Case Notes

M.C. Mehta (Taj Trapezium Matter) v. Union of India,(1997) 2 SCC 353 (Before the Supreme Court of India, Writ Petition (Civil) No. 13381 of 1984, Decided On: 30.12.1996)

Introduction:
The Taj Mahal, an ivory-white marble mausoleum, is acclaimed to be one of the most priceless national monuments, of surpassing beauty and worth, a glorious tribute to man’s achievement in Architecture and Engineering. However, the Taj is threatened with deterioration and damage not only by the traditional causes of decay, but also by changing social and economic conditions which exacerbate the situation. The Taj, a monument of international repute, is on its way to degradation due to atmospheric pollution. The degradation of the Taj Mahal led M.C. Mehta, an environmentalist and a public interest attorney to file a public interest litigation before the Supreme Court in 1984. The petitioner sought appropriate directions to authorities concerned to take immediate steps to stop air pollution in the Taj Trapezium Zone and save the Taj Mahal.

Facts of the case:
The ‘Taj Trapezium Zone’ (TTZ) referred to in the case is a 10,400 sq.km trapezium-shaped area covering the five districts of the Agra region.
According to the petitioner, the foundries, chemical/hazardous industries and the refinery at Mathura are the major sources of pollution in Agra Region as stated in the report of the Central Pollution Control Board. The Sulphur Dioxide emitted by the Mathura Refinery and other industries when combined with Oxygen with the help of moisture in the atmosphere forms sulphuric acid also called “Acid rain” which has a corroding effect on the gleaming white marble. Industrial emissions, brick-kilns, vehicular traffic and generator-sets are principally responsible for polluting the ambient air around Taj Trapezium Zone (TTZ). The petitioner averred that the white marble has yellowed and blackened in places and the decay is more apparent inside.
In this case, the Supreme Court examined several reports presented by different stakeholders. The report by the Varadharajan Committee called “Report on Environmental Impact of Mathura Refinery” published in 1978 was examined. The report concluded that the sources of pollution in the Agra region were all coal users. The Committee recommended the relocation of existing small industries and underscored the use of clean technologies.
The National Environment Engineering Research Institute (NEERI) gave an “Overview Report” in 1990 observing that there was high impact of the air quality on the Taj due to the rapid industrial development of Agra-Mathura region resulting in acidic emissions into the atmosphere at an alarming rate.
As a result of this petition, the Hon’ble Supreme Court of India passed a series of orders from 1993. On 8-1-1993, the Supreme court directed the U.P. Pollution Control Board (the Board) to get a survey done of the area and prepare a list of all the industries and foundries which are the sources of pollution in the area. The Board accordingly filed an affidavit dated 3-5-1993 reporting the findings of its survey. It categorized the industries and reported that there were total of 511 industries in the given area. Pursuant to the Court’s order dated 8-1-1993, notices were issued to all these industries to install anti-pollution mechanisms.
NEERI in its report submitted in October 1993 recommended the use of natural gas as an alternative. The Court by the order dated 11-2-1994 asked NEERI to examine the possibility of using Propane or any other safe fuel instead of coal/coke by the industries in the TTZ.
The Court on 11-4-1994 examined the NEERI Report dated July 1993 which found that the industries in the TTZ were the main sources of pollution causing damage to the Taj. Pursuant to the Order dated 11-4-1994, the MoEF appointed Varadharajan Committee submitted its report regarding preservation of Taj Mahal and Agra monuments in two volumes. The Supreme Court examined the NEERI Report dated July 1993 and the Varadharajan Committee Report, both of which, suggested the relocation of the polluting industries situated in the Taj Trapezium to an area outside the TTZ. The Supreme Court directed the MoEF to examine both the reports and indicate the measures the Ministry intended to take to preserve the Taj Mahal. The Court subsequently passed an order indicating that in a phased manner, the industries located in Agra be relocated out of TTZ.
The Supreme Court on 14-3-1996 directed the GAIL, Indian Oil Corporation (IOC) and the U.P. State Industrial Development Corporation to identify industrial areas outside the TTZ which would be connected with the gas supply network. The Court held that those industries which were not in a position to get gas connections or which were otherwise polluting may have to be relocated outside the TTZ.
There were four NEERI reports, two Varadharajan reports and several reports by the Board which were placed on record before the Hon’ble Court. After examining all the reports and taking into consideration other material on the record, the Supreme Court held that the industries in the TTZ were active contributors to the air pollution in the said area. NEERI and Varadharajan Reports had specifically recommended the relocation of industries from the TTZ.

Judgment:
The final judgment was delivered on 30th December 1996 by a Division Bench comprising of Justice Kuldip Singh and Justice Faizan Uddin.
The Court applied the principle of Sustainable Development in this case observing that there needs to be a balance between economic development and environmental protection. The Court indicated that relocation of the industries from TTZ was to be resorted to only if Natural Gas was not acceptable/available by/to the industries as a substitute for coke/coal.
Although the Board had placed on record a list of 510 industries which were responsible for air pollution, the Supreme Court confined the order only to 292 industries located and operating in Agra. The industries operating in TTZ which were given gas connections need not relocate.
The Court reaffirmed the “Precautionary Principle” and “Polluter Pays Principle” laid down in Vellore Citizens Welfare Forum v. Union of India . The ‘Polluter Pays Principle’ has been held to be a sound principle by the Supreme Court in Indian Council for Enviro-Legal Action vs. Union of India. Remediation of the damaged environment is a part of the procedure of ‘Sustainable Development’ and as such the polluter would be liable to compensate the individual sufferers as well as the cost of reversing the damaged ecology.
The Court relied upon Article 21 of the Constitution of India which guarantees protection of life and personal liberty and also upon directive principles of state policy and fundamental duties enshrined under Articles 47, 48-A and 51-A (g) of the Constitution. Apart from the constitutional mandate to protect and improve the environment, the Court also relied upon several statutory enactments such as The Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. In view of the above-mentioned constitutional and statutory provisions, the Court was of the view that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the land.
Based on the reports of various authorities mentioned in this judgment, Supreme Court had reached the finding that the emissions generated by the coke/coal consuming industries were air-pollutants and had damaging effect on the Taj and also to the people living in the TTZ.
In view of the precautionary principle relied upon by the Court, the environmental measures should anticipate, avert and attack the causes of environmental degradation. The “onus of proof” was on an industry to show that its operation with the aid of coke or coal was environmentally benign. It was, rather, proved beyond uncertainty that the emissions generated by the use of coke/coal by the industries in TTZ were the main polluters of the ambient air.
The court held that the above-mentioned 292 industries shall as per the schedule indicated change-over to natural gas as an industrial-fuel and the industries which were not in a position to get gas connections for any reason would stop functioning with the aid of coke/coal in the TTZ and may relocate themselves as per the orders given by the Supreme Court.

Conclusion:
In this landmark judgement, the Supreme Court espoused the cause of protection of national heritages such as the Taj Mahal from deterioration and damage due to atmospheric and environmental pollution. The Court based its judgement on the Precautionary Principle and Polluter Pays Principle, thereby, making them an integral part of the environmental jurisprudence of our country. The Supreme Court has assumed a proactive role and made liberal use of the public interest litigation in protecting fundamental environmental interests. The judicial activism exercised by the Supreme Court for protection of the environment in this case demonstrates the increasing significance of environmental litigation in India.

– Case note prepared by Dharma Teja & Uday Bhaskar

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Rohit Choudhary v. Union of India and Ors. (Before The National Green Tribunal Eastern Zone Bench, Kolkata, Original Application No. 25/2014/EZ, Decided On: 07.03.2016)

Facts
The Applicant Rohit Choudhary, a social activist involved in Forest & Wildlife Conservation, of the village Garmur, challenged the work undertaken by the Government of Assam for “Training of river Beki on its left bank and activation of river Manas and Hakua at Mathanguri” within the Manas National Park, a UNESCO World Heritage Site, in violation of the provisions of the Section 2 of the Forest (Conservation) Act, 1980 (in short FC Act) as well the direction of the Hon’ble Supreme Court dated 14.02.2000 in the I.A. No. 548 in CWP No. 202/1995.

It was alleged that the Department of Water Resources, Government of Assam, commenced the work relating to the project which is within the limits of Manas National Park & Tiger Reserve in the State without obtaining Forest Clearance as required under FC Act and Forest (Conservation) Rules 2003 (in short FC Rules) as also no permission had been obtained from the National Board for Wildlife (in short NBWL) which were mandatorily required before the commencement of the Project. Manas National Park is a recognised UNESCO World Heritage Site. The Park holds great ecological importance as it harbours by far the greatest number of India’s Schedule I mammals of any protected area in the country and provides habitat for 22 of India’s endangered species of animals like Elephant, Tiger, One-horned Rhino, Clouded Leopard, Sloth Bear etc. and some endemic species like Pygmy Hog, Hispid Hare, Golden Langur. Even its wetlands provide habitat for around 310 bird species including the endangered Bengal Florican. Being a critical site with respect to the large biodiversity, the Applicant sought intervention of the Tribunal by directing the Department of Water Resources to stop all activities of the Project and restore the area to its original position.

The Respondents in their affidavit, while admitting the commencement of the project, submitted that the river Beki took the entire load of water rush during monsoon season due to collection of debris at the mouth of Manas and Hakua rivers which resulted in unprecedented floods and at the same time, drying up of many water holes along the stretch of the rivers in the Manas National Park due to its inability to replenish for the winter season. This posed a threat to wildlife as well as human beings, which had prompted the Government of Assam to undertake the Project. He further stated that the Park is presently undergoing an artificial change due to the man-made disaster caused in the year 2004 when Bhutan released water from the Kurichu Dam and completion of this Project would enable the Park to regain its natural and original status. It was contended that the completion of the Project would directly benefit the Park as the Manas and Hakua rivers would be activated which would reduce the flow and water current of Beki River resulting in reduction/stoppage of land erosion and felling of trees. They also stated that the Project was ancillary to conservation of forest and wildlife having the effect of providing relief to downstream settlements which doesn’t require approval of the Central Government. The Project had been examined by the Central Water Commission and recommended for acceptance by the Planning Commission (Water Resource Division) and administrative approval by the Government of Assam.

Issues

  • Whether the project was in violation to the Wildlife Protection Act and Section 2 sub section (ii) and (iv) of the Forest (Conservation) Act 1980? It reads as follows-
    2. Restriction on the dereservation of forests or use of forest land for non forest purpose-Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing, –
    (ii) that any forest land or any portion thereof may be used for any non-forest purpose;
    (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.
  • Whether the commencement of the project failed to follow the Supreme Court order dated 14.02.2002 which required prior approval/permission of the National Board for Wildlife?

Judgment
The Court observed that no proposal was received by the Wild Life Division of the Govt. of Assam for diversion work of Manas river at Mathanguri, Manas National Park and Tiger Reserve in Assam and that no site inspection was done by the Ministry to that effect and no correspondence/letter was received in the Wildlife Division of the Ministry from Govt. of Assam.
It observed that no approval was taken in writing from the competent authority of the Central Government as envisaged under Section 2 of the Forest (Conservation) Act 1980. Further no approval was taken from the National Board for Wildlife as stipulated in the order passed by the Supreme Court in the case of I.A. No. 548 in CWP No. 202/1995. As per S.2 of the said Act, it is mandatory to obtain prior approval of the Central Government and the National Board for Wildlife before proceeding with de-reservation of forests or use of forest land for non-forest purpose. The Court emphasized on the significance of the word ‘approval’ suffixed to the word ‘prior’ under Section 2 noting that any post facto approval was not permissible and no work would proceed without having any approval prior to the beginning of the job. The distinction of the two words ‘prior approval’ and ‘post approval’ as discussed in various cases such as Ashok Kumar Das and Ors. v. University of Burdwan and Ors., U.P. Avas Evam Vikas Parishad & Anr. v. Friends Co-operative Housing Society Limited & Anr., High Court of Judicature for Rajasthan v. P.P. Singh were referred. It was held that the statutory provision as couched under Section 2, “prior approval of the Central Government” was a mandatory one which is required to be obeyed and in the instant case, admittedly the respondent had not followed it. Hence, it was held that the job as had been undertaken by them was in contravention of Section 2 of the aforesaid act.

The respondents also raised a maintainability issue arguing that the Applicant does not fall under the category of persons authorised to maintain the petition under S. 16 of the NGT Act and the same is time-barred as it was not filed within the limitation period. The Court rejected the contention in view of the fact that the instant petition was not an appeal under S. 16 but under S. 18(1) read with S. 14 and 15 of the NGT Act. The Applicant belonged to Assam and was a social activist involved in the conservation of forest and wildlife. Reliance was placed upon judgments pronounced by the Apex Court as well as by the Principal Bench of NGT, vide Mumbai Kamgar Sabha v. Abulbhai Faizullabhai AIR 1976 SC 1455, Francis Coralier v. Delhi AIR 1981 SC 746, Intellectual Forum, Tirupati v. State of AP in 2004, 35 SCC 549 and Vimal Bhai v. MoEF, order by Principal Bench, NGT dated 14.12.2011 wherein the terms ‘Locus Standi’ & ‘aggrieved’ have been liberally interpreted in environmental jurisprudence. Regarding the other issue of limitation, the Court observed that the activity of the Project had a continuous cause of action in the absence of statutory clearance.

On the aforesaid observation and findings, the Court allowed the application and confirmed the interim order of stay directing the party respondents not to undertake any work related to the Project till the requisite prior approval was granted by the statutory agencies. Chief Secretary of Assam was directed to take steps in the matter and to mandate compliance of the order, and was also directed to submit the report accordingly on that issue on the next day. However, the Court did not impose any penalty on the Government of Assam as the project, prima facie, was intended for a good cause.

The Court also considered the fact that the applicant was a public spirited person and thus, imposed his litigation fees of Rs. 50, 000/- on the State of Assam, to be paid within 8 weeks. Liberty was granted to the Applicant to approach the Tribunal if he felt aggrieved against any approval granted to the project proponent on the issue.

– Case Note prepared by Anuj Jain

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