The National Green Tribunal monthly review: July 2024

This column aims to report and briefly analyse some of the important cases dealt with by the NGT during the month in review. Links to the orders are also provided for ease of reference.

1. In Kapil Dev vs. Municipal Commissioner the NGT reiterated the well-settled principle that change of use of a designated green area in the master plan cannot be subsequently altered. The Tribunal directed the municipal authority to clear/ demolish the encroachments on the designated green area and restore its land use to green within two months. NGT relied upon the judgments of the Supreme Court of India wherein the apex court had held that green spaces or green belt should not be changed to residential or commercial use and that change in land use of open green spaces in a violation of Articles 21, 48A and 51A(g) of the Constitution.

2. In Prem Mohan Gaur v. NHAI & Ors, the Tribunal held that its review jurisdiction is governed by Order 47 of the Code of Civil Procedure, 1908 (CPC) and the principles laid down by the Supreme Court of India in Sanjay Kumar Agarwal vs. State Tax Officer. The Tribunal also held that a document obtained after the pronouncement of judgment cannot form the basis of seeking a review of that judgment.

3. In Rajinder Krishan Sharma & Anr v. Union of India & Ors, the NGT held that ‘cause of action’ for the purposes of determining limitation u/s 14 & 15 of the NGT Act, 2010 has to be understood differently from CPC. Tribunal held that ‘cause of action’ must have some nexus with a substantial question relating to the environment and must satisfy the following three ingredients (i) there must be a dispute; (ii) there should be a substantial question relating to environment arising out of Schedule I statutes; and (iii) action before Tribunal must be taken within the prescribed period of limitation from the date when the cause ‘first arose.’

It held that Sections 14 & 15 contain the expression when the ‘cause of action first arose’, which is distinct from a ‘continuing/recurring cause of action’, since ‘cause of action first arose’ refers to a definite point in time from which the right to sue under NGT Act, 2010 accrues. The use of the words ‘first arose’ necessarily excludes extension of limitation even when cause of action continues to arise after it first arose. The NGT also distinguished ‘recurring cause of action’ as one where cause of action arises again with new features and such recurring cause of action would not be excluded by use of expression ‘cause of action first arose.’ It held,

"A continuing cause of action would refer to the same act or transaction or series of such acts or transactions. The recurring cause of action would have an element of fresh cause which by itself would provide applicant the right to sue.”

In such cases, a subsequent wrong or injury would be independent of the first wrong or injury and a subsequent, composite and complete cause of action would not be hit by the expression ‘cause of action first arose’ as it is independent accrual of right to sue.

4. In Public Action Committee v. State of Punjab & Ors, the applicants approached the NGT with the grievance that several dyeing units are operating in Amritsar without statutory approvals. The NGT discussed in great detail the contours of Section 20 of the NGT Act, 2010, which mandates application of principles of ‘Sustainable Development’, ‘Polluter Pays’, and ‘Precautionary Principle’ and cited a number of Supreme Court decisions on each of these principles. The Tribunal observed that the NGT Act, 2010 and the rules framed thereunder nowhere make any provision to decide computation and environmental compensation, and, as such, the Tribunal laid down principles for computation of environmental compensation. The Tribunal carved out three categories of violators (i) those who are functioning without statutory clearances, (ii) those who are violating terms of statutory clearances, and (iii) those who are violating standard norms regarding air/ water pollution etc.

The Tribunal further held that the following principles would govern computation of environmental compensation: (i) whether the polluter is a corporate body or an individual, (ii) whether pollution also affects the community at large, (iii) whether damage to environment is irreversible or capable of wholly/ partly being remedied, and (iv) compensation must be punitive in nature.

The Tribunal, while cautioning against arbitrary computation of environmental compensation, held that the CPCB’s Guidelines dated 15.07.2019 for assessment of environmental compensation may be followed wherever applicable. The Tribunal ultimately imposed environmental compensation at 10% of annual turnover of the project proponent and directed payment of interim compensation of ₹1 crore pending computation by the state pollution board of the remaining amount.

5. In Bharat Sehrawat v. Dr Umesh Verma & Ors, the NGT denied permission to the original applicant to withdraw the original application, which raised the issue of encroachment over a designated green area in Vasant Kunj, Delhi. It held that NGT cannot be prevented to pass directions to protect the environment by technical dismissal of the original application. In this case, even though encroachments over a green area had been removed by the Municipal Corporation of Delhi (MCD), the NGT directed restoration of the green area by planting of trees.

6. In Jabar Singh v. DDA & Ors, the NGT held that pruning of trees also requires prior permission of the Tree Officer under Section 9 of the Delhi Preservation of Trees Act, 1994 (DPT Act, 1994). The NGT therefore held that the pruning and felling of trees in a Delhi Development Authority (DDA) market without such statutory permission is illegal and directed the Tree Officer to treat the original application as a complaint under the DPT Act, 1994.

7. In DS Kataria v. Govt of NCT of Delhi & Ors, an original application was preferred by residents of a Delhi locality complaining about air and noise pollution generated due to movement and parking of heavy vehicles and dumping of construction waste. The NGT directed the DDA and MCD to tow away vehicles parked in a no-parking zone and also to impose penalty on such vehicles. Due to NGT’s efforts, traffic police also deployed traffic personnel to better manage traffic, which is expected to reduce air pollution. NGT also directed that the construction debris dumped be transferred to the MCD Recycle Waste Plant. It further directed DDA to develop a green belt around the road in question to control air pollution and directed the Delhi Pollution Control Committee to adjudicate on show cause notices it served on DDA and MCD for past violations and failure to prevent air and noise pollution as per applicable regulations.

8. In Diwan Singh v. State of Uttarakhand, the NGT registered the original application on the basis of a letter petition by villagers alleging that cracks are developing in various houses in Batgeri and Sirsauli villages in Pithoragarh, Uttarakhand due to construction of the Khutani Small Hydro Power Project on River Saraju in Bageshwa. The NGT promptly constituted an expert committee and disposed of the matter after recording the consent of the power project company to recompute structural design in accordance with the report of the expert committee.

9. In Gurudwara Manak Tabra Prabandhan Committee v. State of Haryana & Ors the issue involved was operation of various screening plants in violation of (i) siting criteria specified and (ii) violation of various applicable environmental laws. The NGT held that the siting criteria notification does not apply to screening plants established prior to coming into force of such notification. Importantly, the siting criteria prohibits screening plants within specified distance of residential, tourist structures but contained no specific distance requirement from religious structures. NGT held that a Gurudwara is not a ‘tourist complex’ and therefore the prohibition in the siting criteria does not apply.

10. In Hriday Narayan Mishra v. State of UP, the NGT registered an OA on the basis of a letter petition, which complained of a brick kiln operating illegally and in violation of Uttar Pradesh Brick Kiln (Siting Criteria for Establishment) Rules, 2012. NGT promptly formed an expert committee, which agreed with the complaint and the brick kiln was ultimately shut down.

11. In Indotech Waste Solution v. UPSEIAA & Ors, the challenge in this appeal was to the environment clearance and Consent to Establish (CTE) issued for establishment of a Common Bio-Medical Waste Treatment Facility (CBMWTF) in Sambhal, Uttar Pradesh. The NGT rejected the submission that CPCB’s Guidelines for CBMWTF, 2016 were non-binding. The Tribunal also held that in case any inconsistency between the 2016 Guidelines and the Bio-Medical Waste Management Rules, 2016, then the BMWM Rules, 2016 shall prevail. The NGT set aside the Environment Clearance and the CTE primarily on the ground that the project proponent did not meet the land requirement criteria of one acre for setting up the CBMWTF. NGT also passed strictures against the erring officials who issued these statutory clearances.

12. In Naresh Kumar & Ors v. State of Haryana & Ors, the NGT held as inadequate the fine of ₹2,70,685 imposed by the Deputy Forest Conservator Officer at Jhajjar, Haryana for illegal felling of 169 trees. The Tribunal directed for its recomputation on the ground that the same does not reflect ‘environmental compensation’, which is liable to imposed on account of the polluter-pays principle. Accordingly, the Tribunal directed the Pollution Control Board to recompute environmental compensation after hearing the concerned persons and recover the same expeditiously for rejuvenation of the environment.

13. In Tejasvi Chandra substituted by NGT Bar Association Legal Aid Committee v. Madhu Kamboj & Ors, the NGT observed that the petrol pump in question does not comply with the sitting criteria laid down by the Central Pollution Control Board since the said petrol pump is located adjacent to a school while the CPCB Guidelines prescribe a minimum distance of 50 meters. The NGT disposed of the application, observing that a similar matter is also pending before the High Court and gave liberty to the parties to approach NGT again after the High Court order should the cause survive.

14. In Ram Milan Sahani v. & State of UP & Ors, the tribunal considered the issue of serious violations of the Solid Waste Management Rules, 2016 by the Municipal Corporation, Gorakhpur, Uttar Pradesh due to existence of 1.96 lac MT of legacy waste at a site located on floodplains of the River Rapti. The Tribunal, while noting that the Municipal Corporation is in the process of setting up of an Integrated Waste Management Plant, issued a slew of directions to the State and UPPCB for compliance with the SWM Rules, 2016.

15. In Sunil Vaid & Anr v. State of Uttar Pradesh & Ors, the Tribunal received a complaint regarding lack of maintenance of public parks in Ghaziabad and directed the Municipal Corporation, Ghaziabad to comply with various suggestions made by Amicus Curiae to prevent dumping of garbage, prevent encroachments and to ensure their upkeep.

16.  In OA No 715/ 2024 (order dt. 02.07.2024), the NGT took suo motu cognizance of a newspaper article, which reported that hundreds of trees have been cut and continue to be illegally felled in the forests of Pandariya town in the Kabirdham district of Chhattisgarh. The article reported that trees on about 13 acres of forest land have already been cut and crops have been grown on encroached land, which facts are in the knowledge of the forest officials and despite which no action has been taken. The NGT impleaded the Chief Conservator of Forests, Chhattisgarh, the Union Ministry of Environment and Forest and Climate Change (MoEF), the Chhattisgarh Rajya Van Vikas Nigam Limited and the District Magistrate, Kabirdham as parties and also constituted a joint committee to submit an action taken report. The Tribunal thereafter listed the matter before the Central Zone Bench of the NGT at Bhopal for further adjudication.

Similarly, in OA No 774/ 2024, the NGT took suo motu cognizance of a newspaper article reporting on the rapid decrease in forest cover in Kerala.

17. In OA No. 881/ 2024 (order dt. 23.07.2024), the NGT took cognizance of depleting mangroves in Visakhapatnam, Andhra Pradesh due to urbanisation and industrialisation. NGT noticed the significant environmental impact this reduction has had on local flora and fauna. As such, the Tribunal impleaded MoEF, Principal Chief Conservator of Forests, Andhra Pradesh, Chief Wildlife Warden, Andhra Pradesh, National Coastal Zone Management Authority, Andhra Pradesh Coastal Zone Management Authority and District Magistrate, Vizag as parties and sought their response. The matter was listed before the Southern Zonal Bench of the NGT at Chennai for further adjudication.

18. In OA No. 375/ 2024 (order dt. 24.07.2024), the NGT took cognizance of a newspaper article titled "Around 40 injured as boiler explodes in factory in Haryana" appearing in The Hindu dated 16.03.2024. The Tribunal observed that the explosion leading to deaths of several innocent victims raised the issue of payment of compensation to the victims/family members of the victims, which has since been approved. As such, the NGT disposed of this application since the compensation has been approved to be paid to the victims.

19. In OA No. 719/ 2024 (order dt. 03.07.2024), the NGT took suo motu cognizance of a newspaper article on illegal construction on Ameenpur Lake in Sangareddy, (Hyderabad). The Tribunal held that Ameenpur Lake is the first water body in India to be recognized as a biodiversity heritage site and the first to be approved in an urban area. It also noted that the real estate company has completely filled the lake by carrying out construction activity in the buffer zone. As such, the NGT impleaded CPCB, Telangana State Pollution Control Board, MoEF, Telangana Wetland Authority, and District Magistrate, Hyderabad and sought their responses. The matter was kept pending and listed before the Southern Zonal Bench at Chennai for further consideration.

20. In OA No. 793/ 2024 (Order dt. 11.07.2024), the NGT took cognizance of a newspaper article reporting that 99,000 trees are proposed to be felled in Sandur Forest, Ballari District, Karnataka by Kudremukh Iron Ore Company. The NGT impleaded Principal Chief Conservator of Forest, Karnataka, MoEF, Karnataka State Pollution Control Board and District Magistrate, Ballari and listed the matter before the Southern Zonal Bench at Chennai for further consideration.

21. In Phoolwati v . Jai Prakash, the NGT registered this OA upon receipt of a letter alleging that a villager had installed three tubewells, which were being used to extract groundwater illegally and such water was being sold to a bottling plant for being sold in the market. The NGT appointed a joint committee, which verified the existence of tubewells onsite. The Tribunal directed the closure of one tubewell, directed that other tubewells be used for agriculture only and not for any commercial purpose, and directed the respondent to plant 200 trees within the village as penalty for illegally operating tubewells for commercial purpose.

Ajit Sharma is an advocate practicing before the Supreme Court of India and the National Green Tribunal.