Supreme Court Upholds NGT Order on Mount Abu Eco-Sensitive Zone: Pragnesh Shah vs. Dr. Arun Kumar Sharma (12 January 2022)

Date of the Judgment: 12 January 2022
Citation: 2022 INSC 31
Judges: Dr. Justice Dhananjaya Y Chandrachud, J and A S Bopanna, J
Can developmental activities be restricted in an area declared as an Eco-Sensitive Zone (ESZ) to protect its fragile ecosystem? The Supreme Court of India addressed this question in a recent case concerning the Mount Abu ESZ. The court upheld the National Green Tribunal’s (NGT) decision to restrict construction on land owned by the appellant, affirming the importance of environmental protection. The judgment was delivered by a two-judge bench comprising Dr. Justice Dhananjaya Y Chandrachud and Justice A S Bopanna.

Case Background

The case revolves around a parcel of land owned by the appellant, Pragnesh Shah, in Mount Abu, Rajasthan. The land was initially designated as “Residential” and “Tourist Facility” in the Zonal Master Plan 2025. However, the Union Government, recognizing the ecological importance of Mount Abu, declared it an Eco-Sensitive Zone (ESZ) on 25 June 2009, through the Ministry of Environment, Forest and Climate Change (MoEF&CC). This notification mandated the preparation of a new Zonal Master Plan (ZMP) to regulate activities within the ESZ.

The appellant’s grievance arose when the draft ZMP 2030 changed the land status to “Agricultural Zone.” Although this was later reverted to “Residential” and “Tourist Facility,” the ZMP 2030 was challenged by the first respondent, Dr. Arun Kumar Sharma, on the grounds that it failed to adequately protect the environment and heritage sites. The first respondent contended that the ZMP 2030 permitted illegal changes in land use, contradicting the ESZ Notification.

Timeline

Course of Proceedings

The first respondent challenged the ZMP 2030 before the NGT, arguing that it violated the ESZ Notification by permitting illegal land use changes and failing to protect heritage sites and water bodies. The NGT, to assess these claims, initially formed an Expert Committee. However, finding the initial report unsatisfactory, the NGT reconstituted the committee. The reconstituted Expert Committee submitted a report that, based on site visits and analysis of satellite images, declared the appellant’s land unsuitable for construction due to its ecological sensitivity and the presence of wildlife. The NGT accepted this report and directed the ZMP 2030 to be modified accordingly. The appellant’s review application was subsequently dismissed, leading to the present appeals before the Supreme Court.

Legal Framework

The legal framework for this case is primarily based on the Environment (Protection) Act 1986 (EP Act) and the National Green Tribunal Act 2010 (NGT Act). The ESZ Notification was issued under Section 3(1) read with Section 3(2)(v) and (xiv) of the EP Act and Rule 5(3) of the Environment Protection Rules 1986. The notification emphasizes the ecological importance of Mount Abu, citing the presence of diverse flora and fauna, natural heritage like Nakki Lake, and man-made heritage like Dilwara temples.

The ESZ Notification mandates the preparation of a Zonal Master Plan (ZMP) within two years of its publication. It also calls for a Tourism Master Plan (TMP) as part of the ZMP, based on a detailed Carrying Capacity Study of the ESZ. Further, the notification specifies regulations for various activities, including water management, development on hill slopes, and conservation of heritage sites.

The NGT Act, particularly Section 14, grants the NGT jurisdiction over cases involving substantial questions relating to the environment arising out of the implementation of the enactments specified in Schedule I, which includes the EP Act. Section 15(1)(c) of the NGT Act empowers the NGT to provide for the restoration of the environment. Section 20 mandates the NGT to apply the principles of sustainable development, the precautionary principle, and the polluter pays principle.

The relevant provisions are:

• “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;”
• “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”).”
• “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 …”
• “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.”
• “15. Relief, compensation and restitution .—(1) The Tribunal may, by an order, provide, — (c) for restitution of the environment for such area or areas, as the Tribunal may think fit.”
• “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.”

Arguments

Appellant’s Submissions:

• The NGT exceeded its jurisdiction by directing amendments to the ZMP 2030, as its powers are limited to addressing substantial environmental questions arising from statutes listed in Schedule I of the NGT Act.
• The Expert Committee’s report was flawed. The appellant alleged that the initial draft report contained a column on biodiversity, which was removed in the final report. This column, according to the appellant, showed the presence of wildlife on his land, which was also present on another site, the “Sunrise Housing Society.” However, the other site was cleared for construction, while the appellant’s land was not. The appellant argued that the final report was manipulated to favor others over him.
• The appellant claimed that the Expert Committee Report was biased, as it cleared other similar sites for construction while denying clearance to the appellant’s land, indicating a “pick and choose” approach.

Respondents’ Submissions:

• The ESZ Notification, issued following the Supreme Court’s intervention in T.N. Godavarman v. Union of India, recognizes the ecological significance of Mount Abu.
• The ZMP 2030 was issued in accordance with the ESZ Notification.
• The Expert Committee comprised domain experts who conducted thorough site visits and analysis before identifying issues with specific sites.
• The Expert Committee Report is based on the precautionary principle and a scientific approach, warranting deference.
• The NGT Act’s Schedule I includes the Forest Conservation Act 1980 and the EP Act, under which the ESZ notification was issued.
• The NGT’s order to reconstitute the Expert Committee was not challenged by the appellant and has therefore attained finality.
• The Draft Report relied upon by the appellant was an incomplete internal document and not in the public domain. Moreover, the Draft Report also indicated that the appellant’s site was unsuitable.
• There is a valid distinction between the appellant’s site and others where construction was permitted. The appellant’s site was intended for tourism and residential buildings, while other sites were either already residential or vacant.
• The appellant has not presented any evidence to demonstrate errors or perversity in the Expert Committee Report.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues but addressed the following points:

1. Whether the NGT acted beyond its jurisdiction in directing the amendment of the ZMP 2030.
2. Whether the Expert Committee Report was flawed and discriminatory.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• T.N. Godavarman v. Union of India: The Supreme Court had appointed Expert Committees to identify ESZs across India, which led to Mount Abu being declared an ESZ.
• Mantri Techzone (P) Ltd. v. Forward Foundation [(2019) 18 SCC 494]: This case affirmed the broad powers of the NGT under Section 15(1)(c) of the NGT Act to take restorative measures in the interest of the environment.
• Municipal Corporation of Greater Mumbai v. Ankita Sinha and Others [2021 SCC OnLine SC 897]: This case held that the NGT can exercise suo motu jurisdiction and has wide discretionary powers to secure the ends of justice.
• M.C. Mehta v. Union of India [(2004) 12 SCC 118]: This case emphasized the importance of the precautionary principle, stating that the State must act to prevent environmental harm even in the face of scientific uncertainty.
• Research Foundation for Science Technology National Resource Policy v. Union of India [(2005) 10 SCC 510]: This case established that the precautionary principle is part of Indian jurisprudence, arising from Articles 47, 48-A, and 51-A(g) of the Constitution.
• Hospitality Assn. of Mudumalai v. In Defence of Environment & Animals [(2020) 10 SCC 589]: This case reiterated the State’s duty to protect the environment and to limit commercial activity in ecologically sensitive areas.
• H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee [(2021) 4 SCC 309]: This case emphasized the duty of the State to create conceptual, procedural, and institutional structures to guide environmental regulation.

Legal Provisions:

• Section 3 of the Environment (Protection) Act, 1986: Empowers the Union Government to take measures to protect and improve the environment.
• Section 14 of the National Green Tribunal Act, 2010: Grants the NGT jurisdiction over cases involving substantial questions relating to the environment.
• Section 15(1)(c) of the National Green Tribunal Act, 2010: Empowers the NGT to provide for the restoration of the environment.
• Section 20 of the National Green Tribunal Act, 2010: Mandates the NGT to apply the principles of sustainable development, the precautionary principle, and the polluter pays principle.

Judgment

The Supreme Court upheld the NGT’s decision, finding no merit in the appellant’s arguments. The Court held that the NGT did not exceed its jurisdiction and that the Expert Committee Report was valid and based on sound reasoning. The court emphasized the importance of the precautionary principle, which mandates that the State must act to prevent environmental harm even in the face of scientific uncertainty.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• T.N. Godavarman v. Union of India*: The Court cited this case to highlight the origin of the ESZ notification and the need to protect ecologically sensitive areas.
• Mantri Techzone (P) Ltd. v. Forward Foundation [(2019) 18 SCC 494]*: The Court relied on this case to affirm the broad powers of the NGT under Section 15(1)(c) of the NGT Act.
• Municipal Corporation of Greater Mumbai v. Ankita Sinha and Others [2021 SCC OnLine SC 897]*: The Court cited this case to support the view that the NGT can exercise suo motu jurisdiction and has wide discretionary powers to secure the ends of justice.
• M.C. Mehta v. Union of India [(2004) 12 SCC 118]*: The Court used this case to emphasize the importance of the precautionary principle and the need to act to prevent environmental harm even in the face of scientific uncertainty.
• Research Foundation for Science Technology National Resource Policy v. Union of India [(2005) 10 SCC 510]*: The Court cited this case to establish that the precautionary principle is part of Indian jurisprudence.
• Hospitality Assn. of Mudumalai v. In Defence of Environment & Animals [(2020) 10 SCC 589]*: The Court relied on this case to reiterate the State’s duty to protect the environment and to limit commercial activity in ecologically sensitive areas.
• H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee [(2021) 4 SCC 309]*: The Court referred to this case to highlight the duty of the State to create structures to guide environmental regulation.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to protect the fragile ecosystem of Mount Abu. The Court emphasized the precautionary principle, which requires the State to act to prevent environmental harm even when there is scientific uncertainty. The Court acknowledged the ecological importance of Mount Abu, citing its diverse flora and fauna, natural heritage, and man-made heritage sites. The Court also noted that the Expert Committee Report was based on careful analysis and site visits, and that there was a material difference in the location and suitability of the sites for construction. The Court’s decision was also influenced by the fact that the NGT’s order to reconstitute the Expert Committee was not challenged by the appellant and has therefore attained finality.

Logical Reasoning:

The court’s reasoning was based on the following:

• The NGT has the jurisdiction to assess the conformity of the ZMP 2030 with the ESZ Notification.
• The Expert Committee Report was based on a scientific approach and site visits, and there was no evidence of bias or manipulation.
• The precautionary principle mandates that the State must act to prevent environmental harm, even in the face of scientific uncertainty.
• The ecological importance of Mount Abu warrants the protection of its fragile ecosystem.

The court also considered the following points:

• The Draft Report was an internal document and not in the public domain.
• There was a valid distinction between the appellant’s site and other sites where construction was permitted.

The Supreme Court quoted the following from the judgment:

• “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.”
• “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.”
• “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.”

Key Takeaways

• The NGT has broad powers to protect and restore the environment, and its decisions should be given due deference.
• The precautionary principle is a cornerstone of environmental jurisprudence, requiring the State to act proactively to prevent environmental harm.
• Expert Committee Reports, based on scientific analysis and site visits, are crucial in environmental decision-making.
• The ecological importance of a region must be a primary consideration in development planning.
• Development activities in eco-sensitive zones must be strictly regulated to protect the environment.

Directions

The Supreme Court directed that the ZMP 2030 should be modified to bring it into conformity with the ESZ Notification and the precautionary principle. Specifically, it upheld the Expert Committee Report’s recommendation that no construction should be allowed to take place on the appellant’s land.

Development of Law

The ratio decidendi of this case is that the NGT has the power to direct the modification of a Zonal Master Plan to bring it in conformity with the ESZ Notification and the precautionary principle. The Supreme Court has also reaffirmed the importance of the precautionary principle in environmental law and the need to protect ecologically sensitive areas. This case reinforces the NGT’s role as a key player in environmental protection and its power to ensure that development activities are carried out in a sustainable manner. There is no change in the previous position of law but the case reinforces the importance of the precautionary principle.

Conclusion

The Supreme Court’s decision in Pragnesh Shah vs. Dr. Arun Kumar Sharma reaffirms the importance of environmental protection and the application of the precautionary principle in ecologically sensitive zones. The court upheld the NGT’s order to restrict construction on the appellant’s land, emphasizing the need for sustainable development and the protection of fragile ecosystems. This judgment serves as a reminder that development activities must be balanced with the need to preserve the environment for future generations.

Category

Parent Category: Environmental Law

Child Categories:

• Eco-Sensitive Zones
• Precautionary Principle
• National Green Tribunal
• Environment (Protection) Act, 1986
• National Green Tribunal Act, 2010

Parent Category: National Green Tribunal Act, 2010

Child Categories:

• Section 14, National Green Tribunal Act, 2010
• Section 15, National Green Tribunal Act, 2010
• Section 20, National Green Tribunal Act, 2010

Parent Category: Environment (Protection) Act, 1986

Child Categories:

• Section 3, Environment (Protection) Act, 1986

FAQ

Q: What is an Eco-Sensitive Zone (ESZ)?
A: An ESZ is an area notified by the government around protected areas, national parks, and wildlife sanctuaries to regulate and manage activities to protect the environment.

Q: What is the precautionary principle?
A: The precautionary principle requires the State to take action to prevent environmental harm, even if there is scientific uncertainty about the extent of the harm.

Q: What is the role of the National Green Tribunal (NGT)?
A: The NGT is a specialized body that handles cases related to environmental protection and conservation. It has the power to direct the restoration of the environment and to ensure that development activities are carried out in a sustainable manner.

Q: What is the significance of the Mount Abu ESZ?
A: Mount Abu is an ecologically significant area with diverse flora and fauna, natural heritage, and man-made heritage sites. It was declared an ESZ to protect it from environmental degradation.

Q: What does this judgment mean for development in ESZs?
A: This judgment reinforces that development activities in ESZs must be strictly regulated to protect the environment. The precautionary principle must be applied, and the State must act to prevent environmental harm, even in the face of scientific uncertainty.