National Green Tribunal
Dr. Arun Kumar Sharma vs Ministry Of Environment, Forest And ... on 26 November, 2018
Bench: Adarsh Kumar Goel, K. Ramakrishnan
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 312 of 2016
(M.A. Nos. 569 of 2016, 418 of 2018,
748 of 2018, 807 of 2018 & 1246/2018)
Dr. Arun Kumar Sharma Applicant(s)
Versus
Ministry of Environment, Forest and Climate Change & Anr.
Respondent(s)
Date of hearing: 26.11.2018
CORAM :HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Mr. Amit Sibal, Sr. Adv. Ms. Nina R. Nariman, Ms.
Geetika Kapur and Abhinav Jagannath, Mr. Ambar
Bhushan, Mr. Vinay Tripathi, Mr. Sushant Singh
and Mr. Ankit Kaushal, Advocates.
For Respondent (s): Mr. Prateek Yadav. and Mr. Raj Kumar Maurya,
Advs.
Mr. Saurabh Rajpal and Ms. Shikha Sandhu, Advs.
for State of Rajasthan
Mr. Sandeep Mishra, Advocate in MA 748/2018
Mr. C.K. Singh, Sr. Advocate and Mr. Dhaval
Mehrotra, Advocates
Mr. Puneet Jain and Mr. Abhinav Gupta, Advocates.
Mr. Pinaki Misra, Sr. Adv., Mr. Nishit Agarwa, Mr.
Kushangra Pandey, Advocates
ORDER
1. This application challenges the Zonal Master Plan, 2030 (ZMP 2030) for the Mount Abu Eco-sensitive Zone (MA ESZ). Further prayer is for constitution of an Expert Committee to review the said plan.
2. Averments in this Application are that vide Notification dated 25.06.2009, issued by the MoEF under the provisions of the Environmental (Protection) Act, 1986, Mount Abu was designated as Eco-Sensitive Zone (ESZ). The Notification mentions that the area has significant ecological importance. It comprises of tropical dry deciduous forests at lower altitude and evergreen forests at higher 1 altitude. 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 temple apart from other heritage buildings and structures. The Notification notes that adverse impact has been noticed due to degradation of environment with excessive soil erosion on account of water and air pollution and volcanic activities endangering natural resources and affecting health and survival of human beings. The Notification gives boundaries of the ESZ wherein the activities are to be regulated by preparation of a ZMP 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, needs of local community, conservation of heritage sites (both natural and cultural) and their surroundings and such other aspects of the ecology and environment that may need attention.
3. The ESZ notification further provides that the ZMP shall demarcate all the existing village settlements, tribal areas including tribal hamlets, types and kinds of forests, agricultural areas, fertile land, green areas, horticultural areas, orchards, lakes and other water bodies, natural heritage sites including points (such as Sunset Point) and man-made heritage sites, steep slopes, drainage channels, first order streams, ground water, recharge areas and areas rich in ground water, spring recharge areas, spring lines and other environmentally and ecologically sensitive areas and no change of land use from green uses such as orchards, horticulture areas, agriculture parks and other like places to non-green uses shall be permitted in the ZMP, except that strictly limited conversion of agricultural lands may be permitted to meet the residential needs of the existing local residents together with natural growth of the 2 existing local population, without the prior approval of the State Government. Further, no change in use of land from tribal uses to non-tribal uses shall be permitted without the prior approval of the State Government. With regard to tourism, it is specifically mentioned that a detailed carrying capacity study was to be carried out by the State Government based on existing infrastructure "and not on future projections" of any project that may require environmental or forest clearance. Mount Abu has natural sites such as Nakki Lake, Toad rock, rock formations, waterfalls, pools, springs, gorges, caves, points, walks etc. and plans for their conservation in their natural setting shall be incorporated in the ZMP and Sub-Zonal Master Plan. Strict guidelines shall be drawn up by the State Government to discourage construction activities at or near these sites including in the garb of providing tourist facilities. The general pool reserve areas in the zone shall be reserved. According to the Applicant, the rare species of wildlife are under serious threat by unregulated and impressible developmental activities.
4. The ZMP 2030 has been notified on 29.10.2015, after approval by the MoEF vide letter dated 28.09.2015.
5. According to the applicant, the notified ZMP 2030 is not consistent with the ESZ Notification dated 25.06.2009 in as much as the said plan fails to discourage construction activities at or near the heritage sites, conserve the existing water bodies, permits change of land use by illegal structures. Rock climbing has also been permitted, including sport climbing by fixing permanent anchors. Construction has been allowed on green tracks to benefit some builders.
6. Though, the Ministry of Environment, Forest and Climate Change, (MoEF&CC) vide its letter dated 28.09.2015, while 3 approving the ZMP, placed a restriction on change of land use from green uses, the ZMP allows paying guest accommodation in residential land which will be commercialization by back door and will be indirect land use change. ZMP does not take care of the fact that the locations of the STP, Aarna Jain Dharamshala Area, Gurukul locations at Sunset Road and Takhatwala bungalow need to be preserved. The water is limited and its quality needs to be retained by not allowing construction near the water bodies, including in the garb of providing the tourist facilities. The number of tourists to be permitted is required to be restricted to protect the environment.
7. The MoEF&CC, in its counter affidavit, has opposed the application by submitting that ZMP 2030 was issued after public hearing. The responsibility for preparation and implementation of the ZMP is with the State Government. There is requirement to constitute a Monitoring Committee to monitor the implementation of the ZMP which will take care of the concerns of the appilcant. The State Government has been asked to make a provision for rectification of errors or loopholes and also to restrict the change of land use.
8. The State of Rajasthan has also opposed the application. Reference has been made to the order of the Hon'ble Supreme Court dated 19.09.2004 in W.P. (C) No. 202 of 1995, T. N. Godavarman vs. Union of India, constituting a committee comprising of three members in consultation with the Central Empowered Committee(CEC), pending issuance of ESZ. After the ESZ notification, order dated 19.08.2011 was passed by the Hon'ble Supreme Court in T.N. Godavarman Thirumulpad Vs. Union of India, (2011) 14 SCC 390 at page 392 to the effect that interested parties could place their response to the ZMP and the same will be finalized after considering such response. The ZMP was submitted to the 4 MoEF for approval and notified after approval was granted. The MoEF constituted a Monitoring Committee comprising of local residents and NGOs as members. Revised committees were also constituted by the MoEF&CC vide order dated 24.01.2012 and 05.05.2015. The State Government engaged the Department of Environment Planning, School of Planning and Architecture as consultant and also consulted the concerned departments, including Environment Department, Forest Department, Tourism Department, Pollution Control Board, SDO, Mount Abu, Secretary UIT, Mount Abu, Municipal Commissioner, Mount Abu, Archaeological Department and Underground Water Resource Department etc. Public objections were also considered. A detailed study of natural and man made heritage, forest, flora and fauna, wetlands, wildlife and other environmental and ecological aspects was carried out. Issue of tourist promotion has been duly addressed. No development has been proposed in the forest land or on slopes of more than 20 degrees. Conservation of forest, wetland, hill slopes and green areas has been given prime importance. There is a proposal for installation of air and noise monitoring stations. There is provision for reuse of waste water, on site waste water treatment and planning and management of waste water resources.
9. This application was filed before this Tribunal on 27.05.2016. On 31.05.2016, this Tribunal directed that no fresh plan should be sanctioned for construction without specific leave of the Tribunal. In view of the said order, certain intervention applications have been filed either seeking permission for repairs, or seeking permission for constructions, claiming to be within the purview of the ESZ and ZMP. Vide order dated 30.01.2018, permission for construction for residential purposes was granted for 'Takhtawala Building' subject to consideration of slope and geological studies and there being no felling of trees and also plan being in conformity with the Hill architecture. 5 Similar permission was also given for some other areas of Mount Abu mentioned in the order subject to the area being residential and subject to the same conditions as applicable to the 'Takhtawala building'.
10. We have heard the learned counsel for the applicant, learned counsel for the MOEF&CC, State of Rajasthan and for the interveners.
11. Main contention raised on behalf of the applicant is that comparison of land use plan annexed to Mount Abu ZMP for the year 2010 and the proposed land use plan annexed to the ZMP 2030 shows land use change which is inconsistent with the ESZ notification. In particular, reference has been made to the following points in the said plan:-
1. Inside Salim Ali Bird Sanctuary;
2. Aranya Village
3. Behind Maganji
4. Inside Salim Ali Bird Sanctuary
5. Hill Sahil
6. Sunset Road Scheme
7. Sunrise Housing
8. Takhtawala
9. Takhtawala
10. Arna Village
11. Mohanpura
12. Hitanji
13. Near STP Plant
12. Apart from the above, following points have been raised to point out inconsistencies in the ZMP 2030 as compared to ESZ notification or otherwise:-
(i). ZMP provides that no construction is to be permitted in the wetland within 50 meters from the water bodies and wherever possible such buffer zone along the wetlands should be wider. Requirement of buffer zone between construction and the wetlands should have been atleast 100 meters, as per study referred to in the ZMP itself in Chapter - III.6
(ii). Having regard to the fact that the soil of the hills is loose and the area has potential for landslides, no development should be allowed at slopes having 35 degree or more. Hitanji and Hill Sahil have slopes higher than 35 degree. The same have been described as residential. Thereby, there is possibility of construction being allowed.
(iii) There is degradation leading to wildlife decline, as noted in ZMP. This requires invocation of Precautionary Principle while permitting any development in the area.
(iv) Nakki lake is a 'no construction zone' as per ESZ but ZMP permits organized commercial activities for facilities to the tourists and such activities could be cafeteria, shopping areas and accommodation.
(v) ESZ notification provides for conservation of Toad rock but the ZMP has provision for ropeways which may result in rock not being conserved as required.
(vi). The ZMP provides for 6700 tourists per day and also refers to carrying capacity having being under taken, as required under the ESZ notification, but the said carrying capacity report has not been furnished. Thus, carrying capacity has to be carried out to assess number of vehicles to be allowed and number of tourists to be allowed, having regard to the available existing infrastructure.
(vii). Rocks in the ESZ area are required to be conserved but provision in the ZMP for adventure tourism permits sport climbing which may require drilling of the rock which will be against the spirit of the ESZ.
(viii). Forest Policy, 1988 will be violated if there is reduction in green area as a result of activities permitted under 7 the ZMP, permitting converting green areas into non- green areas for facilities to tourists, including construction of hotels and resorts. Thus, mere denial of the State Government that no development on land with tree cover is contemplated and that there will no reduction in green area, does not fully appreciate the impact of ZMP. If green area is to be protected, provision for hotels, resorts etc. has to be deleted.
13. Learned counsel for the applicant referred to enunciation of 'Precautionary Principle, in the judgements of Hon'ble Supreme Court in 2004 (12) SCC 118 para 48, M.C. Mehta Vs. Union of India & Ors. and 2006 (1) SCC 1, para 86, 87 and 89, T.N. Godavarnman Thirumulpad Vs. Union of India & Ors.
14. We asked the learned counsel for MoEF&CC whether any expert study was carried out prior to grant of approval to the ZMP 2030 or whether points raised on behalf of the applicant have been addressed. In absence of any stand in the counter affidavit of MoEF&CC or instructions, no positive statement could be made.
15. Learned counsel for the State of Rajasthan supported the stand in the counter affidavit dated 06.09.2016 and two further affidavits dated 27.10.2017 and 19.03.2018.
16. Learned counsel for the interveners opposed the above contentions and submitted that ZMP 2030 is consistent with the ESZ, the interveners are original residents and their activities are not in any manner prohibited by the ESZ. It was also submitted that there is no absolute bar to change of land use. The bar can be lifted with the permission of the State Government. Approval for construction has been granted prior to 2010.
17. Learned counsel for the applicant however submitted that his objection is to an amusement park and a hotel. Even if any 8 permission was granted prior to 2010, the same could be of no avail after ESZ notification was issued and till ZMP 2030 was finalized.
18. At this stage, we do not consider it necessary to go into the merits of individual claims of intervenors for construction. We have to first consider the issue whether ZMP 2030 conforms to the ESZ.
19. There is no merit in the plea that there is absolute power for change of land use, with approval of the State. There are inherent limitations in exercise of such powers. Environment law has to be read into the Development Laws on the accepted concepts of 'Precautionary Principle' and the 'Sustainable Development principle. ESZ Notification itself is part of the Precautionary Principle and Sustainable Development principle. These principles have been treated as part of Article 21 of the Constitution of India and also are statutory principles to be followed by this Tribunal under Section 20 of the National Green Tribunal Act, 2010. The Precautionary Principle operates wherever there is a potential threat of serious damage to the environment. As already noted, the issuance of ESZ notification itself is application of Precautionary Principle. Procedure of MoEF&CC clearance to ZMP is also part of application of the Precautionary Principle. This Tribunal has considered the concerns for protection of ecologically fragile hills recently vide order dated 05.10.2018 in Original Application No. 218 of 2017 SPOKE Vs. Kasauli Galaxie Resorts (Kasauli case). Directions were issued for restriction on contruction activity, for slope stability, for waste management based on carrying capacity study.
20. Even though, we refrain from making any final comment on merits on the contention that ZMP 2030 provisions are in conflict with ESZ notification, we are satisfied that there is certainly need for consideration of the issue by an Expert Committee which is constituted as follows:-
9
1. Two representatives of MoEF&CC - an officer not below the rank of Joint Secretary/Advisor and an Expert of Eco-
Sensitive Zone (ESZ) to be nominated by MoEF&CC;
2. Representative of School of Planning and Architecture, Delhi - the institution which was hired as consultant by the State of Rajasthan. Representative should be senior level land scape expert.
3. Representative of Central Pollution Control Board of the level of Director/Additional Director.
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 particulary 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, carrying capacity of Mount Abu with regard to number of tourists and vehicles to be permitted having regard 10 to the availability of the infrastructure without relying upon future projection, as required in terms of ESZ notification.
23. The Committee may assume its charge within one month from the receipt of copy of this order by the MoEF&CC. The Nodal Agency will be MoEF&CC. The report of the Committee may be furnished within three months after assumption of charge by the Committee which may be forwarded by MoEF&CC to this Tribunal by e-mail at ngt.filing@gmail.
24. The status quo as on today in terms of the orders dated 31.05.2016 and 30.01.2018 with regard to any construction in the area will be operative till the finalization and acceptance of report of the Committee by this Tribunal.
25. The application is disposed of except for consideration of the report.
26. The MoEF&CC may revise its approaval in the light of the above report, if necessary and consequential action may also be taken by the State of Rajasthan, subject to any challenge to the report as per law.
27. The report may be placed for consideration before this Tribunal on 30.04.2019.
Adarsh Kumar Goel, CP S.P. Wangdi, JM K. Ramakrishnan, JM Dr. Nagin Nanda, EM November 26, 2018 A 11