National Green Tribunal
Gauri Maulekhi vs Government Of Jammu And Kashmir on 19 December, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Hybrid Mode)
Original Application No. 473/2015
(M.A. No. 10/2016, M.A. No. 296/2017,
M.A. No. 490/2017, M.A. No. 1067/2017
& M.A. No. 1381/2017)
Gauri Maulekhi Applicant
Versus
State of J & K & Ors. Respondent(s)
Date of hearing: 19.12.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Respondent(s): Ms. Renu Gupta, Advocate for Shri Mata Vaishno Devi Shrine
Board
Mr. G.M. Kawoosa, Advocate for the UT of J & K
ORDER
1. This application was filed for remedial action against violation of environmental norms in permitting use of equines (including horses, ponies, mules and donkeys) in the region of Shri Mata Vaishno Devi Shrine in J&K.
2. The application was filed on 12.10.2015 and was dealt with by several orders including orders dated 13.12.2017, 20.02.2018 and 22.03.2018. By 13.12.2017 order, the Tribunal reiterated directions dated 13.11.2017 and also made the same applicable to Amarnath Ji Shrine Board. The operative part of the order is reproduced below:- 1
"Vide our order dated 13th November, 2017 the Tribunal had passed certain direction with regard to the environmental issues pertaining to Shrine Board of Vaishno Devi Ji. This order was assailed in Appeal before the Hon'ble Supreme Court of India vide order dated 20th November, 2017. The Hon'ble Supreme Court of India has stayed the direction No. 1 relating to opening of the new passage constructed by the Board primarily for the pedestrian. The proceedings before the Hon'ble Supreme Court of India are pending. As a result of the above it is not necessary for us to now deal with the compliance or otherwise of direction no. 1 as directed by the Hon'ble Supreme Court of India.
Learned counsel appearing for the Board submits that she has already filed compliance report in relation to other directions. However, direction No. 7 to 12 are to be complied by the State Government.
Learned counsel appearing for the State Jammu & Kashmir prays for further time to file the compliance status report. Let that be done positively within two weeks from today.
Learned counsel appearing for the Applicant submits that the rehabilitation plan in relation to horses/mules has not been finalized despite order of the Tribunal. The meetings were held but still rehabilitation plan has not been finalized.
Learned counsel appearing for the State submits that rehabilitation plan approved has been finalized. However it is with different Departments and will be shortly finalized and placed in the public domain. In light of the above, we issue the following directions:-
1. The status compliance report in relation to condition no. 7 to 12 will be filed by the State Government within two weeks as directed.
2. Learned counsel appearing for the Board shall also file compliance report of other directions within the same period.
3. The rehabilitation plan should be finalized and put in the public domain within three weeks from today without any further delay.
These directions particularly in relation to the order dated 13th November, 2017 are also subject to the directions that may be passed by the Hon'ble Supreme Court of India.
Amarnath Ji Shrine Board In furtherance to our order dated 15th November, 2017 the meeting was held by the Additional Secretary Ministry of Environment, Forest & Climate Change, Mr. A.K. Mehta. On 08th December, 2017 certain issues were discussed but by and large the answer to query raised by the Tribunal in its order appears to have been deferred for one reason or the other. We 2 would not make any further observation at this stage particularly keeping in view what the CEO of Amarnathi Ji Shrine Board has submitted before the Tribunal.
In furtherance to the above we pass the following directions:-
1. The restrictions in relation to one way queue for Darshana at the holy cave shall be strictly implemented.
2. No Pilgrim/devotee/person would be permitted to carry any article from the last stairs leading to the holy cave. It is admitted that every person is subjected to frisking before he can proceed to the cave. At the frisking point there shall be provided a space for storage for articles. Nobody would be permitted to carry any article mobile etc. beyond frisking point which is also the practice followed in other religious places.
3. From the end point of stairs and area of the holy cave only shall be treated as silence zone.
The above directions shall be implemented now without default and no Committee or Authority/Board will have the right to seat over the implementation of these directions. Learned counsel appearing for the Board and the State both pray further time to comply with the remaining directions contained in the order dated 15th November, 2017 and to file further status report. The CEO of the Board also submit that the Committee is likely to deliberate upon various issues in grater details in the next meeting. Let the next meeting be definitely held before 15th January, 2018. In that meetings the matters should be deliberated upon and definite suggestions/recommendations should be made particularly in relation to improvement of passages and providing infrastructure which will be eco-sensitive. But we make it clear that the direction contained in the judgment and above shall be obeyed and complied with without any default. The Committee should file its report before the next date of hearing.
4. The Board and concerned Authorities shall take all appropriate steps as directed in the judgement of Hon'ble Supreme Court of India in relation to healthcare and providing of health care clinics enroute in terms of the directions of the Hon'ble Supreme Court of India.
We grant liberty to the Applicant to make its submissions before the Committee including with regard to the issues arising of death of horses/mules 3 during Yatra period and pollution that is being caused by horses/ mules.
Let the suggestions be filed within two weeks from today before the Officer of the Chairman.
List this matter on 18th January, 2018."
3. Vide order dated 20.02.2018, the Chief Secretary, of J&K was directed to file a statement about the steps taken for rehabilitation scheme in pursuance of order dated 30.11.2017. The operative part of the order is reproduced below:-
"However, the Learned Counsel accepts that the order of the Hon'ble Supreme Court dated 20th November, 2017 has stayed only to the direction No. 1. He further admits that the ground No. 1 urged in the application to the effect that the Rehabilitation Plan for mule operators is directly relating to direction No. 1 of the order dated 13th November, 2017 is incorrect and the ground does not survive potentially. Similarly, he would urge contending that the ground No. 2 does survive for consideration. However, he would submit that the State wishes to press ground No. 3 and 4 urged in the application and relies on those grounds to seek recalling of the order dated 13th November, 2017 which is seriously opposed by the Learned Senior Counsel Mr. Krishna Venugopal for the applicant. This Tribunal had clearly directed the Chief Secretary to take required steps positively. The Chief Secretary had to file statement in the form of affidavit regarding compliance of the direction. That has not been done. Keeping in mind the factual aspects which is not in dispute and the contentions urged, we are satisfied that the ground No. 4 urged by the State Government stating that the Rehabilitation Scheme/Plan could not be finalised and the same had to be further examined by the Housing and Urban Development Department for placing it before the Cabinet for consideration and for its placement in Public Domain, once the approval of the Competent Authority is obtained, is certainly unacceptable.
We are unable to appreciate, how such plea could be advanced when the directions No. 3 issued to the State Government is that the State Government has to finalize by taking required steps. In the ground No. 4 the contention that the draft Rehabilitation Plan prepared by "State Government" is for the further examination by housing and Urban Development Department is meaningless. Even if the Rehabilitation Scheme/Plan is to be further examined by the said Department, the Government should bind all concerned to take expeditious action there is no reason for ignoring or directions to cause delay. Similarly placing before the cabinet, shall be done by the Government itself. More than one year has passed, but nothing has been done by the State of Jammu and Kashmir. The direction of this Tribunal should have drawn attention of the Government immediately to the seriousness of the issue and even if there are certain procedural formalities the State was bound to expedite the 4 process. Since no reason is assigned before us for inaction and the delay resulting therefrom either due to individual inaction or institutional delay in the administration, the State has to explain. Therefore, we can hardly appreciate the conduct of the State Government. The request made by the State Government through M.A. No. 38 of 2018 is unjustified. It will be reasonable to direct the Chief Secretary to file statement in the form of affidavit detailing the steps taken till now to comply with the directions of the Tribunal relating to Rehabilitation Scheme and the said Scheme shall be finalised immediately. The affidavit shall be filed within two week from today after serving copy of the same to the all concerned. This order is relating to only Shri Mata Vaishno Devi and not to the other shrine."
4. Vide order dated 22.03.2018, the Tribunal made observations about lack of justification for delay in finalizing the rehabilitation scheme and also imposed cost of Rs. 50 lakhs for such delay. Operative part of the order is reproduced below:-
"We may refer to our order dated 20th February, 2018 where with anguish we had noted failure of the State of Jammu & Kashmir in complying with our earlier directions to finalise and put for execution rehabilitation plan and scheme for the effective rehab to the operators who were restrained from using mules who are deprived of their earning consequent to other order.
We also note that application moved by the State Government seeking for grant of further time by modifying of our earlier order dated 30th November, 2011 was rejected putting on guard the State Government of serious action that may follow in the case of further default.
However, we retrained ourselves from passing any harsh order and gave opportunity to the State to ensure that steps shall be taken in the earliest and right earnest in the finalization of the scheme shall be done to ensure that the directions are complied and the State realizes the importance and urgency of the matter we had directed the Chief Secretary to take note of these aspects.
Learned counsel Mr. G.M. Kawoosa appearing for State refers to the Affidavit filed by the Chief Secretary and submits that four weeks time may be granted to the State to take "Steps" to place the matter before the Cabinet of the State for decision.
He submits that because of the constrains imposed by certain Rules the decision would be taken unless it is placed before the Tribunal. We make it clear that none of our directions direct the State Government to commit breach of any Rule instead we had directed the State explain to take proper decision in lawful manner at the earliest. Now Rule that is quoted before us is Rule requiring policy decision and other important decision to be placed before Cabinet for its own examination and ultimate decision.5
According to the learned counsel rehabilitation scheme has passed the scrutiny of all stake holders including the Department of Urban Development which was quoted as a likely impediment in the earlier order for finalizing the scheme. Therefore as of now, the statement of Chief Secretary itself is the scheme is now fully finalized and all that it requires is the nod of the Cabinet. If that be so there is no explanation why it is not being placed before the Cabinet right from 20th February, 2018 till now. Time sought of four seeks to place before the Cabinet does not appear as a reasonable request on behalf of the State in regard to the serious matter pertaining to the rehabilitation of the effected peopled whose life depends on the rehabilitation which Government has to do.
Referring to the statement made in the plan and the action taken by the State Government the learned counsel Mr. G.M. Kawoosa was very persuasive to accept the action of State as bonafide and not to from any adverse opinion against the State machinery as such. Despite his persuasive eloquence we are unable to appreciate inaction on the part of the State thus it compels us to pass the following orders.
We also note the State has failed to note that rehabilitation scheme is for providing for rehabilitation to the persons who were earning through mules and for but the animal as well. In the circumstances we decline to grant time of four weeks to the State and instead impose the cost of Rs. 50 lacs to be deposited within one week from now and to ensure that the scheme is finalised complying with all directions of the Tribunal within two weeks from now. Any failure on the party of the State shall expose it to further order in this regard."
5. Against the above orders, Civil Appeal Nos. 4050-52/2018 have been filed by the State of J&K. In the said Appeals vide order dated 02.07.2018, the Hon'ble Supreme Court passed in interim order directing this Tribunal not to proceed further in the matter since various aspects were being looked into by the Hon'ble Supreme Court. Apart from the said order, Civil Appeal Nos. 4243-45/2018 were filed by Amar Nath Ji Shrine Board on the ground that order with regard to Amar Nath Ji Shrine Board could not have been passed in matter dealing with Mata Vaishno Devi Shrine Board. The said appeals were allowed on 16.04.2018 quashing orders of the Tribunal to that extent with liberty to the original applicant to file a separate application. Civil Appeal No. 18844/2017 has been filed by the Mata Vaishno Devi Shrine Board in which orders dated 20.11.2017 and 03.05.2018 has been passed by the Hon'ble Supreme 6 Court staying the operation of order of this Tribunal and also making observations on the subject of rehabilitation of the mule owners.
6. In view of order dated 2.7.2018 noted earlier, the issue being dealt with by the Hon'ble Supreme Court, this Tribunal does not have to deal with the issue. The matter has been pending before this Tribunal awaiting orders of the Hon'ble Supreme Court for last more than four years. Under the circumstances, learned counsel for the appearing parties suggest that it would be in the interest of justice that the proceedings before this Tribunal are disposed of, without prejudice to the aggrieved party moving this Tribunal, if necessary, after disposal of the matter by the Hon'ble Supreme Court. Subject to the Parties abiding by further orders of the Hon'ble Supreme Court in the pending appeal and with liberty to th aggrieved party to move this Tribunal later, if necessary, proceedings before this Tribunal will stand closed, treating earlier orders, against which appeal are pending final, subject to orders of Hon'ble Supreme Court in the pending appeals.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM December 19, 2022 O.A. No. 473/2015 A 7