,,,
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 Act [“NGT Actâ€] arise from judgments dated 10 March 2021 and 29 July 2021 of the,,,
National Green Tribunal [“NGTâ€]. By its judgment dated 10 March 2021, the NGT, on the basis of a report [“Expert Committee Reportâ€] dated 8",,,
December 2020 submitted by an Expert Committee, allowed an original application [Original Application No 312 of 2016] filed by the first respondent,",,,
which challenged the Zonal Master Plan 20305 [“ZMP 2030â€] prepared by the State of Rajasthan, for the Mount Abu Eco-sensitive Zone [“ESZâ€].",,,
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 review [Review Application No 26 of 2021] which had been filed by the appellant.",,,
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 Change [“MoEF&CCâ€] issued a Notification [“ESZ",,,
Notificationâ€] 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 1986 [“EP Actâ€] 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 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"").â€",,,
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 Plan [“ZMPâ€] 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:",,,
“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...â€,,,
5 The ESZ Notification also envisages a Tourism Master Pla [“TMPâ€] 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.,,,
(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.,,,
(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.â€,,,
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 Zoneâ€. 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 appellantâ€s land was again changed back to “Residential†and “Tourist Facilityâ€. 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 appellantâ€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 respondentâ€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 appellantâ€s land. To assess",,,
the claims made in the first respondentâ€s original application, the NGT constituted an Expert Committee consisting of two representatives of MoEF&CC,",,,
a representative of the School of Planning and Architecture, Delhi (since it had been engaged by the State of Rajasthan as a consultant), andÂ",,,
a representative of Central Pollution Control Board [“CPCBâ€]. 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,",,,
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
Near
STP
plant","24o34'38.14''N
72o43'57.77""E (±3m)
1139Â Â m;Â Â Two
domains       of land
at this site is    Â
available. Partially,    the
site           Â
has
slope>20° and partially
<20°.","Vacant/agriculture;
Open      Â
scrub/with
tree   Â
and    shrubs
along  the Â
hill  top
and the slopes.","This site is considered for the (i)
tourism center (ii) residential
buildings in the ZMP 2030.
The proposed site forÂ
residential buildings covers the
land of low slopes that are
geologically stable as well as the
land with a high slope domain that is
not geologically stable for
construction.
• At this site, the bedrock is hard
and compact with negligible
weathering. In the stable slope
region, no prominent fractures/joints
are developed.
• At places the measured slope
towards STP site was found >20
degree even the landscape is fragile
in terms of soil erodibility. Thus high
slope domains must be kept as
such.
• The proposed tourism facility
centre at the gentle slopes may be
allowed. But may disturb the
wildlife ecosystem.
• Although the low slopes domain
may be suitable for construction,
geologically. But this site is the
habitat of the wild animals. For
example, footprints of the sloth bear
were also observed during the field
visit. Therefore, any construction
may disturb the wildlife ecosystem.
Therefore, any construction must
not be allowed to preserve the
ecosystem of this region.
• The construction may be
allowed in the land having gentle,
i.e., stable slopes while the steep
slope region closes to the cliff of the
hill should be kept untouched.
Conclusion: Site is not suitable
for construction.
(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 1980 [“FC Actâ€] 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 Societyâ€) where construction has been allowed. In the case of the,,,
“Sunset Road Schemeâ€, the land use was for residential purposes while on the contrary, the appellant has admitted to converting the site in question",,,
for tourism and residential buildings under the ZMP 2030; and,,,
(ix) While on the one hand, the Expert Committee which comprises, inter alia, of environmental experts had considered each of the sites in Table 16 of the",,,
Expert Committee Report, the appellant has brought on record no evidence to establish any error or perversity in the Report which was accepted by the",,,
NGT.,,,
E Jurisdiction of NGT,,,
17 Sub-Section (1) of Section 14 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:",,,
“14. Tribunal to settle disputes.â€"(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.â€,,,
“15. Relief, compensation and restitution.â€"(1) The Tribunal may, by an order, provide,â€"",,,
(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.â€",,,
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 Foundation (2019) 18 SCC 494, 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.â€,,,
20 In another recent judgment in Municipal Corporation of Greater Mumbai v. Ankita Sinha and Others 2021 SCC OnLine SC 897, 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 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.,,,
[…],,,
N ame 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.
           Â,,,
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 plantâ€),",,,
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.â€"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.â€",,,
26 The precautionary principle finds its clearest elaboration in Principle 15 of the Rio Declaration on Environment and Development 1992, which states:",,,
“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats",,,
of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent",,,
environmental degradation.â€,,,
27 In M.C. Mehta v. Union of India (2004) 12 SCC 118, 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.â€,,,
(emphasis supplied),,,
28 In Research Foundation for Science Technology National Resource Policy v. Union of India (2005) 10 SCC 510, 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 developmentâ€, 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…â€,,,
29 This position has been reiterated by a three-Judge Bench of this Court in Hospitality Assn. of Mudumalai v. In Defence of Environment & Animals,,,
(2020) 10 SCC 589. The Court has held:,,,
“39…As was held by this Court in M.C. Mehta (Badkhal & Surajkund Lakes Matter) v. Union of India [M.C. Mehta (Badkhal & Surajkund Lakes,,,
Matter) v. Union of India, (1997) 3 SCC 715] the “precautionary principle†has been accepted as a part of the law of our land. Articles 21, 47,",,,
48-A and 51-A(g) of the Constitution give a clear mandate to the State to protect and improve the environment and to safeguard the forests,,,
and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wildlife,,,
and to have compassion for living creatures. The precautionary principle makes it mandatory for the State Government to anticipate, prevent",,,
and attack the causes of environmental degradation. In this light, we have no hesitation in holding that in order to protect the elephant population in the",,,
Sigur Plateau region, it was necessary and appropriate for the State Government to limit commercial activity in the areas falling within the elephant",,,
corridor.â€,,,
(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.â€,,,
(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 Management & Development Authority v. Central Empowered Committee (2021) 4 SCC 309, 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 lawâ€. 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 â€" conceptual, procedural",,,
and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental,,,
challenges â€" 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 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 â€" 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.â€",,,
(emphasis supplied),,,
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 â€" 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 â€" 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.â€,,,
(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 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 NGTâ€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 Reportâ€s",,,
recommendation that no construction should be allowed to take place on the appellantâ€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.",,,
