Pragnesh Shah vs Dr. Arun Kumar Sharma & Ors.

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]

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 ecosystem 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 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.