Case BriefsSupreme Court

Supreme Court: In an important case regarding environment Law the 3-judge Bench comprising L. Nageswara Rao, B. R. Gavai and Aniruddha Bose, JJ., revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem. The Court remarked,  

“…in case of doubt, protection of environment would have precedence over the economic interest.” 

Factual Backdrop  

The instant case relates to the recommendation made by the National Board for Wildlife (NBWL) for wildlife clearance for doubling of 26 km stretch of the railway line in Western Ghats from Castlerock in Karnataka to Kulem in Goa passing through Bhagwan Mahaveer Wildlife Sanctuary, subject to fulfilling certain conditions.  

The proposal is for doubling the existing railway line on the land involving 120.875 hectares of land within protected area and 113.857 hectares of land in non-protected area reserved forest 7.018 hectares.  

The recommendation of NBWL was assailed by Goa Foundation before the Central Empowered Committee (CEC) for being in violation of the order passed by the Supreme Court on 05-10-2015. The Goa Foundation contended that the project involves diversion of significant area of forest land and sanctuary land and would entail further destruction of the Sanctuary/National Park and wildlife. Further, a large number of trees will have to be felled within the Bhagwan Mahaveer Wildlife Sanctuary and also, the integrity of the protected area and wildlife sanctuary would be severely affected. The Goa Foundation also contended before the CEC that assessment of proper impact on wildlife habitat and biodiversity was never carried out before NBWL approved the project. 

Pertinently, western ghats eco-system which is one of world’s eight hotspots, which spreads across 9 National Tiger Reserves, 20 National Parks and about 68 Wildlife Sanctuaries and the landscape forms one of the largest and most contiguous Protected Area networks in the country.  

CEC Recommendation  

The CEC recommended revocation of the permission granted by the Standing Committee for NBWL for doubling the railway line passing through the ecologically sensitive Western Ghats from Tinaighat-Castlerock in Karnataka to Kulem in Goa as such permission was in violation of the guidelines issued by the Ministry of Environment, Forest and Climate Change under the Wildlife Protection Act, 1972 and the order dated 05-10-2015. 

Noticing that the proposed railway doubling line is parallel to the existing railway line which passes through same forest along the same corridor, the CEC was of the opinion that the additional line is not likely to add either to the turnaround time of the train or loco or to the speed of the train. Therefore, the CEC recommended that the permission granted by the Standing Committee of the NBWL should be revoked, some of the reasons cited by the CEC were as following: 

  • The report of the Standing Committee of NBWL did not obtain any specific recommendation on mitigation measures from the Wildlife Institute of India, Dehradun before approving the proposal in respect of the Goa portion.  
  • The opening of the forest cover in the ecologically sensitive Western Ghats along the existing line is likely to invite light-demanding invasive weeds like Mikania species which colonise fast in the open area and spread to the nearby forest canopy and destroy the natural forest;  
  • The increased number of trains and wider openings through the ecologically sensitive Western Ghats for laying the track will further fragment the habitat and will make the movement of wildlife including arboreal animals across the railway line much more difficult and dangerous and is bound to result in high casualties amongst the wildlife;  
  • The railway line cuts across the most important animal corridor in the Western Ghat landscape between Karnataka and Maharashtra through the State of Goa and will be a serious impediment to the movement of long-ranging animals like tiger and elephant.  
  • The approval by NBWL to go ahead with the project has been granted in respect of Goa Portion without first obtaining the advice of NTCA as statutorily required under section 38 (0) of the Wild Life (Protection) Act, 1972;  

Analysis and Findings 

Relying on Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647, the Court stated that the ‘Precautionary Principle’ is an essential feature of the principle of ‘Sustainable Development’. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The Court reiterated that in case of doubt, protection of the environment would have precedence over the economic interest. 

Available Alternatives  

Rejecting the Rail Vikas Nigam Ltd.’s (RVNL) contention that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future, the Court, affirming the views taken by CEC stated that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal.  

The Court opined that the CEC was right in its conclusion that the proposal for the doubling of the railway line should be revoked for the following reasons:  

  • At present the Konkan railway line gives excellent connectivity to Northern and Southern parts of India.  
  • Consequent to changes in government policy to discourage import of coal there will be reduction in the coal import which currently forms more than 90 % of goods traffic from Murmagoa Port;  
  • The estimate of projected increase in traffic from Karnataka to Goa furnished by the railways is not based on facts and is without any sound reasoning and as statistics shows mostly includes empty rakes returning to Goa; 
  • There are alternative ports like Krishnapatnam in east coast available with better rail connectivity for transport of goods to and from industrial belt of northern Karnataka and the capacity of the same is yet to be fully utilized.   
  • The connectivity between Goa and Karnataka is being strengthened/improved by way of 4 laning of NH-4A along the same route and by the development of new airport. 

“In view of the difficult terrain having sharp curves and gradient as high as 1:37 for the proposed project, any further construction would invite a great disaster in the sensitive areas of Western Ghats as well.”  

Further, RVNL has also proposed to construct under-passes/overbridges at identified locations of track crossings by wild animals to ensure safe crossings of tracks by animals, however, in its report, the CEC submitted that it was noticed during the site visit that it was not possible to construct any sort of under-passes at the said location. 

Directions to RVNL  

The Court noted that the landscape in which the railway line is proposed connects the three States of Goa, Karnataka, and Maharashtra, however, there was no viability report regarding Goa part. The Court expressed, 

“The Standing Committee of NBWL ought to have sought for a report from NTCA on the Goa part of the project before granting approval for the doubling of the railway line between Castlerock to Kulem in view of the fact that it is an important tiger corridor where instances of killing of tigers have been reported.”  

Affirming the recommendations made by the CEC regarding the necessity of taking into account the actual loss of the wildlife habitat by the construction activity for the doubling of the railway line for which heavy machinery would have to be moved and crusher units will have to be established for dumping construction material, the Court made following directs to RVNL:  

  • Conduct a detailed study on the viability of the project for the Goa part regarding impact of the proposed project on the biodiversity and ecological system of the protected areas under the wildlife sanctuary.  
  • Conduct an assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature, etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures, etc.), movement of trains, human-wildlife interactions before considering the project.  
  • Provide a credible data, supported by an independent and credible source for the projections that are given by RVNL relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and an explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project.  
  • Conduct an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem.  

Conclusion  

For the foregoing reasons, the Court upheld the conclusion of the CEC and revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem.  

However, the Court granted RVNL liberty to carry out a detailed analysis on the impact of the proposed project on the biodiversity and ecology of the protected areas under the wildlife sanctuary and submit a fresh proposal to the Standing Committee of NBWL which shall be considered in accordance with law.  

[T.N. Godavarman Thirumulpad v. Union of India, 2022 SCC OnLine SC 583, decided on 09-05-2022]  


Kamini Sharma, Editorial Assistant has put this report together

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench comprising of Justice Adarsh Kumar Goel (Chairperson) and Justice S.P. Wangdi (Judicial Member), Justice K. Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) considered the issue in respect to enforcement of environment norms against running of restaurants/hotels/banquets.

In respect to the above, tribunal considered the material vide order dated 02-11-2018 and recorded that violation of law on the subjects of waste management, discharge of effluents, illegal groundwater extraction, groundwater contamination, emission by illegally operating diesel generators, absence of statutory consents under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and violation of conditions of consents where such consents had been granted by the restaurants/hotels/motels/banquets in Mahipalpur, Rajokri areas in Delhi.

Adding to the above issue, the tribunal also considered the issue of the absence of rainwater harvesting, groundwater recharge system, excess noise pollution, illegal parking and encroachments.

Authorities concerned were directed to take immediate steps by preparing an appropriate action plan. The action was to deal with the regulation of sewage disposal, extraction of groundwater, rainwater harvesting, air pollution on account of traffic congestion, use of DJ sets, management of solid waste and noise pollution.

Further, the tribunal considered the status report filed by the Delhi Government and found that the report did not meet the mandate of the order of the tribunal. Again on reviewing the matter in light of a new report, it was found to be deficient.

Tribunal noticed the challenge posed by unregulated social gatherings resulting in damage to the environment and public health.

Delhi Government filed a format of inspection with an action plan. Referring to the report filed to be deficient, it was stated that data was compiled, noise regulatory mechanism evolved, norms for waste disposal and installation of CCTV cameras and GPS laid down, sewage management and air pollution control measures plan.

The action plan covered the regulation of extraction of groundwater, rainwater harvesting, regulation of the size of gatherings and action against unauthorised establishments and recovery of environmental compensation.

Thus, tribunal on noting the above, stated apart from formalizing and enforcing the action plan reproduced above, MoEF&CC may evolve appropriate guidelines as well as mechanism for undertaking impact assessment either of individual establishments or of the area/cluster to ensure that activities beyond carrying capacity of the area are duly regulated to enforce the ‘Precautionary Principle’ as well as ‘Sustainable Development’.

Delhi Government may take steps as per its action plan and within a broad framework of pan India guidelines, the Delhi Government can have its own guidelines pertaining to suit the local requirements. [Westend Green Farms Society v. Union of India, 2019 SCC OnLine NGT 293, decided on 19-09-2019]

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal: A Coram of Justice A.K. Goel (Chairperson), Justice S.P. Wangdi (Judicial Member), Justice K. Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) disposed of an application filed against Volkswagen India Private Ltd. after imposing a fine of Rs 500 crores on it.

This application had been filed before the Tribunal alleging that engines manufactured by Volkswagen have been found to be in violation of norms in USA and Europe on account of the employment of ‘cheat devices’, defeating the test of the actual state of affairs. This matter was famous by the name of ‘Volkswagen Emission Scandal’ globally. In September 2015, it came to light that Volkswagen had installed ‘cheat devices’ in engines of thousands of their vehicles since 2009. The software helped make the cars meet exhaust pollution standards when monitored in tests but in real, the emissions exceeded the limits. As per reports, the scandal has so far cost Volkswagen more than 26 billion Euros in fines, compensation and buyback.

The learned counsels for the applicant Sanjeev Ailawadi, Vipul Ganda and Preeti Nain brought to notice of the Tribunal various evidences which were relied upon by the applicant- “statement before the Lok Sabha on 11-04-2017, result of testing by Automotive Research Association of India (ARAI), notice issued by the US Environment Protection Agency (USEPA), news item dated 05-11-2015 in Business Standard under the heading “Volkswagen fails emission test in India”, news item dated 28-09-2015 in the Economic Times under the heading “Timeline of events in Volkswagen pollution cheating scandal” and statement on behalf of Ministry of Heavy Industries in the counter affidavit stand of the manufacturers”.

The learned counsels for the respondent  Pinaki Mishra, Bishwajit Dubey and Surbhi Khattar raised an objection to the application by saying “that the manufactures have been found to be compliant of the regulatory environmental norms. In view of this conclusion, there being no norms prescribed for on-road testing, manufacturers cannot be held to be noncompliant in any manner.” They further made reference to Notification dated 16-09-2016 issued by the Ministry of Road Transport and Highways under Section 212 of the Motor Vehicles Act, 1988 laying down that PEMS (Portable Emission Measurement System) can be used. It is submitted that this provision has been introduced for the first time on the said date. The same could not be applied in the present case prior to Notification.

After hearing both the sides, Tribunal observed that it cannot accept the objections to the report raised on behalf of the manufacturers. The report categorically finds the use of cheat device and violation of norms at the time of road testing. It has also been found that nitrogen oxides (NOx) emission in certain models of Volkswagen were higher than the other Indian vehicles tested using the same protocol which was corrected during the recall of vehicles under the supervision of ARAI.  It also observed that the ‘Precautionary Principle’ and ‘Sustainable Development’ principle are part of Article 21 of the Constitution of India and Section 20 of the National Green Tribunal Act, 2010. ‘Polluter Pays’ principle does not mean polluter can pollute and pay for it. It would include environmental cost as well as a direct cost to people. Thus, the Tribunal imposed a fine of Rs 500 crores on Volkswagen.[Saloni Ailawadi v. Volkswagen India (P) Ltd., 2019 SCC OnLine NGT 69, decided on 07-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal, Principal Bench: In the wake of smog engulfing the NCR for days, posing a serious environmental hazard, the NGT banned all construction work in the area till the next date of hearing. The Tribunal stated that the right to decent and clean environment is a fundamental right under Article 21 of the Constitution of India and that Article 48-A read with Article 21 mandates the State to protect the environment and Article 51-A(g) imposes a fundamental duty upon the citizens to protect the environment.

The Tribunal took note of the statistical data available on suspended particulate matter (SPM) in the NCR for 08-11-2017 and 09-11-2017.On 08-11-2017, the PM10 value was 986 mcg (micro grams) per cubic metre against the prescribed value of 100 mcg per cubic metre and the PM2.5 value was 425 mcg per cubic metre against the prescribed value of 60 mcg per cubic metre. The values were 1136 mcg per cubic metre and 760 mcg per cubic metre respectively on 09-11-2017. The Tribunal also noted that all parameters including SO2, NO2, CO and Ozone were not tested by the Central Pollution Control Board and Delhi Pollution Control Committee, directing the boards to submit reports containing all parameters on the next date of hearing. Citing the doctrines of preventive and precautionary principles with emphasis on inter-generational equity, the Tribunal stated that the doctrines have been violated at all relevant stages and that no party, statutory body or even the citizens can be mere spectators to the environmental crisis at hand.

The Tribunal pointed towards it’s directions in Vardhman Kaushik v. Union of India, 2016 SCC OnLine NGT 4176, on 10.11.2016 stating that the steps that were required to be taken in long and short term remained unexecuted and non-complied with. Failing to find a single plausible explanation as to why the directions in the aforesaid order were not complied with, the Tribunal clearly stated that fundamental rights, particularly the ones which relate to right to life cannot be subjected to economic limitation.

Resultantly, the Tribunal, in an attempt to alleviate the harmful effects of smog and pollution, banned all construction activity in the entire NCR region till the next date of hearing. The Tribunal added that labourers shall not be denied their daily wages. Further, all industrial activities which release emission were also prohibited till the next date of hearing. Further, all the Corporations dealing in health, environment and development were directed to constitute teams to visit different areas under their jurisdiction to check burning of waste or any material in any part of NCR. [Vardhaman Kaushik v. Union of India, 2017 SCC OnLine NGT 7584, order dated 09.11.2017]