National Green Tribunal
Srimati Chhoti vs State Of Rajasthan on 16 September, 2025
Item No. 01
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.155/2024(CZ)
IN THE MATTER OF :
Srimati Chhoti
w/o Ramlal Dabariya
Resident of 235, Raigaran Mohalla,
Gram Sakhoon, Teh. Dudu, Jaipur
Rajasthan
Applicant(s)
Versus
1 The State of Rajasthan
Through the Chief Secretary Government of
Rajasthan, Secretariat, Jaipur-302005. Respondent No. 01
2 Department Of Mines and Geology
Through its Principal Secretary, Secretariat
Jaipur 302005 Respondent No. 02
3 M/S Jawan Mining and Construction
Equipments Private Limited
Through Director: Shyam Singh Katewa,
Katewa Sadan Road No. 3 Jhunjhunu
Rajasthan-333001 Respondent No. 03
4 District Mining Officer
Khanij Bhawan, Udhyog Bhawan
Tilak Marg, Jaipur, Rajasthan-302005 Respondent No. 04
The District Collector, Dudu
5
As District Collector,
Dudu Collector Office, Dudu, Rajasthan-
303008 Respondent No. 05
6 The Sub Divisional Magistrate,
Indu, District-Dudu SDM Office,
Dudu, Rajasthan-303008 Respondent No. 06
1
O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
COUNSELS FOR APPLICANT(S):
Ms. Seema Roj, Adv.
Mr. Kamlesh Roj, Adv.
COUNSELS FOR RESPONDENT(S):
Ms. Mansi Chahal, Adv. for R-3
Mr. Rachit Soni, Adv.
(for Mr. Shoeb Hasan Khan, Adv. for State of Rajasthan)
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE MR. ISHWAR SINGH, EXPERT MEMBER
Date of completion of hearing and reserving of order : 04.09.2025
Date of uploading of order on website : 16.09.2025
JUDGMENT
1. This petition has been filed for award of compensation for tragic death of Prakash Chand Dabariya, a healthy and industrious individual, due to the negligence of respondent no. 3, the owner of an operational masonry stone mine in the village Sakhoon. Despite the known risks associated with the mining activity in the area, respondent no. 3 failed to implement essential safety measures, such as safety fencing and proper slope maintenance of the mine boundary. This negligence created hazardous conditions, turning the mines into perilous spots, especially during the monsoon season when they filled with water. On the morning of 25/09/2023, while engaged in his routine work of grazing goats, Prakash Chand tragically slipped and fell into an abandoned mine filled with rainwater, leading to his untimely demise by drowning. Despite efforts by local authorities and family members, his life could not be saved after the death of Prakash Chand his mother i.e. applicant has filed this application.
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2. Notices were issued to the respondents. Reply has been filed. Heard the learned counsel for the parties and perused the records.
3. Submission of the learned counsel for the applicant are that on the morning of 25/09/2023 at 6.00 AM, Prakash Chand Dabariya went to graze his goats in the village Sakhoon's gauchar field. Unfortunately, he slipped and fell into a nearby abandoned mine filled with rainwater. It's crucial to mention that the mine wasn't in use at that time. There were no safety measures like fencing or equipment installed around the mine's boundary. Because of this negligence by respondent no 3, Prakash fell into the mine and drowned, leading to his tragic demise.
4. That upon learning about the tragic accident, the family members of the deceased immediately contacted the local police for assistance. The police, along with the deceased's family, retrieved Prakash Chand's body from the mine and promptly transported it to the local community health center in Sakhoon. Upon examination, the medical officer declared Prakash Chand dead and conducted a post-mortem examination. The conclusive findings of the post-mortem report indicated that Prakash Chand had died due to drowning.
5. The deceased's brother, Mr. Vinod Kumar, submitted a written complaint to the police at the Narena Police Station. Following this complaint, the police station registered a report under section 174 of the Criminal Procedure Code (CrPC), pertaining to the registration of unnatural deaths. At the time of the accident, the deceased, Prakash Chand Dabariya, was a healthy, well-nourished young man who lived a life free from vices. He tragically lost his life due to the negligence of respondent no. 3, falling into an open mine filled with water without any safety measures in place. As a result, the applicant is experiencing extreme and lifelong mental trauma. She has been deprived of the love and care of her 3 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. son, and the opportunity for the family to prosper in the future has been lost. Therefore, the non-applicants are liable to pay rupees 25,00,000/-. Additionally, the applicant is legally entitled to receive compensation for enduring extreme mental agony due to the death of her son, Prakash Chand Dabariya.
6. Further contention of the learned counsel for the applicant are that the mother of the deceased Mr. Prakash Chand Dabariya resides of 235, Raigaran Mohalla, Gram Sakhoon, Teh. Dudu, Jaipur, Rajasthan and at the time of the accident the deceased was about 28 years old healthy, well - nourished and free from any vices and was earning Rs. 20,000/- per month.
7. The village Sakhoon, known for mining activities related to masonry stone. Several masonry stone mines and stone crushers operate in this area. One of these masonry stone mines is owned by respondent. The respondent's mine has been operational in the village for several years. Since it is a private entity, the applicant is unable to access all the details about the mine. Additionally, there are no signs or boards installed within or outside the mining site.
8. The respondent no. 3 has displayed negligence by failing to implement essential safety measures such as safety fencing and ensuring proper slope of the mine walls at the mining site. Furthermore, the respondent has not adhered to the prescribed safety procedures outlined in the mining safety guidelines, nor have they ensured proper disposal of mining site. These oversights have resulted in a hazardous environment at the mining site, posing significant risks to the safety and well-being of animal and human present in the vicinity.
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9. This petition has been filed for the grant of compensation to the tune of Rs. 25 lakhs with interest from the date of accident till date of payment. The applicant has filed the death certificate where it is mentioned that the date of death was 25.09.2023 and the copy of the post-mortem report has been filed, which discloses that the cause of death was drowning. Muddy water was found in the oesophagus. In the opinion of the doctor primary cause of death and mode of death looks like due to asphyxia as a result of drowning. First information report was launched against M/s Jawan Mining and Construction Equipments Pvt Ltd.- respondent no. 3, the photographs attached with the application discloses that the mining pit was opened and no safety measures has been done by the mine owner and due to slip the deceased fell down in the pit water and died due to drowning.
10. Submission of the learned counsel for the respondent nos. 1, 2 and 4 on behalf of the State are that Mrs. Kavita Bhaskar, wife of Mr. Devendra Bhaskar, resident of Plot No. 1001, Rani Sati Nagar (West), Nirman Nagar, Ajmer Road, Jaipur (Raj.) has applied for grant of mining lease under Rule 5 of Rajasthan Minor Mineral Concession Rules, 1986. Presented in the office on 15.02.2007. In relation to which, on 04.04.2007, pre-demarcation and measles verification was done by the surveyor of Patwari office. According to the report, there is no religious place, public place, population, highway, road, high tension line, water catchment area etc. within the radius of 45 meters of the applied area. From the letter no. 2408 dated 25.05.2007 of the Office of Deputy Forest Conservator, Jaipur (South), Jaipur, the applied area has been declared not to be a forest area.
11. That on receipt of permission regarding allotment of mining lease in the said area from the letter number 9467 dated 01.08.2007 of the Office of the District Collector, Jaipur, Mineral Cheja stone area 100X100 square 5 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. meter near village Sakhun Tehsil Dudu District Dudu for mining lease to Mrs. Kavita Bhaskar, wife of Mr. In favor of Devendra Singh resident 1001, Ranisati Nagar (West) Nirman Nagar Ajmer Road, Jaipur, office order no. /07/3154 dated 21.08.2007 from the date of contract registration. The annual fixed rent for 20 years was approved at Rs 15,000/-with the condition that the fixed rent would be re-determined automatically after every 5 years, the contract for which would be executed on 11.10.2007 and registered on 31.10.2007. Was done. Thus, this mining lease became effective for 20 years from 31.10.2007. Office order number ME/JPR/CC-4/M.L. 49/2007/197 dated 20.01.2012, transfer of mining lease was accepted in favor of M/s Jawan Mining and Construction Equipments Pvt. Ltd., resident of Katewa Sadan Road No. 3, Jhunjhunu.
12. The mining lease contract was executed on 19.06.2012 and registered on 23.08.2012. Thus, the mining lease became effective for the remaining period in favor of M/s Jawan Mining and Construction Equipments Pvt. Ltd. In the said mining lease, permission for use of heavy earth moving machines and deep hole blasting has been obtained from the Ministry of Labor and Employment, Directorate General of Mine Safety, Ajmer from 31.05.2011 and Consent to Operate has been obtained from Rajasthan State Pollution Control Board from 19.07.2016. Is. The mining lease has received Environment Clearance from DEIAA on 30.05.2016.
13. That in the said mining lease, the permission for use of heavy earth- moving machines and deep hole blasting was issued from 31.05.2011 by the Ministry of Labour and Employment. Directorate General of Mine Safety. Ajmer. This permission was secured by following the terms and conditions prescribed.
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14. The responsibility of doing safe mining by following the terms and conditions of the permission for the use of heavy earth-moving machines and deep hole blasting issued from 31.05.2011 by the Ministry of Labour and Employment, Directorate General of Mine Safety, Ajmer is included. It is further argued by the State Counsel that with respect to cause of death of Shri Prakash Chand Dabriya on 25.09.2023, it is respectfully submitted that on 06.11.2024, when the Mining Executive Officer contacted the Naraina Police Station regarding the investigation of the spot, it was found that UD No. (Unnatural Death) 0014/2023 has been registered. The investigation into the matter is still ongoing, and the exact cause of death will only be known upon the completion of the investigation and that with respect to compensation in the present case, reference is made to Rule 28(1)(xi) of the Rajasthan Minor Mineral Concession Rules, 2017, which mandates that: "The lessee or licensee shall pay such compensation as may be assessed by the lawful authority in accordance with the law, rules, or orders in force on the subject, for all damages, injuries, or disturbances caused by them. The lessee or licensee shall also fully indemnify and keep the Government indemnified against such damages, injuries, or disturbances, as well as any associated costs and expenses.
15. During a joint inspection conducted on 13.12.2024 at mining lease area ( Mining Lease No. 49/07 )by the Mining Engineer, Jaipur, along with the Sub-Divisional Officer and other authorities, significant violations of the Rajasthan Minor Mineral Concession Rules, 2017, and the mining agreement were observed. It was found that there were no signboards displaying lease related information, and the boundary pillars demarcating the lease area had not been established. Furthermore, the lessee M/s Jawan Mining and Construction Equipments Pvt. Ltd. failed to undertake mining operations using proper benches or to construct 7 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. fencing around the lease area. These lapses were documented in the inspection report, and corrective measures were mandated within 30 days. Despite the issuance of a detailed notice outlining these violations and granting the lessee an opportunity to rectify the same, no compliance was made, leading to further legal action.
16. Learned counsel for the State has further submitted that the mine owner is required to take necessary measures for protection of environment around the mining-lease area by means of plantation, water management and water harvesting.
17. It is further argued that the Rajasthan Miner Mineral (Concession) Rules, 2017 provides that steps must be taken by the mine owner for reclamation, rehabilitation, measures in respect of mine thereof, commencing from cessation of mining or processing operations in a mine or part thereof. The rule further provides the securing of pits and shafts from any danger to risk of life to anybody and Sustainable Sand Mining Management Guidelines, 2016 & The Enforcement and Monitoring Guidelines for Sand Mining also provides the replenishment plan and closure plan. The learned counsel for the applicant has submitted that the mine owner has not submitted the closure plan or action taken for closure or taking protective actions of the pit and thus, he was negligent and if any injury is caused to anybody else due to the fault and negligence of the mine owner, he is directly liable.
18. The submission of the learned counsel for Respondent No. 3 are that the liquidation proceedings are pending and respondent has ceased to be in possession, control or management of the mining lease and mining area in question.
19. It is further argued that owing to the ongoing liquidation process and the legal embargo arising from the same, the answering Respondent was 8 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. restrained from undertaking any operations within the mining area. The mine has been lying non-operational, and shut for an extended period, much before the unfortunate incident in question. The death incident of Prakash Chandra Dabariya is being misused to wrongfully attribute liability to the Respondent No. 3, whereas in fact, the deceased individual was a habitual alcohol consumer, and on the date of the alleged incident, the locals who were present around, also confirmed that he was intoxicated and seated near the disused and abandoned mining site, and he slipped and fell into the pit due to his intoxicated state, leading to the unfortunate accident. The answering respondent is not at all liable for the death of the person, as alleged in the O.A, due to his negligence, as he was no more in possession of the mine.
20. It is further argued that the deceased was under the influence of alcohol who approached and sat near the closed mining site and due to his intoxicated condition, he slipped and fell into the mine. In response to the above contention learned counsel for the applicant has submitted that the post-mortem report which is attached with the application discloses that the cause of death is drowning and the photographs with the FIR discloses that the mining pit was open and no protective measure has been taken by the mine owner, respondent no. 3 and the area was so slippery that the deceased fell down and died due to drowning. He argued that the responsibility to pay the compensation according to the rules are with the respondent no. 3.
21. Learned Counsel for the applicant has argued that the Absolute Liability and the Strict Liability as applicable to the Indian condition Hon'ble the Supreme Court of India has laid down that the person due to whose negligence the deceased died is directly responsible for payment of compensation according to rules.
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22. He has further argued that the rule of Absolute liability was laid down by the Hon'ble Supreme Court of India in the case of M.C. Mehta Vs. UOI (1987 SCR (1) 819) and Bhopal Gas Leak (AIR (1989)(1)SCC 674: AIR 1992 SC 248) case, where the Hon'ble Apex Court maximise the limit of rule of Ryland Vs. Fletcher. The rule laid down by the SC is much wider with respect to the rule laid down by House of Lords. By Explaining the rule of No fault liability (Dr. S.K. Kapoor on Law of Torts 7th Edition pg.272.) Blackburn J. said that "We think that the rule of the law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape (The Rule in Rylands v. Fletcher. Part I by Bohlen, Francis H. (1911)).
23. By analysing the need to modify the 19th century rule of Strict Liability the apex court of India in M.C. Mehta case stated that "Moreover the principle so established in Ryland v. Fletcher of strict liability cannot be used in the modern world, as the very principle was evolved in 19th century, and in the period when the industrial revolution has just begun, this two century old principle of tortuous liability cannot be taken as it is in the modern world without modifications (W.V.H Rogers, WINFIELD AND JOLOWICZ TORTS, 8th ed. 2010 pp. 248).
24. The difference between Strict and Absolute liability rules was laid down by Supreme Court in M.C. Mehta v. Union of India, where the court explains as:-
Firstly, In Absolute Liability only those enterprises shall be held liable which are involved in hazardous or inherently dangerous activities, this implies that other industries not falling in the above ambit shall be covered under the rule of Strict liability. Secondly, the escape of a dangerous thing from one's 10 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
own land is not necessary; it means that the rule of absolute liability shall be applicable to those injured within the premise and person outside the premise. Thirdly, the rule of Absolute liability does not have an exception, whereas as some exception were provided in rule of Strict Liability. Also in the case of Union of India V. Prabhakaran Vijay Kumar ((2008) 9 SCC 527: (2008) 2 KLT 700.) the view of constitutional bench was that the rule of MC Mehta is not subject to any type of exception. Fourthly, the Rule of Ryland V Fletcher apply only to the non natural use of land but the new rule of absolute liability apply to even the natural use of land. If a person uses a dangerous substance which may be natural use of land & if such substance escapes, he shall be held liable even though he have taken proper care. Further, the extent of damages depends on the magnitude and financial capability of the institute. Supreme Court also contended that, The enterprise must be held to be under an obligation to ensure that the hazardous or inherently dangerous activities in which it is engaged must be conducted with the highest standards of safety and security and if any harm results on account of such negligent activity, the enterprise/institute must be held absolutely liable to compensate for any damage caused and no opportunity is to given to answer to the enterprise to say that it had taken all reasonable care and that the harm caused without any negligence on his part (Ratanlal & Dhirajlal : Law of Tort 26TH edition pg 520).
25. In case of M.C. Mehta quoted above Hon'ble the Supreme Court observed this, rule (Ryland v. Fletcher) evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norm and the needs of the 11 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. present day economy and social structure. We do not feel inhibited by this rule which was evolved in the context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments, taking place in this country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot allow our judicial thinking to be constrained by reference of the law as it prevails in England or for the matter of that in other foreign legal order. We in India cannot hold our hands back and I venture to evolve a new principle of liability which English courts have not done. We are of the view that an enterprise, which is engaged in hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an Absolute and non-delegatable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm and it should be no answer to enterprise to say that it has taken all reasonable care and that the harm occurred without any negligence on its part.
26. The Court also laid down that the measure of compensation payable within the capacity of the enterprise, so that the same can have the deterrent effect. The Court held that "We would also like to point out that the measure of compensation in the kind of eases referred to must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The large and more 12 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. prosperous the enterprise, greater must be the amount of the compensation payable by it for the harm caused on account of an accident in the carrying on the hazardous or inherently dangerous activity by the enterprise. "The rule laid down in MC Mehta was also approved by the Apex Court in Charan Lal Sahu v Union of India" (AIR 1990 SC 1480) The Court pointed out that that this rule is 'absolute and non-delegable' and the enterprise cannot escape liability by showing that it has taken reasonable care and there was no negligence on its part. The Supreme Court also explained the basis of this rule as follows: -
"If an enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the court of any accident (including indemnification of all those who suffer harm in the accident) arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads; and The enterprise alone has the resource to discover and guard against hazards or dangers and to provide a warning against potential hazards (Ramaswamy Iyers: The Law of Torts: A Lakshminath, M Sridhar (tenth edition) year 2010)."
27. The learned counsel has also took reliance on Bhopal Gas Leak Disaster Case (1989)(1)SCC 674: AIR 1992 SC 248).
28. In case of Indian Council for Environment Legal Action V Union of India (AIR 1996 SC 1446) the Supreme Court Of India imposed the principle of MC Mehta case and held that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity 13 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. irrespective of the fact whether he took reasonable care while carrying on his activity is by far the more appropriate and binding."
29. The Scope of new rule of Absolute Liability is very wider in all terms than old rule.
• Do not have any exception • Very wide scope.
• Cover not only public negligence or fault but cover even personal injuries caused due to the negligence of neighbour. • Now cover not only the occupier of land but also non occupier of the land (J.N. Panday : Law of Torts).
30. It is argued that compensation be paid applying no fault liability. In the matter of Manoj Misra vs. Delhi Development Authority and Ors., Original Application No. 65 of 2016, this Tribunal is mandated to apply the Principle of No Fault Liability as per Section 17(3) of the National Green Tribunal Act, 2010:-
"62. Unlike, the laws of other countries where the Courts or the Tribunals dealing with environmental issues are to determine first whether they could apply the principle of absolute liability or not and, if so, to what extent. In India, the Tribunal is mandated under Section 17(3) of the National Green Tribunal Act, 2010 to apply the principles of no fault. Thus, application of this principle is inescapable. This doctrine imposes an obligation upon the project proponent or body intending to carry on an activity to bear the consequences of its actions. The consequences would obviously include amongst others such as cost of restoration/restitution."
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31. Learned Counsel for the applicant has submitted that there are violation of rules 28(3) (ix) and 28(3)(x) of the Rajasthan Minor Mineral Concession Rules, 2017 states that -
"(ix) The Mining Engineer or Assistant Mining Engineer concerned may issue directions in respect of mining method, removal and disposal of over burden, stacking of mineral payment of royalties and other connected matters;
(x) If the licensee commit breach of any terms of the licence or any provision of the rules or fails to comply with the directions given by the Mining Engineer or Assistant Mining Engineer concerned within the period specified by him, the Mining Engineer or Assistant Mining Engineer concerned may after giving thirty days notice to remedy the breach or to comply the directions, may impose penalty up to rupees Ten Thousand or may cancel the licence after obtaining prior approval from Superintending Mining Engineer concerned and forfeit the security deposits sand licence fee: Provided that decision of termination of licence on breaches other than dues shall be taken by the Director on the recommendation of a committee comprising Additional Director Mines (HQ), Deputy Legal Remembrance and Superintending Mining Engineer (HQ), concerned.
Provided further that decision of termination of licence shall be taken only if the licensee has failed to remedy the breach, after serving of a thirty days notice"
In the present case it is clear that the Assistant Mining Engineer has given a notice to the 15 mining lease operators in accordance with Rule 28(3Xix) of the Rajasthan Minor Mineral 15 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. concession Rules, 2017, as elucidated earlier, but none of the 15 mining lease operators have complied with the directions of the Assistant Mining Engineer and thus the mining leases are liable to be cancelled in accordance with Rule 28(3)(x) of the Rajasthan Minor Mineral Concession Rules' 2017.
32. It is further argued that the matter of payment of compensation on the principle of polluters pay was taken up in Forward Foundation, A charitable Trust and Ors. Vs. State of Karnataka and Ors., Original Application No. 222 of 2O14, judgment dated 04,05.2015, this Tribunal has affirmed the mandatory application of the Polluters Pay Principle in every matter adjudicated upon by this Tribunal as per Section 20 of the National Green Tribunal Act, 2010 -
"59. Section 20 of the National Green Tribunal Ad, mandates that while passing any order or decision or award the Tribunal, shall apply the Principles of Sustainable Development, the Precautionary Principles and the Polluter Pays Principles.
60. Therefore applying Polluter Pays Principle and the settled guidelines settled in the decisions of the Hon'ble Supreme Court and that of the this Tribunal referred to earlier, Respondent No. 9 and 10 who caused environmental degradation are liable to pay the environmental compensation as have been already found in the main judgement"
33. In Glanrock Estate (p) Ltd. Vs, State of Tamil Nadu, reported in (2010) 10 SCC 96, the Hon'ble Supreme court has reiterated the established principle of law that the Polluter Pays Principle and the Precautionary 16 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. principle form a part of the Right to Life enshrined under Article 21 of the Constitution -
"29......The precautionary principle and the polluter pays principle flow from the core value in Article 21"
In the present case the excessive mining and blasting have caused structural damages to the residential buildings, Hospital and School, of the above five villages, putting the villagers under a constant threat to their life and thus denying the core value of Article 21.
34. In Research Foundation for Science (18) vs. Union of India & Another, reported in (2005) 13 SCC 186, the Hon'ble Supreme Court has clarified that the Polluter Pays Principle includes the cost of avoiding any further pollution, and not just remedying damage that has already been caused-
"29. The polluter pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case."
35. Rule 34 (2) (xii) of the Rajasthan Minor Mineral concession Rules, 2017 states that all mining lease holder will-
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"(xii) Undertake to ensure minimum losses to the agriculture crops and undertake to contribute suitably for compensation to the loss or damage to the crops;"
However it is clear from the above stated facts and material put on record by the Applicant herein that the 15 mining lease operators have made taken no measures whatsoever to ensure that the losses to the agricultural crops of the villagers of the villages of Shuklavas, Pichani, Pawana (Ahir), Bhuchara and Dhudhawas are kept to a minimum and thus are in clear violation of the pro visions of the Rajasthan Minor Mineral Concession Rules, 2017.
36. In the matter of Manoj Misra vs. Delhi Development Authority and Ors., Original Application No. 65 of 2016, this Tribunal has ruled that the Tribunal is mandated to apply the principle of No Fault Liability as per Section 17 (3) of the National Green Tribunal Act, 2010 :-
"62. Unlike, the laws of other countries where the Court or the Tribunals dealing with environmental issues are to determine filet whether they could apply the principle of absolute liability or not and, if so, to what extent. In India, the Tribunal is mandated under Section 17(3) of the National Green Tribunal Ad, 2010 to apply the principles of no fault. Thus, application of this principle is inescapable. This doctrine imposes an obligation upon the proled prorynent or body intending to any on an ability to bear the consequences of iB actions. The consequences would obviously include amongst other such as cost of restoration/restitution,"
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37. In the matter of Srinagar Bandh Aapda Sangharsh Samiti vs. Alaknanda Hydro Power Company Ltd. Original Application No. 03/2014, this Tribunal has applied the Principle of No Fault Liability under section 17(3) of the National Green Tribunal Act, 2010 and adjudged liability upon the Project Proponent even when the accident was a sudden or unintended occurrence -
"46. Even assuming the disaster of June, 2013 as the one involving fortuitous or sudden or unintended occurrence the injury that has resulted from such occurrence, to the human habitation needs to be regarded as the one resulted while handling the said plant or the process leading to manufacturing of power and, therefore, it is an "accident"
within the meaning of said definition under Section 2 (a) of the NGT Act, 2010. In the given facts and circumstances, therefore, the principle of No Fault Liability under Section 17(3) of the NGT Act 2010 makes the respondent no.1- Alaknanda Hydro Power Co. Ltd. liable to pay compensation for the injury caused to the human habitation."
38. In a case reported in AIR 1999 SCC (p.2468) M.I. Builders Pvt. ltd. Vs. Rahdey Shyam Sahu & Ors., it was held that "a Country should not be ruled by man but should be ruled by law. It means that that the State action must confirm to its statuary provisions. The power must flow from rules, regulations, and statutory provisions. In absence of power conferred by the statutory provision, State or its instrumentalities cannot divest a person from his or her property or abridge or dilute the right protected by Article 14 and Article 21 of the Constitution of India safeguarding life, liberty livelihood or equality of law. It was held in 2005(6) SCC (P 344) Salem Advocates Bar Association vs. Union of India 19 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. that where there is abuse of process of law or litigants suffer for no fault on their part, then court must impose cost.
39. The Tribunals or Courts constant endeavour must be to ensure that everyone gets just and fair treatment. The Court or Tribunal while rendering justice must adopt a pragmatic approach and in appropriate cases realistic cost and compensation be ordered in order to discourage dishonest litigation. When a person or institution is involved in commercial activities then any injury or damage caused by the act of these commercial activities must be compensated.
40. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters, a common who has neither the any background nor the financial strength to match the inaction in public oriented department gets frustrated and it erodes the credibility of the system. The consumer must not be made to run from pillar to post. Where there has been capacious, arbitrary or negligent exercise or non exercise of power by the authorities or instrumentalities, the forum must be provided in the department itself to hear the grievances and take a decision to redress the public grievance. In a welfare State there should be immediate attention to public grievance in case some injury is caused, the government and its instrumentalities should not hesitate to compensate the sufferers and punish the wrong doers. The individual welfare as well as the welfare of the society should be balanced and the person should not be compelled to knock the door of the Courts or Tribunals more so, when it is cumbersome process to approach the Court for payment of compensation subject to payment of court fees or lawyer fees with regard to misfeasance by the authority concerned. 20 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
41. Learned counsel for the respondent has submitted that it is a natural act or act of God and respondents are not liable to pay the compensation. The matter of liability by the negligence of the proprietor has been taken by the privy council. The Privy Council in the case of Eastern and South African Telegraph Company, Limited v. Cape Town Tramways Companies Limited, reported in (1902) AC 381, imposes a liability on a proprietor which is measured by the non- natural user of his own property, not by that of his neighbour. It also applies to a proprietor who stores electricity on his land if it escapes there from and injures a person or the ordinary use of property.
42. In the case of Corporation of The City of Glasgow v. Taylor, reported in (1922) 1 AC 44, the House of Lords have held that in the case of child eating poisonous berries, the proprietors and custodians of the garden are liable.
43. In the case of Paine v. Colne Valley Electricity Supply Co., Ltd. And British Insulated Cables, Ltd. reported in (1938) 4 All. E.R. 803, it was held that as there was no efficient screening of the dangerous parts in accordance with the provisions of that Act, there was breach of statutory duty by the first defendants and they were held liable.
44. In the case of Yachuk & another v. Oliver Blais Co., Ltd., reported in (1949) 2 All. E.R. 150, the Privy Council has held that when employee has given an explosive substance to a boy with a limited knowledge in respect of the likely effect of the explosion, the boy having done the act which the child of his years might be reasonably expected to do. This would not be a case of contributory negligence.
21 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
45. In Madhya Pradesh Electricity Board vs. Shail Kumari and others, AIR 2002 SC 55,1 it was held as follows:
"8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
46. The plea of an inevitable accident or an act of God advanced at the stage of hearing, cannot come to the aid of the opposite parties. While considering the question of inevitable accident or an act of God, it will be useful to reproduce a passage from the Law of Torts, 22nd Edition, by Justice G. P. Singh, which reads thus:
22
O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
"All causes of inevitable accidents may be divided into two classes:
1) "those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause; and
2) those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, non-feasance or mis- feasance, or in any other causes independent of the agency of natural forces. The terms 'act of God' is applicable to the former class."
47. In the case reported in https://indiankanoon.org / doc / 121920906 : Yashpal Singh Vs. State of UP, Miscellaneous Bench No. 6929 of 2014 in the case of injury through electric wire it was held:
"An inevitable accident is an event which happens not only without the concurrence of the will of the man, but in spite of all efforts on his part to prevent it. It means, an accident physically unavoidable something which cannot be prevented by human skill or foresight. We have already referred to the report of the expert (Director) which indicates that the department was at fault for not taking safety measurements. Had the Board exercised proper care and supervision, it could have taken proper and prompt steps to cover the naked wire near human living or by taking other steps, the like situation would have been avoided. Thus, it cannot be said that the 23 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
Uttar Pradesh State Electricity Board could not have prevented the incident by exercise of ordinary care, caution and proper supervision. Thus, it is not a case where the accident took place in spite of all efforts on the part of the Uttar Pradesh State Electricity Board to prevent it. In other words, it can be said that the accident was solely due to lack of care and caution on the part of the Uttar Pradesh State Electricity Board and its functionaries. Thus, it follows that the plea of an inevitable accident is wholly misconceived and cannot come to the aid of the opposite parties for getting out of its liability.
An 'act of God' is an inevitable or unavoidable accident without the intervention of the man; some casualty which the human foresight could not discern and from the consequence of which no human protection could be provided. This is not a case where the incident was due to unexpected operation of natural forces free from human intervention which no reasonable human foresight could be presumed to anticipate its occurrence or to prevent it. On the contrary, the material on record clearly indicates that but for indifference and inaction -- negligence of the Uttar Pradesh State Electricity Board in not making nuke wise steps near human living, the incident may not have occurred."
48. As a reference was made to the case of Rylands v. Fletcher (186S- LR 3HL
330) (supra), the same may be dealt with briefly. In that case, the defendants had constructed a reservoir upon their land, in order to 24 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. supply water to their mill. On the site that was chosen for the reservoir, there existed some shafts of a coal mine which was not in use. However, the passages also led to the adjoining mine which was owned by the plaintiff. This, however, was not discovered at the time of construction with the result that when the reservoir was filled, the water went down to the shaft and flooded the plaintiff's mine. Under these facts, the plaintiff instituted a suit for damages and succeeded. Dismissing the defendants' appeal, it was held by the House of Lords:
"The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings his land something which, though harmless while it remains there, will naturally do mischief if it escapes out of his land? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keep there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it at his peril or is, ... merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more ...
We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or, perhaps, that the escape was the consequence 25 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
of 'vis major' or the act of God; but as nothing of this sort exists here, it is unnecessary to enquire what excuse would be sufficient."
49. We have also to consider what would be just compensation. The Court has power to award the compensation above the amount claimed, so as to award compensation which was just. In this regard the following observations of the Supreme Court in State of Haryana vs. JasbirKaur reported in (2003) 7 SCC 484, are worth noting:-
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 26 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
'just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just" denotes equitability, fairness and reasonableness, and non-arbitrary. if it is not so it cannot be just. (Helen C. Rebello v. Maharashtra SRTC (1999(1) SCC 90)".
50. It has been held by Supreme Court in Yadava Kumar Vs. Divisional Manager National Insurance Co. Ltd. Reported in (2010) 10 SCC 341 as under:-
"14. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW-2 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome.
15. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a `just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At 27 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. the same time the concept of `just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (Mrs. Helen C. Rebello and others Vs. Maharashtra State Road Transport Corpn. and another - AIR 1998 SC 3191).
16. It was also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (HardeoKaur and others Vs. Rajasthan State Transport Corporation and another - (1992) 2 SCC 567).
17. The High Court and the Tribunal must realize that there is a distinction between compensation and damage.
The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the 28 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation."
51. The learned counsel for the applicant had submitted that the National Green Tribunal Act, 2010 is a beneficial legislation to protect the environment and to compensate the person who has sustained injuries due to non-maintenance of environment and on the principle of 'Polluter's to Pay', the applicant may be compensated. The beneficial legislation was interpreted in the New India Assurance Co. Ltd. vs. Ramesh Kalita And Others in (1989) ACC 248, the point of discussion in this case was the payment of compensation in the case of accident in motor is in Tribunal and in this reference, the relevant paras are as follows:
"13. Shri P.K. Das, learned Counsel for the claimant respondent has of course cited Oriental Fire and General Insurance Co. v. Smt. Shantabai S. Dhume AIR 1987 Bombay 52. The main consideration in giving Section 92-A retrospective operation appears to have been that the provision constitute a beneficial piece of legislation and the legislative intendment appeared clear. It was observed in Para 5:
The legislative intendment appears thus clear and what was apparently meant is to provide for compensation in all accident cases involving motor vehicles where death or permanent disablement occurred, the question as to whether the accident was due to the fault of 29 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
the driver of the vehicle, or of the victim, or due to a mechanical failure, or to force majoure, being entirely irrelevant and immaterial. The legislative intendment is manifesly to give some relief to those who have the misfortune of meeting with such accident or to their families. Section 92-A embodies and is, as such, a piece of welfare legislation which requires a liberal interpretation so as its benefits may be extended to all victims of accidents or their families, especially when nowhere in the said provision of law it is postulated that the benefit is given prospectively only and on the contrary it would appear from its wording that the said benefit is to be given in all cases where an accident occurred and as a result thereof, a death or a permanent disablement was occasioned. The Statement of Objects and Reasons of the Amendment Act to some extent corroborates this view for it particularly indicates that the intention of the Legislature was to remove the evil and mischief that people who suffered the accident had to face, being sometimes unable to prove the negligence or rashness of the driver or the owner of the vehicle and, therefore, unable to get the compensation they were entitled to. 30 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
52. The following portion of statement of objects and reasons of the Amending Act of 1982 was noted:
"Having regard to the nature of circumstances in which road accidents take place, in a number of cases, it is difficult to secure adequate evidence to prove negligence. Further, in what are known as "hit-and-run" accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is, therefore, considered necessary to amend the Act suitable to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions first for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle and, secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown. It was further held-
"They thus indicate the background and the reasons for introducing a particular piece of legislation and serve the purpose of helping in the search for the intendment of the Legislature in enacting an Act. Section 92-A is intended to provide social justice by giving compensation without proof of fault or negligence by the driver or owner of the vehicle and as such in my view it is manifest that the question as to whether the cause of action arose prior to its coming into force or not becomes irrelevant for the material consideration 31 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
for the purpose of awarding compensation under the said provision of law being whether the case giving rise to that liability is still pending."
53. The contention of the learned counsel for the respondents are that the onus of proof lies on the applicant. The applicant has filed the relevant certificates with regard to cause of death, first information report, the copy and basically proved the facts and burden is shifted to the respondent.
54. This brings us to discuss the onus of proof in matters relating to environment. We must, at the very threshold of discussion on this topic refer to the judgment of the Supreme Court in A.P. Pollution Control Board v. Prof. M.V. Nayudu supra, where the Hon'ble Court, while discussing the onus in environmental matters, held as under:
"31. The Vellore judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that Courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them. The precautionary Principle replaces the Assimilative Capacity principle.
32. A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the concept was based on the 'assimilative capacity rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid 32 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the 'precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows: -
Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage; lack of full scientific certainty shall not be used as a reason for proposing cost effective measures to prevent environmental degradation.
33. In regard to the cause for the emergence of this principle, Chairman Barton, in the article earlier referred to in Vol. 22, Harv. Envtt. L. Rev. (1998) P. 509 at (p. 547) says:
There is nothing to prevent decision makers from assessing the record and concluding there is inadequate information on which to reach a determination. If it is not possible to make a decision with "some" confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible 33 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through Judicial and legislative means is necessary.
In other words, inadequacies of science are the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
34. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (Justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. 34
O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case".
(See First Report of Dr. Sreenivasa Rao
Pemmaraju, Special-Rapporteur, International
Law Commission dated 3.4.1998 paras 61 to 72).
The Special Burden of Proof in Environmental cases:
35. We shall next elaborate the new concept of burden of proof referred to in the Vellore case AIR 1996 SC 2715. In that case, Kuldip Singh, J.
stated as follows:
The 'onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.
36. It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said 'precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed 35 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
on those who want to change the status quo (Wynne, Uncertainty and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the changes would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, Shifting the Burden of Proof, 20 Envtl. Law p. 891 at 898 (1990). (Quoted in Vol.
22 (1998) Harv. Env. Law Review p. 509 at 519,
550).
37. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4.1998, para 61).
36 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
38. It is also explained that if the environmental risks being run by regulatory inaction are in some way "ascertain but nonnegligible", then regulatory action is justified. This will lead to the question as to what is the non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a 'reasonable ecological or medical concern. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty then the presumption should operate in favour of environmental protection.
Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Fanners of New Zealand [1988] 1 NZLR 78. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable persons' test. (See Precautionary Principle in Australia by Chairman Barton) (Vol.
22) (1988) Harv. Env. L. Rev. 509 at 549).
55. The normal rule of evidence is that one who pleads must prove before the Court or the Tribunal i.e. the onus of proving, while claiming relief, is on the person who approaches the Court/Tribunal. However, this rule may not be applicable to this Tribunal stricto sensu. 37 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
56. This Tribunal has been established both with original and appellate jurisdiction relating to environmental laws. The NGT Act, 2010 was enacted for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal rights relating to environment. In relation to NGT, the legislature, in its wisdom, has specifically excluded the application of the procedure under the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872 (for short 'the Evidence Act') in terms of Section 19(1) and 19(3) of the NGT Act. On the contrary, Section 19(2) of the NGT Act empowers the Tribunal to have the power to regulate its own procedure. In terms of its Section 19(5), NGT is a judicial Tribunal. Section 20 of the NGT Act further recognizes the application of the principles of sustainable development, precautionary principle and polluter pays principle by the Tribunal while adjudicating upon disputes on environment.
57. Once the applicability of specific rules of evidence, as prescribed under the Evidence Act, is excluded, the Tribunal has to state its own procedure, including recording of evidence, but the same essentially has to be in consonance with the principles of natural justice. It will have to be examined on a case to case basis as to when the onus will shift from the applicant to non-applicant. In environmental cases, normally the damage to environment or public health is evident by itself, res ipsa loquitur. The cases of environmental degradation, damage and health hazards are obvious by themselves as a result of some industrial activity or development. In that event and keeping in view the very object of the NGT Act, 2010 it will be unacceptable to require the applicant to discharge his primary onus by strict number of events and their details. 38 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
58. Once an applicant approaches the Tribunal with a complaint of environmental injury or environmental degradation or health hazards resulting from negligence, or incidental occurrence of emission or discharge of gases or effluents in violation of the prescribed standards, then such an applicant discharges the primary onus by instituting a petition in the prescribed form, supported by an affidavit, which then shifts upon the industrial unit, developer or the person carrying out the activity complained of, to establish by cogent and reliable evidence that it has not caused pollution or health hazards by carrying out its activities; all the expected norms of discharge have been strictly adhered to by that unit; and any harm, if caused, was neither the result of any negligence nor violation of prescribed standards. Upon discharge of such onus, which is certainly much heavier, by the developer/industrial unit, it will then again be for the applicant to establish to the contrary. In other words, heavy onus lies upon the industrial unit or the developer to show by cogent and reliable evidence that it is non-polluting and nonhazardous or is not likely to have caused the accident complained of.
59. The view, we are taking finds strength from the observations stated by the Supreme Court in its judgment in the case of Narmada Bachao Andolan v. Union of India (supra) where the Court, while referring to the case of Vellore Citizens' Welfare Forum supra and the report of the International Law Commission, held as under: -
"119. It is this decision which was the subject-matter of challenge in this Court. After referring to the different concepts in relation to environmental cases like the 'precautionary principle' and the 'polluter-pays principle', this Court relied upon the earlier decision of this Court in Vellore Citizens' Welfare Forum v. Union of India (MANU/SC/0686/1996 : AIR 1996 SC 2715) and observed 39 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
that there was a new concept which places the burden of proof on the developer or industrialist who is proposing to alter the status quo and has become part of our environmental law. It was noticed that inadequacies of science had led to the precautionary principle and the said 'precautionary principle' in its turn had led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the status quo. At page 735, this Court, while relying upon a report of the International Law Commission, observed as follows:
"The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution is major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment."
120. It appears to us that the 'precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof 40 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what imitative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that imitative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation."
60. Learned counsel for the respondent has argued that there is no fixed income and no proof of income has been submitted. On the aspect of monthly income of the minor appellant, we are inclined to follow Minimum Wages Act, 1948. It is now a well-entrenched and consistently reiterated principle of law that a minor child who suffers death or permanent disability in an accident, cannot be placed in the same category as a non-earning individual for the purposes of assessing the amount of compensation because the child was not engaged in gainful employment at the time of the accident. In such a case, the computation of compensation under the head of loss of income ought to be made by adopting, at the very least, the minimum wages payable to a skilled/unskilled workman as notified for the relevant period in the respective State where the cause of action arises. The said observation was rendered by the Court, in Kajal v. Jagdish Chand and Ors., ((2020) 4 41 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. SCC 413) and Baby Sakshi Greola v. Manzoor Ahmad Simon and Anr. (2024 SCC OnLine SC 3692).
61. In case of Hitesh Nagjibhai Patel Vs. Bababhai Nagjibhai Rabari & Anr.
Hon'ble the Supreme Court of India has held that :-
1. For the purpose of emphasis, it is again clarified here that when a Tribunal or the High Court in appeal, is concerned with the case involving a child having suffered injury or having passed away, the calculation of loss of income necessarily has to be made on the matric of minimum wages payable to a skilled worker in the respective State at the relevant point of time. It is our hope that this restatement helps avoiding such errors and thereby obviates the necessity of this Court's interference, applying well-
established principles of law.
2. We may also observe that, in general, i.e., accidents involving adults, we are often confronted with situations where the Minimum Wage Data is not readily available and every so often, the question that has been made up to this Court hinges only on the calculation of income. In that view of the matter and in the hope of reducing the claimants need to file appeals to this Court or even the High Court, we deem it appropriate to direct that in cases where the claimant has failed to furnish appropriate details of income or adequate proof thereof, it shall be the responsibility and obligation of the contesting party, more particularly the insurance company to furnish before the Tribunal the applicable minimum wage as duly issued by the concerned government."
42 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
62. The matter of just compensation and the reasonable compensation has been first discussed in Shrimati Sarla Verma & Anr. Vs. Delhi Transport Corporation & Ors., Civil Appellate Jurisdiction, Civil Appeal No. 3483/2008 (Arising out of SLP [C] No.8648 of 2007) order dated 15.04.2009 by Hon'ble the Supreme Court of India where Hon'ble the Supreme Court discussed the matter and formulated the formula as follows :-
i. "Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of courts Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. [1951 AC 601] and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601]. The difference between the two methods was considered and explained by this Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, this Court preferred the Davies method to Nance method. We extract below the principles laid down in Susamma Thomas:
"In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death. The assessment of 43 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether."
"The matter of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase."
44
O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
"It is necessary to reiterate that the multiplier method is logically sound and legally well- established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of 45 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
dependency for 45 years - virtually adopting a multiplier of 45 - and even if one-third or one- fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible."
In UP State Road Transport Corporation vs. Trilok Chandra [1996 (4) SCC 362], this Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus :
"1. In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, remarriage, accelerated payment and increased earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very often as a rough and ready measure, one-third to one-half of the dependency was reduced, depending on the life- span taken. That is the reason why courts in India as well as England preferred the Davies' formula 46 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
as being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas' case, usually English courts rarely exceed
16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/Courts began to use a hybrid method of using Nance's method without making deduction for imponderables........Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier."
[emphasis supplied] xx....................xx.................xx...................xx
2. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. Assessment of compensation though involving certain hypothetical considerations, should nevertheless 47 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated :
"So the proper method of computation is the multiplier method. Any departure, except in exceptional and extra-ordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation."
3. Basically only three facts need to be established by the claimants for assessing compensation in the case of death :
(a) age of the deceased; (b) income of the deceased; and the
(c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; 48 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
(ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence."
63. Learned counsel for the applicant has also taken reliance on -
i. Shrimati Sarla Verma & Anr. Vs. Delhi Transport Corporation & Ors., Civil Appeal No. 3483/2008.
ii. National Company Ltd. Vs. Pranay Sethi & Anrs.
(2017) 16 SCC 680 iii. Reliance General Insurance Company Ltd. Vs. Shashi Sharma & Anr. (2016) 9 SCC 627 iv. National Insurance Company Ltd. Vs. Virender (2020) SCC OnLine SC 28 and argued that funeral expenses and loss of estate is also required to be paid to the mother of the deceased.
64. It is settled law that the monthly income if it is not fixed then it should be taken according to the parameter laid down by the state regarding minimum wages and the State of M.P. has notified that w.e.f. 01.04.2023 daily minimum wages of unskilled workers was Rs. 371.15/- i.e. Rs. 9,650/- per month. Learned counsel for the State has agreed that this amount was applicable in the year 2023 for the parameter of taking minimum wages of the deceased or any person affected by the employment.
49 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
65. In view of the aforesaid facts and discussion, the compensation now payable to the claimant\applicant would be calculated as under:-
Sr. Compensation Amount awarded In accordance with No. Head (Rs.) 1 Monthly income 9,650/- as per Minimum Wages Act, 1948 Baby Sakshi Greola vs. Manjur Ahmed Simon & Anr. (2022) 7 SCC 738 2 Annual income 9,650/- x 12 = -
1,15,800/-
3 Future Prospects 46,320/- + 1,15,800/- National Insurance
(Sr. No. 2) =1,62,120/- Co. Ltd. Vs Pranay
40% Sethi (2017) 16 SCC
680.
4 Deduction of 30% 1,62,120/- (Sr. No. 3) - -
towards personal 48,636/- = 1,13,484/-
expenditure
5 x 17 1,13,484/- (Sr. No. 4) x Krishna Bala, Sushma
17 = 1,929,228/- Thomas, Trilok
Chandra and Sarla
Verma
6 Loss of Estate 15,000/- SLPC SCI
30398/2019 Maya
7 Funeral Expenses 15,000/- Singh Vs Oriental
Insurance Company
Limited order dated
07.02.2025
Total Rs. 1,959,228/-
66. This amount of compensation is payable by the respondent No. 3 and rest of the respondents jointly and separately @ 6% per annum from the date of filing the application before this Tribunal. i.e. 01.07.2024 till the payment of compensation to the applicant the mother of the deceased. Respondents are directed to pay that amount of compensation within three months failing which the Collector shall proceed in accordance with rules to recover the amount from the respondents and to pay 50 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors. through account to the applicant after verifying the Aadhaar card etc. This liability has already been accrued on the respondent no. 3 mining unit on the day of occurrence and it is accrued liability on the respondent and such amount shall notwithstanding anything contained in any other law for the time being in force be a first charge on the assets of the respondent no. 3 on all the movable and immovable properties and collector have to realize it according to rules.
67. Secondly, there are violation of environmental rules and damage to the environment by not fulfilling the consent conditions and environmental conditions and by the negligence act of the respondent no. 3 the reclamation of the area had not been done according to rules and Sustainable Sand Mining Management Guidelines, 2016 & The Enforcement and Monitoring Guidelines for Sand Mining, 2020, thus, State Pollution Control Board is directed to proceed in accordance with rules and law to calculate the environmental damage and necessary remedial measure must be taken on the cost of the project proponent in addition to realizing the environmental damage from the project proponent.
68. In view of the above facts, we direct the respondents to recover the amount of compensation from the project proponent - M/s Jawan Mining & Construction Equipments Pvt. Ltd. and to pay to the applicants to the tune of amount with interest as quoted above and in- case the amount is not paid within three months, legal necessary action in accordance with the rules must be initiated. State PCB has to take action accordingly and to submit the report within six months to the Registrar, National Green Tribunal, Central Zone Bench, Bhopal. 51 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.
69. A copy of the order be communicated to the District Collector, Jaipur, District Mining Officer, Jaipur, Department of Mines and Geology through Principal Secretary, Jaipur Rajasthan and the Member Secretary, State Pollution Control Board, Rajasthan for information and necessary action.
70. With these observations, Original Application No. 155/2024 stands disposed of.
Sheo Kumar Singh, JM Ishwar Singh, EM 16th September, 2025 O.A No. 155/2024 (CZ) PN 52 O.A. No. 155/2024(CZ) Shrimati Chhoti Vs. State of Rajasthan & Ors.