D.V. Girish vs Union Of India on 21 April, 2022

[Cites 3, Cited by 5]

National Green Tribunal

D.V. Girish vs Union Of India on 21 April, 2022

1. These matters were disposed of vide order of this Tribunal dated 17.3.2021 and have been taken up only to consider affidavit filed by CPCB on 07.04.2022, along with Assessment Report of Environmental Carrying Capacity of Eco-Sensitive Zone-Sanjay Gandhi National Park, Mumbai, Maharashtra, in compliance of the order of the Tribunal.

2. The issue for consideration is undertaking of carrying capacity assessment of eco sensitive areas to give effect to the principle of 'Sustainable Development'. Vide order dated 19.03.2020, the Tribunal issued direction for undertaking carrying capacity study of atleast 1 one eco sensitive area in every State/UT, to be coordinated by CPCB with concerned States/UTs. The CPCB filed its report dated 12.03.2021 on the subject along with rapid study in respect of Sanjay Gandhi National Park, Mumbai through CSIR - NEERI. The Tribunal observed:-

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6. The issue of carrying capacity study in eco sensitive areas has been considered by this Tribunal in several cases. We may refer to some of the orders. Vide dated 29.07.2019 in O.A. No. 635/2017, Ramesh Chand v. State of Himachal Pradesh & Ors. Therein, this Tribunal got carrying capacity study conducted for eco sensitive and geographical fragile areas of Manali and Mcleodganj from an expert Committee as follows:-

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i) An Expert of Ecology from G.P. Pant Institute, Almora, Uttarakhand to be nominated by the Director of Institute.

ii) Chief Town Planner, Shimla or senior Architect (Planner) from PWD.

iii) A senior Scientist from MOEF&CC, to be nominated by the Secretary, MOEF&CC.

iv) A senior Scientist from the Indian Council of Forestry Research and Education, Dehradun.

v) Senior Scientist from Wadia Institute of Himalayan Geology, Dehradun, to be nominated by the Director.

vi) Scientist/ Senior official form the Central Ground Water Board, New Delhi.

vii) Scientist/ Senior official form the Central Pollution Control Board, New Delhi

viii) Representative of National Disaster Management Authority, Govt. of India.

ix) Representative of School of Planning and Architecture, New Delhi.

x) Member Secretary, Himachal Pradesh Pollution Control Board, shall be a member and Nodal Officer, who shall ensure the compliance."

The Committee was to consider following factors:-

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                    i)     Vehicular traffic and parking space;
                    ii)    Road Infrastructure;

iii) General scarcity of under-ground water;

                    iv)    Availability of Drinking Water;
                    v)     Overall impact on the air quality;
                    vi)    Overall impact on the Bio-diversity of the area;

vii) Earthquakes, disasters, structures stability, seismicity, land bearing capacity of soil, underlying rock, 2 proneness of landslide, structural flaws in existing structures.

viii) Transport and mobility;

ix) Indiscriminate constructions and regularization of unauthorized constructions."

The object of such studies was to ascertain whether further construction in Manali and Mcleodganj can be permitted or need to be restricted, considering the present situation in respect of environment, ecology, forest, sewage system, water supply, collection and disposal of MSW and carrying capacity, strength of the hill and adequacy of civic infrastructure etc. Such studies were carried out and recommendations were made with regard to control of activities having potential for degradation of environment such as construction of hotels, transportation and number of tourists to be allowed. The report was accepted and it was observed:-

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20. The three templates of 'carrying capacity assessments' - two in the present case i.e. Manali and Mcleodganj and one in case of Kasauli which was dealt with by order of this Tribunal vide order dated 05.10.2018 in Original Application No. 218/2017, Society for Preservation of Kasauli and its Environs (SPOKE) v. M/s Kasauli Glaxie Resorts, may be taken into account by the MoEF&CC and CPCB while carrying out further carrying capacity assessments as required in terms of orders of this Tribunal."

7. In recent order dated 10.03.2021 in O.A. No. 312/2016, Dr. Arun Kumar Sharma v. MoEF&CC & Anr., in the context of Mount Abu eco-sensitive zone, the Tribunal considered the study of area to sustain building and other activities and conditions subject to which the same could be permitted to give effect to the objective of the ESZ Notification. The Committee appointed by the Tribunal while giving its report also made recommendations for carrying capacity study to determine the number of tourists and vehicles to be permitted in the said eco-sensitive zone. The Tribunal accepted the report and directed further action by Monitoring Committee as follows:-

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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 3 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 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."

8. Thus, as earlier directed vide order dated 19.03.2020, there is need to undertake carrying capacity of eco sensitive areas in all the States/UTs. Inspite of such need, such studies do not appear to have been undertaken. We reiterate our direction for this course of action being adopted in a time bound manner to enforce the 'Sustainable Development' and 'Precautionary' principles which the Tribunal is expected to apply in giving directions under Section 15 of the NGT Act, 2010.

9. In the first instance, such study may be undertaken for atleast one eco-sensitive area in every State/UT. As per report of the CPCB, only one such study has been undertaken so far and that too, only rapid assessment, using available data. Further detailed study to determine steps necessary for protection of the said ESZ is yet to be undertaken. During the hearing, learned Counsel for CPCB stated that while such studies for all eco sensitive areas are necessary, it may be difficult for CPCB alone to undertake such exercise. It is suggested that such studies be got conducted by the concerned States/UTs by associating concerned experts and handholding may be provided by the MoEF&CC.

10. Accordingly, we direct that such exercise may be got conducted by concerned State/UT to be coordinated by a joint Committee comprising State PCB, Secretary/ Director 4 Environment and Chief Wildlife Warden. The nodal agency will be Secretary/Director, Environment for coordination and compliance. The said joint Committee may determine the mode of carrying out such study and the composition of the Committee for accomplishing the task. In doing so, it may be desirable to associate nominees of reputed Institutions, which have earlier been associated with such exercise, like G.B. Pant Institute of Himalayan Environment & Development, Almora, Forest Research Institute, Dehradun, ICFRE, Dehradun, Wadia Institute of Himalayan Geology, Dehradun and School of Planning and Architecture, New Delhi. The first phase may be completed within six months and next phase in further six months. The ESZ Expert Committee of the MoEF&CC may provide necessary guidance by holding periodical video conferences and issuing appropriate guidelines on the subject. In the light of such carrying capacity studies, the respective Master Plans of the eco sensitive areas in question be modified on the pattern of our directions in O.A. No. 312/2016, Dr. Arun Kumar Sharma, supra."

3. In the affidavit now filed by CPCB, it is stated that out of 106 National Parks in the Country, Sanjay Gandhi National Park (SGNP), Mumbai was identified for undertaking Carrying Capacity Assessment, considering the advantages for immediately initiating study i.e. where the secondary data was available. After giving findings of the study, it is submitted:-

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8. That, based on the findings of the study, it is concluded and recommended that:

a) Construction activity within the premises of the Sanjay Gandhi National Park (SGNP) should be discouraged as it will affect the fragile ecosystem of the area and will also put pressure on other environmental attributes such as water, air and noise which will affect the overall environmental carrying capacity.

b) The utilization ratio calculations for air pollutants except SO2 are exceeding the National Standards. Suitable measures to curb the impacts of air and noise pollution in the area should be employed to preserve the floral and faunal biodiversity.

c) The slope factors of the area show a reduced stress on land which should be maintained by avoiding construction activities in the area.

Further, the evaluation of the Environmental Carrying Capacity of Sanjay Gandhi National Park, Mumbai using 5 Fuzzy Analytic Hierarchy Process and considering the ecological parameters selected on a time scale shows that the ecological pressure is increasing in the area in terms of pollution and increasing temperature. Hence seeing the temporal variation, the following further conclusions are made:

d) The ecological resilience factors like Land Cover which can be improved, should be done on priority.

e) The ecological pressure inducing factors such as air pollution needs to be minimized by controlling the particulate matter.

f) The State Government shall ensure the implementation of all the measures mentioned in Notification of Sanjay Gandhi National Park dated 05 12.2016.

9. To summarize, the Environmental Carrying Capacity for Sanjay Gandhi National Park has deteriorated considerably, and efforts should be made ahead of time to ensure that the present Carrying capacity is protected and improved upon.

10. Further, to undertake carrying capacity of Eco-Sensitive Area in all the State/UTs, the Hon'ble NGT order in 0.A no. 462/2018 dated 17.03.2021 directed that "such exercise may be got conducted by concerned State: (IT to be coordinated by a Joint Committee comprising slate PCI3, Secretary. Director Environment and Chief Wildlife Warden". In order to comply and conducting such similar studies in the remaining 105 National Parks by the Joint Committee of concerned States / UTs may follow the template prepared for carrying out Environmental Carrying Capacity Study based on the present study.

Secondly, the Chief Wildlife Warden shall ensure the group of activities listed i.e. Prohibited, Restricted with Safe Guards, and Permissible as per the Guidelines for Declaration of Eco -- Sensitive Zones around the National Parks and Wildlife Sanctuaries of Ministry of Environment, Forest & Climate Change (MoEF&CC).

Thirdly, the concerned department of State Government and State Pollution Control Board shall ensure the implementation of all the measures / regulations in respect of environmental pollution due to discharge of effluents, air pollution, noise pollution, solid waste & bio-medical waste management, vehicular traffic, establishment of industries, list of permitted activities etc. as mentioned / specified in the respective Notification of National Park."

4. While we take on record the study conducted, we find the same to be inadequate in absence of assessment of socio economic, Tribal, wildlife, disaster management, sustainable eco-tourism issues. As already directed, carrying capacity assessment studies are required in respect of all eco-sensitive zones in the country, to be overseen in an appropriate manner by the MoEF&CC and CPCB. The concerned States may accordingly undertake such studies, which may be overseen by the MoEF&CC and CPCB. There are said to be 106 Notified Eco Sensitive Zones but there are many other ecologically sensitive areas not notified as such but providing significant ecological services needing protection from activities which may need to be prohibited or regulated on the concept of sustainable development. This necessitates study of Carrying capacity of all such areas with a view to prohibit/regulate activities which are likely to cause environmental degradation thereof such as forest, wildlife or other natural entities providing ecological services and which may be fragile to sustain unregulated or unsustainable activities.

Regulation may be required for imposing conditions subject to which certain activities may be allowed or specifying safe distances from the core areas for such activities. Threat to such areas may be from hazardous activities like mining and quarrying, stone crushers, encroachment and excessive constructions, excessive tourism, activities in conflict with wildlife habitats, to name a few. This necessitates following:

i) MoEF & CC needs to devise mechanism to get conservation plans prepared for all the Notified ESZs and EFAs, specifying prohibited/regulated of activities within specified distance from core areas.

ii) State Governments through the Chief Secretaries need to identify ESZs and EFAs for preparing and regulating conservation plans and take further measures accordingly.

M.A. No. 29/2022 is disposed of.

A copy of this order be forwarded to the Chief Secretaries of all States/UTs, MoEF&CC and CPCB by email for compliance.

Adarsh Kumar Goel, CP Prof. A. Senthil Vel, EM April 21, 2022 M.A. No. 29/2022 in O.A. No. 462/2018 (Earlier O.A. No. 11/2018(SZ)) with O.A. No. 76/2015 (SZ) A 8

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