Himachal Pradesh High Court: In a petition filed by the State of Himachal Pradesh, the petitioners to set aside the impugned order dated 29-07-2019, the Division Bench of Vivek Singh Thakur and Bipin Chander Negi*, JJ., opined that the principles of sustainable development, precautionary principle and polluter pays had been embedded as a bedrock of environmental jurisprudence under National Green Tribunal Act, 2010 (‘NGT Act’). Therefore, whenever the environment and ecology were being jeopardized, the Tribunal could apply Section 20 of the NGT Act for taking restorative measures in the interest of the environment. Therefore, the Court opined that the expansion of the jurisdiction to deal with haphazard, unplanned and unsustainable area in question was within the Tribunal’s jurisdiction.
Background
In an instant case, an application was filed before the National Green Tribunal (‘the Tribunal’), wherein Respondent 1 alleged that in violation of the law in force, the large number of commercial transactions, particularly hotels had come up or were coming up in Manali area of Himachal Pradesh and such construction activity had an immitigable impact on the environment. Further, to substantiate the claim, Respondent 1 pointed out infractions made by private Respondents 7 and 8, while constructing their hotel.
Thereafter, the Tribunal on perusal of the record obtained from Himachal Pradesh Pollution Control Board and Town and Country Planning Department noted that there was unsustainable development in the eco-sensitive area of Kullu and Manali. However, the petitioners contended that there was no general prayer with respect to entire area of Kullu and Manali, therefore, the present case should be confined to the private Respondents 7 and 8.
Considering, the available statistics, the Tribunal opined that the entire development particularly in the field of hotel, lodges, home stay was unplanned and in violation to the principle of sustainable development and thus, the request to limit the application to deal with only private respondents’ property was rejected. Thereafter, the matter related to construction by the private respondents was finally adjudicated, vide order dated 18-12-2017.
Subsequently, the petitioners stated that since the main application had been disposed of vide order dated 18-12-2017, therefore the proceedings in matter could not continue any further. The Tribunal vide order dated 29-07-2019 rejected the plea on the ground that only the individual issue related to private respondents had been decided and the general issue related to entire area of Kullu and Manali was still pending.
Thus, the petitioners filed the present petition and contended that the Tribunal had no jurisdiction to deal with the general issue of haphazard, unplanned and unsustainable construction being raised in the eco-sensitive area of Kullu, Manali and Mcleodganj.
Analysis, Law, and Decision
The Court opined that “the existence of the Tribunal without its broad restorative power under Section 15(1)(c) read with section 20 of the NGT Act, would render it ineffective and toothless and shall betray the legislative intent in setting up a specialized Tribunal to address environmental concerns. Section 15(1) (c) of the NGT Act has been held to be an entire island of power and jurisdiction read with Section 20 of the NGT Act.” The Court opined that the principles of sustainable development, precautionary principle and polluter pays had been embedded as a bedrock of environmental jurisprudence under the NGT Act. Therefore, whenever the environment and ecology were being jeopardized, the Tribunal could apply Section 20 of the NGT Act for taking restorative measures in the interest of the environment.
The Court further noted that in view of the averments made by Respondent 1, the Tribunal solicited record from the respondents, which revealed that an unplanned development was in violation of sustainable development. Therefore, the Court opined that the expansion of the jurisdiction to deal with haphazard, unplanned and unsustainable area in question was within the Tribunal’s jurisdiction. Further, in environmental issue when the State raised a plea of lack of the Tribunal’s jurisdiction to adjudicate, the State must understand its obligation to ensure a clean environment to its citizen. The Court relied on State of Meghalaya v. All Dimasa Students Union, (2019) 8 SCC 177, M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, and opined that since a constitutional obligation had been casted on the State Government to ensure a clean environment to all its citizens, the State had to act as facilitator and not as obstructionist.
The Court took note of the petitioners’ contention that in accepting the carrying capacity report, the Tribunal had legislated and transgressed its limits and opined that the NGT Act was a central legislation which had an overriding effect over State legislations. The Court on perusal of Section 33 of the NGT Act opined that the provisions of the NGT Act had an overriding effect over anything inconsistent contained in any other law, other than the NGT Act. This gave the Tribunal overriding powers over anything inconsistent contained in the State Planning Act and Development plan prepared thereunder. The Court opined that while dealing with the issue of environment, the Tribunal under Sections 15 and 20 of the NGT Act could examine the question of carrying capacity and direct the State to do the needful. Thus, the Court opined that the petitioners’ contention had no merit and dismissed the present petition.
[State of Himachal Pradesh v. Ramesh Chand, 2023 SCC OnLine HP 1653, decided on 14-12-2023]
*Judgment authored by- Justice Bipin Chander Negi
Advocates who appeared in this case :
For the Petitioners: Anup Rattan, Advocate General with Ramakant Sharma, Additional Advocate General;
For the Respondents: Vishwa Bhushan, Advocate.
