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

Date of the Judgment: January 12, 2022

Citation: (2022) INSC 24

Judges: Dr. Justice Dhananjaya Y Chandrachud, J and A S Bopanna, J.

Can a developmental plan be modified to protect a fragile ecosystem? The Supreme Court of India recently addressed this question in a case concerning the Mount Abu Eco-Sensitive Zone (ESZ). The court upheld the National Green Tribunal’s (NGT) decision, which directed modifications to the Zonal Master Plan 2030 (ZMP 2030) to align with the ESZ notification and the precautionary principle. The core issue revolved around whether the NGT had the jurisdiction to order such modifications and whether the NGT correctly upheld the expert committee report, which had recommended against construction on the appellant’s land. The judgment was delivered by a two-judge bench comprising of Dr. Justice Dhananjaya Y Chandrachud and Justice A S Bopanna.

Case Background

The appellant, Pragnesh Shah, owned land in Mount Abu, Rajasthan, which was initially designated as “Residential” and “Tourist Facility” in the Zonal Master Plan 2025. On June 25, 2009, the Union Government, through the Ministry of Environment, Forest and Climate Change (MoEF&CC), issued a notification declaring Mount Abu and its surrounding area as an ESZ. This ESZ Notification was issued under the Environment (Protection) Act, 1986, emphasizing the ecological importance of Mount Abu, which includes tropical dry deciduous forests, evergreen forests, and various endemic and rare species, as well as natural and man-made heritage sites. The notification mandated the preparation of a new Zonal Master Plan (ZMP) to regulate activities within the ESZ. The ZMP 2030 was notified by the State of Rajasthan on October 29, 2015, following approval by the MoEF&CC on September 28, 2015. The appellant’s land was initially changed to “Agricultural Zone” in a draft of ZMP 2030 but was later reverted to “Residential” and “Tourist Facility” after objections. The ZMP 2030 was challenged by the first respondent, Dr. Arun Kumar Sharma, on the grounds that it did not conform to the ESZ Notification by failing to discourage construction near heritage sites, conserve water bodies, and permitting illegal land use changes.

Timeline:

Course of Proceedings

The first respondent challenged the ZMP 2030 before the NGT, arguing that it violated the ESZ Notification. The NGT, on November 26, 2018, formed an Expert Committee to assess the claims and compare the ZMP 2030 with the ESZ Notification. The initial report submitted by the Expert Committee on September 4, 2019, was rejected by the NGT on November 7, 2019, because the committee had assumed the ZMP to be conclusive. The NGT then reconstituted the Expert Committee, which submitted a final report on December 8, 2020. This report analyzed land use changes using high-resolution satellite images and site visits, specifically reviewing ten identified sites, including the appellant’s land. The NGT accepted the Expert Committee’s report, which found the appellant’s land unsuitable for construction due to its ecological sensitivity. The NGT directed that the ZMP 2030 be modified to align with the ESZ Notification within three months. The appellant’s review application was dismissed on July 29, 2021, leading to the present appeals before the Supreme Court.

Legal Framework

The core legal framework for this case is based on the Environment (Protection) Act, 1986 (EP Act), and the ESZ Notification issued under it. The ESZ Notification was issued by the Union Government in exercise of powers conferred by sub-Section (1) read with Clause (v) and Clause (xiv) of Section 3(2) of the EP Act and Rule 5(3) of the Environment Protection Rules 1986. The preamble to the ESZ Notification emphasizes the ecological importance of Mount Abu, which includes tropical dry deciduous forests, evergreen forests, endemic and rare species, and natural and man-made heritage sites. The ESZ Notification mandates the preparation of a Zonal Master Plan (ZMP) for the restoration of denuded areas, conservation of water bodies, management of catchment areas, and other aspects of ecology and environment. Clause 3(1)(i) of the ESZ Notification requires the State Government to prepare the ZMP within two years from the date of publication of the notification. The notification also mandates a Tourism Master Plan (TMP) to be prepared by the Department of Tourism of the Government of Rajasthan, which would be a component of the ZMP. The ESZ Notification also regulates activities such as construction on hill slopes, water management, and protection of heritage sites. The National Green Tribunal Act, 2010 (NGT Act) provides the NGT with the jurisdiction to hear cases involving substantial questions relating to the environment arising out of the implementation of the enactments specified in Schedule I of the NGT Act, which includes the EP Act and the Forest Conservation Act, 1980 (FC Act). Section 15(1)(c) of the NGT Act empowers the NGT to provide for the restoration of the environment.

The relevant provisions are:

• Section 3(2)(v) of the Environment (Protection) Act, 1986: Empowers the Central Government to take measures for protecting and improving the environment.
• Section 3(2)(xiv) of the Environment (Protection) Act, 1986: Empowers the Central Government to take measures for restricting areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.
• Clause 3(1)(i) of the ESZ Notification: Mandates the preparation of a Zonal Master Plan for the Eco-sensitive Zone by the State Government.
• Section 14 of the National Green Tribunal Act, 2010: Grants the NGT jurisdiction over civil cases involving substantial questions relating to the environment arising out of the implementation of the enactments specified in Schedule I.
• 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: Requires the Tribunal to apply the principles of sustainable development, the precautionary principle, and the polluter pays principle.

Arguments

Appellant’s Arguments (Mr. Mukul Rohatgi, Senior Counsel):

• Jurisdiction of NGT: The NGT has limited jurisdiction under Section 14 of the NGT Act to address substantial questions of the environment arising from statutes listed in Schedule I of the NGT Act. The NGT exceeded its jurisdiction by directing amendments to the ZMP 2030.

• Merits of Expert Committee Report:

  • Draft Report Manipulation: The Expert Committee prepared a draft report in July 2020, which was not presented to the NGT. This draft report, obtained through a Right to Information request, included a column on biodiversity that was missing from the final Expert Committee Report. The missing column contained crucial information about wildlife movement, particularly the sloth bear and panther, which was also mentioned for another site (“Sunrise Housing Society”). The appellant alleged that the biodiversity column was deliberately removed to favor others over the appellant.

  • Pick and Choose Process: The Expert Committee Report arbitrarily granted clearances to other similar sites while denying clearance to the appellant’s land, indicating a “pick and choose” approach.

Respondents’ Arguments (Mr. Amit Sibal, Senior Counsel):

• Ecological Importance: The ESZ Notification, issued following the Supreme Court’s intervention in T.N. Godavarman, recognizes the ecological importance of Mount Abu, with its tropical dry deciduous and evergreen forests.

• ZMP 2030 Compliance: The ZMP 2030 was issued in accordance with the ESZ Notification.

• Expert Committee Expertise: The Expert Committee comprised domain experts, town planners, and government officials who carefully analyzed the specified sites after site visits.

• Precautionary Principle: The Expert Committee Report is based on the precautionary principle and a scientific approach, warranting deference.

• Schedule I of NGT Act: Schedule I of the NGT Act includes the FC Act and the EP Act.

• ESZ Notification Authority: The ESZ Notification was issued under the EP Act.

• Reconstitution of Expert Committee: The NGT order of November 7, 2019, which rejected the initial report and reconstituted the committee, was not challenged and therefore attained finality.

• Draft Report Invalidity: The appellant’s reliance on the Draft Report is invalid as it was an incomplete, internal document. Further, the Draft Report also indicated that the site was not suitable.

• Site Differentiation: A valid distinction exists between the appellant’s site and others, such as the “Sunset Road Scheme” and “Sunrise Housing Society.” The appellant had admitted to converting the site for tourism and residential buildings under the ZMP 2030, while the “Sunset Road Scheme” was for residential purposes.

• Lack of Evidence: The appellant has failed to provide any evidence to establish any error or perversity in the Expert Committee Report, which was accepted by the NGT.

[TABLE] of Submissions:

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the NGT has the jurisdiction to direct the amendment of the ZMP 2030.
2. Whether the Expert Committee Report was flawed or discriminatory in its assessment of the appellant’s land.

Treatment of the Issue by the Court:

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

On the jurisdiction of the NGT:

• Mantri Techzone (P) Ltd. v. Forward Foundation, (2019) 18 SCC 494 (Supreme Court of India): The Court noted that Section 15(1)(c) of the NGT Act affords broad powers to the NGT 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 (Supreme Court of India): The Court held that the NGT can exercise suo motu jurisdiction and has wide powers to secure the ends of justice in environmental matters. The NGT’s mandate is to prevent damage to the environment and to protect it.

On the Precautionary Principle:

• Principle 15 of the Rio Declaration on Environment and Development 1992: This principle states 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.
• M.C. Mehta v. Union of India, (2004) 12 SCC 118 (Supreme Court of India): The Court highlighted that the precautionary principle requires the State to act for preventing actual 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 (Supreme Court of India): The Court noted 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 (Supreme Court of India): The Court reiterated that the precautionary principle makes it mandatory for the State Government to anticipate, prevent, and attack the causes of environmental degradation.
• H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee, (2021) 4 SCC 309 (Supreme Court of India): The Court emphasized the duty of the State to create structures to guide environmental regulation and that Courts cannot be stupefied into inaction due to scientific uncertainty.

On the Environment (Protection) Act, 1986:

• Section 3(2)(v) of the Environment (Protection) Act, 1986: Empowers the Central Government to take measures for protecting and improving the environment.
• Section 3(2)(xiv) of the Environment (Protection) Act, 1986: Empowers the Central Government to take measures for restricting areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.

On the National Green Tribunal Act, 2010:

• Section 14 of the National Green Tribunal Act, 2010: Grants the NGT jurisdiction over civil cases involving substantial questions relating to the environment arising out of the implementation of the enactments specified in Schedule I.
• 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: Requires the Tribunal to apply the principles of sustainable development, the precautionary principle, and the polluter pays principle.

[TABLE] of Authority Consideration:

Judgment

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

How each authority was viewed by the Court?

• The Supreme Court followed Mantri Techzone (P) Ltd. v. Forward Foundation [(2019) 18 SCC 494]* to emphasize the broad powers of the NGT under Section 15(1)(c) of the NGT Act for environmental restoration.
• The Supreme Court followed Municipal Corporation of Greater Mumbai v. Ankita Sinha and Others [2021 SCC OnLine SC 897]* to highlight the NGT’s suo motu jurisdiction and wide powers to secure environmental justice.
• The Supreme Court cited Principle 15 of the Rio Declaration on Environment and Development 1992 as the basis for the precautionary principle.
• The Supreme Court followed M.C. Mehta v. Union of India [(2004) 12 SCC 118]* to emphasize the State’s duty to act to prevent environmental harm even with scientific uncertainty.
• The Supreme Court followed Research Foundation for Science Technology National Resource Policy v. Union of India [(2005) 10 SCC 510]* to establish the precautionary principle as part of Indian jurisprudence.
• The Supreme Court followed Hospitality Assn. of Mudumalai v. In Defence of Environment & Animals [(2020) 10 SCC 589]* to reiterate the State’s duty to anticipate and prevent environmental degradation.
• The Supreme Court followed H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee [(2021) 4 SCC 309]* to emphasize the State’s duty to create structures to guide environmental regulation and that courts cannot be stupefied into inaction due to scientific uncertainty.
• The Supreme Court cited Section 3(2)(v) of the Environment (Protection) Act, 1986 as the source of power for the Central Government to take measures for protecting and improving the environment.
• The Supreme Court cited Section 3(2)(xiv) of the Environment (Protection) Act, 1986 as the source of power for the Central Government to take measures for restricting areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.
• The Supreme Court cited Section 14 of the National Green Tribunal Act, 2010 as the source of jurisdiction for the NGT.
• The Supreme Court cited Section 15(1)(c) of the National Green Tribunal Act, 2010 as the source of power for the NGT to provide for the restoration of the environment.
• The Supreme Court cited Section 20 of the National Green Tribunal Act, 2010 as the source of the requirement for the NGT to apply the principles of sustainable development, the precautionary principle, and the polluter pays principle.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the need to protect the fragile ecosystem of Mount Abu, as mandated by the ESZ Notification and the precautionary principle. The Court emphasized the importance of acting to prevent environmental harm, even in the face of scientific uncertainty. The Court also relied on the expertise of the Expert Committee and the validity of its report. The Court rejected the appellant’s argument that the NGT exceeded its jurisdiction, stating that the NGT is empowered to ensure compliance with environmental regulations.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio:

Logical Flowchart:

Decision

The Supreme Court dismissed the appeal, upholding the NGT’s order to modify the ZMP 2030 to align with the ESZ Notification. The Court found no merit in the appellant’s arguments that the NGT exceeded its jurisdiction or that the Expert Committee Report was flawed or discriminatory. The Supreme Court emphasized the importance of the precautionary principle in environmental law and the need to protect fragile ecosystems.

Key Takeaways

• The National Green Tribunal (NGT) has the jurisdiction to direct modifications to Zonal Master Plans (ZMP) to ensure compliance with Eco-Sensitive Zone (ESZ) notifications.
• Expert Committee Reports, when based on authentic data, site visits, and scientific analysis, are given due deference.
• The precautionary principle is paramount in environmental law, requiring action to prevent environmental harm even in the face of scientific uncertainty.
• The courts prioritize the protection of fragile ecosystems over developmental activities.