Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT), Southern Zone, Chennai: While imposing a fine of Rs 41.21 crores on Singareni Collieries Company Limited, for violation of environmental clearance conditions and mining excess coal, the Coram of Justice K. Ramakrishnan (Judicial Member) and Dr Satyagopal Korlapati (Expert Member) expressed that,

“The Government Corporations are expected to be more law abiding and if any leniency or discrimination is shown for committing violation, then it is very difficult to maintain the rule of law, if any violations were committed by other persons. There will not be any moral right for the regulators to take action against others, if similar violations were committed by them.”

A resident of Telangana filed an application regarding the violation committed by respondent 1 in respect of violation of conditions in the Environmental Clearance (EC) and Consent granted and also pollution caused on account of the operation of the unit.

Allegations

It was alleged that the applicant along with 700 families were living adjacent to the Opencast Coal Mine operated by respondent 1 facing severe air, noise and water pollution besides severe heat due to massive blasting, drilling, and extraction of coal in the Opencast Mine.

Analysis and Decision

Tribunal noted that the grievance of the applicants was that, SCCL, a Government-owned public sector undertaking corporation had conducted their operation without necessary clearances and also in violation of the conditions of the Environmental Clearance (EC) granted and also doing excess mining, causing pollution to the neighbouring water bodies and properties of the residents of the locality both air and sound. Damage was being caused on account of the indiscriminate unscientific manner in which blasting was being done.

In a way it was admitted by the SCCL themselves that they had done excess mining than the permitted quality and when they applied for an expansion of the project, it was treated as a violation case, hence proceedings were initiated by filing a complaint under Section 19 of the Environment (Protection) Act, 1986.

The Joint Committee, after conducting the Ambient Air Quality and Vibration Study, found that the Ambient Air Quality and the sound level were within the permissible limit and the pollution control mechanism provided was adequate and that was not causing any dust pollution as claimed by the applicants.

The Joint Committee had come to the conclusion that except for excess mining and also partial cause for damage to the houses on account of the vibration caused during blasting, there was no other violation noted by the Joint Committee. 

It is seen from the report that excess mining was done at the instance of the Government to meet the supply of coal to thermal power stations to meet the power demand. It may be mentioned here that though it is a Government owned corporation, they are not expected to exploit natural resources, as no one including the Government said to be the owners of the natural resources are only the trustees to hold the natural resources to be used in a scientific manner so as to make the natural resources available for the generation to come, applying the “Doctrine of Public Trust”. 

Further, it was noted from the Joint Committee that on account of excess mining, they earned a profit of Rs 588.60 Crores in 11 years and 3% of that amount namely, Rs 17.65 Crores had to be contributed to remediation and including this amount, an amount of Rs 26,67,00,000/- (Rupees Twenty Six Crores and Sixty Seven Lakhs only) was directed to be produced as Bank Guarantee, which they had produced.

Coram directed the Mining Department to calculate the penalty for the excess mining done in view of the Supreme Court directions issued in Common Cause v. Union of India, (2017) 9 SCC 499.

Considering the period of violation, Tribunal opined that instead of 3% (Three percent), 10% (Ten percent) of the profit namely, Rs 58.86 Crore (Rs.588.60 Crore x 10%) can be imposed as compensation for excess mining and deducting Rs.17.65 Crores which was directed to be utilized for remediation purpose, the balance amount of Rs. 41.21 Crores will have to be paid by the Singareni Collieries Company Limited (SCCL) as compensation for excess mining done by them and this amount will have to be paid to the Telangana State Pollution Control Board within a period of 3 (Three) months.

Telangana State Pollution Control Board was directed to identify the persons whose houses were damaged due to vibration caused on account of blasting and quantify the amount required for repairing the houses.

SCCL was directed to comply with the recommendations of the Joint Committee and also conditions imposed in the Environmental Clearance (EC) already granted and subsequently granted for their combined expansion project, enhancing the capacity to 5 MTPA.

The gist of the Directions

(i) The Singareni Collieries Company Limited (SCCL) is directed to pay a compensation of Rs 41.21 Crores [i.e. Rs.58.86 Crores (10% of the profit) – Rs 17.65 Crores (3% of the profit) which was directed to be adjusted towards the remediation plan] within a period of 3 (Three) months with the Telangana State Pollution Control Board and if the amount is not paid within that time, the State Pollution Control Board is directed to take steps to recover the amount from them by requesting the District Collector to initiate revenue recovery proceedings.

(ii) The Mining Department is directed to calculate the penalty payable for the excess mining done in view of the directions issued by the Supreme Court in Common Cause V. Union of India (2017) 9 SCC 499, as even at the time when it was treated as a violation case, the project proponent/SCCL has filed an undertaking that they will abide by the directions issued by the Supreme Court in Common Cause’s case cited supra.

(iii) The Telangana State Pollution Control Board in consultation with the District Collector of the concerned area, identify the persons whose houses have been damaged as observed by the Joint Committee partially due to vibration caused on account of blasting during the initial stages and the amount required for repairing the houses will have to quantified and the same will have to be paid to those persons whose houses have been identified as damaged on account of the operation of the Singareni Collieries Company Limited (SCCL) and this amount will have to be realized from SCCL. The environment compensation amount will have to be utilized for the purpose of preparing a welfare scheme for protecting the welfare and interest of the people who are residing in and around the coal mining area who are likely to be affected by the project activities and also a portion of the out of compensation will have to be utilized for meeting the welfare of the Tribal settlement, if any, situated in Khammam District or nearby districts. Mode of welfare scheme etc. will have to be evolved by the Committee appointed by this Tribunal for this purpose.

(iv) The preparation of scheme must be in consultation with the Chief Secretary to Government, State of Telangana and the Special Chief Secretary to Government – Department of Environment, Science & Technology and that will have to be jointly implemented by the State Pollution Control Board and the concerned District Collector.

(v) The Singareni Collieries Company Limited (SCCL) is directed to comply with the recommendations of the Joint Committee and also conditions imposed in the Environmental Clearance (EC) already granted and subsequently granted for their combined expansion project, enhancing the capacity to 5 MTPA. The expanded project can be permitted to be carried by the project proponent namely, the Singareni Collieries Company Limited (SCCL) after complying with the direction issued by the MoEF&CC while granting the Environmental Clearance (EC) as violation case and also after depositing the amount as directed by this Tribunal as compensation for excess mining done over and above the permitted quantity mentioned in the Environmental Clearance (EC) earlier granted.

(vi) In order to monitor the implementation of certain CSR Projects said to have been launched by the project proponent, we appoint a Joint Committee under the chairmanship of the Special Chief Secretary to Government, Department of Environment, Science and Technology, State of Telangana with following members (i) a Senior Officer from the Integrated Regional Office, MoEF&CC, Hyderabad, and (ii) the District Collector – Khammam District and they are directed to monitor the compliance of the Environmental Clearance (EC) conditions and also the projects said to have been launched by the SCCL in compliance with the direction issued in the Environment Remediation Plan as well as their CER activities and if they did not comply with the same, the MoEF&CC is directed to take appropriate action for violation of the conditions of the Environmental Clearance (EC) against the SCCL.

(vii) The Telangana State Pollution Control Board is directed to monitor the pollution control mechanism and compliance of conditions in the Environmental Clearance (EC) and Consent granted periodically and if there is any violation found, then they are directed to take appropriate action against the SCCL in accordance with law.

(viii) The Singareni Collieries Company Limited (SCCL) is also directed to take all necessary precautions to avoid complaints of pollution being caused on account of their operation both air and soil and also control the vibration and sound that is likely to be emanated during blasting operation to avoid complaints from the nearby residents.

(ix) The Singareni Collieries Company Limited (SCCL) is also directed to provide necessary greenbelt and also other pollution control mechanism to avoid air and dust pollution being caused. They are also directed not to discharge any trade effluents or liquid waste generated during the operation of their mine and they are directed to strictly implement the ZLD within their unit.

(x) The Singareni Collieries Company Limited (SCCL) is also directed to expedite the laying of railway track and complete the same and take steps to transport the coal using railway line instead of road as directed to be complied with within the timeline specified in the Environmental Clearance (EC) granted.

In view of the above directions, the applications were disposed. [Banothu Nandu Nayak v. Singareni Collieries Company Ltd., OA No. 174 of 2020 (SZ), decided on 6-5-2022]


Advocates before the Tribunal:

O.A. No.174/2020 (SZ):

For Applicant(s): Mr. Sravan Kumar.

For Respondent(s): Mr. A. Sanjeev Kumar, Spl. Govt. Pleader for R1. Mrs. Me. Saraswathy for R2.

Mr. T. Sai Krishnan for R3.

Mrs. H. Yasmeen Ali for R4 & R5.

O.A. No.20/2021 (SZ):

For Applicant(s): Mr. Sravan Kumar.

For Respondent(s):

Mrs. Me. Saraswathy for R1.
Mr. T. Sai Krishnan for R2.
Mr. A. Sanjeev Kumar, Spl. Govt. Pleader for R3

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (Central Zone Bench): While addressing the issue of pressure/air horns and motor vehicles being driven with intolerable sound in Rajasthan, the Bench comprising of Justice Sheo Kumar Singh (Judicial Member) and Dr. Arun Kumar Verma (Expert Member) found the State of Rajasthan in contempt of the Supreme Court’s order and issued notice to the state government to reply within three weeks.

The applicant had approached the Tribunal with a social cause pertaining to failure of the State to ensure effective implementation of laws related to noise pollution. To point out the deplorable state of affairs on the rampant noise pollution in the State which majorly emanates from vehicles either through incessant use of horns and modified exhausts, the applicants had submitted various State recorded data, environmental and motor laws and recent news reports before the Tribunal.

The applicant submitted that as per Rule 3(3) of Noise Pollution (Regulation and Control) Rules, 2000 formed under the Environment (Protection) Act, 1986, respective State Governments are responsible for abatement of noise radiating from vehicular exhausts and horns and to ensure that, Ambient Air Quality Standards, scheduled under the Rules are realized.

Further, the applicant contended, even otherwise State inaction on such crucial issue culminated to contempt of Court as there was non-compliance with the directions of the Supreme Court in Balwant Singh v. Commissioner of Police, (2015) 4 SCC 801, wherein while dealing with the issue of rampant and unchecked noise pollution in the State of Rajasthan, in particular with respect to State capital i.e., Jaipur, the Court had directed compliance of its earlier judgment in, Noise Pollution – Implementation of the Laws for restricting use of loudspeakers and high volume producing sound systems; In re, (2005) 5 SCC 733, wherein State Governments were directed to ensure the following:

  1. Limit noise sources to 10 dB(A) above the ambient noise standards for the area or 75 dB(A), whichever is lower; and
  2. Prohibit use of horn during night (between 10 p.m. and 6 a.m.) in residential areas except in exceptional circumstances; and

iii. Make provision for seizure and confiscation of any noise source creating noise beyond the permissible limits.

The issue had also been addressed by the National Green Tribunal (Principal Bench), in Hardeep Singh v. South Delhi Municipal Corpn., O.A. No. 519/2016 (P.B.), wherein directions were issued to Central Pollution Control Board (CPCB) to devise the scale of compensation on the basis of ‘Polluter Pays’ principle to curb the menace of noise pollution and ensure implementation of the mandate and spirit of Rules. Resultantly, the CPCB had issued a directive that in the event of violation of Rules, imposition of fine of Rs. 10,000/- and seizure of polluting source will be undertaken. Pertinently, a nationwide directive dated 27/04/2021 was also issued to all the State P.C.B. to implement and ensure compliance of ‘Scales of Compensation’ with immediate effect on receipt of the directive.

Relying on the fact that the direction on pan India level had already been issued by Principal Bench of NGT in Hardeep Singh’s case, the found the State in contempt and directed to comply and follow the guidelines issued by the Supreme Court, NGT (Principle Bench) as well as by the CPCB for monitoring and controlling the noise pollution. [Consumer Unity & Trust Society, Jaipur v. State of Rajasthan, Original Application No.79 of 2021, decided on 12-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicants: Bhaskar Agarwal, Advocate with Tarun Agarwal, Advocate

For Respondent(s): Shoeb Hasan Khan, Advocate with Rohit Sharma, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

Rafting per se does not cause any serious pollution of river or environment.

National Green Tribunal (NGT): The Bench of Justice Swatanter Kumar (Chairperson) and M.S. Nambiar (Judicial Member), Dr D.K. Agarwal (Expert Member) and Prof. A.R. Yousuf (Expert Member), allows rafting at Rishikesh but bans camping activity.

Reason for filing the present application

Being aggrieved by the haphazard and unregulated licensing of the river rafting camps operating in river Ganga from Shivpuri to Rishikesh on one hand which is a serious source of pollution of pristine river Ganga on one hand and encroachment and degrading of various areas, on the other hand, the instant application was filed.

The applicant organization has been raising various issues with regard to environmental protection across the country.

Rafting and Camping

In northern India, rafting is commonly exercised on the river Ganges near Rishikesh and the Beas River in Himachal Pradesh. Recent times have witnessed that the said area has been denoted as eco-tourism zone namely Kaudiyala-Tapovan eco-tourism zone where various activities besides rafting and camping have been permitted.

Activities of camping and rafting in a very huge number has caused excessive pressure on the river. On the said sites, either there are no toilet facilities, making people defecate in the open or where they exist they are in the nature of pit disposal.

Causes of Pollution 

During monsoon, the discharge remains to flow into the river, thereby causing pollution and interfering in the river eco-system. The tourists and rafters also throw polythene, wrappers and various kinds of bottles on the sites and on the river bed which ultimately flow into the river. Ganga is also polluted because of high use of detergents, soaps and shampoo.

State Government’s approach is violative of the doctrine of public trust as enunciated by the Supreme Court in the decision of M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 and Centre for Environment Law v. Union of India, (2013) 8 SCC 234.

  • Trees have been cut in the process of encroaching upon the forest area for the purpose of campsites and beach camps.
  • Noise and Air Pollution: Rafting campsites are located upstream and rafters are taken to the campsite in diesel vehicles, creating noise and air pollution.
  • Alcohol along with the food is served by the owners, the leftover of which flows into the river causing pollution.
  • Wildlife is being affected due to the above-stated camps and the increase in man-animal conflict.

Hence, on the applicant’s behalf, it was submitted that since rafting camps are a ‘non-forest activity’, therefore it cannot be carried on without clearance from the competent authority under the Forest (Conservation) Act, 1980.

Mushrooming of rafting camps cannot be termed as a sustainable development activity or a permissible eco-tourism activity.

Analysis and Decision

Following questions fall for determination of the Tribunal:

  1. Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?
  2. Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires approval of the Central Government as contemplated in terms of Section 2 of the Conservation Act?
  3. Whether in the facts and circumstances of the present case, permitting the establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of sub-section (iii) of Section 2 of the Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?
  4. Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) of sub-section 2 of Section 8 of Uttarakhand Tourism Development Board Act, 2001 (for short ‘Act of 2001’) when the field was already covered under the Central legislation, i.e., the Conservation Act?
  5. Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28th August, 1998 issued by MoEF is liable to be quashed?
  6. Whether camping site is a purely commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on the environment in mind and should be barred?
  7. If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?
  8. What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?
  9. What directions should be issued by the Tribunal?

Discussion

Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?

Under Section 14 of the NGT Act, the Tribunal has the jurisdiction to entertain and decide all civil cases where substantial question arises to environment (including enforcement of any legal right relating to environment) is involved and such question arising out of the implementation of the enactments specified in Schedule-I of the NGT Act.

The ‘cause of action first arose’ would have to be understood in reference to continuing cause of action, where the cause of action is recurring and is distinct or is a new cause of action.

Rafting and camping is an activity which has been carried on for years now. Rules were framed in 2014 by the State of Uttarakhand under which permission and licenses for rafting and camping respectively are to be granted.

According to the affidavit filed on behalf of the State, it is an annual feature and permission/license are granted from September to June every year. Thus, every year it is a fresh cause of action.

NGT’s larger bench has already stated that when an application is based on recurring cause of action then fresh cause of action would not be hit by the language of Section 14 of the NGT Act and each fresh event would give a fresh acsue of action and consequently the period of limitation of 6 months.

Applicant claims and has rightly invoked Precautionary Principle in terms of Section 20 of the NGT Act. The Precautionary Principle can be safely applied to protect and prevent the environment and ecology.

Tribunal stated that the issue in the present application was in regard to proper regulation of rafting and camping activity to prevent damage, degradation and pollution being caused in relation to the forest area, river bank and river Ganga. Hence, such an action would not be hit by limitation.

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Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires or not approval of the Centre as contemplated in terms of Section 2 of the Conservation Act?

Whether in the facts and circumstances of the present case, permitting establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of Section 2(iii)  of Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?

In the case of Lafarge Umiam Mining (P). Ltd. v. Union of India, (2011) 7 SCC 338 while referring to Section 2 of the Conservation Act the Supreme Court held that this is how the concept of prior approval from the Central Government comes into picture and thus prior determination of what constitute forest land is required to be done.

The State of Uttarakhand had issued permissions to carry on the non-forest activity in the reserved forest area under the provisions of relevant laws. It had also made a reference to MoEF vide its letter dated 31st July, 1998. This letter was responded by MoEF vide letter dated 24th August, 1998.

MoÉF expressed the view that camps on sandy stretch of river banks for rafting does not fall under the provision of Conservation Act and it is basically an eco tourism activity.

MoEF vide its letter dated 7-10-2014 issued guidelines for diversion of forest land for non-forest purposes or execution of temporary work in the forest land. Vide this letter it clarified that the work which does not involve any tree cutting, is a temporary work and the approval as contemplated under Section 2 of the Conservation Act is not required.

Till 1998 the view of MoEF was that camping should not be permitted in the sandy banks of the river and the forest area. However, the letter dated 28th August, 1998 made some variations.

Tribunal stated that,

“…provisions of Section 2 of the Conservation Act, therefore, must have precedence over any other law for the time being in force in the State of Uttarakhand.”

In the present case, we are primarily concerned with the interpretation of Section 2(ii) and (iii) read with explanation to the section.

Bench observed that ‘Camping Activity’ is an activity which has impacts on environment and ecology and bio-diversity of the river. There are allegations and even records to suggest that number of camping areas have been found to be offending the conditions imposed by the State Government. Cases of breach had been registered against them and in a case even fire-arms were found to be in possession of the visitors coming to these camps.

Further, there are permanent, semi-permanent and temporary structures raised and large scale tenting is done in the river bed. This activity from its nature, substance and actualities extending on the site clearly show that it is a non-forest activity for a non-forest purpose. 

Once it is held that the activity of camping on the forest land or any portion thereof is a non-forest activity and for a non-forest purpose, the provisions of Section 2(ii) of the Conservation Act would be applicable and it would be expected of the State Government to issue permission/order in terms thereof only upon taking approval of the Central Government.

Hence the contention that the said activity is not a non-forest activity could not be accepted.

Whether setting up of rafting camps along the beach of river Ganga and its tributaries qualifies as breaking up of the forest as comprehended under Section 2(ii) of the Conservation Act or not?

The term ‘breaking up’ has to be understood with the object of the Conservation Act in mind.

The instant case cannot be compared to the case of S Jayachandran, Joint Secretary, T.N Greens Movement (supra) rather if the activity of camping is carried on for ten months every year it has certain degree of permanency as understood and digging of the area is carried on. Thus, even according to that judgment, it would be breaking up of the forest area.

Furthermore, this is an act being carried on by the private respondents with the permission of the State and is certainly not an act/purpose of reforestation. Thus, we are unable to accept this contention of the respondent.

Hence for the issues mentioned above, tribunal held that the cases of camping activities in the reserved forest areas are activities which are for non-forest purpose or are non-forest activity in the forest area. These cases would attract the provisions of Section 2(ii) and (iii) of the Conservation Act.

It is obligatory upon the State of Uttarakhand to seek approval at least as a matter of scheme from MoEF and then issue orders/permits in terms of Section 2 of the Forest Conservation Act.

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  • Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) Section 8(2) of Uttarakhand Tourism Development Board Act, 2001 when the field was already covered under the Central legislation, i.e., the Conservation Act?
  • Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28-08-1998 issued by MoEF is liable to be quashed?

Ecotourism is about uniting conservation communities and sustainable travel. It is defined as responsible travel to natural areas that conserves the environment and improves the welfare of the local people.

Examples of negative environmental impacts of tourism to the protected natural areas have been listed as: overcrowding, environmental stress, trail erosion, deterioration of vegetation, noise pollution, contamination of air, water and land, forest fires, wildlife mortality, health hazard, habitat destruction, deforestation, erosion, ecological changes, behavioral changes of animals, groundwater pollution, scarring of landscape, etc.

The provision which empowers the State Government under the Act of 2001 to grant permission for camping activity in the forest area which is a non-forest activity would be ultra vires the provisions of the Conservation Act.

Tribunal in view of the above stated issues held that the MoEF letter dated 28-08-1998 is liable to be quashed the provisions or rules which deal with the implementation and proposal to grant permits for carrying on of camping activity in the forest area are concerned, they are in conflict with the provision of Section 2 of the Conservation Act and hence are ultra virus and cannot be implemented. It is obligatory upon the State of Uttarakhand at best as a matter of policy to seek prior approval of the Central Government before issuance of any permit for said camping activity.

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What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?

Rapid Impact Assessment Report was not found worthy of acceptance by the State of Uttarakhand according to the Inter- Departmental Meeting of the State of Uttarakhand. The said meeting was held as a one day affair in which the team had gone in the river through the motor boat which was not permissible and they had no fair opportunity to examine the sites and offer fair comments. The said contention was not accepted by the tribunal.

The above-stated were verifiable facts and whether the State Government wanted to accept the report or not was a matter, exclusively in the domain of the State Government. But to treat it as an irrelevant document was certainly a mistake, the State Government ought to have considered the report objectively and taken its decision while granting permissions so as to ensure that there was no degradation of environment, biodiversity, ecosystem and particularly the forest area.

Hence, it was observed that the conduct of the State and the private parties are of relevancy in determining the main issue. The Rapid Assessment Report would provide an insight into the working of these camp sites. Undisputedly, there are violations committed by the management as well as the guests at the camp sites.

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  • Whether camping site is a pure commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on environment in mind and should be barred?
  • If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?

It is clear that this eco-tourism activity is completely a commercial activity intended to provide financial benefit to the State and provide employment to the people of the area.

It is true that rafting does not have any adverse impacts on the environment, ecology and river per se but carrying on of camping activity in the forest area does have substantial impacts.

Bench observed that despite the fact that eco-tourism is a commercial activity still it could be permitted, but subject to a strict regulatory regime and its enforcement without default.

Responsibility lies upon the State to protect its environment, forest and rivers.

Camping activity does cause contamination of river and ground water particularly when the activity is not carried on strictly in terms of the regulatory regime in force.

Further it was stated that the camping activity cannot be permitted as a primary activity as it has been there for continued period of 5 years. It is a matter of common knowledge that a person who wish to make investment for a period of 5 years would be having some reluctance not to raise structure of atleast some permanence to give greater comfort, convenience and service to its visitors, though at the cost of adverse impacts upon environment, ecology, river and wildlife.

Thus, it is absolutely essential that a proper stringent Regulatory Regime is placed on record so that such activity can be permitted to continue longer.

Tribunal also noted that the Ganga river from Gaumukh to Rishikesh which few years back was a river of pristine and without any pollution today, because of various factors, of which camping is one, has altered water quality, therefore it is absolutely necessary that a High Powered Committee is constituted.

There has to be very serious supervision with physical inspections at regular intervals by team of high officers of the Forest Department of Uttarakhand and Uttarakhand Environment Protection and Pollution Control Board.

there would be no camping or camping site in the mid of the river or river bed and anywhere within the area which is less than 100 meters measured from the middle of the river upto 2 km beyond boundary of the Rishikesh upstream and not less than 200 meters measured from middle of the river there onwards till boundary of Haridwar downstream.

The concept of ‘Back to Nature’ ought not to be used for developing revenue at the cost of Environment and Ecology.


Directions:

Tribunal passed the following directions in view of the above discussion:

  • No camping activity shall be carried out in the entire belt of Kaudiyala to Rishikesh and the Government would abide by its statement made before the Tribunal on 31st March, 2015. Rafting activity is permitted to be carried with immediate effect.
  • A committee of officers is constituted not below te rand of a Joint Secretary from the Ministry of Environment and Forests and along with a specialist in this from the Ministry.
  • The Rapid Impact Assessment Report shall be treated as a relevant document and the Committee would conduct or get conducted a further survey to satisfy itself.
  • Committee shall consider all aspects of Environment, Wildlife, River and Biodiversity while preparing the relevant regulatory regime.
  • Committee shall give recommendation for all preventive and curative measures and steps that should be taken for ensuring least disturbance to wildlife and least impact on the environment and ecology.
  • After preparation of this report which should be prepared within 3 weeks from the pronouncement of this Judgement, the State of Uttarakhand through Secretary, Forests would submit a Comprehensive Management Plan cum proposal for approval to MoEF. MoEF would consider the same in accordance with law and accord its approval in terms of Section 2 of the Forest Conservation Act.
  • Committee shall ensure that it not only identifies the sites which can be appropriately used for camping activity but also the manner and methodology in which such sites should be put to use for carrying on of these activities.
  • After grant of approval, the State of Uttarakhand shall issue an order under Section 2 of the Forest Conservation Act and give permits in terms of its policy.
  • In terms of revenue and technical aspects, the State is free to take its decisions.
  • Tribunal further directs that if the Committee is of the opinion that rafting stations and number of rafting shafts to be permitted should be more than camp sites, it may so recommend but then, those rafting stations shall be used for very limited purposes of picking up and dropping the visitors without any other infrastructure.
  • local persons should be provided with maximum chances of employment or other financial gains resulting from this Eco-Tourism.
  • Complete prohibition on use of any plastic in the entire belt covered under the present judgement.
  • It shall be obligatory upon every person to whom permit/license for camping is granted by the State to collect the Municipal Solid Waste or all other wastes from the camping site at its own cost and ensure their transport to the identified sites for dumping.
  • No structure of any kind would be permitted to be raised, temporary, semi-permanent or permanent. We make it clear that making of the cemented platforms or bricked walls would not be permitted within the limits aforestated.
  • Committee also has to make this Report in relation to source, quantum of Water and source of Power needed keeping in view the camping activity.

[Social Action for Forest and Environment (Safe) v. Union of India,  2015 SCC OnLine NGT 843, decided on 10-12-2015]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice Sheo Kumar Singh (Judicial Member), Dr Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members), issue notice to consider whether the use of firecrackers may be banned for the period from 07-11-2020 to 30-11-2020 in the interest of public health and environment.

Issue raised in the present application is in regard to the remedial action against pollution by the use of firecrackers against pollution by use of firecrackers in NCR during the time air quality is unsatisfactory with potential of severity of COVID-19 pandemic.

Present application has been filed in reference to the statement by Delhi’s Health Minister and Union Health Minister that during the festive season there will be rise on COVID cases due to air pollution. Further, it was added that the use of ‘green crackers’ won’t be a remedial option in view of the present situation.

“The smoke will choke and may create gas chamber like situation. It will lead to poor visibility, hazy conditions and asphyxia.”

Supreme Court had considered the issue in regard to firecrackers in light of right to clean environment in the.

In Arjun Gopal v. Union of India(2017) 1 SCC 412it was noted that air quality standards in Delhi are from ‘poor’ to ‘severe’ during winter resulting in the potential of diseases. Directions that were issued in the said decision were:

  1. Suspend all such licenses as permit sale of fireworks, wholesale and retail, within the territory of NCR.
  2. The suspension shall remain in force till further orders of this Court.
  3. No such licenses shall be granted or renewed till further orders.

Arjun Gopal v. Union of India, (2017) 16 SCC 280, It was noted that, the health of the people has to take precedence over any commercial or other interests, graded regulation of firecrackers was necessary which would eventually result in prohibition. Accordingly, directions were issued to restrict the temporary licenses to 50%, pending further consideration.

Supreme Court in Arjun Gopal v. Union of India, (2019) 13 SCC 523, while banning certain categories of firecrackers and directing regulation of the remaining, directed that on Diwali days or other festivals, firecrackers will be used strictly between 8 p. to 10 pm only with different timings for some other festivals.

In Supreme Court’s decision of Noise Pollution (V), In Re., (2005) 5 SCC 733, directions were issued with regard to the noise level of the crackers.

It has been stated in the present application that the above-cited Supreme Court decisions do not address the COVID-19 situation wherein the adverse effect may be so that the number of deaths may increase along with the number of diseases.

It has been added that several reports in public domain state that the air quality of Delhi is deteriorating and further deterioration may give rise to an increase in COVID cases.

Since the firecrackers emit poisonous gases like SO2, NOX, CO as well as the metal besides creating noise. In the given climatic conditions, this may result in respiratory/pulmonary diseases, diabetic, hypertension and other diseases.

Experts have also opined on clear nexus of air pollution with COVID-19. With increased air pollution, virus can cause more damage.

On noting the above stated, Tribunal issued notice to the MoEF&CC, CPCB, DPCC, Police Commissioner, Delhi, Governments of Delhi, Haryana, Uttar Pradesh and Rajasthan on the question whether the use of firecrackers may be banned for the period from 07-11-2020 to 30-11-2020 in the interest of public health and environment.

Bench requested Raj Panjwani, Senior Advocate along with Advocate Shibani Ghosh to assist the Tribunal as amicus.

Matter to be listed don 05-11-2020.[Indian Social Responsibility Network v. Ministry of Environment, Forests & Climate Change;  2020 SCC OnLine NGT 858, decided on 02-11-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench comprising of Pradeep Kumar Singh Baghel and Pankaj Bhatia, JJ. addressed the grievance with respect to indiscriminate use of loudspeakers in residential areas regardless of time.

Petitioner’s Grievance

In the present case, petitioners stated that the district administration has installed huge L.C.Ds equipped with amplifiers in the residential area. L.C.D starts from 4.00 a.m. till midnight regularly without any break with full sound. L.C.D creates a sound problem as well as a public nuisance in the residential area.

Further, it has also been submitted that, the high noise pollution has been the source of multiple age-related diseases resulting in serious problems in ears and heart. Son of Petitioner 2 who is a student of class 12th was unable to study for his examinations. It was also added that, the area had 3 hospitals/nursing homes which were also subjected to the noise pollution.

Submissions of the Counsel

Authorities failed to enforce the law and directions issued by the Supreme Court in a series of decisions. The noise pollution level reached an impermissible limit under the law. Further adding to the submissions, counsel for the petitioner stated that, in spite of the law laid down in the case of Noise Pollution (V), In Re, (2005) 5 SCC 733, and the statutory rules framed by the Central Government, on account of the inaction on the part of the concerned authority most of the citizens were inconvenient and their health was affected by the noise pollution.

Analysis of the Court

High Court noted that, in total 1860 loud speakers were found without any license. State Government and its functionaries had miserably failed to perform their duties cast upon them under the Rules, 2000 also have failed to enforce the direction of the Supreme Court issued from time to time.

“In India, people generally do not consider the noise as sort of pollution, hence, most of the people are not fully conscious about the effect of the noise pollution on their health.”

Being disappointed with the state of affairs, Court stated that, It is pity that administration is not serious in taking any action against those who breach the law and directions of the Supreme Court.

On an extensive reading of the Rules, Court found that they are mandatory in nature. It also classifies different areas/zones of the city in:

  • Industrial Area
  • Commercial Area
  • Residential Area
  • Silence Zone

But what the Court noted was that the silence zones were declared without adverting to the Rules, 2000. Therefore, in light of the discussion, State Government/appropriate authority is directed to undertake fresh exercise to declare the silence zone category in the light of the definition of Rule 2(e) and Rule 2(f) afresh.

Having due regard to the materials on record, further the Court added to its observation that,

“We are constrained to observe that the administration either, appears to be totally oblivious of the law and directions issued by the Supreme Court or there is gross inaction on its part to enforce the statutory rules and the directions of the Supreme Court which are binding upon all the authorities under Article 141 of the Constitution.”

Court cited several of Judgments of the Supreme Court and other High Courts dealing with the menace of noise pollution.

Conclusion

With a firm view, the High Court stated that the law relating to Noise Pollution needs to be strictly complied with in larger public interest. In addition to directions issued by the Supreme Court in Noise Pollution (V), In Re, (2005) 5 SCC 733in the present Judgment, Court issued the following directions:

  • DM shall give adequate publicity in leading newspapers regarding directions and Rules, 2000. Relevant contact details of the authorities concerned should be mentioned.
  • A toll-free number shall be provided to the citizens in order to make the complaints in relation to noise pollution. Authority concerned shall take action against offender in terms of Rule 7 of Rules, 2000. Anonymous complaint shall also be entertained.
  • Under the Rules, 2000, no permission for DJ shall be granted by the authority for the reason that noise generated by DJ is unpleasant and obnoxious level.
  • Team constituted by DM shall make a regular visit to their area especially before any festival and apprise the organisers regarding compliance of the Rules, 2000 and direction of the Supreme Court along with this Court.
  • All the places of worship of all religion shall be bound by the provisions of the Rules, 2000.
  • DM/Senior Superintendent of Police shall convene a meeting before the commencement of festivals with organisers of civil society to impress upon them to observe the law strictly and in the event of a failure the legal consequences may follow.
  • Non-compliance of the Rules attracts imprisonment for a term which may extend to 5 years and fine which may extend to Rs 1,00,000.
  • A fresh exercise be conducted in light of the definitions provided under Rule 2 (e) and (f) of the said Rules to categorize areas and designate noise standards.
  • Competent authority under the Rules, 2000 are charged personally with the duty of ensuring compliance of the order of the Supreme Court, extracted above, the Rules, 2000 and this order, failing which they shall be answerable to this Court in contempt jurisdiction.

Thus, the writ petition is allowed in the above terms. [Sushil Chandra Srivastava v. State of U.P., 2019 SCC OnLine All 3072, decided on 20-08-2019]

See these previous posts:

Use of loudspeaker or public address system prohibited from 10 pm to 6 am

U.P. Govt directed to file affidavit regarding curbing of noise pollution

Legal Control of Noise Pollution: A critical Evaluation

Places of worship not to cause noise pollution by use of loudspeakers

Case BriefsHigh Courts

Allahabad High Court: The affidavit filed and an order issued by the government of U.P. in pursuance of an earlier order of the Court, taking steps to curb noise pollution caused by the use of loud speakers, was found unsatisfactory by a Division Bench comprising of Vikram Nath and Abdul Moin, JJ.

The Court took serious concern of the rampant misuse of loudspeakers at religious places and in marriage and other processions. The Court was concerned about the health consequences of such noise pollution on the community. In pursuance of an earlier order of the Court, government of U.P. issued an order where under permissions were granted for the use of loudspeakers. However, the Court observed that the said order was toothless and gave a blanket permission without any check or control to the persons seeking to use loudspeakers. Such blanket permission was simply an attempt for a sham compliance of the Noise Pollution (Regulation and Control) Rules, 2000.

The Court referring to the suggestions regarding making it necessary for persons who install loudspeakers to additionally install a noise level checking machine, directed the State Government to make a serious endeavor to tackle the menace of noise pollution and file an improved affidavit within four weeks regarding steps to be taken to deal with the situation. [Moti Lal Yadav v. State of U.P., PIL Civil No. 24981 of 2017, order dated 13-02-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal:  While directing the respondents to immediately stop all the activities of dharna, protest, agitations, assembling of people, public speeches, using of loud speakers, etc. at Jantar Mantar road, NGT  placed special emphasis on the adverse health affects from protests, especially on account of aggressive noise pollution.

NGT reiterated that the right to free speech and expression under Article 19 cannot encroach upon fundamental rights under Article 21,

“While one has a right to speech, others have a right to listen or decline to listen. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then such person is violating the right of others to a peaceful, comfortable and pollution-free life. Article 19 cannot be pressed into service for defeating the fundamental right guaranteed by Article 21.”

The directions were passed by Judicial Member Justice RS Rathore with the assistance of Expert Member Dr. Satyawan Singh Garbyal.

Jantar Mantar had become a symbolic protest battle ground, although the place for such activities has already been earmarked at Ram Leela Miadan for creating a peaceful environment for the residents on the Jantra Mantar stretch. NGT noted there were specific executive/judicial orders for the use of an alternate site for such protests i.e. the Ram Leela Maidan. Whereas earlier, protests used to be held at the Ram Leela Maidan, gradually they began to shift to the Boat Club lawns near India Gate. An administrative order was also passed by the Delhi Police to shift venue to Jantar Mantar Road. This was deemed to be improper by the NGT.

NGT noted, “the place for such activities has already been earmarked at Ram Leela Maidan, for gathering of more than five thousand people. This would strike a balance between the rights of the people in respect of their freedom of speech and expression and that of all the residents of the Jantar Mantar road to live a peaceful, comfortable and pollution free life at their residences.”

NGT thus proceeded by giving the following directions to stop the protests related activities on the Jantar Mantar road:

1. Government of Delhi, NDMC and Police Commissioner, Delhi were asked immediately to stop all activities related to protests, agitations, assembling of people, etc, at Jantar Mantar road.

2. All the temporary structures, loud speaker were asked to be removed from the stretch of Jantar Mantar road.

3. NDMC was also asked to immediately remove the garbage lying on the same stretch of Jantar Mantar road.

4. All the protestors, agitators holding dharnas to be shifted to an alternative site at Ram leela Maidan, Ajmeri gate, forthwith.

5.All the above directions to be complied within a period of four weeks by subsequently filing respective compliance report before the Tribunal. [Varun Seth v. Police Commissioner, Delhi Police; 2017 SCC OnLine NGT 65, order dated 05.10.2017]

Foreign LegislationLegislation Updates

S.O 2555(E).— Whereas, according to clause (a) of sub-rule (3) of Rule 5 of the Environment Projection Rules, 1986, whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on the processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so;

And whereas, every notification under clause (a) of said sub-rule shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the locations of the industries and carrying on of process or operations in that area;

And whereas, any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette;

And whereas, clause (d) of the said sub-rule provides that the Central Government shall, within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette, consider all the objections received against such notification and may within five hundred and forty five days from such date of publication impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area;

And whereas, sub-rule (4) of Rule 5 of the said rules provide that, notwithstanding anything contained in sub-rule (3), whenever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (3) of Rule 5.

Now, therefore, in exercise of the powers conferred by Sections 3, 6 and 25 of the Environment (Protection) Act, 1986 (29 of 1986), read with Rule 5 of the Environment (Protection) Rules 1986, the Central Government hereby make the following rules further to amend the Noise Pollution (Regulation and Control) Rules, 2000, namely:—

1. (1) These rules may be called the Noise Pollution (Regulation and Control) Amendment Rules, 2017.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Noise Pollution (Regulation and Control) Rules, 2000 (hereinafter referred to as the principal rules), in rule 3, in sub-rule (5),—

(a) after the word “maybe declared”, the words “by the State Government” shall be inserted;

(b) the following proviso shall be inserted, namely:—

“Provided that, an area shall not fall under silence area or zone category, unless notified by the State Government in accordance with sub-rule (2).”.

3. In the principal rules, in Rule 5, for sub-rule (3), the following shall be substituted, namely:—

‘(3) Notwithstanding anything contained in sub-rule (2), the State Government may subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or public address systems and the like during night hours (between 10.00 p.m to 12.00 midnight) on or during any cultural, religious or festive occasion of a limited duration not exceeding fifteen days in all during a calendar year and the concerned State Government or District Authority in respect of its jurisdiction as authorised by the concerned State Government shall generally specify in advance, the number and particulars of the days on which such exemption should be operative.

Explanation.— For the purposes of this sub-rule, the expressions—

(i) “festive occasion” shall include any National function or State function as notified by the Central Government or State Government; and

(ii) “National function or State function “shall include”—

(A) Republic Day;

(B) Independence Day;

(C) State Day; or

(D) such other day as notified by the Central Government or the State Government.’.

4. In the Schedule to the principal rules, in the Note, paragraph 3 shall be omitted.

Ministry of Environment, Forests and Climate Change

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): While coming down heavily upon Osmanabad Municipal Council for failing to declare silence zone in the city, NGT observed that the said act of Municipal Council tantamount to non-compliance of the orders of Bombay High Court. Earlier, Govt. Resolution has been issued in order to comply with the orders of High Court of Bombay directing that all the Municipal Corporations and local bodies must declare silence zone within limits of the city, but there was no compliance of the direction by Osmanabad Municipal Council. The Tribunal was hearing an application filed by a person who alleged that a theatre situated in a residential colony of Osmanabad, which was surrounded by a hospital and a residential and commercial complex, increased the volume of its sound system when playing “item numbers” to pull in more crowd. On the basis of “precautionary principle”, NGT directed the theatre owner to install automatic sound amplifier system of Nob at 7 in the indicator, instead of manual system, to keep noise level low. NGT further noted that if the theatre failed to comply with the direction within the next two months, it will be held liable to pay penalty at the rate of Rs. 1,000 per day. The theatre was also asked to erect a rubber cladding of 9 to 10 feet in height on the western side (towards the residential colony) to ensure a proper acoustic system to preferably enclose/encase the noise sources, so that sound does not propagate outside excessively. Bharat Shamrao Gajendragadkar v. Shri Theatre, 2015 SCC OnLine NGT 168, decided on 22-7-2015

High Courts

Allahabad High Court: In line with the law laid down by the Supreme Court of India in the series of case laws that the right to live in freedom from noise pollution is a fundamental right under Article 21 of COI, the division bench of Dilip Gupta and M C Tripathi JJ. held that noise pollution beyond permissible limits is a restriction on the aforesaid right as noise pollution has  a direct effect on sleep, hearing, communication, mental and physical health. The Court further observed that Noise Pollution (Regulation and Control) Rules, 2000 (Rules) have been framed to regulate and control noise pollution and under it, it is the duty of the State Government to ensure that the existing noise levels do not exceed the prescribed air quality standards and rules restricting the use of loud speakers, public address systems, sound producing instruments, sounds emitting construction equipments are strictly enforced.

 In the instant case, the petitioners have been offering prayers in one temple of Lord Shiva with the help of loud speakers they performed bhajans and aarti. The Counsel for petitioners Mr. Rajesh Pathik, owing to the Right to Religion guaranteed as a Fundamental Right under the Constitution, submitted that the authorities were not justified in stopping the use of the loud speakers when they are not taking such action against persons belonging to a different community who have been using loud speakers for religious purposes.

The Court also cited Supreme Court in Noise Pollution (V), In Re Unknown with forum, prevention of Environmental & Sound Pollution v. Union of India (2005) 5 SCC 733  which held that everyone has a fundamental right to live in peace, comfort and quiet within his/her house under Article 21 of COI. The Court, with the intent to strike a balance between right to live in freedom from noise pollution and right to religion, further directed the authorities concerned and all police stations to ensure that there is no noise pollution by use of loud speakers or any other device in places of worship or any building in the district beyond the prescribed limit in the Rules and to act immediately on any complaint made by any citizen in this regard. Chunnu Singh v. State of U.P., PIL No. 37356 of 2014, decided on 22.07.2014