal concluded- without any rationale and
based on no scientific or technical evidence, or experts’ opinion,
that development and construction should not be carried out
within 100 feet of 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 Dimasa Students Union case; Mantri Technoze
Pvt. Ltd case; the Hanuman Laxman Aroskar case; and the Tamil
Nadu Pollution Control Board case all show that the NGT resorted
to the appointment of technical and scientific experts in the
relevant field, 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 making representations against such reports.
Based on a final consideration of all these materials, and the
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submissions of parties before it, the NGT proceeded to issue
directions. This procedure was wholly overlooked by the NGT in
the present case. As a result, it is held that the said tribunal’s
directions were improper and are procedurally indefensible. The
directions 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 not
shown any material or file containing the reasons behind the
directive of 14.11.2017. 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 noticed earlier, those directions were not based
on any scientific evidence or report of any technical expert.
Furthermore, even the impugned notification does not specify
what constitutes “hills”, and how they can be applied in towns
and communities set in undulating areas and hilly terrain. This is
not only vague, but makes the directions arbitrary as they can 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 in extraordinary or emergent circumstances, the complete
absence of any reasons as to why the State issued them, coupled
with the lack of any supporting expert report or input, renders it
an arbitrary exercise. That they are based only on the NGT’s
orders, only underlines the lack of any
application of mind on the
part of the State, while issuing them. [Para 90][1130-E-G]
State of Tamil Nadu v. M/s. Hind Stone & Ors (1981) 2
SCC 205 : [1981] 2 SCR 742; Lafarge Umiam Mining
(Pvt.) Ltd. v. Union of India & Ors. (2011) 7 SCC
338 : [2011] 7 SCR 954; State of Meghalaya and Ors.
v. All Dimasa Students Union, Dima-Hasao District
Committee & Ors. (2019) 8 SCC 177 : [2019] 8 SCR
297; 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 Kumar
v. State of Haryana (2012) 4 SCC 629 : [2012] 4 SCR
819; Municipal Corpn. of Delhi v. Sushila Devi (1999)
4 SCC 317 : [1999] 2 SCR 1198; PTC India v. Central
Electricity Regulatory Commission (2010) 4 SCC 603 :
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
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[2010] 3 SCR 609; T. Vijayalakshmi v. Town Planning
Member (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 Cricket
Club v. Abhinav Sahakar Education Society (2011) 9
SCC 97 : [2011] 11 SCR 141; Shri. Sitaram Sugar Mills
Company v. Union of India (1990) 3 SCC 223 : [1990]
1 SCR 909; Cellular Operators Association v. Telecom
Regulatory Authority of India (2016) 7 SCC 703 : [2016]
9 SCR 1 –  relied on.
Tamil Nadu Pollution Control Board v. Sterlite Industries
(I) Ltd. & Ors. (2019) SCC OnLine SC 221;  Hanuman
Laxman Aroskar v. Union of India (2019) 15 SCC
401 : [2019] 5 SCR 916; Hinch Lal Tiwari v. Kamala
Devi (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 Corporation
v. Purshottam V. Muranji (2014) 16 SCC 14 : [2014] 7
SCR 810 –  referred to.
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) 1
WLR 1057; Robinson
v. Chief Constable of West
Yorkshire 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.
Case Law Reference
(2019) 18 SCC 494
referred to
Para 29
[2019] 5 SCR 916
referred to
Para 29
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(2019) 18 SCC 494
relied on
Para 30
[2001] 1 Suppl. SCR 23
referred to
Para 38
[1981] 2 SCR 742
relied on
Para 38
[2011] 7 SCR 954
relied on
Para 40
[2019] 8 SCR 297
relied on
Para 41
[2004] 3 SCR 126
relied on
Para 46
[2012] 4 SCR 819
relied on
Para 49
[1997] 1 SCR 304
referred to
Para 57
[1999] 2 SCR 1198
relied on
Para 63
[2014] 7 SCR 810
referred to
Para 63
[2010] 3 SCR 609
relied on
Para 74
[2006] 7 Suppl. SCR 534
relied on
Para 80
[2004] 2 Suppl. SCR 207
relied on
Para 81
[2011] 12 SCR 639
relied on
Para 82
[2011] 11 SCR 141
relied on
Para 83
[1990] 1 SCR 909
relied on
Para 88
[2016] 9 SCR 1
relied on
Para 89
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6932
of  2015.
From the Judgment and Order dated 19.05.2015 of the National
Green Tribunal, (Western Zone), Bench, Pune in Application No. 04 of
2014.
With
Civil Appeal Nos.5971 of 2019, 4379 of 2018, 2741 of 2020, 6862
of 2018, 2742 of 2020, 11803 of 2018, 2743, 2744 of 2020.
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, Abhimanyu
Bhandari, Ms. Roohina Dua, Cheitanya Madan, Naveen Kumar, Saurav
Kirpal, Ankur Saigal, Mahesh Agarwal, Anshuman Srivastava, Anirudh
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Bhatia, 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. Shilpa
Chouhan, Jitender Chaudhary, Shawahiq Siddiqui, Rajesh Singh, Rahul
Chitnis, Aaditya A. Pande, Sachin Patil, Bhakti Vardhan Singh, Nishant
Ramakantrao Katneshwarkar, Ms. Bharti Tyagi, Arvind S. Avhad, Karri
Venkata 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 by
S. RAVINDRA BHAT, J.
1. Leave granted in SLP (C) Nos. 28178/2018, 1706/2019, Diary
No. 19018 of 2018 and 1632 of 2019. With consent of counsel for the
parties, they were tagged with the companion civil appeals and heard
finally.
2. On 06 June, 2013, when Ms. Vishakha Wadekar, was driving
her car with her young daughter, Sanskruti Wadekar she had no inkling
that danger lurked round the corner of the highway; over-mining at the
height of 75 x 30 ft, in Gut No. 112, resulted in the destruction of a small
hill by the side of the national highway. The resultant debris and a part of
the hill collapsed and slid down to the road, claiming the lives of
Ms. Vishakha and her daughter. The directions made by the Pune bench
of the National Green Tribunal, on an application by a registered
organization, (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)
before this court. The other appeals by special leave question the
judgments and orders of the Bombay High Court, which upheld the
regulations framed pursuant to the order of the NGT. The High Court
negatived the challenge to those regulations in the writ petitions presented
before it.
3. The facts in brief are that the National Highways Authority of
India (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 the
maintenance and operation of the Pune-Satara section of National
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Highway No. 4, to an extent of 140 kms. The scope of the agreement
included construction of the project (i.e. the highway stretch) as well as
its operation and maintenance for a period of 24 years. The agreement
included stipulations mandating safety to the highway users (clause
18.1.1). The NHAI was duty bound to appoint experienced safety
consultants for carrying out safety audits of Project Highways (clause
18.1.2), the expenditure for which was to be borne by the concessionaire
(clause 18.1.3). An elaborate highway monitoring mechanism was also
contemplated by the agreement (clause 19.1) through which by the
seventh of each month, an independent engineer was to furnish a report
after due inspection (of the operation and maintenance arrangements),
containing defects or deficiencies (clauses 19.2). Additionally, the
independent engineer was to require the concessionaire to carry out
specified tests for confirming that the highway was operated in
accordance with applicable standards (clause 19.3). Other stipulations
included, inter alia, requirements that the concessionaire had to carry
out remedial measures (Clause 19.4.1) within a period of 15 days after
receipt of the report of the independent engineer. The concessionaire
was put to terms in that if relevant repairs or remedial measures were
not undertaken, the NHAI could recover damages in terms of Clause
17.8.1 Another obligation cast on the concessionaire was to send a periodic
report of various
occurrences, including “unusual occurrences on the
Project 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”) on
03.01.2011 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 was
calculable in terms of each days delay in complying with the remedial measures suggested
by 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 same
clause (17.8.1) stated that:
“Notwithstanding anything contained in this agreement, should the actual traffic exceed
the design capacity during any year or part thereof and the Concessionaire fails to
repair or rectify any defect or deficiency set forth in the Maintenance Requirements
within the period specified therein, it shall be deemed to be in breach of this agreement
and the Authority shall be entitled from such date to recover damages, to be calculated
and paid for each day of the delay until the breach is cured, at the higher of (a) 5% (five
percent) of Average daily fee and 1% (one percent) of the cost of such repair or
rectification as estimated by the Independent Engineer, for the balance period of the
concession. The recovery of such damages shall be without
prejudice to the rights of
the Authority under this agreement, including the right of termination thereof.”
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extract minor minerals. This license was sought in respect of land bearing
survey 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 was
two 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.
5. Apparently soon after the license was taken over, certain
demands were made regarding construction of a connecting road to the
village. The materials on record by way of letters written to the local
panchayat are to the effect that as a result of construction of the highway
and due to the passage of time the existing road had been washed away.
Consequently, the 2 km stretch from the left side of the new tunnel going
up to the village was virtually non-existent. The panchayat requested
that the road should be strengthened and widened.
6. On 31.01.2011, the local authorities of the State government
issued a show cause notice to Rathod alleging that debris were stored
illegally on the site. It was alleged that this was contrary to Section 48 of
the Maharashtra Land Revenue Code, 1966 (hereafter “land revenue
code”). Again, on 16.06.2011, the local panchayat issued a notice (which
is on the record) stating that as a result of mineral extraction, the natural
flow of rainwater was being
obstructed. The notice also added that two
heavy machines in non-performing condition were lying idle on the land
and two JCB machines were also stationed there. Rathore evidently
received these notices; this is attested by his replies to the Tehsildar and
other local authorities. After obtaining a report from the local officials,
the Tehsildar, Bhor issued an order directing payment of  ` 1,271,200 by
Rathod for violation of the land revenue code on account of illegal
extraction and use of minor minerals.
7. This activity of excavation and piling of debris, did not go
unnoticed on the part of NHAI; it wrote to the Collector of Pune, pointing
out that:
“…large scale and indiscriminate excavation in the upper side
hills of New Katraj Tunnel at both ends is in progress. Due to
this excavation, drainage system above and near tunnel has
been affected. This may lead to seepage of water inside tunnel
roof thereby collapse of walls and ceiling of tunnel resulting
in collapse of tunnel and may lead to major mishap. The
collapse in tunnel will block the entire traffic of NH4 from
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Mumbai/Pune to Bangalore and vice versa leading to chaotic
situation.”
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 6th June, 2013, due to the
monsoon, there was heavy rainfall at Mauje Shindewadi Tehsil, Bhor
and the surrounding areas. Water flowing through the hills at Mauje
Shindewadi entered the road near the octroi post of the Pune Municipal
Corporation, at Mauje Shindewadi Tehsil Bhor, District Pune, on NH-4,
with great force. This created an obstacle in the form of a large sheet of
water. Under these conditions, when the Alto car driven by Vishakha
Wadekar and her daughter Sanskruti, was obstructed, they alighted to
wade across to safety; however, the water gushed with great intensity
and swept them away, resulting in their death. The resulting magisterial
inquiry under Section 176, Code of Criminal Procedure resulted in a
report dated 04.10.2013. The Sub-Divisional Magistrate who inquired
into the incident appointed an expert, whose report was considered; he
also 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, Vineet
Vasant George and relatives of the deceased), the Project Director
(General Manager) of NHAI, the team leader of the independent
engineering firm associated with checking
quality of maintenance of the
highway, 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 of
the National Green Tribunal Act, 2010 (hereafter “the NGT Act”), seeking
mandatory injunction to restore natural contours at the foot base of the
hill that had been destroyed by Rathod. Besides, general relief by way
of directions to other respondents to take necessary action for the
protection of hills from destruction and for maintaining foot base design
of the hills in the natural survey was sought.
10. The material produced before the NGT by the State of
Maharashtra in the form of an affidavit revealed that large scale
destruction of hills by individuals and concerns who had been given short
term mining licenses, had occurred. According to the affidavit, there
were 62 cases, and in many cases “hill-cutting” was resorted to by
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developers. The state had apparently imposed fines and penalties for
these illegal activities.
11. The NGT, in its impugned order, commenting on the role of
Rathod, held as follows, while justifying the imposition of liability upon
that respondent:
“It appears from the record that land Survey No. 112, is owned
by the Respondent Nos. 5 and 6 and their family members.
There are hills in the said land. They illegally cut hills without
permission and extract minor mineral, which reduced height
of hill, circumference of the hill and or peripheral nature,
surface of the hill in question. Acts of the Respondent Nos. 5
and 6 made the area of hill fragile, susceptible to danger to
the ecology and support of natural soil. In such a case, mere
recovery of additional royalty would not be a proper remedial
measure. At many places, the hill cutting is noticed prior to
and after the pathetic incident and now inquiry is undertaken
by the concerned revenue officials.”
12. Thereafter, the NGT based on its reasoning that the regulation
of some activities, especially involving anything affecting hills has to be
strictly regulated, directed as follows:
“12. The question may arise as to what is the meaning of
expression ‘Hill’. General perception is that it would
depend upon ocular assessment of the area, which is
rounded land that is higher than the land surrounded by
it, but is not expected to be as high as mountain. In other
words, it
is usually rounded natural elevation of land, lower
than a mountain. There is no particular definition of the
word ‘Hill’. The Oxford Dictionary gives meaning of word
‘Hill’ as follows:
Hill - noun a naturally raised area of land, not as high or
craggy as a mountain, a sloping stretch of road: they were
climbing a steep hill in low gear, a heap or mound of
something, a hill of sliding shingle.
The wordbook has given meaning of expression ‘Hill’ as
follows:
231 “Hill is an elevation of the earth’s surface that has a
distinct summit. It has much less surface area than a
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mountain and is lower in elevation. Hills rise less than 305
metres above the surrounding area, whereas mountains
always exceed that height. However, a hill is not simply
Small Mountain. It is formed in a considerably different
way.
Hills may be classified according to the way they were
formed and the kinds of materials they are made of. There
are
two types, constructional and destructional.
Constructional hills are created by a built-up of rock debris
or sand deposited by glaciers and wind. Oval-shaped
landforms called drumlins and sand dunes are samples of
this type. Destructional hills are shaped by the deep erosion
of areas that were raised by disturbances in the earth’s
crust. Such hills may consist of limestone overlying layers
of more easily eroded rock.”
13. Draft Development Control Regulation Plan (DCR) of
Pune is yet not approved by the PMC or Government. The
cutting of hill by the Respondent Nos. 5 and 6, created
destruction to render a part of land useless, including
development thereof for plantation of trees. It goes without
saying that the destruction of hill could not have occurred
without connivance or at least purposeful act or omission by
the Project Proponent i.e. NHAI (Respondent No. 9). It is in
the affidavit of Mr. Rajeskumar Kundal, that agreement
requires to take necessary steps for stoppage of illegal
construction activity at Katraj hill top. However, a Notice
dated 25th April, 2011, was issued to the Respondent No. 5
and copy
of the same was marked to the Tehsildar, Bhor before
occurrence of the incident. The Collector, Pune was requested
to look into the matter. The authorities were thus, asked to
take appropriate steps for stoppage of illegal activity in order
to avoid major mishap and to ensure not to occur. They stated
that one Mrs. Vishakha Vadekar, and her daughter died due
to water flow, which gushed from the hill top and poured on
the road.
14. We do not find any significant material to show that the
Respondent No. 9 (NHAI) has taken reasonable steps to avoid
the untoward incident. We do not find copies of the complaint
made by NHAI to the authority. Assuming for a moment that
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such communications were made at the fag end of April, 2011,
yet, it was responsibility of NHAI to persuade said authority
or the higher authority about inaction after 2011. The incident
of raining in which Mrs. Vishakha Vadekar and her daughter
had flown away, is said to have occurred on 10th July, 2013.
Obviously, the Respondent No. 9, appears to have kept silence
for about two (2) years, inspite of knowledge that the work
of hill cutting was going on. In our opinion, NHAI
(Respondent No. 9) perhaps was likely to be impliedly
benefited due to the illegal act of hill cutting due to availability
of murum, stones and soil for the work for its project. The
contractor of NHAI was, therefore, interested in keeping the
fingers crossed.
15. Considering probability and circumstances appearing on
record, we have no hesitation in holding that there took place
degradation of environment to large extent due to hill cutting
at Katraj. We have further no hesitation in holding that the
hill cutting occurred due to illegal acts of the Respondent
Nos. 5, 6 and with or due to act of omission of the Respondent
No. 9. They are liable to pay compensation to the legal
representatives of the victims of incident in question. They
are also liable to pay restitution charges and penalty for
causing damage to the environment, in order to avoid such
incident in future.
16. We deem it proper to give certain further directions to the
concerned
authority. In keeping with these findings, we direct:
17. a) The Respondent Nos. 5, 6 and 9 shall pay amount of
Rs. 50 Lakhs as joint penalty imposed on them for causing
environmental damage in the nearby area of Katraj, due to
the hill-cutting.
b) This amount shall be deposited with Collector (Pune) within
six (6) weeks, else Collector can recover the amount as arrears
of Land Revenue. This amount shall be deposited by Collector
in special escrow account, and the amount be spent for
environmental protection and conservation activities, including
hill protection and conservation in the district.
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c) The Respondent Nos. 5, 6 and 9 shall jointly and severally
pay amount of Rs. 15 Lakhs towards compensation to the legal
representatives of deceased Mrs. Vishakha Vadekar, and her
daughter if identity of legal representatives is proved before
the Collector. The above three (3) Respondents shall
immediately within four (4) weeks, deposit such amount in
the office of Collector, Pune for payment to the legal
representatives of deceased in the incident. The Collector may
issue a publication for locating legal representatives of above
deceased women for payment of compensation and pay to
them compensation after satisfaction of identity of the legal
representatives by making due proportion as provided under
the relevant provisions of the Succession Act.
d) The Respondent Nos. 5, 6 and 9 shall also deposit amount
of Rs. 10 Lakhs with the office of Collector for plantation of
trees 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 give
instructions to the concerned revenue officials working within
all districts to have regular vigil within their areas to verify
whether fringes or nearby any hill or hill-top construction is/
are noticed and if found to be so, due inquiry may be made
as to whether it is authorized or unauthorized. So also,
instructions may be issued to the Municipal authorities to
ensure that no construction permission shall be given to any
construction/development work, which is being proposed and
is located at a distance may be of 100 ft. away from lowest
slope i.e. incline of any hill within its territorial limits, as well
as hill-tops, except for Bamboo cottages.
f) In case of emergency or public purpose, the Hill cutting
may be done by the concerned office of the Collector/
Commissioner by passing a reasoned order or if so required
by Law as provided under the Environment (Protection) Act,
1986 and the Regulations thereunder.”
Rathod, the NHAI and three other appellants (Patel India Pvt
Ltd, Fern Constructions (India) Ltd and D.B. Realty Ltd.) have preferred
appeals against the impugned order of the NGT; their grievance is from
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the general directions issued in the impugned order, implicating buildings
near 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 of
Maharashtra invoked its powers under Section 154 of the Maharashtra
Regional and Town Planning Act, 1966 (for short “MRTP Act”) and
directed, by a notification/circular dated 14.11.2017 that development
(relating to construction) was impermissible in an area abutting hills up
to 100 feet.
14. By the impugned common judgment, the High Court held that
there was no denial that the power to issue such directions or circulars
existed by way of the amended Section 154 and that such power was
essential. The court further held that no individual or entity could claim
any absolute right and contend that he could develop or construct
anywhere and that the directions contained in the notification
supplemented bye-laws and building codes already in place in Mumbai
and Pune. It was also observed that:
“In Regulation 2 we have the definitions and as far as Part II
is concerned, that is general planning and building
requirements. Regulation 11.1 says that no piece of land shall
be used as site for construction of building if the site is hilly
and having gradient more than 1:5. Thus, these stipulations
are already in place. What the National Green Tribunal
brought to the notice of the authorities is
in-discriminable
cutting of hills in the Katraj Ghat. This unauthorized
construction by breaking of hills resulted in an accident. That
is why the NGT directed that on hill tops and hill slopes and
the portion at the foot of the hill and surrounding 100 feet,
no construction activity should be permitted and no
development permission be issued and such directions be
issued to the Municipal Corporations and Municipal Councils.
Bearing in mind that there are in place legal provisions
restricting the development activity on hill top and hill slope
zones, all that the NGT and this Government Resolution directs
is that in cases where there has already been a permitted
development activity within 100 feet of the hill, then, no
permission for additional construction be granted nor any
development be permitted by sanctioning additional Floor
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Space Index (FSI) or Transferable Development Rights (TDR).
In the event in sanctioned development plans if area of the
above nature is in buildable zone, then, for carrying out
development in such zone and while granting individual
development permissions, an area of 100 feet surrounding
the hills should be demarcated as non-buildable. It can be
used as open space, road etc. We are surprised that an order
and direction of the NGT traceable to and in accordance with
the planning law it challenged before us. Further, the
directions of the State Government, which are but reiteration
of the existing regulations, are under challenge. The impugned
Government Resolution is in consonance with the provisions
of the MRTP Act and the constitutional mandate enshrined in
Article 21 and 48 thereof.
24. We are not in agreement with Dr. Sathe, Mr. Godbole and
Dr. Saraf that merely because such directions are issued in
exercise of the powers conferred by sub-section (1) of section
154, the development Plan for the limits of the Municipal
Corporations, namely Pune and Mumbai is altered or
modified. We are also not impressed by their argument that by
such a Government Resolution, a modification is brought
about in the Development Control Regulations and all this is
without recourse to the specific powers conferred by the
MRTP Act. In other words, these are bypassed and by a
Government Resolution, the above stand amended. In that
regard our attention has been invited to
the provisions in the
MRTP Act enabling modifications or changes in the
Development Plan and the procedure prescribed in that behalf.
25. We do not see any modification to the plan being brought
about by the subject Government Resolution. If at all, the
directions therein complement the provisions of the
Development Control Regulations for the cities of the Mumbai
and Pune or the concerned Municipal Corporation/Municipal
Council areas. As it is, there was no permission to construct
buildings other than a electric sub-stations, water works etc.
on hill tops. As far as these slopes are concerned, by their
very nature, a hill slides down and if the slope is steep, then,
no construction activity can be carried out. There is no
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guarantee or assurance that any construction activity in such
areas would be able to withstand a landslide or accidents,
resulting from erosion of the hills on account of natural
reasons. It is experienced that human intervention is
necessarily not responsible for a landslide, mudslide etc. On
account of natural causes and calamities, such events can
occur. Apart from that, the occurrence increases because of
human intervention including a construction activity carried
out at the foot of the hill or on top thereof. It is also possible
if the hill is cut from its sides indiscriminately. It is also possible
if there is damage to a hill while extracting minor minerals.
The hill then becomes uneven. Then, it is not possible to prevent
any calamity. Hence, in order to take care of the natural
calamities and which have occurred in various places in the
State of Maharashtra recently and also on account of
unrestricted and unregulated breaking and cutting of the hills
resulting in accidents endangering human life and safety that
these supplemental directions have been issued. If they are
for efficient administration of the Act and if they subserve
larger public interest, then no fault can be found with the
Government Resolution. Each of the operative directions,
namely, serial Nos. 1, 2 and 3 of this Government Resolution
subserve this object and purpose. If the Government
Resolution has been issued after the attention of
the
Government has been invited to an accident in Katraj Ghat
occurring due to unauthorized and illegal cutting of hills,
then, it is not as if the State Government has construed it as a
command or a binding order and issued the subject
Government Resolution. The attention of the State Government
being invited to such illegal and unauthorized so also
uncontrolled, unregulated and unrestricted hill-cutting, that
in order to prevent the same, the Government stepped in. It
took recourse to its power conferred by section 154 of the
MRTP Act in order to prevent future occurrences of this nature.
If accidents and calamities can be prevented by timely
intervention of the State Government in this manner, then, we
do not think that on the specious and unsubstantiated pleas
of the petitioners, we should strike down the Government
Resolution.”
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15. The NHAI in its appeal contends that the NGT fell into error
in issuing sweeping directions against it without considering that was no
evidence to establish that it was in any way responsible for the degradation
of the environment, which led to the tragedy. It is urged by Senior Counsel
Mr P.S. Narasimha that the NGT’s findings are contrary to established
facts and have also resulted in grave miscarriage of justice. He highlighted
that there was no material on record to establish that the NHAI was in
any way culpable or had failed to perform a public duty or neglected to
avert a foreseeable calamity. Elaborating on this, it was urged that the
illegal mining activity was not carried on within the right-of-way or the
carriageway of the highway. What occurred was the result of an act of
God, i.e. extremely heavy rains, which resulted in flooding on the highway
caused entirely on account of the debris collected which acted to obstruct
the smooth flow of water.
16. It was highlighted that in any case, the NHAI could not be
held responsible or made liable for the occurrence which led to the
tragedy. Mr Narasimha also argued that the NGT did not return any
finding that the construction of the highway was in any way contrary to
environmental clearances or permissions secured by the NHAI.
Therefore, the findings of the Tribunal in so far as they pertained to the
neglect or alleged omission of the NHAI, were contrary to law. He
urged that the findings were
illogical and irrational, and deserve to be set
aside.
17. The NHAI also highlights that it wrote letters to the local
administration on 24.04.2011 and 15.07.2011, seeking its intervention on
account of the illegal mining and activities and hill destruction, for which
Rathod was responsible. However, the State government did not take
any action. Likewise, Rathod did not take any remedial steps or cease
the activity. The resultant tragedy entirely on account of the omissions
of the state’s authorities to take action and the neglect and culpable
negligence on the part of Rathod, was the cause of the tragedy and the
events which led to the loss of two lives. It was also emphasized that the
direction to pay compensation was contrary to legal principles and
undermined the law. It was argued that neither the NHAI nor its
concessionaire had any control over the activities of the state, which
granted the mining licences. Rathod, the licensee, had continued illegal
mining in the vicinity causing the accumulation of debris. This in turn,
resulted in the obstruction of a culvert which resulted in collection of a
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large 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 saddled
with the responsibility of either paying damages to the dependents and
legal representatives of the deceased nor could it be made liable to restore
the environment through the payment of  50 lakhs or any part of it.
18. Rathod urges that the NGT’s findings against him are contrary
to 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 a
civil suit, claiming compensation against him, as well as the NHAI and
the state, for alleged negligence and tortious liability. In those proceedings,
the court is bound to record evidence and render findings based on the
facts. The NGT could not thus have unilaterally, based on a one-sided
view of the materials, held that he was liable.
19. It was submitted that the allegation that Rathod was primarily
responsible for degradation of the hill, which clogged the culverts and
water channels, resulting in the tragedy, was contrary to the facts.
Mr. Vijay Verma, counsel for Rathod, relied on some portions of the
magisterial report to say that the NHAI had the report of an independent
engineer, who had pointed to certain deficiencies on the part of the
concessionaire. Therefore, to
hold him responsible for the tragedy, and
direct him to pay a huge sum of  15 lakh and further pay amounts towards
environmental damage, was unwarranted.
20. It was argued that the NGT could not have issued directions
with respect to payment of any sums, in the absence of any application
by the legal representatives of the deceased. It is further argued in
Rathod’s appeal that apart from issuing notice for recovery of amounts
towards alleged illegal mining, neither the state authorities nor the NHAI
took any positive remedial action for strengthening the culvert and the
catch water drains which were in disrepair, and constructed on the hill
above the tunnel for drainage of rainwater. The masonry on the culvert
for draining water was choked due to lack of maintenance. Such
maintenance was the sole responsibility of the concessionaire and for
that, the NHAI had to be held liable. It is also highlighted that Section 18
of the NGT Act mandates that the procedure established by the statute
to exercise jurisdiction had to be followed. Since the legal heirs of the
deceased had not applied to the NGT for any relief and had instead
approached the civil court claiming compensation on account of wilful
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neglect and culpable inaction on the part of NHAI, the NGT ought to
have left the matter for proper decision in accordance with the evidence
led. Instead the NGT took upon itself the task of a judging the appellant
as one of those responsible for the incident. It is emphasised that the
mining activity carried on was in accordance with the license and if
there was any irregularity that was cured on payment of fine. So far as
the collection of debris which ultimately led to the overflow of water and
the deaths of two individuals goes, it is argued that the proper functioning
of the drainage system would have ensured that such collection of vast
quantities of water would not have occurred. Therefore, the inaction of
the NHAI in taking timely action and intervening with the state authorities,
led to the tragic incident. The responsibility for this incident could not
have been placed at the doorstep of Rathod. The actions of Rathod, it is
stated were too remote and could not have been the subject of damages
at all.
21. In the appeals (by special leave as well as the statutory appeals
by third parties), where the grievance is on account of the directions
issued by the State of Maharashtra under Section 154 of the MRTP Act,
the third party appellants challenge the order of the NGT arguing that
the provisions of the NGT Act, especially sections 14, and 19 do not
authorise that tribunal to issue sweeping and unilateral directions requiring
stoppage and cessation
of all manner of building activity or developments
within hundred feet of hill slopes. It is highlighted that such sweeping
directions are illogical and are not based on any scientific study or analysis.
It is argued that the NGT has issued general directions couched in a
vague manner in para 17 (e) of its order.
22. These appellants argue that the Bombay High Court also fell
into error and did not appreciate that the entire basis of the Directions/
Resolution of 14.11.2017 by the State of Maharashtra were the directions
issued by the NGT. Highlighting various provisions of the MRTP Act,
learned counsel argued that wherever development codes were
formulated, they were in accordance with established principles, after
following the prescribed procedure. Based upon these codes and the
building regulations framed by various town planning departments,
clearances and permissions/approval for development and construction
were issued. It was argued that the mandatory and sweeping nature of
the directions in para 17 (e) by the NGT has resulted in these directions
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being embodied in the impugned resolution, which has a catastrophic
effect on those clearances.
23. Learned senior counsel, Mr. Shyam Divan, highlights that apart
from the fact that the definition of ‘hill’ is vague, and even the regulations
under the MRTP Act are silent in this regard, the NGT failed to consider
that the impact of its directions and the impugned notification, in hilly
terrains where the population is concentrated in particular areas, in small
towns, semi urban and rural areas would be devastating inasmuch as all
nature of buildings would be banned. It is pointed out that hill development
is based upon consideration of individual local soil conditions, the stability
of the surrounding terrain, etc. All these are taken into account by
individual local town planning authorities when they permit or refuse
permission to individual development or construction projects. The uniform
adoption of the “no construction within the hundred feet area” rule, it is
submitted, is completely contrary to well-established principles of town
planning.
24. It is argued that the directions issued by the state government
impugned in the writ petitions before the Bombay High Court, are contrary
to the provisions of the MRTP Act inasmuch as they amount to
supplanting provisions of the existing master plan and other development
codes, which have the force of law and were framed after widespread
consultations. It is pointed out
that the provisions of the MRTP Act require
that any change in such codes or master plans would have to be made
after mandatory due consideration of objections, which are to be preceded
by publication of the proposals. By directing the state government to
follow the order in paragraph 17(e), the NGT in fact made directions
contrary to law. It is argued that the state also acted contrary to the
express provisions of the MRTP Act inasmuch as it did not follow the
procedure required by the Act to change the master plan and the
development codes.
25. It is further submitted that the NGT’s directions were the
basis of the state government’s notification. It was argued that the state
government’s blind adherence to these directions amounted to abdication
of its duties, was in contravention of express provisions of the MRTP
Act and also amounted to acting on the dictates of another authority. It
was submitted that for these reasons, the impugned notification cannot
be sustained. Counsel relied on the decision of this court in Tamil Nadu
Pollution Control Board v. Sterlite Industries (I) Ltd. & Ors.2 to
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highlight that the NGT has a narrow and circumscribed jurisdiction in
regard to issuing directions as well as ordering compensation.
26. The Lokmanch justified the order of the NGT and blamed the
NHAI, the concessionaire, Rathod and the state government for not
taking adequate and timely measures in public interest. It is alleged that
proper channels were not created and maintained alongside the highway
to avoid water clogging on the main carriageway. It is argued that existing
water channels were extremely narrow and were incapable of handling
significant volumes, and that even those channels were clogged due to
construction debris which had fallen on the sides. It is pointed out that
under Section 4 of the National Highways Act, 1956 (hereafter “Highways
Act”) “highways” include lands appurtenant thereto, all bridges, culverts,
tunnels, causeways and other structures constructed on or over the
highway and all fences, trees, posts, etc. The duty of keeping them in
good 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 rights
and acted within its jurisdiction in entertaining and proceeding with the
application, under Sections 14 read with 16 and 18 of the NGT Act. The
Lokmanch sought mandatory injunction to restore the natural contour at
the foot base of the hills, particularly the hill that was destroyed by the
private respondents. It was submitted that apart from the enquiry report
of the magistrate /sub-divisional officer, a report was also commissioned
by the NGT through the local tehsildar; that report dated 15.09.2014
disclosed that unauthorised hill destruction under the pretext of minor
mineral extraction was widespread during 2011-2013. This report showed
that as many as 62 cases of hill destruction (mostly indulged in by
developers), came to light. Many of these occurred without obtaining
any permit or authorisation and were plainly illegal.
28. It is argued further that the private respondents were permitted
to extract minor minerals only for a short period. However, they exceeded
not only the permit, but also went further and destroyed the hill for the
purpose of mining minerals. This over-mining as well as hill destruction
was not within the permission or the terms of the license. It is highlighted
that “hill cutting” or hill destruction causes shortening of hills, poses a
potential danger of soil erosion and reduces vegetation, forestry, flora
and fauna, and deprives natural support to the earth, therefore ultimately
2 2019 SCC OnLine SC 221.
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posing an environmental hazard to nearby areas, including residential
areas. It is argued that the destruction of hills results in the distortion of
the flow of streams and rivers, which change their courses resulting in
heavy loss to human life and also to flora and fauna, besides at times,
destruction of property. It is submitted that the NGT’s decision requiring
payment of compensation was within its jurisdiction; to support this,
learned counsel relied upon the provisions of Schedule II to the NGT
Act, particularly referring to the heads of compensation relief for damages
that can be claimed and granted, i.e. death, permanent, temporary, or
total, or partial disability or other injury, damages to private property,
expenses incurred by the government for any administrative or legal
action, or to cope with any harm or damage, including compensation for
environmental degradation and restoration of the quality of the
environment. It was submitted that the statutory basis for calculating
these damages under Schedule II to the NGT Act is provided by Section
15, which empowers the NGT to provide relief and compensation to
victims of pollution in terms of Schedule I for restitution of property,
restitution of environment, and also importantly Section 17, which
empowers the NGT to direct the payment of compensation on account
of death of or injury to any person or damage to property, under all any
of the heads specified
in Schedule II, which is the result of any accident
or is an adverse impact of any activity or operational process. It is
submitted that there is nothing in the enactment which confines the
jurisdiction of the NGT to adjudicate complaints, especially those relating
to fatalities caused by environmental damage, to applications initiated by
legal representatives or persons directly affected. It is submitted that if
a particular accident or incident is so widespread as to affect an entire
area, it would be well within the jurisdiction of the NGT to entertain an
application made by anyone. Learned counsel highlighted the difference
in phraseology between Sections 15 and 17 on the one hand, and Section
18 on the other. It is submitted that Section 18(2) clearly is without
prejudice to the provisions contained in Section 16 and primary jurisdiction
can be invoked by the Tribunal upon being moved by anyone in this
regard.
29. Ms. Chohan cited the decision of this court in Mantri Technoze
Pvt. Ltd. v Forward Foundation3 to say that the NGT could legitimately
issue directions which are binding on all other statutory authorities. She
also relied on Section 33 of the NGT Act, emphasizing that the enactment
3 2019 (18) SCC 494
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overrides all other enactments. Reliance was also placed on the decision
in Hanuman Laxman Aroskar v. Union of India.4
30. The State of Maharashtra supported the arguments made on
behalf of the Lokmanch. It was pointed out that the jurisdiction to issue
general directions to preserve and protect the environment, through
restitution orders is found in Section 15(1)(c) of the NGT Act. It is also
submitted that the power and jurisdiction to order compensation in the
case 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 argues
that the judgment of the Bombay High Court too is unexceptionable,
inasmuch as it correctly appreciated and upheld the exercise of regulatory
power under Section 154 of the MRTP Act. Counsel urged that the said
provision was amended in 2015 and in the absence of any challenge to it,
the exercise of power after due consideration of relevant factors, could
not be countenanced.
The Issues
31. Four issues arise for consideration. Firstly, the jurisdiction of
the NGT to award compensation; secondly the merits and soundness of
the NGT’s decision to award compensation and the legal principles
applicable; thirdly, the NGT’s wide directions with respect to the ban on
construction in and around foothills and lastly, the vires of the directions/
notifications issued under Section 154, MRTP Act.
I. Jurisdiction of the NGT
32. The relevant provisions of the
NGT Act are extracted below:
“2. Definitions. — (1) In this Act, unless the context otherwise
requires
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(m) “substantial question relating to environment” shall
include an instance where—
(i) there is a direct violation of a specific statutory
environmental obligation by a person by which—
4 2019 (15) SCC 401
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(A) the community at large other than an individual or
group of individuals is affected or likely to be affected by the
environmental consequences; or
(B) the gravity of damage to the environment or property
is substantial; or
(C) the damage to public health is broadly measurable;
(ii) the environmental consequences relate to a specific
activity or a point source of pollution;
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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.”
15. Relief, compensation and restitution.—(1) The Tribunal
may, by an order, provide,—
(a) relief and
compensation to the victims of pollution and
other environmental damage arising under the enactments
specified in the Schedule I (including accident occurring
while handling any hazardous substance);
(b) for restitution of property damaged;
(c) for restitution of the environment for such area or areas,
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as the Tribunal may think fit.
(2) The relief and compensation and restitution of property
and environment referred to in clauses (a), (b) and (c) of sub-
section (1) shall be in addition to the relief paid or payable
under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or
restitution of property or environment under this section shall
be entertained by the Tribunal unless it is made within a period
of five years from the date on which the cause for such
compensation or relief 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.
(4) The Tribunal may, having regard to the damage to public
health, property and environment, divide the compensation
or relief payable under separate heads specified in Schedule
II so as to provide compensation or relief to the claimants
and for restitution of the damaged property or environment,
as it may think fit.
(5) Every claimant of the compensation or relief under this
Act shall intimate to the Tribunal about the application filed
to, or, as the case may be, compensation or relief received
from, any other court or authority.”
“16. Tribunal to have appellate jurisdiction.—Any person
aggrieved by,
(a) an order or decision, made, on or after the commencement
of the National
Green Tribunal Act, 2010, by the appellate
authority under Section 28 of the Water (Prevention and
Control of Pollution) Act, 1974 (6 of 1974);
(b) an order passed, on or after the commencement of the
National Green Tribunal Act, 2010, by the State
Government under Section 29 of the Water (Prevention
and Control of Pollution) Act, 1974 (6 of 1974);
(c) directions issued, on or after the commencement of the
National Green Tribunal Act, 2010, by a Board, under
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Section 33-A of the Water (Prevention and Control of
Pollution) Act, 1974 (6 of 1974);
(d) an order or decision made, on or after the commencement
of the National Green Tribunal Act, 2010, by the appellate
authority under Section 13 of the Water (Prevention and
Control of Pollution) Cess Act, 1977 (36 of 1977);
(e) an order or decision made, on or after the commencement
of the National Green Tribunal Act, 2010, by the State
Government or other authority under Section 2 of the
Forest (Conservation) Act, 1980 (69 of 1980);
(f) an order or decision, made, on or after the commencement
of the National Green Tribunal Act, 2010, by the Appellate
Authority under Section 31 of the Air (Prevention and
Control of Pollution) Act, 1981 (14 of 1981);
(g) any direction issued, on or after the commencement of
the National Green Tribunal Act, 2010, under Section 5
of the Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the
National Green Tribunal Act, 2010, granting
environmental clearance in the area in which any
industries, operations or processes or class of industries,
operations and processes shall not be carried out or shall
be carried out subject to certain safeguards under the
Environment (Protection) Act, 1986 (29 of 1986);
(i)
an order made, on or after the commencement of the
National Green Tribunal Act, 2010, refusing to grant
environmental clearance for carrying out any
activity or
operation or process under the Environment (Protection)
Act, 1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on
or after the commencement of the National Green Tribunal
Act, 2010, by the National Biodiversity Authority or a
State Biodiversity Board under the provisions of the
Biological Diversity Act, 2002 (18 of 2003),
may, within a period of thirty days from the date on which the
order or decision or direction or determination is
communicated to him, prefer an appeal to the Tribunal:
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Provided that the Tribunal may, if it is satisfied that the
appellant was prevented by sufficient cause from filing the
appeal within the said period, allow it to be filed under this
section 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 a
workman) or damage to any property or environment has
resulted from an accident or the adverse impact of an activity
or operation or process, under any enactment specified in
Schedule I, the person responsible shall be liable to pay such
relief or compensation for such death, injury or damage,
under all or any of the heads specified in Schedule II, as may
be determined by the Tribunal.
(2) If the death, injury or damage caused by an accident or
the adverse impact of an activity or operation or process under
any enactment specified in Schedule I cannot be attributed to
any single activity or operation or process but is the combined
or resultant effect of several such activities, operations and
processes, the Tribunal may, apportion the liability for relief
or compensation amongst those responsible for such activities,
operations and processes on an equitable basis.
(3) The Tribunal shall, in case of an accident, apply the
principle of no fault
18. Application or appeal to Tribunal.
(1) Each application under sections 14 and 15 or an appeal
under section 16 shall, be made to the Tribunal in such form,
contain such particulars, and, be accompanied by such
documents and such fees as may be prescribed.
(2) Without prejudice to the provisions contained in section
16, an application for grant of relief or compensation or
settlement 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 has
been caused; or
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
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(c) where death has resulted from the environmental
damage, by all or any of the legal representatives of the
deceased; or
(d) any agent duly authorised by such person or owner of
such property or all or any of the legal representatives of
the deceased, as the case may be; or
(e) any person aggrieved, including any representative
body or organisation; or
(f) the Central Government or a State Government or a
Union territory Administration or the Central Pollution
Control Board or a State Pollution Control Board or a
Pollution Control Committee or a local authority, or any
environmental authority constituted or established under
the Environment (Protection) Act, 1986 (29 of 1986) or
any other law for the time being in force:
Provided that where all the legal representatives of the
deceased have not joined in any such application for
compensation or relief or settlement of dispute, the
application shall be made on behalf of, or, for the benefit
of all the legal representatives of the deceased and the
legal representatives who have not so joined shall be
impleaded as respondents to the application:
Provided further that the person, the owner, the legal
representative, agent, representative body or organisation
shall not be entitled to make an application for grant of
relief or compensation or settlement of dispute if such
person, the owner, the legal representative, agent,
representative body or organisation have
preferred an
appeal under section 16.
(3) The application, or as the case may be, the appeal filed
before the Tribunal under this Act shall be dealt with by it
as expeditiously as possible and endeavour shall be made
by it to dispose of the application, or, as the case may be,
the appeal, finally within six months from the date of filing
of the application, or as the case may be, the appeal, after
providing the parties concerned an opportunity to be heard.
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29. Bar of jurisdiction.—(1) With effect from the date of
establishment of the Tribunal under this Act, no civil court
shall have jurisdiction to entertain any appeal in respect
of any matter, which the Tribunal is empowered to determine
under its appellate jurisdiction.
(2) No civil court shall have jurisdiction to settle dispute
or entertain any question relating to any claim for granting
any relief or compensation or restitution of property
damaged or environment damaged which may be
adjudicated upon by the Tribunal, and no injunction in
respect of any action taken or to be taken by or before the
Tribunal in respect of the settlement of such dispute or any
such claim for granting any relief or compensation or
restitution of property damaged or environment damaged
shall be granted by the civil court.”
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“33. Act to have overriding effect.—The provisions of this
Act, shall have effect notwithstanding anything inconsistent
contained in any other law for the time being in force or in
any instrument having effect by virtue of any law other
than this Act.”
33. A plain reading of the above provisions of the NGT Act would
reveal that the tribunal possesses two kinds of power and jurisdiction:
one, primary jurisdiction under Sections 14-15, and appellate jurisdiction
under Section 16. Under Section 14, the NGT has the power to adjudicate
upon disputes relating to “civil cases where a substantial question
relating to environment (including
enforcement of any legal right
relating to environment), is involved” relating to the implementation
of “the enactments specified in Schedule I” [Section 14 (1)]. The
other provisions [Sections 14(2) and (3)] are incidental to the primary
jurisdiction under Section 14(1). Section 15, on the other hand, is couched
in wide terms. Section 15(1) provides that compensation or damages
can be given by the NGT to “victims of pollution and other
environmental damage arising under the enactments specified in
the Schedule I” [Section 15 (1)(a)]; for restitution of property damaged
[Section 15(1)(b)] and for restitution of the environment for such area
or areas [Section 15(1)(c)]. Section 15(2) is procedural; Section 15(3)
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prescribes the period of limitation for applications. Section 15(4) enables
the NGT to, having regard to the damage to public health, property and
environment,
“divide the compensation or relief payable under separate
heads specified in Schedule II so as to provide compensation
or relief to the claimants and for restitution of the damaged
property 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 (Prevention
and Control of Pollution) Cess Act, 1977; the Forest (Conservation) Act,
1980; the Air (Prevention and Control of Pollution) Act, 1981; the
Environment (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)] HEADS
UNDER WHICH COMPENSATION OR RELIEF FOR
DAMAGE MAY BE CLAIMED
(a) Death;
(b) Permanent, temporary, total or partial disability or other
injury or sickness;
(c) Loss of wages due to total or partial disability or permanent
or temporary disability;
(d) Medical expenses incurred for treatment of injuries or
sickness;
(e) Damages to private property;
(f) Expenses incurred by the Government or any local
authority in providing relief, aid and rehabilitation to the
affected persons;
(g) Expenses incurred by the Government for any
administrative or legal action or to cope with any
harm or
damage, including compensation for environmental
degradation 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;
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(i) Claims on account of any harm, damage or destruction to
the fauna including milch and draught animals and aquatic
fauna;
(j) Claims on account of any harm, damage or destruction to
flora including aquatic flora, crops, vegetables, trees and
orchards;
(k) Claims including cost of restoration on account of any
harm or damage to environment including pollution of soil,
air, water, land and eco-systems;
(l) Loss and destruction of any property other than private
property;
(m) Loss of business or employment or both;
(n) Any other claim arising out of, or connected with, any
activity of handling of hazardous substance.”
36. A conjoint reading of Sections 14, 15 and the Schedules would
lead one to infer that the NGT has circumscribed jurisdiction to deal
with, adjudicate, and wherever needed, direct measures such as payment
of compensation, or make restitutionary directions in cases where the
violation (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 merely
by way of events which are actionable in relation to harm caused due to
the acts resulting in violation of any enactment under Schedule I. The
wide language of that provision enables the tribunal (NGT) to direct,
inter alia, payment of compensation, “having regard to the damage
to
public health, property and environment”. This interpretation is
borne out by a reading of Section 17(2) regarding the apportionment of
liability for payment of compensation.
38. In the decision of this court reported as Hinch Lal Tiwari v.
Kamala Devi5, this court held that ponds constituted public utility and
were meant for common use. The court held that ponds could not be
allotted or commercialised, and that filling up of ponds was illegal.
Recently, in Jitendra Singh v. Ministry of Environment & Ors6, the
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Court quoted and applied the observations in Hinch Lal (supra), in the
context of an appeal directed against an order of the NGT which had
summarily dismissed an application under Sections 14 and 15 of the
NGT Act seeking directions to cease the filling up of ponds in the Greater
Noida Industrial Development Area.
39. Long ago, in State of Tamil Nadu v. M/s. Hind Stone &
Ors7, this court made following observations:
“6. Rivers, Forests, Minerals and such other resources
constitute a Nation’s natural wealth. These resources are not
to be frittered away and exhausted by any one generation.
Every generation owes a duty to all succeeding generations
to develop and conserve the natural resources of the nation
in the best possible way. It is in the interest of mankind. It is in
the interest of the nation. It is recognised by Parliament.
Parliament has declared that it is expedient in the public
interest that the Union should take under its control the
Regulation of mines and the development of minerals. It has
enacted the Mines and Minerals (Regulation and
Development) Act, 1957 ...”
40. Likewise, in Lafarge Umiam Mining (Pvt.) Ltd. v. Union of
India & Ors.8 these pertinent observations were made:
“75. Universal human dependence on the use of
environmental resources for the most basic needs renders it
impossible to refrain from altering the environment. As a result,
environmental conflicts are ineradicable and
environmental
protection is always a matter of degree, inescapably requiring
choices as to the appropriate level of environmental protection
and the risks which are to be regulated. This aspect is
recognised by the concepts of “sustainable development”. It
is equally well settled by the decision of this Court in Narmada
Bachao Andolan Vs. Union of India that environment has
different facets and care of the environment is an ongoing
process. These concepts Rule out the formulation of an across-
the-board principle as it would depend on the facts of each
case whether diversion in a given case should be permitted
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or not, barring “no go” areas (whose identification would
again depend on undertaking of due diligence exercise). In
such cases, the margin of appreciation doctrine would apply.”
41. Recently, in State of Meghalaya and Ors. vs. All Dimasa
Students Union, Dima-Hasao District Committee & Ors.9 this court
had affirmed a part of the decision of the NGT issuing directions in
respect of large-scale mining in the state of Meghalaya, on the ground
that it had an adverse impact on the environment. This was despite the
fact that mining and the subject of mines is not specified in the list of
enactments under the first schedule. The court also approved the NGT’s
directions, appointing experts, to assess the impact of such mining on the
environment.
42. The legal position and jurisdiction of NGT was considered by
this court in Mantri Techzone (supra) where it was held that the NGT
has “special jurisdiction” for “enforcement of environmental rights.”
It was held that:
“41. The jurisdiction of the Tribunal is provided under
Sections 14, 15 and 16 of the Act. Section 14 provides the
jurisdiction over all civil cases where a substantial question
relating to environment (including enforcement of any legal
right relating to environment) is involved. However, such
question should arise out of implementation of the enactments
specified 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 of
pollution and other environmental damage arising under the
enactments specified in Schedule I. Further, under Section
15(1)(b) and 15(1)(c) the Tribunal can provide for restitution
of property damaged and for restitution of the environment
for such area or areas as the Tribunal may think fit. It is
noteworthy that Section 15(1)(b) & (c) have not been made
relatable to Schedule I enactments of the Act. Rightly so, this
grants a glimpse into the wide range of powers that the
Tribunal has been cloaked with respect to restoration of the
environment.
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43. Section 15(1)(c) of the Act is an entire island of power
and jurisdiction read with Section 20 of the Act. The principles
of sustainable development, precautionary principle and
polluter pays, propounded by this Court by way of multiple
judicial pronouncements, have now been embedded as a
bedrock of environmental jurisprudence under the NGT Act.
Therefore, wherever the environment and ecology are being
compromised and jeopardized, the Tribunal can apply Section
20 for taking restorative measures in the interest of the
environment.
44. The NGT Act being a beneficial legislation, the power
bestowed upon the Tribunal would not be read narrowly. An
interpretation which furthers the interests of environment must
be given a broader reading. (See Kishsore Lal v. Chairman,
Employees’ State Insurance Corpn. (2007) 4 SCC 579, para
17). The existence of the Tribunal without its broad restorative
powers under Section 15(1)(c) read with Section 20 of the
Act, would render it ineffective and toothless, and shall betray
the legislative intent in setting up a specialized Tribunal
specifically to address environmental concerns. The Tribunal,
specially constituted with Judicial Members as well as with
Experts in the field of environment, has a legal obligation to
provide for preventive and restorative measures in the interest
of the environment.
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 separate
provisions for filing distinct applications before the Tribunal
with distinct periods of limitation, thereby amply demonstrating
that jurisdiction of the Tribunal flows from these Sections (i.e.
Sections 14 and 15 of the Act) independently. The limitation
provided in Section 14 is a period of 6 months from the date
on which the cause of action first arose and whereas in Section
15 it is 5 years. Therefore, the legislative intent is clear to
keep Section 14 and 15 as self-contained jurisdictions.
46. Further, Section 18 of the Act recognizes the right to file
applications each under Sections 14 as well as 15. Therefore,
it cannot be argued that Section 14 provides jurisdiction to
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the Tribunal while Section 15 merely supplements the same
with powers. As stated supra the typical nature of the Tribunal,
its breadth of powers as provided under the statutory provisions
of the Act as well as the Scheduled enactments, cumulatively,
leaves no manner of doubt that the only tenable interpretation
to these provisions would be to read the provisions broadly in
favour of cloaking the Tribunal with effective authority. An
interpretation that is in favour of conferring jurisdiction
should be preferred rather than one taking away jurisdiction.
47. Section 33 of the Act provides an overriding effect to the
provisions of the Act over anything inconsistent contained in
any other law or in any instrument having effect by virtue of
law other than this Act. This gives the Tribunal overriding
powers 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 13
of List I Schedule VII of the Constitution of India will have
the overriding effect over State legislations. The corollary is
that the Tribunal while providing for restoration of
environment in an area, can specify buffer zones around
specific lakes & water bodies in contradiction with zoning
regulations under these statutes or the RMP.”
43. It is noteworthy that this court clearly held that under Section
15(1)(b) and 15(1)(c), the NGT
has the power to make directions and
provide for “restitution of property damaged and for restitution of
the environment for such area or areas as the Tribunal 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) is relatable to violation of
enactments specified under the first schedule, the power under Section
17 appears to be cast in wider terms.
44. As noticed earlier, Section 17 (1) refers to first schedule
enactments; it talks of death of, or injury to, any person”or damage to
any property or environment”which “has resulted from an accident
or the adverse impact of an activity or operation or process, under
any enactment” in Schedule I. One of the enactments is the Environment
Protection Act, 1986 (hereafter “EPA”).
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45. The definition of “environment” under the EPA is wide and is
an inclusive one:”environment” includes water, air and land and the
inter- relationship which exists among and between water, air and
land, and human beings, other living creatures, plants, micro-
organism and property”.10 Similarly, “environmental pollutant” and
“environmental pollution” are defined as follows:
“environmental pollutant” means any solid, liquid or gaseous
substance present in such concentration as may be, or tend
to be, injurious to environment;11
“environmental pollution” means the presence in the
environment 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 TAKE
MEASURES TO PROTECT AND IMPROVE ENVIRONMENT.-
(1) Subject to the provisions of this Act, the Central
Government, shall have the power to take all such measures
as it deems necessary or expedient for the purpose of
protecting and improving the quality of the environment and
preventing controlling and abating environmental pollution.”
46. Long back, in M.C. Mehta v. Union of India13 this court
recognized the potential harm to the environment caused by mining
operations:
“Legal parameters
45. The natural sources of air, water and soil cannot be utilised
if the utilisation results in irreversible damage to environment.
There has been accelerated
degradation of environment
primarily on account of lack of effective enforcement of
environmental laws and non-compliance of the statutory
norms. This Court has repeatedly said that the right to live is
a fundamental right under Article 21 of the Constitution and
it includes the right to enjoyment of pollution-free water and
10 Section 2 (a) EPA
11 Section 2 (b) EPA
12 Section 2 (c) EPA
13 (2004) 12 SCC 118
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air for full enjoyment of life. (See Subhash Kumar v. State of
Bihar [(1991) 1 SCC 598.)
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47. The mining operation is hazardous in nature. It impairs
ecology and people’s right to natural resources. The entire
process of setting up and functioning of mining operation
requires utmost good faith and honesty on the part of the
intending entrepreneur. For carrying on any mining activity
close to township which has tendency to degrade environment
and is likely to affect air, water and soil and impair the quality
of life of inhabitants of the area, there would be greater
responsibility on the part of the entrepreneur. The fullest
disclosures including the potential for increased burdens on
the environment consequent upon possible increase in the
quantum and degree of pollution, has to be made at the outset
so that the public and all those concerned including
authorities may decide whether the permission can at all be
granted for carrying on mining activity. The regulatory
authorities have to act with utmost care in ensuring compliance
of safeguards, norms and standards to be observed by such
entrepreneurs. When questioned, the regulatory authorities
have to show that the said authorities acted in the manner
enjoined upon them. Where the regulatory authorities, either
connive or act negligently by not taking prompt action to
prevent, avoid or control the damage to environment, natural
resources and people’s life, health and property, the
principles
of accountability for restoration and compensation have to
be applied.”
47. Acting under the provisions of the EPA, the Central Government
had issued a notification on 14.09.2006, mandating Environmental Impact
Assessment (EIA) in exercise of its power under Section 3(2) of the
EPA read with Rule 5 of the rules framed thereunder. In terms of this
notification, environment impact assessment and clearance was
necessary for different processes and industries. Mining too, was included
as part of the notification; the only exception was that minor mineral
leases for an area below five hectares were exempted. Clearly, therefore,
the Central Government included within the purview of the EPA, major
and minor mineral extraction.
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48. Several irregularities were noticed over a period of time, with
regard to minor mineral extraction, including sand, and there was need
for introducing stringent regulations for those activities. A report of the
then Ministry of Environment and Forests (MoEF, now MoEF&CC)
submitted in 2010 was critical of the prevailing norms. As a result, this
court and the NGT issued orders and directives making ECs compulsory
for projects less than five hectares. The Central Government too initiated
measures.
49. The following observations of this court were made in Deepak
Kumar v. State of Haryana14 :
“18. Comments and inputs from various States and experts
were also invited so as to prepare a report for consideration
of MoEF. Based on the discussion held and subsequent inputs
received, a draft report was prepared and circulated to all
members for their further inputs. The report was further
discussed on 29-1-2010 for its finalisation. The observations/
comments made during the meeting were incorporated in the
report and it was again circulated to all members for their
consideration. The report so circulated was ultimately finalised.
The decision taken by MoEF affects generally the mining of
minor minerals including the riverbed mining throughout the
country.
19. For an easy reference, we may extract the issues and
recommendations 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 classified
into major and minor minerals based on their end use rather
than level of production, level of mechanisation, export and
import, etc. There do exist some minor mineral mines of silica
sand and limestone where the scale of mechanisation and level
of production is much higher than those of industrial mineral
mines. Further, in terms of the economic cost and revenue, it
has been estimated that the total value of minor minerals
constitutes about 10% of the total value of mineral production
14 (2012) 4 SCC 629
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whereas the value of non-metallic minerals comprises only
3%. It is, therefore, evident that the operation of mines of
minor minerals need to be subject to some regulatory
parameters as that of mines of major minerals.
Further, unlike India there does not exist any such
system based on end usage in other countries for classifying
minerals into major and minor categories. Thus, there is a
need to relook at the definition of ‘minor minerals’ per se.
It is, therefore, recommended that the Ministry of Mines
along with Indian Bureau of Mines, in consultation with the
State Governments may re-examine the classification of
minerals into major and minor categories so that the regulatory
aspects and environment mitigation measures are
appropriately integrated for ensuring sustainable and
scientific 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 made
it mandatory for preparation of mining plan in respect of minor
minerals. In some States like Rajasthan, eco-friendly mining
plans are prepared, which are approved by the State Mining
Department. The eco-friendly mining plans so prepared,
though conceptually welcome, are observed to be deficient
and need to be made comprehensive in a manner as is being
done for major minerals. Besides, the aspects of reclamation
and rehabilitation of mined out areas, progressive mine closure
plan, as in vogue for major
minerals could be introduced for
minor minerals as well.
It is recommended that provision for preparation and
approval of mine plan, as in the case of major minerals may
appropriately be provided in the rules governing the mining
of minor minerals by the respective State Governments. These
should specifically include the provision for reclamation and
rehabilitation of mined out area, progressive mine closure plan
and post mine land use.
4.6. Creation of separate corpus for reclamation/rehabilitation
of mines of minor minerals
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Mining of minor minerals, in our country, is by and large an
unorganised sector and is practised in haphazard and
unscientific manner. At times, the size of the leasehold is also
too small to address the issue of reclamation and rehabilitation
of mined out areas. It may, therefore, be desirable that before
the concept of mine closure plan for minor minerals is
adopted, the existing abandoned mines may be reclaimed and
rehabilitated with the involvement of the State Government.
There is thus, a need to create a separate corpus, which may
be utilised for reclamation and rehabilitation of mined out
areas. The respective State Governments may work out a
suitable mechanism for creation of such corpus on the ‘polluter
pays’ principle. An organisational structure may also need to
be created for undertaking and monitoring these activities.
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4.8. Uniform minor mineral concession rules
The economic value of the minor minerals excavated in the
country is estimated to contribute to about 9% of the total
value of the minerals whereas the non-metallic minerals
contribute to about 2.8%. Keeping in view the large extent of
mining of minor minerals and its significant potential to
adversely affect the environment, it is recommended that model
mineral concession rules may be framed for minor minerals
as well and the minor minerals may be subjected to a simpler
regulatory regime, which is, however, similar to major
minerals
regime.
4.9. Riverbed mining
4.9.1. Environment damage being caused by unregulated
riverbed mining of sand, bazari and boulders is attracting
considerable attention including in the courts. The following
recommendations are therefore made for the riverbed mining:
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5.0. Conclusion
Mining of minor minerals, though individually, because of
smaller size of mine leases is perceived to have lesser impact
as compared to mining of major minerals. However, the activity
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as a whole is seen to have significant adverse impacts on
environment. It is, therefore, necessary that the mining of minor
minerals is subjected to simpler but strict regulatory regime
and carried out only under an approved framework of mining
plan, which should provide for reclamation and rehabilitation
of the mined out areas. Further, while granting mining leases
by the respective State Governments location of any eco-
fragile zone(s) within the impact zone of the proposed mining
area, the linked rules/notifications governing such zones and
the judicial pronouncements, if any, need be duly noted. The
Union Ministry of Mines along with the Indian Bureau of
Mines and respective State Governments should therefore
make necessary provisions in this regard under the Mines
and Minerals (Development and Regulation) Act, 1957,
Mineral Concession Rules, 1960 and adopt model guidelines
to be followed by all States.”
(emphasis supplied)
20. The Report clearly indicates that operation of mines of
minor minerals needs to be subjected to strict regulatory
parameters as that of mines of major minerals. It was also
felt necessary to have a relook to the definition of “minor
minerals” per se. The necessity of the preparation of
“comprehensive mines plan” for contiguous stretches of
mineral deposits by the respective State Governments may also
be encouraged and the same be suitably incorporated in the
Mineral Concession Rules, 1960 by the Ministry of Mines.
21. Further,
it was also recommended that the States, Union
Territories would see that mining of minor minerals is
subjected to simpler but strict regulatory regime and carried
out only under an approved framework of mining plan, which
should provide for reclamation and rehabilitation of mined
out areas. Mining plan should take note of the level of
production, level of mechanisation, type of machinery used
in the mining of minor minerals, quantity of diesel
consumption, the number of trees uprooted, export and import
of mining minerals, environmental impact, restoration of flora
and host of other matters referred to in the 2010 Rules. A
proper framework has also to be evolved on cluster of mining
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of minor minerals for which there must be a Regional
Environmental Management Plan. Another important decision
taken was that while granting of mining leases by the
respective State Governments, location of any eco-fragile
zone(s) within the impact zone of the proposed mining area,
the linked rules/notifications governing such zones and the
judicial pronouncements, if any, need to be duly noted.
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28. The Central Government also should take steps to bring
into force the Minor Minerals Conservation and Development
Rules, 2010 at the earliest. The State Governments and UTs
also should take immediate steps to frame necessary rules
under Section 15 of the Mines and Minerals (Development
and Regulation) Act, 1957 taking into consideration the
recommendations of MoEF in its Report of March 2010 and
model guidelines framed by the Ministry of Mines, Government
of India. Communicate the copy of this order to MoEF,
Secretary, Ministry of Mines, New Delhi; Ministry of Water
Resources, Central Government Water Authority; the Chief
Secretaries of the respective States and Union Territories, who
would circulate this order to the Departments concerned.
29. We, in the meanwhile, order that leases of minor minerals
including their renewal for an area of less than five hectares
be granted by the States/Union Territories only after getting
environmental clearance from MoEF. Ordered accordingly.”
50. By virtue of a
notification,15 environmental clearance is
necessary even for minor mineral extraction where the area of operation
is less than 5 hectares; the procedure has been outlined under Appendix
XI 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 or
permits are granted), has a potential impact on the environment. In the
facts of this case, the state had granted no less than 62 minor mineral
permits in the vicinity; unauthorized activity (in the form inter alia, of
over-mining and piling of debris) had resulted in the imposition of the
penalty. 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 the
Official Gazette
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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 record
to 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 the
NGT’s jurisdiction under Section 15(1)(a) and Section 17 could not have
been disputed.
51. This court is of the considered opinion that the expression
“environment” and “environmental pollution” have to be given a broader
meaning, having regard to Parliamentary intent to ensure the objective
of the EPA. It effectuates the principles underlying Article 48A of the
Constitution of India. The EPA is in essence, an umbrella legislation
enacting a broad framework for the central government to coordinate
the activities of various central and state authorities established under
other laws, such as the Water Act and Air Act. The EPA also effectively
enunciates the critical legislative policy for environment protection. It
changes the narrative and emphasis from a narrow concept of pollution
control to a wider facet of environment protection. The expansive
definition of environment that includes water, air and land “and the
interrelation which exist among and between water, air and land,
other human creatures, plants, micro-organisms and property” give
an indication of the wide powers conferred on the Central
Government.
A wide net is cast over the environment related laws. The EPA also
empowers the central government to comprehensively control
environmental pollution by industrial and related activities. For these
reasons, and in view of the above discussion, it is held that the NGT
correctly assumed jurisdiction, having regard to the nature of the accident
in the facts of this case.
II. Was the direction to pay compensation towards death, and
damages towards restitution justified?
52. In the present case, the deceased were concededly travelling
on the highway. The incident of flooding occurred, and was caused due
to clogging of the water channels. The report of the sub divisional
magistrate indicated that the Inspecting Engineer (Arvi Associates, a
firm) had given a report after inspection. On behalf of the independent
engineering firm appointed by the NHAI, an oral deposition was given
before the sub-divisional officer. It was stated that the roadside channel
and culvert from where water is disposed of, had been rendered screen
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blinded and a pipeline of 1.2 m diameter existed there for disposal of
water. The necessity of remedial action was communicated to the
concessionaire, before the occurrence of the accident. It was also stated
that in terms of the instructions of the NHAI, the concessionaire was
informed about the deficiency on 15.05.2013 and by a further letter dated
04.06.2013. An action plan for completing pre-monsoon work was sought
from the concessionaire. However, the concessionaire did not submit an
action plan despite lapse of one month.
53. The SDO’s report noted that the culvert had been constructed
from the new tunnel and was existing from 2004. Apparently a 1m
diameter pipe was positioned in the culvert and had made a causeway.
One hotel also had constructed an approach road and placed a 950 MM
pipe. The existing drainage capacity of the octroi post and the hotel was
insufficient due to heavy rains as a result of which rainwater was not
totally drained. This water started accumulating on the road. Certain
ramps were also constructed by Tata Motors for its convenience; they
were removed by the concessionaire; nevertheless, the ramps were
prepared again. The existing cross drainage provision was of a sub-
culvert -type structure and the size at the time of the old highway was
1m x 1 m. The report further observed that the natural drainage and
sides of hills of the highway was adversely affected and had been
tampered with.
The disposal of water on the right side overhead of the
tunnel through the cross train on the old highway via the catch drain and
subsequently the channels for the water flow were choked due to
development work and adversely affected the clearance of rain water.
The report indicates that after the accident on 06.06.2013, the local
administration cleared the debris which had created obstacles, to facilitate
the free flow of water into the catch drain culvert and further flow of
water.
54. The legal position regarding highways is outlined in two
enactments, i.e. the National Highways Act, 1956 (“the Highways Act”)
and the NHAI Act. The provisions of the Highways Act, to the extent
they are relevant are as follows:
“4. National highways to vest in the Union. — All national
highways shall vest in the Union, and for the purposes of this
Act “highways” include—
(i) all lands appurtenant thereto, whether demarcated or not;
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(ii) all bridges, culverts, tunnels, causeways, carriageways
and other structures constructed on or across such highways;
and
(iii) all fences, trees, posts and boundary, furlong and
milestones of such highways or any land appurtenant to such
highways.
5. Responsibility for development and maintenance of
national highways.—It shall be the responsibility of the Central
Government to develop and maintain in proper repair all
national highways; but the Central Government may, by
notification in the Official Gazette, direct that any function
in relation to the development or maintenance of any national
highway shall, subject to such conditions, if any, as may be
specified in the notification, also be exercisable by the
Government of the State within which the national highway is
situated or by any officer or authority subordinate to the
Central 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 Central
Government may enter into an agreement with any person in
relation to the development and maintenance of the whole or
any part of a national highway.
(2) Notwithstanding anything contained in section 7, the
person referred to in sub-section (1) is entitled to collect and
retain fees at such rate, for services or benefits rendered by
him as the Central Government may, by notification in
the
Official Gazette, specify having regard to the expenditure
involved in building, maintenance, management and operation
of the whole or part of such national highway, interest on the
capital invested, reasonable return, the volume of traffic and
the period of such agreement.
(3) A person referred to in sub-section (1) shall have powers
to regulate and control the traffic in accordance with the
provisions contained in Chapter VIII of the Motor Vehicles
Act, 1988 (59 of 1988) on the national highway forming
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subject-matter of such agreement, for proper management
thereof.”
55. Section 16 of the NHAI Act spells out the functions of the
NHAI; it reads as follows:
“16. Functions of the Authority.— (1) Subject to the rules made
by the Central Government in this behalf, it shall be the
function of the Authority to develop, maintain and manage
the national highways and any other highways vested in, or
entrusted to, it by the Government. rules made by the Central
Government in this behalf, it shall be the function of the
Authority to develop, maintain and manage the national
highways and any other highways vested in, or entrusted to,
it by the Government.”
56. Acting in furtherance of its powers, the NHAI entered into an
agreement with the concessionaire for the construction, operation and
maintenance of the highway in question (i.e. the stretch of 140 kms on
which the accident occurred). The question is whether the NHAI, which
indisputably owns and controls the highway, and on whose behalf it was
constructed, and for which the maintenance and operation agreement
was entered into, led to a duty of care, to the users (of the highway).
57. This issue had arisen in Rajkot Municipal Corpn. v.
Manjulben Jayantilal Nakum16 in the context of certain facts. The
deceased used to travel on a railway season ticket to Rajkot to attend to
his office work. One day whilst he was on the footpath on the way to his
office, a roadside tree
suddenly fell on him, resulting in serious injuries
on the head and other parts of the body, and later died in the hospital.
The High Court allowed the writ petition. This court noted the distinction
between a common law duty of care owed to members of the public,
and whether liability could be imposed upon a local authority for breach
of its statutory duty. The court noticed previous English decisions17 and
stated that
“18. The question emerges as to when would the breach of
statutory duty under a particular enactment give rise to tortious
liability? The statutory duty gives rise to civil action. The
16 (1997) 9 SCC 552
17 Gorris v. Scott [(1874) 9 Exch 125] and Kilgollan v. William Cooke & Co. Ltd. (1956)
2 All ER 294, CA]
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statutory negligence is sui generis and independent of any
other form of tortious liability. It would, therefore, be of
necessity to find out from the construction of each statutory
duty whether the particular duty is general duty in public law
or private law duty towards the plaintiff. The plaintiff must
show that (a) the injury suffered is within the ambit of statute;
(b) statutory duty imposes a liability for civil action; (c) the
statutory duty was not fulfilled; and (d) the breach of duty
has caused him injury. These essentials are required to be
considered in each case. The action for breach of statutory
duty may belong to the category of either strict or absolute
liability which is required, therefore, to be considered in the
nature of statutory duty the defendant owes to the plaintiff;
whether or not the duty is absolute; and the public policy
underlying the duty. In most cases, the statute may not give
rise to cause of action unless it is breached and it has caused
damage to the plaintiff, though occasionally the statute may
make breach of duty actionable per se. The burden, therefore,
is on the plaintiff to prove on balance of probabilities that
the defendant owes that duty of care to the plaintiff or class
of persons to whom he belongs, that defendant was negligent
in the performance or omission of that duty and breach of
duty caused or materially contributed to his injury and that
duty of care is owed on the defendant. If the statute requires
certain protection on the principle of volenti non fit injuria,
the liability stands excluded. The breach of duty created by a
statute, if it results in damage to an individual prima facie, is
tort for which the action for damages will lie in the suit. One
would often take the Act, as a whole, to find out the object of
the law and to find out whether one has a right and remedy
provided for breach of duty. It would, therefore, be of necessity
in every case to find the intention of legislature in creating
duty and the resultant consequences suffered from the action
or omission thereof, which are required to be considered. No
action for damages lies if on proper construction of statute,
the intention is that some other remedy is available. One of
the tests in determining the intention of the statute is to
ascertain whether the duty is owed primarily to the general
public or community and only incidentally to an individual
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or primarily to the individual or class of individuals and only
incidentally to the general public or the community. If the
statute aims at duty to protect a particular citizen or particular
class of citizens to which the plaintiff belongs, it prima facie
creates at the same time corelative right vested in those citizens
of which plaintiff is one; he has remedy for enforcement,
namely, the action for damages for any loss occasioned due
to negligence or for failure of it. But this test is not always
conclusive.
19. Duty may be of such paramount importance that it is owed
to all the public. It would be wrong to think that on an action,
the duty could be enforced by way of damages when duty is
owed to a section of public and cannot be enforced if an
individual sustains damages to whom the Corporation owes
no duty and no private interest is infringed. Breach of
statutory duty, therefore, requires to be examined in the context
in which the duty is created not towards the individual, but
has its effect on the right of individual vis-à-vis the society.
Statutory duty generally is towards public at large and not
towards an individual or individuals and the corelative right
is vested in the public and not in private person, even though
they may suffer damages. The duty in such a case is to be
enforced by way of criminal prosecution or by way of
injunction at the suit under Section 192 of CPC or with leave
of court under Order
I, Rule 8 CPC by public-spirited person
or in any appropriate manner to enforce the right and not by
way of private action for damages. In that situation, the
legislature, while recognising the private right vested in an
injured individual, may intend that it shall be maintained solely
by some special remedy provided for a particular case and
not by ordinary method of an action for damages as penalty
or compensation.
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24. Generally, a public authority entrusted with no statutory
obligation to exercise a power, does not come under common
law duty of care to do so but by conduct the public authority
may place itself in such a situation that it attracts the duty of
care which calls for exercise of the power. Common illustration
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is provided by an action in which an authority in the exercise
of its functions, if it had created a danger, thereby subjecting
itself to a duty of care for the safety of others which must be
discharged by an exercise of its statutory power or by giving
necessary warnings. It is the conduct of the authority in
creating the danger that attracts the duty of care as envisaged
in Sheppard v. Borough of Glossop [(1921) 3 KB 132 : 1921
All ER Rep 61, CA]. The statute does not by itself give rise to
a civil action but it forms the formulation on which the common
law can build a cause of action….
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39. It can be seen that ordinarily the principle of the law of
negligence applies to public authorities also. They are liable
to damages because by a negligent act or failure to act when
they are under a duty to act or for a failure to consider whether
to exercise a power conferred on them with the intention that
it would be exercised if and when public interest requires it.
Where the public authority has decided to exercise a power
and has done it negligently a person who has acted in reliance
on what the public authority has done, may have no difficulty
in proving that the damages which he has suffered have been
caused by the negligence. Where the damage has resulted
from a negligent failure to act there may be greater difficulty
in proving causation and requires examination in greater
detail. …”
58. In the UK, the duty of a highway authority was
described by
Diplock L.J. in Griffiths v. Liverpool Corporation18 as follows:
“The duty at common law to maintain, which includes a duty
to repair a highway, was not based in negligence but in
nuisance. It was an absolute duty to maintain, not merely a
duty to take reasonable care to maintain, and the statutory
duty which replaced it was also absolute.”
Again, Diplock, LJ stated in Burnside v. Emerson19 described
the duty as follows:
18 [1967] 1 Q.B. 374
19 [1968] 1 W.L.R. 1490
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“in such good repair as renders it reasonably passable for
the ordinary traffic of the neighbourhood at all seasons of
the year without danger caused by its physical condition.”
59. Later, in Haydon v. Kent County Council20 Lord Denning
M.R. explained that while the duty to maintain the highway meant an
absolute duty to ensure that it was in a condition to be used as a highway
and to ensure safety, it did not include the duty to ensure at all times that
the road surface was kept clean. It was clarified however, that the issue
had to be considered in each case, and it was to be considered whether
the authority had taken reasonable steps to keep it in good repair after
being notified about obstruction:
“If section 41 is to be construed as capable of imposing a
duty to take remedial measures to deal with ice and snow on
a highway, or footway, which is in good physical repair, so
that whether in particular circumstances that duty has arisen
is to be decided ‘as a question of fact and degree,’ it would
seem that the facts relevant to determining whether the duty
has arisen would be essentially similar to those relevant to
deciding whether a breach of the duty has been proved and
whether the statutory defence under section 58 has been made
out. Parliament did not define those facts for the purpose of
section 41. The concept of the passing of sufficient time to
make it prima facie unreasonable for the highway authority
to
have failed to take remedial measures must presuppose
some idea of the amount and nature of the resources for
dealing with snow and ice which are or ought to be available
to the authority, and of the order of priority among different
carriageways and footways which guides or which ought to
guide the authority; and of the necessary degree of urgency
in using those resources. No such guidance is given in the
statute with reference to proof of the arising of the duty.”
60. In Stovin v Wise21, the defendant emerged from a side road
and ran down the plaintiff, because she was not keeping a proper look-
out. When she was sued for damages, the defendant joined the County
Council as a third party because the visibility at the intersection was
poor and they said that the Council, which had the duty to maintain the
20 [1978] Q.B. 343
21 1996 (3) All ER 801
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road should have done something to improve it. The council had statutory
powers which would have enabled the necessary work to be done and
there was evidence that the relevant officers had decided in principle
that it should be done, but they had not taken steps to do it. The House of
Lords held that there was no duty of care in private law based on the
statutory duty, and that “Drivers of vehicles must take the highway
network as they find it”. It was held that statutory power could not be
converted into a common law duty. The council had done nothing which,
apart from statute, would have attracted a common law duty of care. It
had done nothing at all. The only basis on which it was a candidate for
liability was that Parliament had entrusted it with general responsibility
for the highways and given it the power to improve them and take other
measures for the safety of their users.Lord Hoffmann observed,
“In summary, therefore, I think that the minimum preconditions
for basing a duty of care upon the existence of a statutory
power, if it can be done at all, are, first, that it would in the
circumstances have been irrational not to have exercised the
power, so that there was in effect a public law duty to act,
and secondly, that there are exceptional grounds for holding
that the policy of the statute requires compensation to be paid
to persons who suffer loss because the power was not
exercised.”
61. Stovin (supra) and its enunciation that the existence
of a
public duty did not per se extend to a private duty of care to take special
measures, unless exceptional features were proved, was followed in
Gorringe v. Calderdale Metropolitan Borough Council22. The entire
law was re-examined and the correct position, restated in a recent
judgment by the UK Supreme Court in Robinson v. Chief Constable
of West Yorkshire Police23, which observed as follows:
“32 At common law, public authorities are generally subject
to the same liabilities in tort as private individuals and bodies:
see, for example, Entick v Carrington (1765) 2 Wils KB 275
and Mersey Docks and Harbour Board v Gibbs (1866) LR 1
HL 93. Dicey famously stated that “every official, from the
Prime Minister down to a constable or a collector of taxes, is
under 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 law
was the Crown, but that exception was addressed by the Crown
Proceedings Act 1947, section 2.
33. Accordingly, if conduct would be tortious if committed by
a private person or body, it is generally equally tortious if
committed by a public authority: see, for example, Dorset
Yacht Co Ltd v Home Office [1970] AC 1004, as explained in
Gorringe’s case 2004 (1) WLR 1057, para 39. That general
principle is subject to the possibility that the common law or
statute may provide otherwise, for example by authorising
the conduct in question: Geddis v Proprietors of Bann
Reservoir (1878) 3 App Cas 430. It follows that public
authorities are generally under a duty of care to avoid causing
actionable harm in situations where a duty of care would arise
under ordinary principles of the law of negligence, unless
the law provides otherwise.
34. On the other hand, public authorities, like private
individuals and bodies, are generally under no duty of care
to prevent the occurrence of harm: as Lord Toulson JSC stated
in Michael’s case [2015] AC 1732, para 97, “the common
law does not generally impose liability for pure omissions”.
This “omissions principle” has been helpfully summarised by
Tofaris and Steel, “Negligence Liability for Omissions and
the Police” [2016] CLJ 128:
“In the tort of negligence, a person A
is not under a duty to
take care to prevent harm occurring to person B through a
source of danger not created by A unless (i) A has assumed a
responsibility to protect B from that danger, (ii) A has done
something which prevents another from protecting B from that
danger, (iii) A has a special level of control over that source
of danger, or (iv) A’s status creates an obligation to protect B
from that danger.”
35 As that summary makes clear, there are certain
circumstances in which public authorities, like private
individuals and bodies, can come under a duty of care to
prevent the occurrence of harm: see, for example,
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Barrett v Enfield London Borough Council [2001] 2 AC 550
and Phelps v Hillingdon London Borough Council [2001] 2
AC 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 towards
individuals to confer a benefit upon them by protecting them
from 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 v
Glasgow City Council [2009] AC 874, concerning a public
authority.
36 That is so, notwithstanding that a public authority may
have statutory powers or duties enabling or requiring it to
prevent the harm in question. A well known illustration of
that principle is the decision of the House of Lords in East
Suffolk Rivers Catchment Board v Kent [1941] AC 74. The
position is different if, on its true construction, the statutory
power or duty is intended to give rise to a duty to individual
members of the public which is enforceable by means of a
private right of action. If, however, the statute does not create
a private right of action, then “it would be, to say the least,
unusual if the mere existence of the statutory duty [or, a
fortiori, a statutory power] could generate a common law
duty of care”: Gorringe’s case 2004 (1) WLR 1057, para 23.
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40 However, until the reasoning in the Anns case was
repudiated, it was
not possible to justify a rejection of liability,
where a prima facie duty of care arose at the first stage of the
analysis from the foreseeability of harm, on the basis that
public bodies are not generally liable for failing to exercise
their statutory powers or duties so as to confer the benefit of
protection from harm. Instead, it was necessary to have
recourse to public policy in order to justify the rejection of
liability at the second stage. That was accordingly the
approach adopted by the House of Lords and the Court of
Appeal in a series of judgments, including Hill’s case [1989]
AC 53. The need to have recourse to public policy for that
purpose has been superseded by the return to orthodoxy in
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Gorringe’s case. Since that case, a public authority’s non-
liability for the consequences of an omission can generally
be justified on the basis that the omissions principle is a
general principle of the law of negligence, and the law of
negligence generally applies to public authorities in the same
way that it applies to private individuals and bodies.
41 Equally, concerns about public policy cannot in themselves
override a liability which would arise at common law for a
positive act carried out in the course of performing a statutory
function: the true question is whether, properly construed,
the statute excludes the liability which would otherwise arise:
see Gorringe’s case 2004 (1) WLR 1057, para 38, per Lord
Hoffmann.
42 That is not to deny that what might be described as policy
considerations sometimes have a role to play in the law of
negligence. As explained earlier, where established principles
do not provide a clear answer to the question whether a duty
of care should be recognised in a novel situation, the court
will have to consider whether its recognition would be just
and reasonable.”
62. In Yetkin v. Mahmood24, where injury was caused to a
highway user by shrubs which had overgrown and impeded visibility, the
court upheld the claim for damages. The court observed as follows:
“…The planting of vegetation in the raised beds of the central
reservation is obviously a reasonable exercise of the
authority’s
powers but to plant shrubs which will grow so
large as to obscure the view and then not to ensure that they
are trimmed back is a negligent exercise of those powers. The
judge held that that failure was a cause of this accident. It is
not suggested that he was not right so to hold. I have no
doubt that, in the circumstances of this case, the local authority
had a common law duty of care towards the claimant,
notwithstanding her own negligence, that that duty was
breached and that the breach was a cause of the accident.
There was no need for the judge to consider whether the
danger created by the bushes amounted to a trap or
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enticement. It follows in my judgment that the judge erred in
dismissing the claim. He should have held that primary liability
was established.”
63. A similar approach was indicated by this court in Municipal
Corpn. of Delhi v. Sushila Devi25 (where a tree fell on a passer-by
causing injury) the court upheld the findings that the municipal corporation
was liable, stating that:
“13. By a catena of decisions, the law is well settled that if
there is a tree standing on the defendant’s land which is dried
or dead and for that reason may fall and the defect is one
which is either known or should have been known to the
defendant, then the defendant is liable for any injury caused
by the fall of the tree (see Brown v. Harrison [1947 WN 191 :
63 TLR 484], Quinn v. Scott [(1965) 1 WLR 1004 : (1965) 2
All ER 588] and Mackie v. Dumbartonshire County Council
[1927 WN 247] ). The duty of the owner/occupier of the
premises by the side of the road whereon persons lawfully
pass by, extends to guarding against what may happen just
by the side of the premises on account of anything dangerous
on the premises. The premises must be maintained in a safe
state of repair. The owner/occupier cannot escape the liability
for injury caused by any dangerous thing existing on the
premises by pleading that he had employed a competent person
to keep the premises in safe repairs. In Municipal Corpn. of
Delhi v. Subhagwanti [AIR 1966 SC 1750] a clock tower which
was 80 years’ old
collapsed in Chandni Chowk, Delhi causing
the death of a number of persons. Their Lordships held that
the owner could not be permitted to take a defence that he
neither knew nor ought to have known the danger. “[T]he
owner is legally responsible irrespective of whether the
damage is caused by a patent or a latent defect,” — said
their Lordships. In our opinion the same principle is applicable
to the owner of a tree standing by the side of a road. If the
tree is dangerous in the sense that on account of any disease
or being dead the tree or its branch is likely to fall and thereby
injure any passer-by then such a tree or branch must be
removed so as to avert the danger to life. It is pertinent to
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note that it is not the defence of the Municipal Corporation
that vis major or an act of God such as a storm, tempest,
lightning or extraordinary heavy rain had occurred causing
the fall of the branch of the tree and hence the Corporation
was not liable.”
This approach that a statutory corporation or local authority can
be held liable in tort for injury occasioned on account of omission to
oversee, or defective supervision of its activities contracted out to another
agency, was also followed in Vadodara Municipal Corporation v
Purshottam V. Muranji26.
64. The terms of the agreement which the NHAI entered into
with the concessionaire clearly contemplated the safety of highway users
(Clause 18.1.1) and an elaborate highway monitoring mechanism (Clause
19.1). The agreement also required any unusual occurrences to be
reported; an independent engineer was required to, and did inspect the
highway. The reports of the inspecting engineer reveal that the
deficiencies by way of narrowing of water channels, and the unusual
collection of debris, were noted. Even before the incident, the NHAI
was alive to this; it had separately written to Rathod, and later to the
local administration about it through its letter dated 15.04.2011. That
letter is revealing; it inter alia, states that:
“During pre-monsoon rains all the excavated muck has
been carried to NH4 alongwith rain water and block Satara
bound traffic lane for quite some
time. The problem will be
severe during heavy rains of July and August.
As such safety of highway and tunnel is completely at
stake due to indiscriminate cutting of hills on upper side of
tunnel and both the end.”
65. Having regard to the duty imposed on the NHAI by virtue of
Sections 4 and 5 of the Highways Act, read with Section 16 of the
NHAI Act, there can be no manner of doubt that the NHAI was
responsible for the maintenance of the highway, including the stretch
upon which the accident occurred. The report of the sub-divisional officer
clearly shows that inspection reports were furnished to the NHAI shortly
before the incident, highlighting the deficiencies; also, the NHAI’s
correspondence with Rathod, and the local administration, reveal that it
26 2014 (16) SCC 14
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was aware of the danger and likelihood of risk to human life, and the
foreseeability of the event that actually occurred later. Further, letters
addressed by the local administration and the NHAI to Rathod similarly
show that it was incumbent upon him to take remedial action. The failure
of the NHAI to ensure remedial action, and likewise the failure by Rathod
to take measures to prevent the accident, prima facie, disclose their
liability.
66. The absence of legal representatives or heirs of the deceased
in the proceedings, or the fact that they had initiated independent civil
action, in the opinion of this court, was not an impediment, nor could it
have precluded the NGT from exercising its jurisdiction, given the gravity
of the matter and the danger posed to the members of the public. The
initiation of civil action did not mean that the NGT had to either reject
the application (as far as it claimed relief for the accident), or await the
outcome of the civil suit. This position is clear from the proviso to Section
18(1) which reads as follows:
“Provided that where all the legal representatives of
the deceased have not joined in any such application for
compensation or relief or settlement of dispute, the application
shall be made on behalf of, or, for the benefit of all the legal
representatives of the deceased and the legal representatives
who have not so joined shall be impleaded as respondents to
the application.”
67. The above provision clearly
implies that an application without
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 have instituted a suit. The ends of
justice would be served if that suit (Special Civil Suit No. 890 of 2014
before the Court of the Civil Judge Senior Division, Pune) is directed to
revive and continue it; a direction is issued to the concerned court (Court
of the Civil Judge Senior Division, Pune). The directions in this regard
by the NGT, towards payment of compensation are to be regarded as
indicative of a prima facie determination. Consequently, the direction to
the NHAI and Rathod, jointly making them liable to pay  15 lakhs is
justified. It is clarified that the civil suit will now proceed, and based on
evidence, the court would finally decide the issue of liability, and make
such further consequential orders or decrees as may be found necessary
in this regard, towards apportioning of liability of the NHAI, Rathod, the
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state or any other party (including the concessionaire). This court’s order
shall not be treated as conclusive; the trial court shall independently
proceed to evaluate the evidence and hear the parties on the merits of
their submissions. The restitutionary order by the NGT, directing payment
by Rathod and NHAI of 10 lakhs too, in this court’s opinion, cannot be
found to be at fault. It is upheld. The NHAI and Rathod shall comply
with the directions of the NGT and deposit the sum of  15 lakhs with the
said court within four weeks, in equal proportion. The sum 10 lakhs shall
be deposited in the same proportion, in court, to be disbursed to the state
government for restoring the environment and carrying out afforestation/
planting of trees etc.
Point Nos III and IV: Correctness of NGT’s directions
contained in Para 17 (e) of its impugned order, and the
legality 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,
the power of the NGT to issue directions banning development and building
activities of the kind contained in Para 17(e) of its impugned order, and
secondly, the correctness of the procedure adopted while issuing such
directions, in this case.
69. In the All Dimasa Student Union case27, this court considered
the nature of powers and jurisdiction of NGT. The relevant discussion is
as follows:
“156. What
are the powers and jurisdiction of the Tribunal
given under the National Green Tribunal Act, 2010 has to be
looked into to consider the above submission? Insofar as
jurisdiction of the Tribunal is concerned, we have already
noticed Sections 14, 15 and 16 of the Act. Section 19 of the
Act deals with procedure and powers of the Tribunal. Section
19 which is relevant for the present case is as follows28 :
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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 the
procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the
principles of natural justice.
(2) Subject to the provisions of this Act, the Tribunal shall have power to regulate its
own procedure.
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157. Sub-section (1) of Section 19 provides that the Tribunal
shall not be bound by the procedure laid down by the Code
of Civil Procedure but shall be guided by the principles of
natural justice. What sub-section (1) meant to convey is that
the Tribunal is not shackled with the procedure laid down by
CPC for conducting its proceedings. Sub-section (2) of
Section 19 empowers the Tribunal with powers to regulate its
own procedure. Section 19(2) confers vide powers on the
Tribunal insofar as its procedure is concerned. Section 19(4)
vests some powers as are vested in the civil court, while trying
a suit, in respect of matters enumerated therein. The use of
the expression “shall not be bound by the procedure laid down
by CPC” is not akin to saying that procedure as laid down by
CPC is in no manner relevant to the Tribunal. Further, Section
19(1) also does not mean that the Tribunal cannot follow any
procedure given in CPC. One provision of CPC inserted by
Act 104 of 1976 with effect from 1-2-1977 is Order 26, which
is relevant for present inquiry. Order 26 Rule 10-A provides
as follows:
“10-A. Commission for scientific investigations.—(1)
Where any question arising in a suit involves any scientific
investigation 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 Indian
Evidence 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 him
on 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 or
document 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 any
order 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 or
appeal filed under this Act;
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conveniently conducted before the Court, the Court may, if it
thinks it necessary or expedient in the interests of justice so
to do, issue a commission to such person as it thinks fit,
directing him to inquire into such question and report thereon
to the Court.
(2) The provisions of Rule 10 of this Order shall, as far
as may be, apply in relation to a Commissioner appointed
under this Rule as they apply in relation to a Commissioner
appointed under Rule 9.”
158. Rule 10-A provides that where any question arising in a
suit involves any scientific investigation which cannot, in the
opinion of the Court, be conveniently conducted before the
Court, the Court may, if it thinks necessary or expedient in
the interests of justice so to do, issue a commission to such
person as it thinks fit, directing him to inquire into such
question and report thereon to the Court. Rule 10-A is enabling
power to the courts to obtain report from such persons as it
thinks fit when any question involves with the scientific
investigation. The powers under Rule 10-A which are to be
exercised by the Court can very well be used by NGT to obtain
reports by experts. NGT as per the statutory scheme of NGT
has to decide several complex questions pertaining to pollution
and environment. The scientific investigation and report by
experts are necessary requirements in appropriate cases to
come to correct conclusion to find out measures to remedy
the
pollution and environment. We do not, thus, find any dearth
of jurisdiction in NGT to appoint a committee to submit a
report. We may further say that while asking an expert to
give a report, NGT is not confined to the four corners of Rule
10-A rather its jurisdiction is not shackled by strict terms of
Order 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 or
causing 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 judicial
proceedings within the meaning of Sections 193, 219 and 228 for the purposes of
Section 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court
for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure,
1973.”
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70. The court also took note of Rule 24 of the National Green
Tribunal (Practice and Procedure) Rules, 2011 (framed under Sections
4(4) and 35 of the NGT Act).29 This court then held as follows:
“160. Rule 24 empowers the Tribunal to make such orders or
give such directions as may be necessary or expedient to give
effect to its order or to secure the ends of justice. Rule 24
gives wide powers to the Tribunal to secure the ends of justice.
Rule 24 vests special power to the Tribunal to pass orders
and issue directions to secure the ends of justice. Use of words
“may”, “such orders”, “gives such directions”, “as may be
necessary or expedient”, “to give effect to its orders”, “order
to prevent abuse of process”, are words which enable the
Tribunal to pass orders and the above words confer wide
discretion.
163. The object for which the said power is given is not far to
seek. To fulfil the objective of the NGT Act, 2010, NGT has to
exercise a wide range of jurisdiction and has to possess wide
range of powers to do justice in a given case. The power is
given to exercise for the benefit of those who have right for
clean environment which right they have to establish before
the Tribunal. The power given to the Tribunal is coupled with
duty to exercise such powers for achieving the objects. In
this regard reference is made to the judgment of this Court in
L. Hirday Narain v. CIT [L. Hirday Narain v.CIT, (1970) 2
SCC 3s55], wherein this Court was examining
provision
empowering authority to do something. This Court laid down
in para 14: (SCC p. 359)
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164. We, thus, are of the considered opinion that there is no
lack of jurisdiction in NGT to direct for appointment of
committee or to obtain a report from a committee in the given
facts of the case.”
29 The said rule reads as follows:
“24. Order and directions in certain cases.— The Tribunal may make such orders or
give such directions as may be necessary or expedient to give effect to its order or to
prevent abuse of its process or to secure the ends of justice.”
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71. The power and jurisdiction of the NGT under Sections 15(1)(b)
and (c) are not restitutionary, in the sense of restoring the environment
to the position it was before the practise impugned, or before the incident
occurred. The NGT’s jurisdiction in one sense is a remedial one, based
on a reflexive exercise of its powers. In another sense, based on the
nature of the abusive practice, its powers can also be preventive.
72. As a quasi-judicial body exercising both appellate jurisdiction
over regulatory bodies’ orders and directions (under Section 16) and its
original jurisdiction under Sections 14, 15 and 17 of the NGT Act, the
tribunal, based on the cases and applications made before it, is an expert
regulatory body. Its personnel include technically qualified and
experienced members. The powers it exercises and directions it can
potentially issue, impact not merely those before it, but also state agencies
and state departments whose views are heard, after which general
directions to prevent the future occurrence of incidents that impact the
environment, are issued.
73. Courts in the US, notably the US Supreme Court, have been
faced with problems arising from regulatory adjudication. The scope of
such decision making which resembles an adjudicatory outcome by courts,
was considered in Securities Exchange Commission v. Chenery
Corp.30 This case arose from an order of the Securities Exchange
Commission (SEC) refusing
to approve a utility company’s bankruptcy
reorganization plan, due to that plan’s favourable treatment of
management’s stock purchases during the reorganization period. The
SEC originally had based its disapproval on its understanding of general
corporation law principles. The Supreme Court initially struck down that
decision as a misreading of the principles.On remand, the SEC reaffirmed
its rejection of the reorganization plan. But this time, the SEC relied on
its interpretation of the standards of the Public Utility Holding Company
Act of 1935.When the Supreme Court decided the appeal for the second
time, it affirmed the SEC’s order. The court clarified that SEC would be
allowed to establish such an interpretation by means of a particularized
order rather than a general regulation and observed that:
“Not every principle essential to the effective administration
of a statute can or should be cast immediately into the mold
of a general rule. Some principles must await their own
development, while others must be adjusted to meet particular,
30 332 U.S. 194 (1947)
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unforeseeable situations. In performing its important functions
in these respects, therefore, an administrative agency must be
equipped to act either by general rule or by individual order.
To insist upon one form of action to the exclusion of the other
is to exalt form over necessity. In other words, problems may
arise in a case which the administrative  agency could not
reasonably foresee, problems which must be solved despite
the absence of a relevant general rule. Or the agency may
not have had sufficient experience with a particular problem
to warrant rigidifying its tentative judgment into a hard and
fast rule. Or the problem may be so specialized and varying
in nature as to be impossible of capture within the boundaries
of a general rule. In those situations, the agency must retain
power to deal with the problems on a case-to-case basis if the
administrative process is to be effective. There is thus a very
definite place for the case by case evolution of statutory
standards. And the choice made between proceeding by
general rule or by individual, ad hoc litigation is one that
lies primary in the informed discretion of the administrative
agency.”
74. Similar observations were made by this court in PTC India v.
Central Electricity Regulatory Commission31. The court stated as
follows, after analysing the provisions of the Electricity Act 2003:
“49. On the above analysis of various sections of the 2003
Act, we find that the decision-making and
regulation-making
functions are both assigned to CERC. Law comes into existence
not only through legislation but also by regulation and
litigation. Laws from all three sources are binding. According
to Professor Wade, “between legislative and administrative
functions we have regulatory functions”. A statutory
instrument, such as a rule or regulation, emanates from the
exercise of delegated legislative power which is a part of
administrative process resembling enactment of law by the
legislature whereas a quasi-judicial order comes from
adjudication which is also a part of administrative process
resembling a judicial decision by a court of law.
31 2010 (4) SCC 603
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50. Applying the above test, price fixation exercise is really
legislative in character, unless by the terms of a particular
statute it is made quasi-judicial as in the case of tariff fixation
underSection 62 made appealable under Section 111of the
2003 Act, though Section 61is an enabling provision for the
framing of regulations by CERC. If one takes “tariff” as a
subject-matter, one finds that under Part VII of the 2003 Act
actual determination/fixation of tariff is done by the
appropriate Commission underSection 62 whereas Section 61
is the enabling provision for framing of regulations containing
generic propositions in accordance with which the appropriate
Commission has to fix the tariff. This basic scheme equally
applies to the subject-matter “trading margin” in a different
statutory context as will be demonstrated by discussion
hereinbelow.”
75. The NGT’s directions, though placed in the context of its
adjudicatory role, have a wider ramification in the sense that its rulings
constitute the appropriate norm which are to be followed by all those
engaging in similar activities. Therefore, its orders, contextually in the
course of adjudication, also establish and direct behaviour appropriate
for future guidance. In these circumstances, given the panoply of the
NGT’s powers under the NGT Act, which include considering regulatory
directions issued by expert regulatory bodies under the Water (Prevention
and Control
of Pollution) Act, 1974, the Air (Prevention and Control of
Pollution) Act, 1981 and the Biodiversity Act, 2002 it has to be held that
general directions for future guidance, to avoid or prevent injury to the
environment for appropriate assimilation in relevant rules, can be given
by the NGT.
76. Turning next to the question of the correctness of the general
directions contained in Para 17(e) of the NGT’s order, this court has no
manner of doubt that such directions were improper and not justified in
the facts of this case. What the NGT had before it, was the report of the
SDM and a report commissioned about the nature of the incident. Based
on these limited inputs, the tribunal concluded- without any rationale
and based on no scientific or technical evidence, or experts’ opinion, that
development and construction should not be carried out within 100 feet
of 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 Dimasa
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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 Nadu
Pollution Control Board case (f.n. 2) all show that the NGT resorted
to the appointment of technical and scientific experts in the relevant
field, 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 making
representations against such reports. Based on a final consideration of
all these materials, and the submissions of parties before it, the NGT
proceeded to issue directions. This procedure was wholly overlooked by
the NGT in the present case. As a result, it is held that the said tribunal’s
directions were improper and are procedurally indefensible. The directions
contained in Para 17(e) are therefore set aside.
77. To consider the last issue, i.e. validity of the notification/direction
issued by the state government, it is necessary to briefly outline provisions
of the MRTP Act. The MRTP Act was framed and enacted for the
purpose of use, planning and development in the regions (of Maharashtra).
This was through the establishment of Regional Planning Boards, New
Town Development Authorities and Special Planning Authorities, as the
case may be, for specified “notified areas”. The Act provides for the
preparation of development plans, appointment of Special Planning
Authorities for
notified areas, and creation of new towns for designated
areas by means of development authorities. The MRTP Act also enables
compulsory acquisition of land for public purposes in respect of the plans
and for purposes connected therewith. The Act provides for an elaborate
procedure for preparation of the regional plan by a Regional Planning
Board (“the board”) and development plan by any planning authority.
The board has to follow the procedure contained in Chapter II(C). Section
16 provides the procedure – the regional boards have to (after necessary
survey) prepare land-use maps for the region, and prepare a draft regional
plan, after which they have to publish a notice about the plan in the
Official Gazette, inviting objections and suggestions from any person
with respect to the draft plan. The board has to refer the objections,
suggestions and representations received by it to the Regional Planning
Committee (“the committee” hereafter) appointed under Section 10 for
consideration and report. The committee, after giving a reasonable
opportunity of being heard to the affected persons has to submit its report
to the board, after which the board has to prepare the regional plan after
considering the suggestions, objections and representations and the report
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of the committee. This is to be submitted to the State Government for
approval. On approval of the plan by the State Government under Section
15, the final regional plan has to be published under Section 17.
78. Chapter III deals with the procedure for preparation of
development plans by a planning authority. Section 23 provides that the
planning authority should make a declaration of its intent to prepare such
a plan and publish the same in the Official Gazette, inviting suggestions
or objections from the public within a period of not less than sixty days
from the publication of the notice in the Official Gazette. Thereafter
under Section 26, the planning authority has to prepare a draft
development plan, not later than two years from the date of notice
published under Section 23, and publish the notice in the Official Gazette
stating that the development plan has been prepared, once again inviting
objections or suggestions from any person with respect to the draft plan
within a period of sixty days from the notice. Section 27 provides that
the planning authority having regard to, and guided by the proposals
made in the regional plan, shall not carry out any modification therein
without prior concurrence of the Regional Planning Board. Section 28
mandates the planning authority to consider suggestions or objections
received by it under Section 26(1) and provide a reasonable opportunity
of being heard to any person
including the representatives of the
Government who may have filed any objections or suggestions, and
thereafter modify or change the plan in such manner, as provided under
Section 28(4). Section 29 further provides for modification of the draft
development plan, which is of substantial nature. By this, a planning
authority or the Town Planning Officer is required to publish a notice in
the Official Gazette inviting objections and suggestions from any person
with respect to the proposed modification not later than sixty days from
the date of such notice. The section then requires the authority concerned
to consider all objections and suggestions received by it and give a
reasonable opportunity of being heard to any person including
representatives of government departments who may have filed any
objections or made any suggestions in respect of the draft development
plan before making such modifications or changes in the draft development
plan. Section 30 requires the planning authority to submit the draft plan
to the State Government for approval, within twelve months from the
date of publication of the notice under Section 26 that the draft plan has
been prepared. Section 31 provides that the State Government may,
after consulting the Director of Town Planning by notification in the
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Official Gazette, sanction the draft development plan submitted to it for
the whole area, or separately for any part thereof, either without
modification, or subject to such modifications as it may consider proper,
or return the draft development plan to the planning authority for modifying
the plan as it may direct, or refuse to accord sanction. It further provides
that where the modifications proposed to be made by the State
Government are of a substantial nature, the State Government has to
follow the procedure contemplated under Section 28 to give a reasonable
opportunity of hearing to the objectors before finalizing the modification.
79. Section 37 confers powers on a planning authority to carry
out such modification in a final development plan as will not change its
character. This power could be exercised by a planning authority after
publishing a notice in the Official Gazette and in such other manner as
may be determined by it inviting objections and suggestions from any
person with respect to the proposed modification, not later than one
month from the date of such notice. This section also enjoins the planning
authority to serve notice on all persons affected by the proposed
modification and, after giving a hearing to any such persons, submit the
proposed modification (with amendments, if any) to the State Government
for sanction. Section 40 provides for appointment of a Special Planning
Authority for developing certain notified areas, and
Section 40(1)(c)
provides that the State Government may, by notification in the Official
Gazette appoint Bombay Metropolitan Region Development Authority
(BMRDA) established under the Bombay Metropolitan Region
Development Authority Act, 1974 to be the Special Planning Authority
for developing any undeveloped area specified in the notification as a
notified area. Section 116 then lays down that a Special Planning Authority
shall have all the powers of a planning authority as provided in Chapter
VII of the MRTP Act for the special purpose of acquisition of such land
in the notified area either by agreement or under the Land Acquisition
Act.
80. So far as plans and developments that were approved before
the impugned notification was issued, this court is of the opinion that
they cannot be disturbed and the right of the applicants, be they
developers, builders or owners of land or plots, cannot be prejudiced or
adversely affected. This is evident from a ruling of this court in T.
Vijayalakshmi v. Town Planning Member32. This court stated that
town planning legislations (like the MRTP Act) are regulatory; and that
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when a development plan is in force during the proposal for its amendment,
courts should not interfere with them on the assumption that the approved
plan for building or development, would not be eventually permitted. It
was held that:
“Whether the amendments to the said comprehensive
development plan as proposed by the Authority would
ultimately be accepted by the State or not is uncertain. It is
yet to apply its mind. Amendments to a development plan must
conform to the provisions of the Act. As noticed hereinbefore,
the State has called for objection from the citizens. Ecological
balance no doubt is required to be maintained and the courts
while interpreting a statute should bestow serious
consideration in this behalf, but ecological aspects, it is trite,
are ordinarily a part of the town planning legislation. If in
the legislation itself or in the statute governing the field,
ecological aspects have not been taken into consideration
keeping in view the future need, the State and the Authority
must take the blame therefor. We must assume that these aspects
of the matter were taken into consideration by the Authority
and the State. But the rights of the parties cannot be
intermeddled with so long as an appropriate amendment in
the legislation is not brought into force.”
81. This court has ruled, that even modification to an existing
development plan, under the MRTP Act, under Section 37, is in the nature
of a
legislative function. This court had observed under Pune Municipal
Corpn. v. Promoters and Builders Assn33speaking of Section 37 (1)
that:
“4. Reading of this provision reveals that under clause (1),
the Planning Authority after inviting objections and
suggestions regarding the proposed amendment and after
giving notice to all affected persons shall submit the proposed
modification for sanction to the Government. Deliberation
with the public before making the amendment is over at this
stage. The Government, thereafter, under clause (2) is given
absolute liberty to make or not to make necessary inquiry
before granting sanction. Again, while according sanction,
32 (2006) 8 SCC 502
33 (2004) 10 SCC 796
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the Government may do so with or without modifications. The
Government could impose such conditions as it deems fit. It is
also permissible for the Government to refuse the sanction.
This is the true meaning of clause (2). It is difficult to uphold
the contrary interpretation given by the High Court. The main
limitation for the Government is made under clause (1) that
no authority can propose an amendment so as to change the
basic character of the development plan. The proposed
amendment could only be minor within the limits of the
development plan. And for such minor changes it is only
normal for the Government to exercise a wide discretion, by
keeping various relevant factors in mind. Again, if it is
arbitrary or unreasonable the same could be challenged. It
is not the case of the respondents herein that the proposed
change is arbitrary or unreasonable. They challenged the
same citing the reason that the Government is not empowered
under the Act to make such changes to the modification.
5. Making of DCR or amendments thereof are legislative
functions. Therefore, Section 37 has to be viewed as repository
of legislative powers for effecting amendments to DCR. That
legislative power of amending DCR is delegated to the State
Government. As we have already pointed out, the true
interpretation of Section 37(2) permits the State Government
to make necessary modifications or put conditions while
granting sanction. In Section 37(2), the legislature has not
intended to provide for a public hearing before according
sanction. The procedure for making such amendment is
provided in Section 37. Delegated legislation cannot be
questioned for violating the principles of natural justice in
its making except when the statute itself provides for that
requirement. Where the legislature has not chosen to provide
for any notice or hearing, no one can insist upon it and it is
not permissible to read natural justice into such legislative
activity. Moreover, a provision for “such inquiry as it may
consider necessary” by a subordinate legislating body is
generally an enabling provision to facilitate the subordinate
legislating body to obtain relevant information from any
source and it is not intended to vest any right in anybody.
(Union of India v. Cynamide India Ltd. [(1987) 2 SCC 720],
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SCC paras 5 and 27. See generally H.S.S.K. Niyami v.Union
of India [(1990) 4 SCC 516] and Canara Bank v. Debasis
Das [(2003) 4 SCC 557: 2003 SCC (L&S) 507].) While
exercising legislative functions, unless unreasonableness or
arbitrariness is pointed out, it is not open for the Court to
interfere. (See generally ONGC v. Assn. of Natural Gas
Consuming Industries of Gujarat [1990 Supp SCC 397].)
Therefore, the view adopted by the High Court does not
appear to be correct.
82. This issue was again underscored by this court in Machavarapu
Srinivasa Rao v. Vijayawada, Guntur, Tenali, Mangalagiri Urban
Development Authority,34 where it was held as follows, in respect of
provisions of the Andhra Pradesh (Urban Areas) Development Act, 1975:
“20. An analysis of the above-noted provisions shows that
once the master plan or the zonal development plan is
approved by the State Government, no one including the State
Government/Development Authority can use land for any
purpose other than the one specified therein. There is no
provision in the Act under which the Development Authority
can sanction construction of a building, etc. or use of land
for a purpose other than the one specified in the master plan/
zonal development plan. The power vested in the Development
Authority to make modification in the development plan is
also not unlimited. It cannot make important alterations in
the character of the plan. Such modification can be
made
only by the State Government and that too after following the
procedure prescribed under Section 12(3).”
83. In a decision which concerned change in development plan
under the MRTP Act, this court observed that any changes in a
development or master plan involve consultations and a high degree of
expertise, in MIG Cricket Club v. Abhinav Sahakar Education
Society35 :
“28. It is well settled that the user of the land is to be decided
by the authority empowered to take such a decision and this
Court in exercise of its power of judicial review would not
interfere with the same unless the change in the user is found
34 (2011) 12 SCC 154
35 (2011) 9 SCC 97
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to be arbitrary. The process involves consideration of
competing claims and requirements of the inhabitants in
present and future so as to make their lives happy, healthy
and comfortable. We are of the opinion that town planning
requires high degree of expertise and that is best left to the
decision of the State Government to which the advice of the
expert body is available. In the facts of the present case, we
find that the power has been exercised in accordance with
law and there is no arbitrariness in the same.”
84. Now, under the provisions of the MRTP Act36, regional plans
and development plans have to take into account features such as soil
conservation, preservation of natural features, prevention of flooding
etc, while factoring planning for each city or area concerned. In turn,
such regional and development plans would constitute the blueprint for
local town planning authorities to grant or refuse permission to individual
applicants. In these circumstances, the use of Section 154 of the MRTP
Act, in the present case, in fact amounted to a modification of all plans -
regional, development, etc. Such modification (by way of absolute
prohibition in construction) was not preceded by any manner of public
consultation, much less previous invitation of objections or consideration
of the views of affected parties. It is in this background that one has to
consider the argument of the state, which found favour with the High
Court, 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 and
Development Authority shall carry out such directions or instructions
as may be issued from time to time by the State Government for the
efficient administration of this Act.
(2) If in, or his connection with, the exercise of its powers
and discharge of its functions by the Regional Board, Planning
Authority or Development Authority under this Act, any dispute
arises between the Regional Board, Planning Authority or
Development Authority, and the State Government, the decision of
the State Government on such dispute shall be final.”
36 Section 14 and 22
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86. Section 154 (1) was amendment by a substitution (with effect
from 22.04.2015). The new provision [Section 154 (1)] reads as follows:
“154. (1) Notwithstanding anything contained in this Act or
the rules or regulations made thereunder, the State Government
may, for implementing or bringing into effect the Central or
the State Government programmes, policies or projects or for
the efficient administration of this Act or in the larger public
interest, issue, from time to time, such directions or instructions
as may be necessary, to any Regional Board, Planning
Authority or Development Authority and it shall be the duty
of such authorities to carry out such directions or instructions
within the time-limit, if any, specified in such directions or
instructions.”
87. Directions can be issued “notwithstanding” any other provisions
of the Act, “for implementing or bringing into effect the Central or
the State Government programmes, policies or projects or for the
efficient administration of this Act or in the larger public interest,
issue, from time to time.” No doubt, the non-obstante clause has an
overriding effect on other provisions of the Act. However, if one keeps
in mind that the preparations of regional and development plans are in
terms of specific provisions which outline detailed procedures that have
to be necessarily followed, in the absence of which, time and again courts
have intervened and held that such
modifications (without following
prescribed procedure or without prescribed consultations) are illegal,
the power has to be resorted to for good and adequate reasons. The
direction, impugned in the present case, on the face of it, is not premised
on any central or state government programmes, policies or projects.
The impugned notification reads as follows:
GOVERNMENT OF MAHARASHTRA
URBAN DEVELOPMENT DEPARTMENT
Madam Cama Road
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 jurisdiction
of planning authorities under the Maharashtra Regional
Development and Town Planning Act, 1966. In the context of
unauthorised constructions undertaken by hill cutting, at
Katraj Ghat District Pune, the Hon’ble National Green
Tribunal, Pune has, by order dated 19 May 2015 in
Application Number 4/2014, issued orders and instructed to
inform all Mahanagar Palik/Nagarpalika in the state not to
give any development permission for constructions on the
hilltop and 100 feet distance from the hill slopes. A provision
already exists in development control regulations that no
development is permissible on the hilltop and no hill slopes
having a gradient of more than 1:5. Considering the order
dated 19 May 2015 of the Hon’ble National Green Tribunal
in exercise of powers under section 154 of the Maharashtra
Regional Town Development and Town Planning Act 1966
the following the directions were issued to all planning
authorities in the state:
DIRECTIONS
1. The planning authorities while preparing development plan
for area in their jurisdiction or amending them in respect
of undeveloped portion abutting the hills upto 100 feet
should be shown as No development/Open space
Reservation.
2. In the event the 100 area abutting hills, has already been
developed, in that area no permission be granted for
additional FSI or TDR.
3. In the event the 100 feet area abutting hills is under No
Development Zone as per
sanctioned Development plan,
then while granting permission for Development for further
100 feet area abutting/contiguous thereto should be
permitted only for non-buildable purposes such as open
space, road et cetera.
In the name of and by order of the
Hon’ble Governor State of Maharashtra”
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88. There are several authorities for the proposition that though
an administrative order need not necessarily comply with principles of
natural justice such as granting hearing, yet, administrative decisions or
orders have to be based on some reasons. In Shri. Sitaram Sugar Mills
Company v. Union of India,37 (which concerned the zoning regulations
for the purpose of levy sugar under the relevant statutory order, in terms
of the Essential Commodities Act), the Supreme Court held as follows:
“Power delegated by statute is limited by its terms and
subordinate to its objects. The delegate must act in good faith,
reasonably, intra vires the power granted, and on relevant
consideration of material facts. All his decisions, whether
characterised as legislative or administrative or quasi-judicial,
must be in harmony with the Constitution and other laws of
the land. They must be “reasonably related to the purposes
of the enabling legislation”. If they are manifestly unjust or
oppressive or outrageous or directed to an unauthorised end
or do not tend in some degree to the accomplishment of the
objects of delegation, court might well say, “Parliament never
intended to give authority to make such rules; they are
unreasonable ultra vires.
A repository of power acts ultra vires either when he acts in
excess of his power in the narrow sense or when he abuses
his power by acting in bad faith or for an inadmissible
purpose or on
irrelevant grounds or without regard to relevant
considerations or with gross unreasonableness.”
89. In Cellular Operators Association v. Telecom Regulatory
Authority of India,38 this court held that subordinate regulatory legislation,
can be set aside in judicial review, if they show no rationale or are
arbitrary:
“62. In view of the aforesaid, it is clear that the Quality of
Service Regulations and the Consumer Regulations must be
read together as part of a single scheme in order to test the
reasonableness thereof. The countervailing advantage to
service providers by way of the allowance of 2% average
call drops per month, which has been granted under the 2009
37 (1990) 3 SCC 223
38 (2016) 7 SCC 703
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Quality of Service Regulations, could not have been ignored
by the impugned Regulation so as to affect the fundamental
rights of the appellants, and having been so ignored, would
render the impugned Regulation manifestly arbitrary and
unreasonable.
63. Secondly, no facts have been shown to us which would
indicate that a particular area would be filled with call drops
thanks to the fault on the part of the service providers in
which consumers would be severely inconvenienced. The mere
ipse dixit of the learned Attorney General, without any facts
being pleaded to this effect, cannot possibly make an
unconstitutional regulation constitutional. We, therefore, hold
that a strict penal liability laid down on the erroneous basis
that the fault is entirely with the service provider is manifestly
arbitrary and unreasonable. Also, the payment of such penalty
to a consumer who may himself be at fault, and which gives
an unjustifiable windfall to such consumer, is also manifestly
arbitrary and unreasonable. In the circumstances, it is not
necessary to go into the appellants’ submissions that call drops
take place because of four reasons, three of which are not
attributable to the fault of the service provider, which includes
sealing and shutting down towers by municipal authorities
over which they have no control, or whether they are
attributable to only two causes, as suggested by the Attorney
General, being network-related causes or user-related causes.
Equally,
it is not necessary to determine finally as to whether
the reason for a call drop can technologically be found out
and whether it is a network-related reason or a user-related
reason.
XXXXXX
XXXXXX
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66. The reason given in the Explanatory Memorandum for
compensating the consumer is that the compensation given is
only notional. The very notion that only notional compensation
is awarded, is also entirely without basis. A consumer may
well suffer a call drop after 3 or 4 seconds in a voice call.
Whereas the consumer is charged only 4 or 5 paise for such
dropped call, the service provider has to pay a sum of rupee
one to the said consumer.
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J.]
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SUPREME COURT REPORTS
[2020] 6 S.C.R.
This cannot be called notional at all. It is also not clear as to
why the Authority decided to limit compensation to three call
drops per day or how it arrived at the figure of Re 1 to
compensate inconvenience caused to the consumer. It is
equally unclear as to why the calling party alone is provided
compensation because, according to the Explanatory
Memorandum, inconvenience is suffered due to the
interruption of a call, and such inconvenience is suffered
both by the calling party and the person who receives the
call. The receiving party can legitimately claim that his
inconvenience when a call drops, is as great as that of the
calling party. And the receiving party may need to make the
second call, in which case he receives nothing, and the calling
party receives Re 1 for the additional expense made by the
receiving party. All this betrays a complete lack of intelligent
care and deliberation in framing such a regulation by the
Authority, rendering the impugned Regulation manifestly
arbitrary and unreasonable.”
90. In the present case, the State of Maharashtra has not shown
any material or file containing the reasons behind the directive of
14.11.2017. 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 noticed
earlier, those directions were not based on any scientific evidence or
report of any technical expert. Furthermore, even the impugned
notification does not specify what constitutes “hills”, and how they can
be applied in towns and communities set in undulating areas and hilly
terrain. This is not only vague, but makes the directions arbitrary as they
can 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 in
extraordinary or emergent circumstances, the complete absence of any
reasons why the state issued them, coupled with the lack of any supporting
expert report or input, renders it an arbitrary exercise. That they are
based only on the NGT’s orders, only underlines the lack of any application
of mind on the part of the State, while issuing them.
91. For the above reasons, we hold that the impugned judgment
of the Bombay High Court cannot be sustained; it is set aside.
Consequently, the directions in the notification under Section 154 (dated
14.11.2017) are hereby quashed.

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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’s
order, 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.
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J.]