National Green Tribunal Act, 2010 – ss. 14, 15, 17 and Schedules – Environment Protection Act, 1986 – Jurisdiction of the NGT – Victim was driving a car with her young daughter on the Highway – An over-mining resulted in the destruction of a small hill by the side of the National Highway – The resultant debris and a part of the hill collapsed and slid down to the road, claiming the lives of the victim and her daughter – The NGT imposed a joint penalty of Rs.50 lakhs for causing environmental damage on NHAI and the persons who carried out the cutting of the hill – Further, they were also directed to pay jointly and severally amount of Rs. 15 lakhs towards compensation to the legal representatives of the deceased and her daughter – Also, an amount of Rs. 10 lakhs was ordered to be deposited for plantation of trees in order to restore damage caused to environment – It was contended that NGT has narrow and circumscribed jurisdiction in regard to issuing directions as well as ordering compensation – Held: A conjoint reading of ss. 14, 15, and the Schedules would lead one to infer that the NGT has circumscribed jurisdiction to deal with, adjudicate, and wherever needed, direct measures such as payment of compensation, or make restitutionary directions in cases where the violation (i.e. harm caused due to pollution or exposure to hazards, etc.) are the result of an infraction of any enactment listed in the first schedule – However, the wide language of s.15(4) enables the Tribunal (NGT) to direct, inter alia, payment of compensation,”having regard to the damage to public health, property and environment” – This interpretation is borne out by a reading of s.17(2) regarding the apportionment of liability for payment of compensation – Under ss.15(1)(b) and 15(1)(c), the NGT has the power to make directions and provide for “restitution of property damaged and for restitution of the environment for such area as the Tribunal may think fit” – Further, s.17(1) refers to first schedule enactments, it talks of death of, or injury to, any person “or damage to any property or environment” which “has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment” in Schedule I – One of the enactments is Environment Protection Act, 1986 – Environmental clearance is necessary even for minor mineral extraction where the area of operation is less than 5 hectares – In the instant case, there was violation of EPA, because there was mining lease covered an area in excess of 5 hectares – There is nothing on record to show that the relevant clearance was obtained – Therefore, the facts of the present case disclose violation of the EPA – This means that the NGT’s jurisdiction u/s. 15(1)(a) and s.17 cannot be disputed and NGT correctly assumed jurisdiction, having regard to the nature of the accident in the facts of the case.
National Green Tribunal Act, 2010 – Environment Protection Act, 1986 – National Highways Act, 1956 – National Highways Authority of India Act, 1988 – An over-mining resulted in the destruction of a small hill by the side of the National Highway – The resultant debris and a part of hill collapsed and slid down to the road, claiming lives of a woman and her daughter – National Green Tribunal directed payment of compensation towards death and damages towards restitution – Propriety of – Held: A statutory corporation or local authority can be held liable in tort for injury occasioned on account of omission to oversee, or defective supervision of its activities contracted out to another agency – In the instant case, having regard to the duty imposed on the NHAI by virtue of ss. 4 and 5 of the Highway Act r/w. s. 16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, including the stretch upon which accident occurred – The report of Sub-Divisional Officer highlighted the deficiencies, also NHAI’s correspondence with the person carrying out extraction of minor minerals by cutting hills, reveal that authorities were aware of the danger and likelihood of risk to human life – The failure of the NHAI to ensure remedial action and likewise failure by person carrying out mineral extraction, to take measures to prevent the accident, prima facie disclose their liability – Therefore, the directions in this regard by the NGT, making NHAI and the person carrying out extraction of mineral to pay Rs. 15 lakhs to legal representatives of the deceased is justified – Further, the restitutionary order by the NGT, cannot be faulted. National Green Tribunal Act, 2010 – Environment Protection Act, 1986 – National Green Tribunal concluded that no development and construction should be carried out within 100 feet of a ‘lowest slope i.e., incline of any hill within its territorial limits, as well as hill-tops’ – Propriety of – Held: The decisions of the Supreme Court in All Dimasa Students Union case, Mantri Technoze Pvt. Ltd. Case, the Hanuman Laxman Aroskar case and the Tamil Nadu Pollution Control Board case all show that the NGT resorted to the appointment of technical and scientific experts in the relevant field, who studied the issue, made site inspections, and furnished reports – Such reports were subjected to discussion by the parties before the NGT, who were also given the opportunity of objecting to or making representations against such reports – Based on a final consideration of all these materials, and the submissions of parties before it, the NGT proceeded to issue directions – However, in the instant case, what NGT had before it was the report of the SDM and a report commissioned about the nature of the incident – Based on these limited inputs, without any rationale and based on no scientific or technical evidence, or experts’ opinion, the Tribunal concluded that development and construction should not be carried out within 100 feet of ‘lowest slope i.e. incline of any hill within its territorial limits, as well as hill-tops’ – As a result, the directions issued by the Tribunal were improper and procedurally indefensible – Therefore, the said directions are set aside.
National Green Tribunal Act, 2010 – Environment Protection Act, 1986 – The order/ notification dated 14.11.2017 of the State of Maharashtra, issued u/s. 154 of the Maharashtra Regional and Town Planning Act, 1966 – Legality of – Held: The State of Maharashtra has not shown any material or file containing the reasons behind the directive of 14.11.2017 – These directions were consequential to, and solely based on the directions of the NGT – The NGT directions with regard to no development and construction within 100 feet of a ‘lowest slope i.e., incline of any hill within its territorial limits, as well as hill tops’, were not based on any scientific evidence or report of any technical expert – The impugned notification does not specify what constitutes ‘hills’ – This makes the directions not only vague but also makes them arbitrary as they can be applied at will by the concerned authorities – These directions in the notification, only underlines the lack of any application of mind on the part of the State – Consequently the directions issued under the notification u/s. 154 (dated 14.11.2017) are quashed.
Disposing of the appeals, the Court
HELD: Jurisdiction of the NGT
1. A conjoint reading of Sections 14, 15, and the Schedules of National Green Tribunal Act, 2010 would lead one to infer that the NGT has circumscribed jurisdiction to deal with, adjudicate, and wherever needed, direct measures such as payment of compensation, or make restitutionary directions in cases where the violation (i.e. harm caused due to pollution or exposure to hazards, etc.) are the result of infraction of any enactment listed in the first schedule. Yet, that interpretation, in the opinion of this court, is not warranted. [Para 36][1085-D-E]
2. The reference to Schedule II, in Section 15(4) is not merely by way of events which are actionable in relation to harm caused due to the acts resulting in violation of any enactment under Schedule I. The wide language of that provision enables the tribunal (NGT) to direct, inter alia, payment of compensation, “having regard to the damage to public health, property, and environment”. This interpretation is borne out by a reading of Section 17(2) regarding the apportionment of liability for payment of compensation. [Para 37][1085-F]
3. It is noteworthy that this court clearly held that under Section 15(1)(b) and 15(1)(c), the NGT has the power to make directions and provide for “restitution of property damaged and for restitution of the environment for such area or areas as the Tribunal may think fit. It is noteworthy that Section 15(1)(b) & (c) have not been made relatable to Schedule I enactments of the Act.” Though a direction for compensation under Section 15(1)(a) is relatable to violation of enactments specified under the first Schedule, the power under Section 17 appears to be cast in wider terms. [Para 43][1089-F]
4. Section 17 (1) refers to first schedule enactments; it talks of the death of, or injury to, any person “or damage to any property or environment” which “has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment” in Schedule I. One of the enactments is the Environment Protection Act, 1986 (EPA). [Para 44][1089-G-H]
5. By virtue of a notification dated 14.08.2018 published by the Government, environmental clearance is necessary even for minor mineral extraction where the area of operation is less than
5 hectares; the procedure has been outlined under Appendix XI of that notification. Clearly, therefore, mining of even minor minerals, when resorted to on a large scale (i.e., where more than a few leases or permits are granted), has a potential impact on the environment. In the facts of this case, the State had granted no less than 62 minor mineral permits in the vicinity; unauthorized activity (in the form inter alia, of over-mining and piling of debris) had resulted in the imposition of penalty. Clearly, there was violation of the EPA in the present case, because the person carrying out mineral extraction i.e. fifth respondent's mining lease covered an area in excess of 5 hectares; it fell within the regulatory notification of 2006. There is nothing on record to show that the relevant clearance was obtained by fifth respondent. Plainly, therefore, the facts of the present case disclosed violation of the EPA- an enactment listed in Schedule I of the NGT Act. This meant that the NGT’s jurisdiction under Section 15(1)(a) and Section 17 could not have been disputed. [Para 50][1096-FG; 1097-A-B]
6. The EPA effectively enunciates the critical legislative policy for environment protection. It changes the narrative and emphasis from a narrow concept of pollution control to a wider facet of environment protection. The expansive definition of environment that includes water, air and land “and the interrelation which exist among and between water, air and land, other human creatures, plants, micro-organisms and property” gives an indication of the wide powers conferred on the Central Government. A wide net is cast over the environment related laws. The EPA also empowers the central government to comprehensively control environmental pollution by industrial and related activities. For these reasons, and in view of the above discussion, it is held that the NGT correctly assumed jurisdiction, having regard to the nature of the accident in the facts of this case. [Para 51][1097-D-F]
Was the direction to pay compensation towards death, and damages towards restitution justified?
7. Having regard to the duty imposed on the NHAI by virtue of Sections 4 and 5 of the National Highways Act, 1956 read with Section 16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, including the stretch upon which the accident occurred. The report of the sub-divisional officer clearly shows that inspection reports were furnished to the NHAI shortly before the incident, highlighting the deficiencies; also, the NHAI’s correspondence with fifth respondent, and the local administration, reveal that it was aware of the danger and likelihood of risk to human life, and the foreseeability of the event that actually occurred later. Further, letters addressed by the local administration and the NHAI to fifth respondent similarly show that it was incumbent upon him to take remedial action. The failure of the NHAI to ensure remedial action, and likewise the failure by fifth respondent to take measures to prevent the accident, prima facie, disclose their liability. [Para 65][1110-G-H; 1111-A-B]
8. The section 18(1) clearly implies that an application without impleading the legal heirs cannot be rejected. At the most, the tribunal has to implead all legal heirs. In the present case, that procedure was not followed. However, the legal heirs have instituted a suit. The ends of justice would be served if a direction is issued to the concerned Court to revive and continue hearing that suit. The directions in this regard by the NGT, towards payment of compensation are to be regarded as indicative of a prima facie determination. Consequently, the direction to the NHAI and fifth respondent, jointly making them liable to pay 15 lakhs is justified. It is clarified that the civil suit will now proceed, and based on evidence, the court would finally decide the issue of liability, and make such further consequential orders or decrees as may be found necessary in this regard, towards apportioning of liability of the NHAI, fifth respondent, the state or any other party (including the concessionaire). This court’s order shall not be treated as conclusive; the trial court shall independently proceed to evaluate the evidence and hear the parties on the merits of their submissions. The restitutionary order by the NGT, directing payment by fifth respondent and NHAI of 10 lakhs too, in this court’s opinion, cannot be found to be at fault. It is upheld. The NHAI and fifth respondent shall comply with the directions of the NGT and deposit the sum of 15 lakhs with the said court within four weeks, in equal proportion. The sum 10 lakhs shall be deposited in the same proportion, in court, to be disbursed to the state government for restoring the environment and carrying out afforestation/planting of trees, etc. [Para 67][1111-F-H; 1112A-C] Correctness of NGT’s directions contained in Para 17 (e) of its impugned order, and the legality of the order/notification of the State of Maharashtra, issued under Section 154, Maharashtra Regional and Town Planning Act, 1966.
9. Turning next to the question of the correctness of the general directions contained in Para 17(e) of the NGT’s order, this court has no manner of doubt that such directions were improper and not justified in the facts of this case. What the NGT had before it, was the report of the SDM and a report commissioned about the nature of the incident. Based on these limited inputs, the tribunal concluded- without any rationale and based on no scientific or technical evidence, or experts’ opinion, that development and construction should not be carried out within 100 feet of a “lowest slope i.e. incline of any hill within its territorial limits, as well as hill-tops”. The decisions of this court, including the All Dimasa Students Union case; Mantri Technoze Pvt. Ltd case; the Hanuman Laxman Aroskar case; and the Tamil Nadu Pollution Control Board case all show that the NGT resorted to the appointment of technical and scientific experts in the relevant field, who studied the issue, made site inspections and furnished reports. Such reports were subjected to discussion by the parties before the NGT, who were also given the opportunity of objecting to or making representations against such reports. Based on a final consideration of all these materials, and the submissions of parties before it, the NGT proceeded to issue directions. This procedure was wholly overlooked by the NGT in the present case. As a result, it is held that the said tribunal’s directions were improper and are procedurally indefensible. The directions contained in Para 17(e) are therefore set aside. [Para 76][1118-G-H; 1119-A-C]
10. In the present case, the State of Maharashtra has not shown any material or file containing the reasons behind the directive of 14.11.2017. It is not in dispute that the direction was consequential to, and solely based on the directions of the NGT in Para 17(e). As noticed earlier, those directions were not based on any scientific evidence or report of any technical expert. Furthermore, even the impugned notification does not specify what constitutes “hills”, and how they can be applied in towns and communities set in undulating areas and hilly terrain. This is not only vague, but makes the directions arbitrary as they can be applied at will by the concerned authorities. More importantly, they amount to a blanket change of all regional and development plans. While such directions can be issued, if situations so warrant, such as in extraordinary or emergent circumstances, the complete absence of any reasons as to why the State issued them, coupled with the lack of any supporting expert report or input, renders it an arbitrary exercise. That they are based only on the NGT’s orders, only underlines the lack of any application of mind on the part of the State, while issuing them. [Para 90][1130-E-G] State of Tamil Nadu v. M/s. Hind Stone & Ors (1981) 2 SCC 205 : [1981] 2 SCR 742; Lafarge Umiam Mining (Pvt.) Ltd. v. Union of India & Ors. (2011) 7 SCC
338 : [2011] 7 SCR 954; State of Meghalaya and Ors. v. All Dimasa Students Union, Dima-Hasao District Committee & Ors. (2019) 8 SCC 177 : [2019] 8 SCR 297; Mantri Technoze Pvt. Ltd. v Forward Foundation (2019) 18 SCC 494; M.C. Mehta v. Union of India (2004) 12 SCC 118 : [2004] 3 SCR 126; Deepak Kumar v. State of Haryana (2012) 4 SCC 629 : [2012] 4 SCR 819; Municipal Corpn. of Delhi v. Sushila Devi (1999)
4 SCC 317 : [1999] 2 SCR 1198; PTC India v. Central Electricity Regulatory Commission (2010) 4 SCC 603 : [2010] 3 SCR 609; T. Vijayalakshmi v. Town Planning Member (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534; Pune Municipal Corpn. v. Promoters and Builders Assn (2004) 10 SCC 796 : [2004] 2 Suppl. SCR 207;
Machavarapu Srinivasa Rao v. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority (2011) 12 SCC 154 : [2011] 12 SCR 639; MIG Cricket Club v. Abhinav Sahakar Education Society (2011) 9 SCC 97 : [2011] 11 SCR 141; Shri. Sitaram Sugar Mills Company v. Union of India (1990) 3 SCC 223 : [1990]
1 SCR 909; Cellular Operators Association v. Telecom Regulatory Authority of India (2016) 7 SCC 703 : [2016]
9 SCR 1 – relied on.
Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd. & Ors. (2019) SCC OnLine SC 221; Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC
401 : [2019] 5 SCR 916; Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496 : [2001] 1 Suppl. SCR 23; Jitendra Singh v. Ministry of Environment & Ors (2019) SCC OnLine SC 1510; Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum (1997) 9 SCC 552 :
[1997] 1 SCR 304; Vadodara Municipal Corporation v. Purshottam V. Muranji (2014) 16 SCC 14 : [2014] 7 SCR 810 – referred to.
Diplock L.J. in Griffiths v. Liverpool Corporation [1967]
1 Q.B. 374; Burnside v. Emerson [1968] 1 W.L.R. 1490; Haydon v. Kent County Council [1978] Q.B. 343; Stovin v Wise (1996) 3 All ER 801; Gorringe v. Calderdale Metropolitan Borough Council (2004) 1 WLR 1057; Robinson v. Chief Constable of West
Yorkshire Police (2019) 2 All ER 1041; Yetkin v. Mahmood 2011 QB 827; Securities Exchange
Commission v. Chenery Corp. 332 U.S. 194 (1947) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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