Bhanwar Singh Mertiya vs Ministry Of Environment Forest And ... on 6 April, 2022

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National Green Tribunal

Bhanwar Singh Mertiya vs Ministry Of Environment Forest And ... on 6 April, 2022

1. Grievance in this application is against order dated 16.03.2021 of the Department of Local Self Government, Rajasthan, Jaipur, permitting a Committee headed by Sub Divisional Officer, Mount Abu to decide on the layout plans for constructions and also allowing deemed permissions in default of decision after 15 days of the application. The order is reproduced below:

"In compliance of the Union Ministry of Environment and Forest's notification no. 20-I/2005-IA-III dated 25.06.2009 point no. 4, the monitoring committee chaired by the Divisional Commissioner, Jodhpur had decided that the permission for entry of building construction material would be ensured through the medium of Sub- Divisional Officer, Mount Abu for Mount Abu municipal area. As assured by the Hon'ble Minister, Department of Local Self Government in the Rajasthan legislative assembly in this matter, the following committee is hereby constituted to give the above mentioned permission while changing the existing procedure:

1. Sub-Divisional Officer, Mount Abu - Chairperson

2. Chairman, Municipal Board, Mount Abu - Member 1

3. Commissioner/E.O., Municipal Board, Mount Abu - Member Secretary For entry of construction material in Mount Abu, Sub-

Divisional Officer will issue the tokens after site inspection is conducted following the receipt of application in the determined format. After that, the aforementioned committee will decide on the building layout plan (map) in the application through unanimous consensus in 15 days. If in 15 days after getting the complete information/documents from the applicant, the committee does not decide (and the case is not sent to the state government), deemed permission will be applicable and accepted. If the committee does not form unanimous consensus in any case, the case will be referred to the state government for decision while informing the applicant. The applicant will be informed immediately about the acceptance/rejection of his application in accordance with the decision of state government."

2. Main contention on behalf of the applicant is that the order is in direct conflict with the order of this Tribunal dated 10.03.2021 in OA No. 312/2016, Dr. Arun Kumar Sharma v. Ministry of Environment, Forest & Climate Change & Anr. and other connected matters. By the said order, this Tribunal considered the validity of Zonal Master Plan, 2030 (ZMP 2030) for the Mount Abu Eco-sensitive Zone (ESZ) and held that the same was incompatible with the Mount Abu ESZ Notification, issued under the EP Act, 1986. It was directed that the ZMP was required to be revised with restrictions/prohibitions against constructions consistent with the ESZ Notification. Thus, no construction either expressly or by way of 'deemed permission' can be granted in violation of such restrictions/prohibitions by the constituted Committee. The operative part of the order is reproduced below:

"23. Object of notifying certain areas as eco-sensitive zones is to protect certain specified sensitive areas by restricting and regulating development activities around such areas. Such areas may be species based, geo-morphologic feature based or eco system based. It is necessary to protect bio-diversity zones by creating regulated buffers around them to protect their flora and fauna, to prevent habitat destruction and to protect fragile ecology. Regulatory measures include different land use patterns, regulation of different activities including industries. Such protection is particularly required around national parks, wildlife sanctuaries and 2 areas of peculiar ecology and habitat etc. to minimize negative impact of activities proposed to be restricted/regulated. For restriction/regulation Master Plan has to be prepared by involving Wildlife Department, Environment Department and Revenue Department having regard to broad based thematic areas. Activities to be restricted are pollution causing activities or activities having potential for damage to the fragile ecology like ground water depletion or commercial use of resources like felling of trees. Regulatory measure may involve use of renewable energy, steps like rain water harvesting. The type of regulation may vary from area to area.

24. The issue attracted particular attention of the Hon'ble Supreme Court in public interest litigations including W.P. No. 202/1995, T.N. Godavarman v. UOI & Ors. In the said matter the Hon'ble Supreme Court appointed expert Committees on 09.05.2002, on recommendation of Mohan Ram Committee the eco sensitive zones were identified. On 25.06.2009, Mount Abu was declared eco sensitive zone. As recorded in order of the Hon'ble Supreme Court dated 19.08.2011, (2011) 14 SCC 390 Para 10, ZMP was directed to be finalized within two months. An interim order was passed on 16.12.2011, (2012) 12 SCC 246 Para 10 injuncting sanction of building plans. W.P. No. 240/2010 was filed challenging the ZMP as violative of Article 243 W read with XIIth Schedule to the Constitution. But the same was dismissed as withdrawn to move the High Court.

25. It is, thus, clear that object of notifying ESZ is to protect specified area from irreversible degradation of environment with a view to give effect to the principle of Sustainable Development and Inter-Generational Equity and Public Trust Doctrine in exercise of powers under Section 3(2) (v) of the EP Act, 1986.

Individual Sites under consideration

26. The site 'Inside Salim Ali Bird Sanctuary' has righty been found not suitable for constructions on account of the land being fragile in terms of soil cover and the area being prone to erosion. There is no objection to the said finding. Site 'Next to Aranya Village' has also been found not suitable for construction on account of its location mostly being with more than 20 degree slope and limited sources of water supply. The area is landslide prone. Scope of sewage and solid waste disposal is limited. The site 'Behind Maganji Mountain' has been found to be suitable for construction in the absence of forest, less potential for damage to the landscape.

With regard to 'Hill Sahil' the site has been found to be unsuitable for construction for the reasons already mentioned on account of high vegetation, steep slope, old trees of endemic species. 'Sunset Road Scheme' has been found suitable for construction, subject to the restrictions of 10% of total area being used for construction subject to NOC from the Forest Department. We direct that consideration of NOC 3 by the Forest Department should be prompt and a decision must be taken within one month from the date of the application, failing which the officer delaying the matter should be held accountable. We find the restrictions to be otherwise necessary. 'Sunrise Housing Society' has been found suitable for construction, subject to the criteria for buffer zone being followed. 'Arna Village' site has been found to be suitable for construction and no issue has been raised with regard thereto. Similar is the position with regard to 'Mohanpura' which has been found suitable for construction. With regard to 'Hetam Ji' as already discussed, the site is not suitable for constructions on account of geological instability at high slopes and there being high vegetation. The area is prone to erosion. 'Near STP Plant' location has been found not suitable for construction on considerations of wildlife eco-system. We also find the recommendation of the Committee with regard to prohibiting use of plastic, burning of garbage or other waste, taking precaution in protecting animals while laying high tension lines, preventing forest fires, conserving Nakki Lake, siting the waste processing plant as per rules, regulating the fuel of the vehicles, suitably replacing alcohol bottles to avoid injuries to the wildlife, protecting the species of the vegetation. The Committee has also rightly found that conversion of green areas to non-green areas should not be allowed, except the exceptional situations mentioned therein. Adventure based tourism should not be permitted without a feasibility study considering environmental and other aspects having regard to water scarcity. Re-use of treated water should be fully ensured. The STP must be duly maintained. Since there is only one double road leading to Mount Abu, the number of vehicles should be restricted based on the carrying capacity. Detailed carrying capacity must be undertaken depending upon the water availability, sewage treatment capacity, present land use, tourist accommodation available and planned, existing air quality, parking spaces, etc. Conclusion and directions:

27. Accordingly, we accept the report of the Committee and direct that the ZMP 2030 may be duly modified in the light thereof. The revision of the ZMP may be undertaken by the concerned authorities, in consultation with the nine-member Committee constituted by this Tribunal vide order dated 07.11.2019.

ZMP may be finalized within three months from today, covering all aspects in detail, and duly published in the official gazette. We may particularly mention that where land holding is less than 2500 meters, the built-up area should be allowed on pro-rata basis, in consonance with the Farmhouse norms where application of such norms has been recommended by the Committee. Apart from giving effect to the recommendations regarding ban and restrictions on construction, protection of rocks in terms of the recommendations by not permitting the ropeway or sport climbing may be ensured. The status of the construction, as on date of ESZ Notification, be duly compiled and placed in public domain and any construction in violation of ESZ Notification be removed. All land parcels where Expert 4 Committee has permitted construction be properly demarcated on map as well as on ground by pucca pillars, after duly leaving the distance for buffers as per ESZ notification. The information be put in public domain. All blank patches of lands within the ESZ be greened up by the Municipal corporation. Buffers around drains, wetlands and forest be duly maintained and protected. The authorities may ensure proper functioning of STP and its connectivity to the sewer lines, utilization of treated sewage, management of solid waste and overall environmental quality. We direct that consideration of NOC by the Forest Department should be prompt and a decision must be taken within one month from the date of the application, failing which the officer delaying the matter should be held accountable. Subject to these directions, the applicants or any other aggrieved party will be at liberty to give their suggestions to the Member Secretary, State PCB for consideration by the Committee. The members of the Committee will be deemed to be co-opted in the statutory Monitoring Committee under the ESZ Notification, till finalization of the ZMP."

3. The matter was earlier considered on 27.08.2021. The Tribunal found that the impugned order dated 16.03.2021 of the Department of Local Self Government, Rajasthan, Jaipur was in direct conflict with the orders of this Tribunal dated 10.03.2021. Accordingly, while issuing notice to the State of Rajasthan to show cause why the impugned order be not quashed, the Tribunal stayed the operation of the order. The operative part of the order dated 27.08.2021 is as follows:-

"1to3...xxx...................................xxx....................................xxx

4. It is, thus, patent that the impugned order is directly in conflict with the order of this Tribunal as restrictions in terms of orders of this Tribunal have not been imposed. Section 33 of the NGT Act makes it clear that the provisions of the said Act override any other law. The order of this Tribunal is a binding decree by virtue of Section 25 of the NGT Act. Thus, prima-facie the impugned order is liable to be quashed.

5. Accordingly, we issue notice to the State of Rajasthan through the Department of Local Self Government, Jaipur to show cause why the impugned order be not quashed under Sections 14 and 15 of the NGT Act. Response, if any, may be filed by the State of Rajasthan within one month from today.

6. Pending further consideration, operation of the impugned order will remain stayed. However, the State is not debarred from taking steps consistent with the order of this Tribunal.

IA Nos. 157/2021 and 158/2021 will stand disposed of in terms of the above order.

A copy of this order be forwarded to the State of Rajasthan, Department of Local Self Government, Jaipur, by e-mail for compliance.

The applicant may serve a set of papers on the State of Rajasthan and file an affidavit of service within one week."

4. In pursuance of above, affidavit of service dated 05.11.2021 has been filed on behalf of the applicant as follows:-

"3. That in compliance with the Directions of this Hon'ble Tribunal, the counsel for the Applicant served the paperbook to the Respondents through Speed Post bearing Nos. ED967784344IN, ED967784358IN and ED967784335IN dated 27.09.2021, which as per the track report were duly delivered on 28.09.2021, 30.09.2021 and 30.09.2021 respectively. The original Speed Post Receipts as well as the Print Outs of the track report thereof from the official website of India Post, i.e. www.indiapost.gov.in are annexed herewith as Annexure A/1 (Colly)."

5. Record also shows that copy of the order was forwarded by the Registry of this Tribunal twice by email on 31.08.2021 and 10.11.2021 to the Department of Local Self Government, Rajasthan, Jaipur. However, no response has been received from the State of Rajasthan.

6. We have, thus, no option but to proceed ex-parte.

7. In view of impugned order being in conflict with order of this Tribunal dated 10.03.2021, as shown in earlier part of this order, the same cannot be sustained and has to be quashed. We order accordingly.

The application is disposed of.

A copy of this order be forwarded to the Department of Local Self Government, Rajasthan, Jaipur by e-mail for compliance.

Adarsh Kumar Goel, CP 6 Sudhir Agarwal, JM Arun Kumar Tyagi, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM Dr. Afroz Ahmad, EM April 06, 2022 Original Application No. 208/2021 A 7

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