Eco-sensitive Zone Notification issued by MoEF being backed by Union legislation, has enforceable charter for preservation of fragile eco-system of Mount Abu in State of Rajasthan: SC

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Read Judgment: Pragnesh Shah vs Dr. Arun umar Sharma & Ors. 

Pnakaj Bajpai

New Delhi, January 25, 2022: The Supreme Court has opined that the Eco-sensitive Zone Notification issued by the Ministry of Environment, Forest and Climate Change dated June 25, 2009 is backed by a statutory mandate of Union legislation, and has an enforceable charter for the preservation of the fragile eco-system of Mount Abu. 

Accordingly, every authority is duty bound to comply with its terms and any action in breach must peril invalidation, added the Court. 

A Division Bench of Justice Dr. D.Y. Chandrachud and Justice A.S. Bopanna observed that precautionary principle u/s 20 of the NGT Act requires the State to act in advance to prevent environmental harm from taking place, rather than by adopting measures once the harm has taken place. 

In deciding when to adopt such action, the State cannot hide behind the veil of scientific uncertainty in calculating the exact scientific harm, added the Bench.

The observation came pursuant to an appeal u/s 22 of the National Green Tribunal Act challenging judgments of the National Green Tribunal, whereby the NGT, on the basis of a report dated December 8, 2020 submitted by an Expert Committee which declared land owned by the appellant to be unfit for construction, allowed an original application filed by Dr. Arun umar Sharma (first Respondent), which challenged the Zonal Master Plan 2030 prepared by the State of Rajasthan which earmarked as “Residential” and “Tourist Facility” land, for the Mount Abu Eco-sensitive Zone.   

After considering the submissions, the Top Court found that Section 14(1) of the NGT Act provides that the NGT shall have the jurisdiction over all civil cases where a substantial question relating to the environment, including the enforcement of any legal right relating to the environment is involved. 

There is no manner of doubt that the original application filed by the first Respondent before the NGT in the present case implicated a substantial question relating to the environment, which arose from the provisions contained in the ESZ Notification in relation to the ESZ in Mount Abu, added the Court. 

Speaking for the Bench, Justice Chandrachud clarified that in exercise of its jurisdiction, the NGT is empowered u/s 15(1)(c) to provide for the restoration of the environment in such area or areas and therefore, assessing the conformity of the ZMP 2030 with the terms of the ESZ Notification is clearly within the remit of the NGT.  

As regards the disputed site in question the Expert Committee has furnished valid reasons for determining that construction must not be allowed so as to preserve the eco-system of the region as well as the proposed site for residential buildings covers the land with a high slope domain which are not suitable for construction, as the landscape was noted to be fragile in terms of soil erosion, added the Bench. 

The Top Court went on to observe that the precautionary principle envisages that the State cannot refuse to act to preserve the environment simply because all the scientific data may not be available, and therefore, the ESZ notification required the State of Rajasthan to prepare the ZMP 2030, so as to ensure that future development activity in the region could be planned while accounting for potential environmental degradation. 

Hence, the Apex Court dismissed the appeal holding that the NGT’s judgment correctly directed the ZMP 2030 to be modified to bring it into conformity with the ESZ Notification and the precautionary principle.

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