PRAGNESH SHAH versus DR. ARUN KUMAR SHARMA & ORS.
[2022] 8 S.C.R. 154, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Ratio
A
B
C
D
E
F
G
H
154
SUPREME COURT REPORTS
[2022] 8 S.C.R.
[2022] 8 S.C.R. 154
154
PRAGNESH SHAH
v.
DR. ARUN KUMAR SHARMA & ORS.
(Civil Appeal Nos. 7724-7725 of 2021)
JANUARY 12, 2022
[DR. DHANANJAYA Y. CHANDRACHUD AND
A. S. BOPANNA, JJ.]
National Green Tribunal Act, 2010 – Environment Protection
Act, 1986 – Environment Protection Rules, 1986 – Eco-sensitive
Zone Notification and Zonal Master Plan 2030 – NGT on basis of a
report dated 08.12.2020 submitted by an Expert Committee, allowed
an original application filed by the first respondent, which
challenged the Zonal Master Plan 2030 prepared by the State of
Rajasthan, for the Mount Abu Eco-sensitive Zone – Report of the
Expert committee had, inter-alia, declared land owned by the
appellant to be unfit for construction – Review filed by the appellant
was dismissed by NGT – On appeal, held: the Expert Committee has
furnished valid reasons for determining that construction must not
be allowed so as to preserve the eco-system of the region – Expert
Committee has noted that while the proposed site for residential
buildings covers the land of low slopes which is stable, it also covers
lands with a high slope domain which are not suitable for
construction – Low slope domain site is a habitat for wildlife and
footprints of sloth bear were also observed and it was in this context
the Expert Committee determined that construction must not be
allowed – At places with a high slope domain, the landscape was
noted to be fragile in terms
of soil erosion – Further, the Expert
Committee opined that the proposed tourism facility centre may
disturb the wild life eco-system – The ESZ notification required,
inter alia, the State of Rajasthan to prepare the ZMP 2030, so as to
ensure that future development activity in the region could be
planned while accounting for potential environmental degradation,
following the precautionary principle – The ESZ notification is
backed by a statutory mandate of Union legislation – The
Notification is an enforceable charter for the preservation of the
fragile eco-system of Mount Abu – Every authority is duty bound to
A
B
C
D
E
F
G
H
155
comply with its terms and any action in breach must peril invalidation
– NGT had correctly directed the ZMP 2030 to be modified to bring
it into conformity with the ESZ Notification and the precautionary
principle – Specifically, it correctly upheld the Expert Committee
Report’s recommendation that no construction should be allowed
to take place on the appellant’s land.
Environmental Law – Precautionary principle – Held: The
precautionary principle envisages that the State cannot refuse to
act to preserve the environment simply because all the scientific
data may not be available – If there is some data to suggest that
environmental degradation is possible, the State must step into action
to prevent it from taking place.
Dismissing the appeal, the Court
Merits of Expert Committee Report
HELD: 1. As regards the disputed site in question in this
appeal (“near STP plant”), the Expert Committee has furnished
valid reasons for determining that construction must not be
allowed so as to preserve the eco-system of the region. The
Expert Committee has noted that while the proposed site for
residential buildings covers the land of low slopes which is stable,
it also covers lands with a high slope domain which are not suitable
for construction. At places with a high slope domain, the landscape
was noted to be fragile in terms of soil erosion. Further, the Expert
Committee opined that the proposed tourism facility centre may
disturb the wild life eco-system.
Additionally, although the low
slope domain may be suitable for construction, the site is a habitat
for wildlife and footprints of the sloth bear were also observed
during the field visit. It was in this context that the Expert
Committee determined that construction must not be allowed on
the site to preserve the eco-system. In comparison, the
observations contained in Table 16 with reference to the “Sunset
Road Scheme” and the “Sunrise Housing Society” sites clearly
indicate that there is no discrimination against the appellant since
there is a material difference in the location and suitability of the
sites for construction. [Para 24][174-A-E]
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
A
B
C
D
E
F
G
H
156
SUPREME COURT REPORTS
[2022] 8 S.C.R.
Precautionary Principle
2. The report of the Expert Committee is consistent with
the precautionary principle. The report has hence been correctly
accepted by the NGT since it is mandated to follow the
precautionary principle under Section 20 of the NGT Act. The
precautionary principle requires the State to act in advance to
prevent environmental harm from taking place, rather than by
adopting measures once the harm has taken place. In deciding
when to adopt such action, the State cannot hide behind the veil
of scientific uncertainty in calculating the exact scientific harm.
[Paras 25 and 31][174-E-F; 177-G-H]
3. The precautionary principle envisages that the State
cannot refuse to act to preserve the environment simply because
all the scientific data may not be available. If there is some data
to suggest that environmental degradation is possible, the State
must step into action to prevent it from taking place. Indeed, it
was this thought that compelled this Court in T.N. Godavarman
to direct the State to identify ESZs across India, so that steps can
be taken to identify areas where there is a greater possibility of
environmental degradation and a plan is put in place to prevent
such degradation before it actually makes the harm irreversible.
[Para 32][180-G-H; 181-A]
4. Mount Abu was identified as an ESZ, under the ESZ
Notification. The reason for doing this is because the State
recognized that environmental
degradation of the fragile eco-
system is a real possibility in Mount Abu and the area surrounding
it if action is not immediately taken. A significant amount of soil
erosion, air and water pollution has already taken place due to
the developmental activities. The recitals in the ESZ Notification
recognize the ecological importance of Mount Abu since it PART
H 32 contains both tropical dry deciduous forests and evergreen
forests; its flora and fauna comprise of several endemic and rare
species; and it also contains not only natural heritage such as
Nakki lake but also man-made heritage sites such as the Dilwara
temples. The ESZ notification required, inter alia, the State of
Rajasthan to prepare the ZMP 2030, so as to ensure that future
development activity in the region could be planned while
accounting for potential environmental degradation, following the
A
B
C
D
E
F
G
H
157
precautionary principle. The ESZ notification is backed by a
statutory mandate of Union legislation. The Notification is an
enforceable charter for the preservation of the fragile eco-system
of Mount Abu. Every authority is duty bound to comply with its
terms and any action in breach must peril invalidation. [Para
33][181-A-E]
M.C. Mehta v. Union of India (2004) 12 SCC 118 :
[2004] 3 SCR 126; Research Foundation for Science
Technology National Resource Policy v. Union of India
(2005) 10 SCC 510; Hospitality Assn. of Mudumalai v.
In Defence of Environment & Animals (2020) 10 SCC
589 : [2020] 10 SCR 273; H.P. Bus-Stand Management
& Development Authority v. Central Empowered
Committee (2021) 4 SCC 309 : 2021 (1) JT 187 – relied
on.
T.N. Godavarman v. Union of India & Ors. Writ Petition
No 202 of 1995; Mantri Techzone (P) Ltd. v. Forward
Foundation (2019) 18 SCC 494; Municipal Corporation
of Greater Mumbai v. Ankita Sinha and Others 2021
SCC OnLine SC 897 – referred to.
Case Law Reference
[2004] 3 SCR 126
relied on
Para 27
[2020] 10 SCR 273
relied on
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7724-
7725 of 2021.
From the Judgment and Order dated 10.03.2021 of the National
Green Tribunal, Principal Bench, New Delhi in Original Application
No.312 of 2016 and Order dated 29.07.2021 in Review Application No.26
of 2021 in Original Application No.312 of 2016.
Mukul Rohatgi, Siddhartha Dave, Sr. Advs., Aditya Vaibhav Singh,
Ms. Saumya Gupta, Ms. Aarushi
Singh, Ms. Vidhi Thaker, Ms. Nidhi
Jaswal, Advs. for the Appellant.
Amit Sibal, Sr. Adv., Sameer Parekh, Vinay Tripathi, Sumit Goel,
Ms. Nina R. Nariman, Ms. Geetika Kapur, Tanuj Agarwal, Paritosh
Arora, M/s Parekh & Co., Advs. for the Respondents.
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
A
B
C
D
E
F
G
H
158
SUPREME COURT REPORTS
[2022] 8 S.C.R.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into the following sections to
facilitate analysis:
A
The Appeal
B
Eco-sensitive Zone Notification and Zonal Master Plan
2030
C
Proceedings before NGT
D
Submissions of counsel
E
Jurisdiction of NGT
F
Merits of Expert Committee Report
G
Precautionary Principle
H
Conclusion
A The Appeal
1. These appeals under Section 22 of the National Green Tribunal
Act1 arise from judgments dated 10 March 2021 and 29 July 2021 of the
National Green Tribunal2. By its judgment dated 10 March 2021, the
NGT, on the basis of a report3 dated 8 December 2020 submitted by an
Expert Committee, allowed an original application4 filed by the first
respondent, which challenged the Zonal Master Plan 20305 prepared by
the State of Rajasthan, for the Mount Abu Eco-sensitive Zone6. The
report of the Expert Committee had, inter alia, declared land owned by
the appellant to be unfit for construction. Further, by its judgment dated
29 July 2021, the NGT dismissed an application for review7 which had
been filed by the appellant.
1 “NGT Act”
2 “NGT”
3 “Expert Committee Report”
4 Original Application No 312 of 2016
5 “ZMP 2030”
6 “ESZ”
7 Review Application No 26 of 2021
A
B
C
D
E
F
G
H
159
B Eco-sensitive Zone Notification and Zonal Master Plan
2030
2. The appellant is the owner of a certain parcel of land situated
in Mount Abu in the State of Rajasthan. The appellant claims that the
land was earmarked as “Residential” and as a “Tourist Facility” in the
Zonal Master Plan 2025 for Mount Abu.
3. On 25 June 2009, the Union Government in the Ministry of
Environment, Forest and Climate Change8 issued a Notification9 by which
it notified Mount Abu and the area surrounding it as an ESZ. The ESZ
Notification was issued in exercise of powers conferred by sub-Section
(1) read with Clause (v) and Clause (xiv) of Section 3(2) of the
Environment (Protection) Act 198610 and Rule 5(3) of the Environment
Protection Rules 1986. The preamble to the ESZ Notification contains
recitals emphasizing the ecological importance of Mount Abu:
“S.O.1545(E) - WHEREAS, Mount Abu area has significant
ecological importance comprising of tropical dry deciduous forests
at lower altitude and evergreen forests at higher altitude and the
flora and fauna of the region comprise of several endemic and
rare species; besides Mount Abu has natural heritage such as
Nakki Lake and man-made heritage like Dilwara temples and
other heritage buildings and structures;
AND WHEREAS, considerable adverse environment impact has
been caused due to degradation of the environment with excessive
soil erosion and water and air pollution on account of certain
developmental activities, thereby
endangering not only the natural
resources, but also affecting the health and very survival of living
beings;
AND WHEREAS, it is necessary to conserve and protect the
area from ecological and environmental point of view;
AND WHEREAS, a draft notification under sub-section (1) read
with clause (v) and clause (xiv) of sub - section (2) of section 3 of
the Environment (Protection) Act, 1986 (29 of 1986) was published
8 “MoEF&CC”
9 “ESZ Notification”
10 “EP Act”
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
160
SUPREME COURT REPORTS
[2022] 8 S.C.R.
in the Gazette of India, Extraordinary, vide Notification of
Government of India in the Ministry of Environment and Forests
vide number S.O. No. 2497 (E), dated the 22nd October, 2008, as
required under sub-rule (3) of rule 5 of the Environment
(Protection) Rules, 1986, inviting objections and suggestions from
all persons likely to be affected thereby within a period of sixty
days from the date on which copies of the Gazette containing the
said notification were made available to the public;
AND WHEREAS, copies of the Gazette containing the said
notification were made available to the public on the 22nd October,
2008;
AND WHEREAS, all objections and suggestions received in
response to the above mentioned draft notification have been duly
considered by the Central Government;
Now, THEREFORE, in exercise of the powers conferred by sub-
section (1) read with clause (v) and clause (xiv) of sub - section
(2) of section 3 of the Environment (Protection) Act, 1986 (29 of
1986) and sub-rule (3) of rule 5 of the Environment (Protection)
Rules, 1986, the Central Government hereby notifies Mount Abu
and surrounding region enclosed within the boundary described
below in the State of Rajasthan as the Mount Abu Eco-sensitive
Zone (hereinafter called “the Eco-sensitive Zone”).”
4. The ESZ Notification was preceded by a draft to which
objections and suggestions were invited. The ESZ Notification outlines
the boundaries of the ESZ in
which activities are to be regulated. The
Notification envisages the preparation of a new Zonal Master Plan11 for
the restoration of denuded areas, conservation of existing water bodies
including Nakki Lake, management of catchment areas, watershed
management, groundwater management, soil and moisture conservation,
preserving the needs of the local community, conservation of heritage
sites (both natural and cultural) and their surroundings, and such other
aspects of the ecology and environment which may require attention.
Clause 3(1)(i) of the ESZ Notification, in relation to the preparation of
the ZMP, is extracted below:
11 “ZMP”
A
B
C
D
E
F
G
H
161
“3. The following activities are to be regulated in the Eco-
sensitive Zone, namely:-
(1) Zonal Master Plan for the Eco-sensitive Zone:-
(i) A Zonal Master Plan for the Eco-sensitive Zone shall be
prepared by the State Government within a period of two years
from the date of publication of this notification and submitted for
approval to the Central Government in the Ministry of Environment
and Forests...”
5. The ESZ Notification also envisages a Tourism Master Plan12
to be prepared by the Department of Tourism of the Government for the
State of Rajasthan. The TMP would form a component of the ZMP, and
is to be based on a detailed Carrying Capacity Study of the ESZ. Further,
the Carrying Capacity Study is to be based on the existing infrastructure
and not on future projections of any project which requires environmental
or forest clearance. While adverting to the natural and man-made heritage
in Mount Abu, the ESZ Notification stipulates that:
“3. The following activities are to be regulated in the Eco-
sensitive Zone, namely:-
[…]
(9) Man-made Heritage: Mount Abu is famous for several
temples, the most prominent being Dilwara Temples and the main
heritage and historical buildings are Achalgarh Fort, Dilwara Jain
Temples, Rishav Deo Temple, Neminath Temple, Adinath Temple,
Parshwanath Temple, Mahaveer Temple, etc., and later heritage
buildings, structures and precincts. The plans for their conservation
shall be prepared and incorporated in the Zonal and
Sub-Zonal
Master Plan and the development or construction activities at or
around the heritage sites shall be regulated under the statutory
provisions of the Rajasthan Monuments, Archaeological Sites and
Antiquities Act and in accordance with the Draft Model
Regulations for Conservation of Natural and Manmade Heritage
Sites formulated by the Central Government in the Ministry of
Environment and Forests in 1995.
12 “TMP”
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
162
SUPREME COURT REPORTS
[2022] 8 S.C.R.
(10) Water:
(i) All future and existing buildings, where possible, in the Municipal
Area shall provide roof-top rain water harvesting structures
commensurate with their plinth area and the Institutional and
commercial buildings shall not draw water from existing water
supply schemes in a manner that adversely affects water supply
especially to local villages or settlements.
(ii) In Non-Municipal Areas rain water harvesting shall be
undertaken through such structures as percolation tanks and
storage tanks and only other means. Ground water aquifer
recharge structures shall be constructed wherever such structures
do not lead to slope instabilities.
(iii) The rain water collected through storm water drains shall be
used to recharge the ground water or to clean the waste disposal
drains and sewers.
(iv) The extraction of ground water shall be permitted only for the
bona-fide agricultural and domestic consumption of the occupier
of the plot and the extraction of ground water for industrial or
commercial or residential estates or complexes shall require prior
written permission, including of the amount that can be extracted,
from the State Ground Water Department. However, the areas
rich in ground water may not be diverted for construction activities.
(v) No sale of ground water shall be permitted except with the
prior approval of the State Ground Water Department and all steps
shall be taken to prevent contamination or
pollution of water
including from agriculture.
(vi) The area has three big water bodies namely Upper Kodra
dam, Lower Kodra dam and Nakki Lake and in addition to this
the area has around 25 water places, where water remains through
out the year, which include natural nalla, dams, anicuts, seepage
and baoris that are spread over entire area and must be protected.
[…]
(13) Development on and protection of hill slopes:
(i) The Zonal Master Plan shall indicate areas on hill slopes where
development shall not be permitted.
A
B
C
D
E
F
G
H
163
(ii) No development shall be undertaken in areas having a steep
slope or areas which fall in fault or hazard zones or areas falling
on the spring lines and first order streams or slopes with a high
degree of erosion as identified by the State Government on the
basis of available scientific evidence.
(iii) No development on existing steep hill slopes or slopes with a
high degree of erosion shall be permitted.”
6. Under Clause 4 of the ESZ Notification, the Central Government
has to constitute a Monitoring Committee. In pursuance of the ESZ
Notification, a Monitoring Committee was constituted by the Union
Government through MoEF&CC on 10 December 2009. The constitution
of the Monitoring Committee was revised on 24 January 2012 and 5
May 2015.
7. The appellant has a grievance that when a draft of ZMP 2030
was published, the status of his land was incorrectly changed from
“Residential” and “Tourist Facility” to “Agricultural Zone”. The appellant
challenged this before the Chairman of the Monitoring Committee, the
MoEF&CC and the State of Rajasthan. Based on it, the status of the
appellant’s land was again changed back to “Residential” and “Tourist
Facility”. Thereafter, ZMP 2030 was notified by the State of Rajasthan
on 29 October 2015, following the approval of the MoEF&CC on 28
September 2015.
C Proceedings before NGT
8. The ZMP 2030 was challenged by the first respondent by his
original application on the ground that it is not in conformity with ESZ
Notification, since it fails to discourage construction activities at or near
the heritage sites, conserve the existing water bodies and permits change
of land use by illegal structures. Since the first respondent’s original
application mentioned the appellant’s land, the appellant was allowed to
intervene in the proceedings by the NGT in its order dated 10 April
2017.
9. On 26 November 2018, the NGT issued an order which noted
that the first respondent’s original application contended, inter alia, that
ZMP 2030 had permitted illegal change of land use, in direct contradiction
to the ESZ Notification, in thirteen locations, which included the
appellant’s land. To assess the claims made in the first respondent’s
original application, the NGT constituted an Expert Committee consisting
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
164
SUPREME COURT REPORTS
[2022] 8 S.C.R.
of two representatives of MoEF&CC, a representative of the School of
Planning and Architecture, Delhi (since it had been engaged by the State
of Rajasthan as a consultant), and a representative of Central Pollution
Control Board13. The mandate of the Expert Committee was as follows:
“21. The Committee will undertake comparison of ZMP 2030, in
terms of letter of MoEF&CC dated 28.09.2015 and ESZ
Notification dated 25.06.2009 and point out the aberrations in some
besides comparing ZMP 2030 map with reference to pre-existing
2010 map in the light of ESZ notification. Thirteen (13) locations
noted above must also be specifically looked into. The Expert
Committee may also look into the suggestions relating to prohibiting
use of plastics, burning of garbage/or any other waste, proper
laying of high tension lines for protecting animals and birds life
particularly in Salim Ali Bird Sanctuary area, preventing forest
fire, conservation of Nakki lake and water quality management,
siting and operation of Solid Waste processing plant in accordance
with Solid Waste Management Rules, 2016 (with reference to
sanctuary area), any other issues relating to environment
management which may become a part of ZMP 2030, including
observations of this Tribunal in Kasuali case.
22. The Committee will also look into the points of concern raised
by the applicant in reference to conversion of green areas to non-
green areas, permissibility of
construction on higher degree slopes,
conservation of rocks, water bodies and wildlife and other heritage
sites, the issue of water scarcity, carrying-capacity of Mount Abu
with regard to number of tourists and vehicles to be permitted
having regard to the availability of the infrastructure without relying
upon future projection, as required in terms of ESZ notification.”
10. The Expert Committee submitted a report on 4 September
2019, which was not found to be acceptable when it was considered by
the NGT on 7 November 2019. As a consequence, the NGT modified
the composition of the Expert Committee, with the following observations:
“8. Though the Committee was to furnish its report within three
months from the order dated 6.11.2018 report has been filed almost
after more than 9 months on 04.09.2019. We find from the report
that the Committee has assumed the ZMP to be conclusive on the
13 “CPCB”
A
B
C
D
E
F
G
H
165
ground that suitability analysis test had already been carried out
by the State Government. This approach is inconsistent with the
directions of this Tribunal. If the analysis of the State Government
was to be treated as final, there was no need for the Committee.”
11. The reconstituted Committee then submitted the Expert
Committee Report. The Expert Committee enquired into the change in
land use through high resolution satellite images, while analysing the
data with particular reference to ten identified sites, including the
appellant’s land. The NGT then heard submissions on the Expert
Committee Report. By its impugned judgment dated 29 July 2021, the
NGT observed that the Expert Committee Report was based on authentic
data and on field visits by the Committee and is supported by adequate
reasons. The NGT noted that the object of notifying certain areas as
ESZs is to protect certain specified sensitive areas by restricting and
regulating development activities. Such areas may be based on species,
geomorphologic features or on the eco-system. The NGT held that it
was necessary to protect bio-diversity zones by creating regulated buffers
around them to protect their flora and fauna, prevent habitat destruction
and protect fragile ecology. Adverting to the backdrop of the ESZ
Notification, the NGT noted that the Supreme Court had in T.N.
Godavarman v. Union of India & Ors.14 (“T.N. Godavarman”)
appointed Expert Committees to identify ESZs across India, and
when
such ESZs were eventually identified, Mount Abu was cleared as an
ESZ as well. The NGT further observed that the object of notifying
ESZs is to protect a specified area from the irreversible degradation of
its environment with a view to give effect to the principles of sustainable
development, inter-generational equity and the public trust doctrine in
exercise of powers conferred by Section 3(2)(v) of the EP Act.
12. The NGT then proceeded to deal with individual sites under
consideration. The subject matter of the present appeals pertains to an
entry in Table 16 of the Expert Committee Report. Table 16 is titled as
follows:
“Suitability of 10 identified sites within Mount Abu ESZ as reviewed
by the expert committee based on the site visit/ground verification
as well as interactions with the local residents/Mount Abu
Municipality officials/Town Planning Department officials/other
stakeholders during 16-17 January 2020”
14 Writ Petition No 202 of 1995
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
166
SUPREME COURT REPORTS
[2022] 8 S.C.R.
The evaluation of the site in question, i.e., the appellant’s land, is
tabulated in Table 16 as follows:
13. The NGT noted that the above site (“near STP Plant”) has
not been found suitable for construction on considerations based on the
wild life eco-system. The NGT also accepted the view of the Expert
Committee that the conversion of green areas into non-green areas should
not be allowed, except in exceptional situations mentioned in the Report,
and that the STP must be duly maintained. The NGT, while accepting
the Expert Committee Report, thus directed that the ZMP 2030 should
be brought in conformity within three months.
A
B
C
D
E
F
G
H
167
14. The findings of the NGT in relation to appellant’s land were
challenged by the appellant in a review application, which was rejected
on 29 July 2021. This has led to the present appeals.
D Submissions of counsel
15. Mr Mukul Rohatgi, Senior Counsel appearing on behalf of the
appellant has urged two submissions:
(i)
Firstly, the NGT, being an adjudicatory body constituted by
the NGT Act, is vested with limited jurisdiction under Section
14 to deal with a substantial question of environment arising
out of the statutes enumerated in Schedule I to the NGT
Act. The NGT had acted beyond its jurisdiction in directing
the amendment of the ZMP 2030; and
(ii)
Secondly, on merits:
a.
The Expert Committee had prepared a draft report
in July 202015, which was not placed before the NGT
and was obtained by the appellant through a Right to
Information request on 1 February 2021. In the Draft
Report, Table 23 pertains to the suitability of ten
identified sites within the Mount Abu ESZ and it
contained a column containing remarks on the bio-
diversity at each of these locations. In this backdrop,
it was submitted that the appellant’s land was shown
to be encompassed by the movement of wild life,
more specifically, the sloth bear and panther. In this
context, it was urged that a similar situation existed
in Table 23 with respect to another site (described as
“Sunrise Housing Society”). However, in the Expert
Committee Report, the column on bio-diversity is
missing,
which hides crucial information on the basis
of which the final recommendations were made. The
appellant alleges that the column on bio-diversity is
missing because the Expert Committee Report was
manipulated to favor others over the appellant; and
b.
Whereas other similar sites have been granted
clearances in the Expert Committee Report, the
appellant has not been cleared. In other words, the
15 “Draft Report”
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
168
SUPREME COURT REPORTS
[2022] 8 S.C.R.
submission is that the Report has proceeded on the
basis of a “pick and choose” process.
16. Opposing these submissions, Mr Amit Sibal, Senior Counsel
appearing on behalf of the respondents urged the following submissions:
(i)
The ESZ Notification, which has been issued in pursuance
of the intervention of this Court in T.N. Godavarman
(supra), recognizes the ecological importance of Mount Abu,
which is comprised of tropical dry deciduous forests at a
lower altitude and evergreen forests at higher altitudes;
(ii)
The ZMP 2030 was issued in accordance with the ESZ
Notification;
(iii)
The Expert Committee included domain experts, town
planners and government officials who proceeded to identify
the issues with the specified sites in Table 16 after careful
analysis and site visits;
(iv)
The Expert Committee Report is founded on the
precautionary principle and as it is based on a scientific
approach, it must warrant deference;
(v)
Schedule I to the NGT Act, inter alia, refers to the Forest
Conservation Act 198016 and the EP Act;
(vi)
The ESZ notification has been issued in exercise of powers
conferred by the EP Act;
(vii)
The order of the NGT dated 7 November 2019 did not
accept the report of the initial Expert Committee, and
reconstituted it. This order has attained finality since it was
not challenged by the appellants;
(viii) The appellant is relying upon the Draft Report, which was
not in the public domain since it was
an incomplete report.
Moreover, the Draft Report contains endorsements as against
the site in question to the effect that it was not suitable. Further,
there is a valid distinction between the site in question and
others (such as the “Sunset Road Scheme” and “Sunrise
Housing Society”) where construction has been allowed. In
the case of the “Sunset Road Scheme”, the land use was
for residential purposes while on the contrary, the appellant
16 “FC Act”
A
B
C
D
E
F
G
H
169
has admitted to converting the site in question for tourism
and residential buildings under the ZMP 2030; and
(ix)
While on the one hand, the Expert Committee which
comprises, inter alia, of environmental experts had
considered each of the sites in Table 16 of the Expert
Committee Report, the appellant has brought on record no
evidence to establish any error or perversity in the Report
which was accepted by the NGT.
E Jurisdiction of NGT
17. Sub-Section (1) of Section 1417 of the NGT Act provides that
the NGT shall have the jurisdiction over all civil cases where a substantial
question relating to the environment, including the enforcement of any
legal right relating to the environment is involved and such question arises
out of the implementation of the enactments specified in Schedule I to
the NGT Act. Under sub-Section (2) of Section 14, the NGT is
empowered to hear disputes set out in sub-Section (1), and pass orders
thereon. Section 15(1) further provides for the reliefs which may be
granted by the NGT, and reads as follows:
“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, as
the Tribunal may think
fit.”
17 “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.”
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
170
SUPREME COURT REPORTS
[2022] 8 S.C.R.
18. Among the statutes which are delineated in Schedule I are the
FC Act (Entry 3) and the EP Act (Entry 5). There can be no manner of
doubt that the original application filed by the first respondent before the
NGT in the present case implicated a substantial question relating to the
environment. The ‘substantial question’ arose from the provisions
contained in the ESZ Notification in relation to the ESZ in Mount Abu.
The ESZ Notification traces its origin to the EP Act, under which the
Union Government through MoEF&CC is empowered to issue it. In the
exercise of its jurisdiction, the NGT is empowered under Section 15(1)(c)
to provide for the restoration of the environment in such area or areas.
The ESZ Notification in Clause 3(1) provides for the ZMP for the ESZ
in this context. Assessing the conformity of the ZMP 2030 with the
terms of the ESZ Notification is clearly within the remit of the NGT.
19. In Mantri Techzone (P) Ltd. v. Forward Foundation18, a
three-Judge Bench of this Court noted that Section 15(1)(c) of the NGT
Act affords broad powers to the NGT. Speaking for the Court, Justice S
Abdul Nazeer held:
“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.”
20. In another recent judgment in Municipal Corporation of
Greater Mumbai v. Ankita Sinha and Others19, a three-Judge Bench
of this Court held that the NGT can also exercise suo motu jurisdiction.
While elaborating on the jurisdiction of the NGT in general, Justice
Hrishikesh Roy held:
“27. The paragraph 2 of the Statement of Objects and Reasons
[of the NGT Act] refers to the United Nations Conference on the
Human Environment held at Stockholm in June 1972 which called
upon governments and peoples to exert common efforts for the
18 (2019) 18 SCC 494
19 2021 SCC OnLine SC 897
A
B
C
D
E
F
G
H
171
preservation and improvement of the human environment when it
involved people and for their posterity. Therefore, the municipal
law enacted with such a laudatory objective of not only preventing
damage to the environment but also to protect it, must be provided
with the wherewithal to discharge its protective, preventive and
remedial function towards protection of the environment. The
mandate and jurisdiction of the NGT is therefore conceived
to be of the widest amplitude and it is in the nature of a sui
generis forum.
[…]
36. The laudatory objectives for creation of the NGT would implore
us to adopt such an interpretive process which will achieve the
legislative purpose and will eschew procedural impediment or so
to say incapacity. The precedents of this Court, suggest a
construction which fulfills the object of the Act [Sarah
Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC
62, New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008)
3 SCC 279]. The choice for this Court would be to lean
towards the interpretation that would allow fructification of
the legislative intention and is forward looking. The
provisions must be read with the intention to accentuate
them, especially as they concern protections of rights under
Article 21 and also deal with vital environmental policy and
its regulatory aspects.
[…]
38. While on the statutory provisions, it is seen that the Central
Government has framed the National Green Tribunal (Practice &
Procedure) Rules, 2011 (for short “the NGT Rules”). For our
purpose, Rule 24 is important which reads thus:
“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.”
39. The said Rules make it clear that the NGT has been
given wide discretionary powers to secure the ends of
justice. This power is coupled with the duty to be exercised
for achieving the objectives. The intention understandably
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
172
SUPREME COURT REPORTS
[2022] 8 S.C.R.
being to preserve and protect the environment and the
matters connected thereto.
40. By choosing to employ a phrase of wide import, i.e. secure
the ends of justice, the legislature has nudged towards a liberal
interpretation. Securing justice is a term of wide amplitude and
does not simply mean adjudicating disputes between two rival
entities. It also encompasses inter alia, advancing causes of
environmental rights, granting compensation to victims of
calamities, creating schemes for giving effect to the
environmental principles and even hauling up authorities
for inaction, when need be.
41. Moreover, unlike the civil courts which cannot travel beyond
the relief sought by the parties, the NGT is conferred with power
of moulding any relief. The provisions show that the NGT is
vested with the widest power to appropriate relief as may
be justified in the facts and circumstances of the case, even
though such relief may not be specifically prayed for by the
parties.”
(emphasis supplied)
21. The NGT has not acted in excess of or beyond its jurisdiction
in testing ZMP 2030 on the anvil of the ESZ Notification. Having found
that the report of the earlier Expert Committee appointed by it was not
acceptable while adjudicating on the issue on 7 November 2019, the
NGT constituted another Expert Committee. The Committee comprised
of experts in the area of the environment as well as representatives of
the CPCB and the Rajasthan
Pollution Control Board. The Expert
Committee was tasked with submitting a report to the NGT to aid it in
discharging its functions of assessing the conformity of the ZMP 2030
with the terms of the ESZ Notification. On the submission of the Expert
Committee Report, the NGT heard objections to it and delivered a
reasoned order on why it was accepting the recommendations made in
the Report. Hence, there is no merit in the submission that the NGT has
acted beyond its jurisdiction.
F Merits of Expert Committee Report
22. The second limb of the appellant’s submission proceeds on
merits. There has been a misconceived attempt on the part of the
appellant to advert to the Draft Report which was prepared by the Expert
Committee. The Draft Report was in the realm of an internal document
A
B
C
D
E
F
G
H
173
and was not in the public domain. Evidently, the Draft Report was a
subject matter of deliberations, and it is only the final report which was
submitted to the NGT that represented the views of the Expert
Committee. Hence, there is no merit in the appellant’s plea which is
based on the Draft Report.
23. The Expert Committee Report has carefully analyzed ten sites
in Table 16. Since the appellant’s plea of discrimination is based on the
observation pertaining to the “Sunset Road Scheme” and “Sunrise
Housing Society”, it would be material to extract the observations of the
Expert Committee on the above two sites. The relevant part of Table 16
in relation to those sites is extracted below:
Name 
of Site 
Location (Lat 
& long with 
Accuracy/ 
Altitude); 
Slope (oo) 
Present land use & 
Vegetation 
type/Cover (%) 
Recommendation (All these construction 
should comply the norm of 50 m away from 
forest boundary and from water body and 
100 m away from wetland/river 
Sunset 
Road 
Scheme 
24o35'11.49''N 
72o42'13.79"E 
(±3m)  
1169 m; Most 
of the land at 
this site has 
slope <20° 
Residential (Partly 
built/partly vacant); 
Open scrub/isolated 
trees (<10%) 
This site is stable with the granite as basement 
rock. 
 This site is close to the forest land. 
Therefore, the ESZ criteria of a buffer zone 
with forest and water stream must comply 
before the start of any construction activity. 
 Already existing provision for farm house in 
state of Rajasthan may
be made applicable 
with allowance of 1o% of total area of 
construction as built up area or 5000 sq ft. 
(whichever is less) subject to NOC from 
Forest dept. 
Conclusion: 
Site 
is 
suitable 
for 
construction. 
Sunrise 
Housing 
Society 
24o34'55.26''N 
72o43'38.12"E 
(±3m) 
1137 m; Most 
of the land at 
this site has 
slope <20° 
Vacant; Open scrub 
with isolated trees 
(>20%) 
The basement rock is granite and is well 
exposed at this location with very thin soil 
cover. 
 The site is near a local natural stream (Nala). 
Therefore, the ESZ criteria of the buffer 
zone with water stream and forest must be 
complied before any constructional activity 
as per norms. 
 Site is surrounded by habitation so it may 
cater to the residential needs of the local 
people. 
 Thus, this site is stable and suitable for the 
construction of the residential complex. 
 Construction may be allowed following 
criteria laid down in ESZ. 
Conclusion: 
Site 
is 
suitable 
for 
construction.
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
174
SUPREME COURT REPORTS
[2022] 8 S.C.R.
24. From the above extract, it is evident that the land used by the
Sunset Road Scheme is described to be residential (partly built, partly
vacant) and as regards the Sunrise Housing Society, the land use is
described to be vacant. As regards the disputed site in question in this
appeal (“near STP plant”), the Expert Committee has furnished valid
reasons for determining that construction must not be allowed so as to
preserve the eco-system of the region. The Expert Committee has noted
that while the proposed site for residential buildings covers the land of
low slopes which is stable, it also covers lands with a high slope domain
which are not suitable for construction. At places with a high slope domain,
the landscape was noted to be fragile in terms of soil erosion. Further,
the Expert Committee opined that the proposed tourism facility centre
may disturb the wild life eco-system. Additionally, although the low slope
domain may be suitable for construction, the site is a habitat for wildlife
and footprints of the sloth bear were also observed during the field visit.
It was in this context that the Expert Committee determined that
construction must not be allowed on the site to preserve the eco-system.
In comparison, the observations contained in Table 16 with reference to
the “Sunset Road Scheme” and the “Sunrise Housing Society” sites
clearly indicate that there is no discrimination against the appellant since
there is a material difference in the location and suitability of the sites
for construction.
G Precautionary Principle
25. The report of the Expert Committee is consistent with the
precautionary principle. The report has hence been correctly accepted
by the NGT since it is mandated to follow the precautionary principle
under Section 20 of the NGT Act. Section 20 of the NGT Act states
thus:
“20. Tribunal to apply certain principles.—The Tribunal shall,
while passing any order or decision or award, apply the principles
of sustainable development, the precautionary principle and the
polluter pays principle.”
26. The precautionary principle finds its clearest elaboration in
Principle 15 of the Rio Declaration on Environment and Development
1992, which states:
“In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities.
A
B
C
D
E
F
G
H
175
Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.”
27. In M.C. Mehta v. Union of India20, a two-Judge Bench of
this Court noted the import of this principle in Indian jurisprudence by
highlighting that it requires the State to act for preventing actual
environmental harm, even in the face of scientific uncertainty. The Court
held:
“48. Development and the protection of environment are not
enemies. If without degrading the environment or minimising
adverse effects thereupon by applying stringent safeguards, it is
possible to carry on development activity applying the principles
of sustainable development, in that eventuality, development has
to go on because one cannot lose sight of the need for development
of industries, irrigation resources and power projects etc. including
the need to improve employment opportunities and the generation
of revenue. A balance has to be struck…Principle 15 of the
Rio Conference of 1992 [Ed.: Cited in (1999) 2 SCC 718,
733 in para 33] relating to the applicability of precautionary
principle, which stipulates that where there are threats of
serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation,
is also required to be kept in view. In such matters, many a
times,
the option to be adopted is not very easy or in a
straitjacket. If an activity is allowed to go ahead, there may
be irreparable damage to the environment and if it is
stopped, there may be irreparable damage to economic
interest. In case of doubt, however, protection of
environment would have precedence over the economic
interest. Precautionary principle requires anticipatory action
to be taken to prevent harm. The harm can be prevented
even on a reasonable suspicion. It is not always necessary
that there should be direct evidence of harm to the
environment.”
(emphasis supplied)
20 (2004) 12 SCC 118
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
176
SUPREME COURT REPORTS
[2022] 8 S.C.R.
28. In Research Foundation for Science Technology National
Resource Policy v. Union of India21, a two-Judge Bench of this Court
noted that the precautionary principle is part of the Indian jurisprudence,
arising from Articles 47, 48-A and 51-A(g) of the Constitution. The Court
held:
“16. The legal position regarding applicability of the precautionary
principle and polluter-pays principle which are part of the concept
of sustainable development in our country is now well settled. In
Vellore Citizens’ Welfare Forum v. Union of India [(1996) 5 SCC
647] a three-Judge Bench of this Court, after referring to the
principles evolved in various international conferences and to the
concept of “sustainable development”, inter alia, held that the
precautionary principle and polluter-pays principle have now
emerged and govern the law in our country, as is clear from Articles
47, 48-A and 51-A(g) of our Constitution and that, in fact, in the
various environmental statutes including the Environment
(Protection) Act, 1986, these concepts are already implied. These
principles have been held to have become part of our law. Further,
it was observed in Vellore Citizens’ Welfare Forum case [(1996)
5 SCC 647] that these principles are accepted as part of the
customary international law and hence there should be no difficulty
in accepting them as part of our domestic law…”
29. This position has been reiterated by a three-Judge Bench of
this
Court in Hospitality Assn. of Mudumalai v. In Defence of
Environment & Animals22. The Court has held:
“39…As was held by this Court in M.C. Mehta (Badkhal &
Surajkund Lakes Matter) v. Union of India [M.C. Mehta (Badkhal
& Surajkund Lakes Matter) v. Union of India, (1997) 3 SCC 715]
the “precautionary principle” has been accepted as a part
of the law of our land. Articles 21, 47, 48-A and 51-A(g) of
the Constitution give a clear mandate to the State to protect
and improve the environment and to safeguard the forests
and wildlife of the country. It is the duty of every citizen of
India to protect and improve the natural environment
including forests and wildlife and to have compassion for
21 (2005) 10 SCC 510
22 (2020) 10 SCC 589
A
B
C
D
E
F
G
H
177
living creatures. The precautionary principle makes it
mandatory for the State Government to anticipate, prevent
and attack the causes of environmental degradation. In this
light, we have no hesitation in holding that in order to protect the
elephant population in the Sigur Plateau region, it was necessary
and appropriate for the State Government to limit commercial
activity in the areas falling within the elephant corridor.”
(emphasis supplied)
30. In Municipal Corporation of Greater Mumbai (supra),
this Court elaborated on the precautionary principle in the following terms:
“79. The principle set out above must apply in the widest
amplitude to ensure that it is not only resorted to for
adjudicatory purposes but also for other ‘decisions’ or
‘orders’ to governmental authorities or polluters, when they
fail to “to anticipate, prevent and attack the causes of
environmental degradation” [Vellore Citizens (supra), S.
Jagannathan v. Union of India, (1997) 2 SCC 87, Karnataka
Industrial Areas Development Board v. C Kenchappa, (2006)
6 SCC 371]. Two aspects must therefore be emphasized i.e.
that the Tribunal is itself required to carry out preventive
and protective measures, as well as hold governmental and
private authorities accountable for failing to uphold
environmental interests. Thus, a narrow interpretation for
NGT’s powers should be eschewed to adopt one which allows
for full flow of the forum’s power within the environmental domain.
80. It is not only
a matter of rhetoric that the Tribunal is to remain
ever vigilant, but an important legal onus is cast upon it to act with
promptitude to deal with environmental exigencies. The
responsibility is not just to resolve legal ambiguities but to arrive at
a reasoned and fair result for environmental problems which are
adversarial as well as nonadversarial.”
(emphasis supplied)
31. The precautionary principle requires the State to act in advance
to prevent environmental harm from taking place, rather than by adopting
measures once the harm has taken place. In deciding when to adopt
such action, the State cannot hide behind the veil of scientific uncertainty
in calculating the exact scientific harm. In H.P. Bus-Stand
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
178
SUPREME COURT REPORTS
[2022] 8 S.C.R.
Management & Development Authority v. Central Empowered
Committee23, a three-Judge Bench of this Court emphasised the duty
of the State to create conceptual, procedural and institutional structures
to guide environmental regulation in compliance with the “environmental
rule of law”. The Court noted that such regulation must arise out of a
muti-disciplinary analysis between policy, regulatory and scientific
perspectives. The Court held:
“49. The environmental rule of law, at a certain level, is a facet of
the concept of the rule of law. But it includes specific features
that are unique to environmental governance, features which are
sui generis. The environmental rule of law seeks to create
essential tools — conceptual, procedural and institutional
to bring structure to the discourse on environmental
protection. It does so to enhance our understanding of
environmental challenges — of how they have been shaped
by humanity’s interface with nature in the past, how they
continue to be affected by its engagement with nature in
the present and the prospects for the future, if we were not
to radically alter the course of destruction which humanity’s
actions have charted. The environmental rule of law seeks
to facilitate a multi-disciplinary analysis of the nature and
consequences of carbon footprints and in doing so it brings
a shared understanding between science, regulatory
decisions and policy perspectives in the field of
environmental protection. It recognises that the “law”
element in the environmental rule of law does not make
the concept peculiarly the preserve of lawyers and Judges.
On the contrary, it seeks to draw within the fold all
stakeholders in formulating strategies to deal with current
challenges posed by environmental degradation, climate
change and the destruction of habitats. The environmental
rule of law seeks a unified understanding of these concepts.
There are significant linkages between concepts such as
sustainable development, the polluter pays principle and
the trust doctrine. The universe of nature is indivisible and
integrated. The state of the environment in one part of the earth
affects and is fundamentally affected by what occurs in another
23 (2021) 4 SCC 309
A
B
C
D
E
F
G
H
179
part. Every element of the environment shares a symbiotic
relationship with the others. It is this inseparable bond and connect
which the environmental rule of law seeks to explore and
understand in order to find solutions to the pressing problems which
threaten the existence of humanity. The environmental rule of
law is founded on the need to understand the consequences
of our actions going beyond local, State and national
boundaries. The rise in the oceans threatens not just
maritime communities. The rise in temperatures, dilution
of glaciers and growing desertification have consequences
which go beyond the communities and creatures whose
habitats are threatened. They affect the future survival of
the entire eco-system. The environmental rule of law
attempts to weave an understanding of the connections in
the natural environment which make the issue of survival
a unified challenge which confronts human societies
everywhere. It seeks to build on experiential learnings of
the past to formulate principles which must become the
building pillars of environmental regulation in the present
and future. The environmental rule of law recognises the
overlap between and seeks to amalgamate scientific
learning, legal principle and policy intervention.
Significantly, it brings attention to the rules, processes and
norms followed by institutions which provide regulatory
governance on the environment. In doing so, it fosters a
regime of open, accountable and
transparent decision
making on concerns of the environment. It fosters the
importance of participatory governance — of the value in
giving a voice to those who are most affected by
environmental policies and public projects. The structural
design of the environmental rule of law composes of
substantive, procedural and institutional elements. The tools
of analysis go beyond legal concepts. The result of the framework
is more than just the sum total of its parts. Together, the elements
which it embodies aspire to safeguard the bounties of nature against
existential threats. For it is founded on the universal recognition
that the future of human existence depends on how we conserve,
protect and regenerate the environment today.”
(emphasis supplied)
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
180
SUPREME COURT REPORTS
[2022] 8 S.C.R.
The Court also acknowledged the difficulty faced in implementing
such processes in the face of scientific uncertainty. However, it noted
that Courts cannot be stupefied into inaction due to scientific uncertainty
but must take decisions to protect the environment based on whatever
information is available. The Court held:
“53. However, even while using the framework of an environmental
rule of law, the difficulty we face is this — when adjudicating
bodies are called on to adjudicate on environmental infractions,
the precise harm that has taken place is often not susceptible to
concrete quantification. While the framework provides
valuable guidance in relation to the principles to be kept in
mind while adjudicating upon environmental disputes, it
does not provide clear pathways to determine the harm
caused in multifarious factual situations that fall for judicial
consideration. The determination of such harm requires
access to scientific data which is often times difficult to come
by in individual situations.
54…The point, therefore, is simply this — the environmental rule
of law calls on us, as Judges, to marshal the knowledge emerging
from the record, limited though it may sometimes be, to respond
in a stern and decisive fashion to violations of environmental law.
We cannot be stupefied into inaction by not having access
to complete details about the manner in which an
environmental law violation has occurred or its
full
implications. Instead, the framework, acknowledging the
imperfect world that we inhabit, provides a roadmap to deal
with environmental law violations, an absence of clear
evidence of consequences notwithstanding.”
(emphasis supplied)
32. The precautionary principle envisages that the State cannot
refuse to act to preserve the environment simply because all the scientific
data may not be available. If there is some data to suggest that
environmental degradation is possible, the State must step into action to
prevent it from taking place. Indeed, it was this thought that compelled
this Court in T.N. Godavarman (supra) to direct the State to identify
ESZs across India, so that steps can be taken to identify areas where
there is a greater possibility of environmental degradation and a plan is
A
B
C
D
E
F
G
H
181
put in place to prevent such degradation before it actually makes the
harm irreversible.
33. Mount Abu was identified as an ESZ, under the ESZ
Notification. The reason for doing this is because the State recognized
that environmental degradation of the fragile eco-system is a real
possibility in Mount Abu and the area surrounding it if action is not
immediately taken. A significant amount of soil erosion, air and water
pollution has already taken place due to the developmental activities.
The recitals in the ESZ Notification recognize the ecological importance
of Mount Abu since it contains both tropical dry deciduous forests and
evergreen forests; its flora and fauna comprise of several endemic and
rare species; and it also contains not only natural heritage such as Nakki
lake but also man-made heritage sites such as the Dilwara temples. The
ESZ notification required, inter alia, the State of Rajasthan to prepare
the ZMP 2030, so as to ensure that future development activity in the
region could be planned while accounting for potential environmental
degradation, following the precautionary principle. The ESZ notification
is backed by a statutory mandate of Union legislation. The Notification
is an enforceable charter for the preservation of the fragile eco-system
of Mount Abu. Every authority is duty bound to comply with its terms
and any action in breach must peril invalidation.
H Conclusion
34. Therefore, we hold that the NGT’s judgment and order dated
10 March 2021 and 29 July 2021 correctly directed the ZMP 2030 to be
modified to bring it into conformity with the ESZ Notification and the
precautionary principle. Specifically, it correctly upheld the Expert
Committee Report’s recommendation that no construction should be
allowed to take place on the appellant’s land.
35. For the above reasons, we have come to the conclusion that
there is no merit in the present appeal and it shall accordingly stand
dismissed.
Ankit Gyan
Appeal dismissed.
PRAGNESH SHAH v. DR. ARUN KUMAR SHARMA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]