THE DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA v. AAM AADMI LOKMANCH & ORS.

Citation: [2020] 6 S.C.R. 1050; 2020 INSC 452

Court: Supreme Court of India

Bench: R.F. NARIMAN , S. RAVINDRA BHAT, V. RAMASUBRAMANIAN

Judgment date: 2020-07-14

Case summary

2020 INSC 452. Supreme Court of India judgment dated 2020-07-14. THE DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA v. AAM AADMI...

Judgment text

1050 SUPREME COURT REPORTS[2020] 6 S. C. R. 1050 [2020] 6 S. C. R. A THE DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA v. AAM AADMI LOKMANCH & ORS. B (Civil Appeal No. 6932 of 2015) JULY 14, 2020 [R. F. NARIMAN, S. RAVINDRA BHAT AND V. RAMASUBRAMANIAN, JJ. ] National Green Tribunal Act, 2010 – ss. 14, 15, 17 and C Schedules – Environment Protection Act, 1986 – Jurisdiction of the NGT – Victim was driving a car with her young daughter on the Highway – An over-mining resulted in the destruction of a small hill by the side of the National Highway – The resultant debris and a part of the hill collapsed and slid down to the road, claiming the D lives of the victim and her daughter – The NGT imposed a joint penalty of Rs. 50 lakhs for causing environmental damage on NHAI and the persons who carried out the cutting of the hill – Further, they were also directed to pay jointly and severally amount of Rs.

15 lakhs towards compensation to the legal representatives of the deceased and her daughter – Also, an amount of Rs. 10 lakhs E was ordered to be deposited for plantation of trees in order to restore damage caused to environment – It was contended that NGT has narrow and circumscribed jurisdiction in regard to issuing directions as well as ordering compensation – Held: A conjoint reading of ss. 14, 15, and the Schedules would lead one to infer that the NGT has F circumscribed jurisdiction to deal with, adjudicate, and wherever needed, direct measures such as payment of compensation, or make restitutionary directions in cases where the violation (i. e. harm caused due to pollution or exposure to hazards, etc. ) are the result of an infraction of any enactment listed in the first schedule – However, the wide language of s.

15(4) enables the Tribunal (NGT) G to direct, inter alia, payment of compensation,”having regard to the damage to public health, property and environment” – This interpretation is borne out by a reading of s. 17(2) regarding the apportionment of liability for payment of compensation – Under ss. 15(1)(b) and 15(1)(c), the NGT has the power to make directions H 1050 DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1051 AUTH. OF INDIA v. AAM AADMI LOKMANCH and provide for “restitution of property damaged and for restitution A of the environment for such area as the Tribunal may think fit” – Further, s.

17(1) refers to first schedule enactments, it talks of death of, or injury to, any person “or damage to any property or environment” which “has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment” B in Schedule I – One of the enactments is Environment Protection Act, 1986 – Environmental clearance is necessary even for minor mineral extraction where the area of operation is less than 5 hectares – In the instant case, there was violation of EPA, because there was mining lease covered an area in excess of 5 hectares – There is nothing on record to show that the relevant clearance was obtained C – Therefore, the facts of the present case disclose violation of the EPA – This means that the NGT’s jurisdiction u/s. 15(1)(a) and s. 17 cannot be disputed and NGT correctly assumed jurisdiction, having regard to the nature of the accident in the facts of the case.

National Green Tribunal Act, 2010 – Environment Protection D Act, 1986 – National Highways Act, 1956 – National Highways Authority of India Act, 1988 – An over-mining resulted in the destruction of a small hill by the side of the National Highway – The resultant debris and a part of hill collapsed and slid down to the road, claiming lives of a woman and her daughter – National E Green Tribunal directed payment of compensation towards death and damages towards restitution – Propriety of – Held: A statutory corporation or local authority can be held liable in tort for injury occasioned on account of omission to oversee, or defective supervision of its activities contracted out to another agency – In the instant case, having regard to the duty imposed on the NHAI by F virtue of ss. 4 and 5 of the Highway Act r/w. s.

16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, including the stretch upon which accident occurred – The report of Sub-Divisional Officer highlighted the deficiencies, also NHAI’s correspondence with the person G carrying out extraction of minor minerals by cutting hills, reveal that authorities were aware of the danger and likelihood of risk to human life – The failure of the NHAI to ensure remedial action and likewise failure by person carrying out mineral extraction, to take measures to prevent the accident, prima facie disclose their liability – Therefore, the directions in this regard by the NGT, making NHAI H 1052 SUPREME COURT REPORTS [2020] 6 S. C. R. A and the person carrying out extraction of mineral to pay Rs. 15 lakhs to legal representatives of the deceased is justified – Further, the restitutionary order by the NGT, cannot be faulted.

National Green Tribunal Act, 2010 – Environment Protection Act, 1986 – National Green Tribunal concluded that no development B and construction should be carried out within 100 feet of a ‘lowest slope i. e. , incline of any hill within its territorial limits, as well as hill-tops’ – Propriety of – Held: The decisions of the Supreme Court in All Dimasa Students Union case, Mantri Technoze Pvt. Ltd.

Case, the Hanuman Laxman Aroskar case and the Tamil Nadu Pollution Control Board case all show that the NGT resorted to the appointment C of technical and scientific experts in the relevant field, who studied the issue, made site inspections, and furnished reports – Such reports were subjected to discussion by the parties before the NGT, who were also given the opportunity of objecting to or making representations against such reports – Based on a final consideration D of all these materials, and the submissions of parties before it, the NGT proceeded to issue directions – However, in the instant case, what NGT had before it was the report of the SDM and a report commissioned about the nature of the incident – Based on these limited inputs, without any rationale and based on no scientific or technical evidence, or experts’ opinion, the Tribunal concluded that E development and construction should not be carried out within 100 feet of ‘lowest slope i. e.

incline of any hill within its territorial limits, as well as hill-tops’ – As a result, the directions issued by the Tribunal were improper and procedurally indefensible – Therefore, the said directions are set aside. F National Green Tribunal Act, 2010 – Environment Protection Act, 1986 – The order/ notification dated 14. 11. 2017 of the State of Maharashtra, issued u/s. 154 of the Maharashtra Regional and Town Planning Act, 1966 – Legality of – Held: The State of Maharashtra has not shown any material or file containing the reasons behind the directive of 14. 11. 2017 – These directions were G consequential to, and solely based on the directions of the NGT – The NGT directions with regard to no development and construction within 100 feet of a ‘lowest slope i. e.

, incline of any hill within its territorial limits, as well as hill tops’, were not based on any scientific evidence or report of any technical expert – The impugned H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1053 AUTH. OF INDIA v. AAM AADMI LOKMANCH notification does not specify what constitutes ‘hills’ – This makes A the directions not only vague but also makes them arbitrary as they can be applied at will by the concerned authorities – These directions in the notification, only underlines the lack of any application of mind on the part of the State – Consequently the directions issued under the notification u/s. 154 (dated 14. 11. 2017) are quashed. B Disposing of the appeals, the Court HELD: Jurisdiction of the NGT 1.

A conjoint reading of Sections 14, 15, and the Schedules of National Green Tribunal Act, 2010 would lead one to infer that C the NGT has circumscribed jurisdiction to deal with, adjudicate, and wherever needed, direct measures such as payment of compensation, or make restitutionary directions in cases where the violation (i. e. harm caused due to pollution or exposure to hazards, etc. ) are the result of infraction of any enactment listed in the first schedule. Yet, that interpretation, in the opinion of D this court, is not warranted. [Para 36][1085-D-E] 2. The reference to Schedule II, in Section 15(4) is not merely by way of events which are actionable in relation to harm caused due to the acts resulting in violation of any enactment under Schedule I. The wide language of that provision enables E the tribunal (NGT) to direct, inter alia, payment of compensation, “having regard to the damage to public health, property, and environment”.

This interpretation is borne out by a reading of Section 17(2) regarding the apportionment of liability for payment of compensation. [Para 37][1085-F] F 3. It is noteworthy that this court clearly held that under Section 15(1)(b) and 15(1)(c), the NGT has the power to make directions and provide for “restitution of property damaged and for restitution of the environment for such area or areas as the Tribunal may think fit. It is noteworthy that Section 15(1)(b) & (c) have not been made relatable to Schedule I enactments of the Act. ” G Though a direction for compensation under Section 15(1)(a) is relatable to violation of enactments specified under the first Schedule, the power under Section 17 appears to be cast in wider terms. [Para 43][1089-F] H 1054 SUPREME COURT REPORTS [2020] 6 S. C. R. A 4.

Section 17 (1) refers to first schedule enactments; it talks of the death of, or injury to, any person “or damage to any property or environment” which “has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment” in Schedule I. One of the enactments is the Environment Protection Act, 1986 (EPA). [Para 44][1089-G-H] B 5. By virtue of a notification dated 14. 08. 2018 published by the Government, environmental clearance is necessary even for minor mineral extraction where the area of operation is less than 5 hectares; the procedure has been outlined under Appendix XI of that notification. Clearly, therefore, mining of even minor C minerals, when resorted to on a large scale (i. e. , where more than a few leases or permits are granted), has a potential impact on the environment.

In the facts of this case, the State had granted no less than 62 minor mineral permits in the vicinity; unauthorized activity (in the form inter alia, of over-mining and D piling of debris) had resulted in the imposition of penalty. Clearly, there was violation of the EPA in the present case, because the person carrying out mineral extraction i. e. fifth respondent's mining lease covered an area in excess of 5 hectares; it fell within the regulatory notification of 2006. There is nothing on record to show that the relevant clearance was obtained by fifth respondent. E Plainly, therefore, the facts of the present case disclosed violation of the EPA- an enactment listed in Schedule I of the NGT Act. This meant that the NGT’s jurisdiction under Section 15(1)(a) and Section 17 could not have been disputed. [Para 50][1096-F- G; 1097-A-B] F 6. The EPA effectively enunciates the critical legislative policy for environment protection.

It changes the narrative and emphasis from a narrow concept of pollution control to a wider facet of environment protection. The expansive definition of environment that includes water, air and land “and the interrelation which exist among and between water, air and land, other human G creatures, plants, micro-organisms and property” gives an indication of the wide powers conferred on the Central Government. A wide net is cast over the environment related laws. The EPA also empowers the central government to H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1055 AUTH. OF INDIA v. AAM AADMI LOKMANCH comprehensively control environmental pollution by industrial A and related activities. For these reasons, and in view of the above discussion, it is held that the NGT correctly assumed jurisdiction, having regard to the nature of the accident in the facts of this case.

[Para 51][1097-D-F] Was the direction to pay compensation towards death, and B damages towards restitution justified? 7. Having regard to the duty imposed on the NHAI by virtue of Sections 4 and 5 of the National Highways Act, 1956 read with Section 16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, C including the stretch upon which the accident occurred. The report of the sub-divisional officer clearly shows that inspection reports were furnished to the NHAI shortly before the incident, highlighting the deficiencies; also, the NHAI’s correspondence with fifth respondent, and the local administration, reveal that it D was aware of the danger and likelihood of risk to human life, and the foreseeability of the event that actually occurred later. Further, letters addressed by the local administration and the NHAI to fifth respondent similarly show that it was incumbent upon him to take remedial action.

The failure of the NHAI to ensure remedial action, and likewise the failure by fifth respondent to take E measures to prevent the accident, prima facie, disclose their liability. [Para 65][1110-G-H; 1111-A-B] 8. The section 18(1) clearly implies that an application without impleading the legal heirs cannot be rejected. At the most, the tribunal has to implead all legal heirs. In the present case, F that procedure was not followed. However, the legal heirs have instituted a suit. The ends of justice would be served if a direction is issued to the concerned Court to revive and continue hearing that suit. The directions in this regard by the NGT, towards payment of compensation are to be regarded as indicative of a G prima facie determination. Consequently, the direction to the NHAI and fifth respondent, jointly making them liable to pay 15 lakhs is justified.

It is clarified that the civil suit will now proceed, and based on evidence, the court would finally decide the issue of liability, and make such further consequential orders or decrees as may be found necessary in this regard, towards apportioning H 1056 SUPREME COURT REPORTS [2020] 6 S. C. R. A of liability of the NHAI, fifth respondent, the state or any other party (including the concessionaire). This court’s order shall not be treated as conclusive; the trial court shall independently proceed to evaluate the evidence and hear the parties on the merits of their submissions. The restitutionary order by the NGT, directing payment by fifth respondent and NHAI of 10 lakhs too, B in this court’s opinion, cannot be found to be at fault. It is upheld. The NHAI and fifth respondent shall comply with the directions of the NGT and deposit the sum of 15 lakhs with the said court within four weeks, in equal proportion.

The sum 10 lakhs shall be deposited in the same proportion, in court, to be disbursed to C the state government for restoring the environment and carrying out afforestation/planting of trees, etc. [Para 67][1111-F-H; 1112- A-C] Correctness of NGT’s directions contained in Para 17 (e) of its impugned order, and the legality of the order/notification of D the State of Maharashtra, issued under Section 154, Maharashtra Regional and Town Planning Act, 1966. 9. Turning next to the question of the correctness of the general directions contained in Para 17(e) of the NGT’s order, this court has no manner of doubt that such directions were E improper and not justified in the facts of this case. What the NGT had before it, was the report of the SDM and a report commissioned about the nature of the incident.

Based on these limited inputs, the tribunal concluded- without any rationale and based on no scientific or technical evidence, or experts’ opinion, that development and construction should not be carried out F within 100 feet of a “lowest slope i. e. incline of any hill within its territorial limits, as well as hill-tops”. The decisions of this court, including the All Dimasa Students Union case; Mantri Technoze Pvt. Ltd case; the Hanuman Laxman Aroskar case; and the Tamil Nadu Pollution Control Board case all show that the NGT resorted to the appointment of technical and scientific experts in the G relevant field, who studied the issue, made site inspections and furnished reports. Such reports were subjected to discussion by the parties before the NGT, who were also given the opportunity of objecting to or making representations against such reports. Based on a final consideration of all these materials, and the H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1057 AUTH.

OF INDIA v. AAM AADMI LOKMANCH submissions of parties before it, the NGT proceeded to issue A directions. This procedure was wholly overlooked by the NGT in the present case. As a result, it is held that the said tribunal’s directions were improper and are procedurally indefensible. The directions contained in Para 17(e) are therefore set aside. [Para 76][1118-G-H; 1119-A-C] B 10. In the present case, the State of Maharashtra has not shown any material or file containing the reasons behind the directive of 14. 11. 2017. It is not in dispute that the direction was consequential to, and solely based on the directions of the NGT in Para 17(e). As noticed earlier, those directions were not based C on any scientific evidence or report of any technical expert. Furthermore, even the impugned notification does not specify what constitutes “hills”, and how they can be applied in towns and communities set in undulating areas and hilly terrain.

This is not only vague, but makes the directions arbitrary as they can be applied at will by the concerned authorities. More importantly, D they amount to a blanket change of all regional and development plans. While such directions can be issued, if situations so warrant, such as in extraordinary or emergent circumstances, the complete absence of any reasons as to why the State issued them, coupled with the lack of any supporting expert report or input, renders it E an arbitrary exercise. That they are based only on the NGT’s orders, only underlines the lack of any application of mind on the part of the State, while issuing them. [Para 90][1130-E-G] State of Tamil Nadu v. M/s. Hind Stone & Ors (1981) 2 SCC 205 : [1981] 2 SCR 742; Lafarge Umiam Mining F (Pvt. ) Ltd. v. Union of India & Ors. (2011) 7 SCC 338 : [2011] 7 SCR 954; State of Meghalaya and Ors. v. All Dimasa Students Union, Dima-Hasao District Committee & Ors. (2019) 8 SCC 177 : [2019] 8 SCR 297; Mantri Technoze Pvt. Ltd.

v Forward Foundation (2019) 18 SCC 494; M. C. Mehta v. Union of India G (2004) 12 SCC 118 : [2004] 3 SCR 126; Deepak Kumar v. State of Haryana (2012) 4 SCC 629 : [2012] 4 SCR 819; Municipal Corpn. of Delhi v. Sushila Devi (1999) 4 SCC 317 : [1999] 2 SCR 1198; PTC India v. Central Electricity Regulatory Commission (2010) 4 SCC 603 : H 1058 SUPREME COURT REPORTS [2020] 6 S. C. R. A [2010] 3 SCR 609; T. Vijayalakshmi v. Town Planning Member (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534; Pune Municipal Corpn. v. Promoters and Builders Assn (2004) 10 SCC 796 : [2004] 2 Suppl. SCR 207; Machavarapu Srinivasa Rao v. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority B (2011) 12 SCC 154 : [2011] 12 SCR 639; MIG Cricket Club v. Abhinav Sahakar Education Society (2011) 9 SCC 97 : [2011] 11 SCR 141; Shri. Sitaram Sugar Mills Company v. Union of India (1990) 3 SCC 223 : [1990] 1 SCR 909; Cellular Operators Association v.

Telecom C Regulatory Authority of India (2016) 7 SCC 703 : [2016] 9 SCR 1 – relied on. Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd. & Ors. (2019) SCC OnLine SC 221; Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC D 401 : [2019] 5 SCR 916; Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496 : [2001] 1 Suppl. SCR 23; Jitendra Singh v. Ministry of Environment & Ors (2019) SCC OnLine SC 1510; Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum (1997) 9 SCC 552 : [1997] 1 SCR 304; Vadodara Municipal Corporation E v. Purshottam V. Muranji (2014) 16 SCC 14 : [2014] 7 SCR 810 – referred to. Diplock L. J. in Griffiths v. Liverpool Corporation [1967] 1 Q. B. 374; Burnside v. Emerson [1968] 1 W. L. R. 1490; Haydon v. Kent County Council [1978] Q. B. 343; F Stovin v Wise (1996) 3 All ER 801; Gorringe v. Calderdale Metropolitan Borough Council (2004) 1 WLR 1057; Robinson v. Chief Constable of West Yorkshire Police (2019) 2 All ER 1041; Yetkin v.

Mahmood 2011 QB 827; Securities Exchange Commission v. Chenery Corp. 332 U. S. 194 (1947) – G referred to. Case Law Reference (2019) 18 SCC 494 referred to Para 29 [2019] 5 SCR 916 referred to Para 29 H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1059 AUTH. OF INDIA v. AAM AADMI LOKMANCH (2019) 18 SCC 494 relied on Para 30 A [2001] 1 Suppl. SCR 23 referred to Para 38 [1981] 2 SCR 742 relied on Para 38 [2011] 7 SCR 954 relied on Para 40 B [2019] 8 SCR 297 relied on Para 41 [2004] 3 SCR 126 relied on Para 46 [2012] 4 SCR 819 relied on Para 49 [1997] 1 SCR 304 referred to Para 57 C [1999] 2 SCR 1198 relied on Para 63 [2014] 7 SCR 810 referred to Para 63 [2010] 3 SCR 609 relied on Para 74 [2006] 7 Suppl. SCR 534 relied on Para 80 D [2004] 2 Suppl. SCR 207 relied on Para 81 [2011] 12 SCR 639 relied on Para 82 [2011] 11 SCR 141 relied on Para 83 [1990] 1 SCR 909 relied on Para 88 E [2016] 9 SCR 1 relied on Para 89 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6932 of 2015.

From the Judgment and Order dated 19. 05. 2015 of the National F Green Tribunal, (Western Zone), Bench, Pune in Application No. 04 of 2014. With Civil Appeal Nos. 5971 of 2019, 4379 of 2018, 2741 of 2020, 6862 of 2018, 2742 of 2020, 11803 of 2018, 2743, 2744 of 2020. G P. S. Narashimha, Shyam Divan, Sidharth Dave, Sr. Advs. , Ms. Neetica Sharma, Dhruv Nayar, Ms. Aadti Tirpedi, M/s. M. V. Kini & Associates, Kunal Cheema, Vilas Giri, Ms. Aditi Parkhi, Abhimanyu Bhandari, Ms. Roohina Dua, Cheitanya Madan, Naveen Kumar, Saurav Kirpal, Ankur Saigal, Mahesh Agarwal, Anshuman Srivastava, Anirudh H 1060 SUPREME COURT REPORTS [2020] 6 S. C. R. A Bhatia, Rishi Agrawala, Ms. Ayushi Amodh, Shaishir S. Divatia, Ms. Aashna Agrawal, E. C. Agrawala, Vijay Kumar Verma, Mata D. Sagar, Tarun Verma, Amol Chitale, Mrs. Pragya Baghel, Ms. Shilpa Chouhan, Jitender Chaudhary, Shawahiq Siddiqui, Rajesh Singh, Rahul Chitnis, Aaditya A.

Pande, Sachin Patil, Bhakti Vardhan Singh, Nishant Ramakantrao Katneshwarkar, Ms. Bharti Tyagi, Arvind S. Avhad, Karri B Venkata Reddy, Ms. Aparna Jha, V. N. Raghupathy, Manendra Pal Gupta, V. K. Verma, Rajesh Kumar, Advs. for the appearing parties. Respondent-in-person The Judgment of the Court was delivered by C S. RAVINDRA BHAT, J. 1. Leave granted in SLP (C) Nos. 28178/2018, 1706/2019, Diary No. 19018 of 2018 and 1632 of 2019. With consent of counsel for the parties, they were tagged with the companion civil appeals and heard finally. D 2. On 06 June, 2013, when Ms. Vishakha Wadekar, was driving her car with her young daughter, Sanskruti Wadekar she had no inkling that danger lurked round the corner of the highway; over-mining at the height of 75 x 30 ft, in Gut No. 112, resulted in the destruction of a small hill by the side of the national highway. The resultant debris and a part of E the hill collapsed and slid down to the road, claiming the lives of Ms.

Vishakha and her daughter. The directions made by the Pune bench of the National Green Tribunal, on an application by a registered organization, (the respondent in the appeal, the Aam Aadmi Lokmanch, hereafter “Lokmanch”) are the subject matter of the appeals (CA 6932/ 2015 by NHAI; CA 5971/2019; CA 11803/2018 and CA 6862/2018) F before this court. The other appeals by special leave question the judgments and orders of the Bombay High Court, which upheld the regulations framed pursuant to the order of the NGT. The High Court negatived the challenge to those regulations in the writ petitions presented before it. G 3. The facts in brief are that the National Highways Authority of India (hereafter “NHAI”) had entered into an agreement with M/s P. S. Toll Road (Pvt. ) Ltd. , a unit/undertaking of Reliance Infrastructure Ltd. (which is arrayed as the ninth respondent; PS Toll Road (Pvt. ) Ltd. hereafter referred to as “the concessionaire”) on 10. 03.

2010 for the H maintenance and operation of the Pune-Satara section of National DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1061 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] Highway No. 4, to an extent of 140 kms. The scope of the agreement A included construction of the project (i. e. the highway stretch) as well as its operation and maintenance for a period of 24 years. The agreement included stipulations mandating safety to the highway users (clause 18. 1. 1). The NHAI was duty bound to appoint experienced safety consultants for carrying out safety audits of Project Highways (clause B 18. 1. 2), the expenditure for which was to be borne by the concessionaire (clause 18. 1. 3). An elaborate highway monitoring mechanism was also contemplated by the agreement (clause 19.

1) through which by the seventh of each month, an independent engineer was to furnish a report after due inspection (of the operation and maintenance arrangements), containing defects or deficiencies (clauses 19. 2). Additionally, the C independent engineer was to require the concessionaire to carry out specified tests for confirming that the highway was operated in accordance with applicable standards (clause 19. 3). Other stipulations included, inter alia, requirements that the concessionaire had to carry out remedial measures (Clause 19. 4. 1) within a period of 15 days after D receipt of the report of the independent engineer. The concessionaire was put to terms in that if relevant repairs or remedial measures were not undertaken, the NHAI could recover damages in terms of Clause 1 17. 8.

Another obligation cast on the concessionaire was to send a periodic report of various occurrences, including “unusual occurrences on the Project Highway” such as death or injury to any person (clause 19. 6), E any obstruction, or “flooding of Project Highway”. 4. In the meanwhile, the fifth respondent (who has filed CA 5971/ 2019 against the NGT’s order, hereafter referred to as “Rathod”) on 03. 01. 2011 applied to the Government of Maharashtra for a license to 1 In terms of Clause 19. 4. 2, the measure of damages which NHAI could recover was F calculable in terms of each days delay in complying with the remedial measures suggested by the engineer, based on the “higher (a) 0. 5% of the Average Daily Fee and (b) 0. 1% of the cost of such repair or repair estimated by the Independent Engineer” The same clause (17. 8.

1) stated that: “Notwithstanding anything contained in this agreement, should the actual traffic exceed the design capacity during any year or part thereof and the Concessionaire fails to repair or rectify any defect or deficiency set forth in the Maintenance Requirements G within the period specified therein, it shall be deemed to be in breach of this agreement and the Authority shall be entitled from such date to recover damages, to be calculated and paid for each day of the delay until the breach is cured, at the higher of (a) 5% (five percent) of Average daily fee and 1% (one percent) of the cost of such repair or rectification as estimated by the Independent Engineer, for the balance period of the concession. The recovery of such damages shall be without prejudice to the rights of the Authority under this agreement, including the right of termination thereof. ” H 1062 SUPREME COURT REPORTS [2020] 6 S. C. R. A extract minor minerals.

This license was sought in respect of land bearing survey number 112A to look more to an extent of 5 acres and 93 cents. The license was granted by the appropriate authority of the government. By clause 1 of the terms of this license, the period of the license was two months; clause 5 stated that for extraction and minor minerals digging, work could not exceed more than 20 feet down side of the land surface. B 5. Apparently soon after the license was taken over, certain demands were made regarding construction of a connecting road to the village. The materials on record by way of letters written to the local panchayat are to the effect that as a result of construction of the highway and due to the passage of time the existing road had been washed away. C Consequently, the 2 km stretch from the left side of the new tunnel going up to the village was virtually non-existent. The panchayat requested that the road should be strengthened and widened. 6. On 31. 01.

2011, the local authorities of the State government issued a show cause notice to Rathod alleging that debris were stored D illegally on the site. It was alleged that this was contrary to Section 48 of the Maharashtra Land Revenue Code, 1966 (hereafter “land revenue code”). Again, on 16. 06. 2011, the local panchayat issued a notice (which is on the record) stating that as a result of mineral extraction, the natural flow of rainwater was being obstructed. The notice also added that two heavy machines in non-performing condition were lying idle on the land E and two JCB machines were also stationed there. Rathore evidently received these notices; this is attested by his replies to the Tehsildar and other local authorities. After obtaining a report from the local officials, the Tehsildar, Bhor issued an order directing payment of ` 1,271,200 by Rathod for violation of the land revenue code on account of illegal F extraction and use of minor minerals. 7.

This activity of excavation and piling of debris, did not go unnoticed on the part of NHAI; it wrote to the Collector of Pune, pointing out that: “…large scale and indiscriminate excavation in the upper side G hills of New Katraj Tunnel at both ends is in progress. Due to this excavation, drainage system above and near tunnel has been affected. This may lead to seepage of water inside tunnel roof thereby collapse of walls and ceiling of tunnel resulting in collapse of tunnel and may lead to major mishap. The H collapse in tunnel will block the entire traffic of NH4 from DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1063 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] Mumbai/Pune to Bangalore and vice versa leading to chaotic A situation. ” The letter also mentioned specifically that Rathod had been notified; it sought action from the state government. th 8.

In the early hours of the morning of 6 June, 2013, due to the B monsoon, there was heavy rainfall at Mauje Shindewadi Tehsil, Bhor and the surrounding areas. Water flowing through the hills at Mauje Shindewadi entered the road near the octroi post of the Pune Municipal Corporation, at Mauje Shindewadi Tehsil Bhor, District Pune, on NH-4, with great force. This created an obstacle in the form of a large sheet of water. Under these conditions, when the Alto car driven by Vishakha C Wadekar and her daughter Sanskruti, was obstructed, they alighted to wade across to safety; however, the water gushed with great intensity and swept them away, resulting in their death. The resulting magisterial inquiry under Section 176, Code of Criminal Procedure resulted in a report dated 04. 10. 2013. The Sub-Divisional Magistrate who inquired D into the incident appointed an expert, whose report was considered; he also visited the site and held several hearings.

During the hearings, pursuant to notices issued to various parties, the statements of Rathod, the local police authorities, eyewitnesses (Abhay Arvind Ranade, Vineet Vasant George and relatives of the deceased), the Project Director (General Manager) of NHAI, the team leader of the independent E engineering firm associated with checking quality of maintenance of the highway, etc. were recorded. 9. Soon after the incident, the Lokmanch, through its president, filed an application under Section 14(1) read with Sections 16 and 18 of the National Green Tribunal Act, 2010 (hereafter “the NGT Act”), seeking F mandatory injunction to restore natural contours at the foot base of the hill that had been destroyed by Rathod. Besides, general relief by way of directions to other respondents to take necessary action for the protection of hills from destruction and for maintaining foot base design of the hills in the natural survey was sought. G 10.

The material produced before the NGT by the State of Maharashtra in the form of an affidavit revealed that large scale destruction of hills by individuals and concerns who had been given short term mining licenses, had occurred. According to the affidavit, there were 62 cases, and in many cases “hill-cutting” was resorted to by H 1064 SUPREME COURT REPORTS [2020] 6 S. C. R. A developers. The state had apparently imposed fines and penalties for these illegal activities. 11. The NGT, in its impugned order, commenting on the role of Rathod, held as follows, while justifying the imposition of liability upon that respondent: B “It appears from the record that land Survey No. 112, is owned by the Respondent Nos. 5 and 6 and their family members. There are hills in the said land. They illegally cut hills without permission and extract minor mineral, which reduced height of hill, circumference of the hill and or peripheral nature, C surface of the hill in question. Acts of the Respondent Nos.

5 and 6 made the area of hill fragile, susceptible to danger to the ecology and support of natural soil. In such a case, mere recovery of additional royalty would not be a proper remedial measure. At many places, the hill cutting is noticed prior to and after the pathetic incident and now inquiry is undertaken D by the concerned revenue officials. ” 12. Thereafter, the NGT based on its reasoning that the regulation of some activities, especially involving anything affecting hills has to be strictly regulated, directed as follows: “12. The question may arise as to what is the meaning of E expression ‘Hill’. General perception is that it would depend upon ocular assessment of the area, which is rounded land that is higher than the land surrounded by it, but is not expected to be as high as mountain. In other words, it is usually rounded natural elevation of land, lower F than a mountain. There is no particular definition of the word ‘Hill’.

The Oxford Dictionary gives meaning of word ‘Hill’ as follows: Hill - noun a naturally raised area of land, not as high or craggy as a mountain, a sloping stretch of road: they were G climbing a steep hill in low gear, a heap or mound of something, a hill of sliding shingle. The wordbook has given meaning of expression ‘Hill’ as follows: 231 “Hill is an elevation of the earth’s surface that has a H distinct summit. It has much less surface area than a DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1065 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] mountain and is lower in elevation. Hills rise less than 305 A metres above the surrounding area, whereas mountains always exceed that height. However, a hill is not simply Small Mountain. It is formed in a considerably different way. Hills may be classified according to the way they were B formed and the kinds of materials they are made of. There are two types, constructional and destructional.

Constructional hills are created by a built-up of rock debris or sand deposited by glaciers and wind. Oval-shaped landforms called drumlins and sand dunes are samples of C this type. Destructional hills are shaped by the deep erosion of areas that were raised by disturbances in the earth’s crust. Such hills may consist of limestone overlying layers of more easily eroded rock. ” 13. Draft Development Control Regulation Plan (DCR) of D Pune is yet not approved by the PMC or Government. The cutting of hill by the Respondent Nos. 5 and 6, created destruction to render a part of land useless, including development thereof for plantation of trees. It goes without saying that the destruction of hill could not have occurred without connivance or at least purposeful act or omission by E the Project Proponent i. e. NHAI (Respondent No. 9). It is in the affidavit of Mr.

Rajeskumar Kundal, that agreement requires to take necessary steps for stoppage of illegal construction activity at Katraj hill top. However, a Notice dated 25th April, 2011, was issued to the Respondent No. 5 F and copy of the same was marked to the Tehsildar, Bhor before occurrence of the incident. The Collector, Pune was requested to look into the matter. The authorities were thus, asked to take appropriate steps for stoppage of illegal activity in order to avoid major mishap and to ensure not to occur. They stated that one Mrs. Vishakha Vadekar, and her daughter died due G to water flow, which gushed from the hill top and poured on the road. 14. We do not find any significant material to show that the Respondent No. 9 (NHAI) has taken reasonable steps to avoid the untoward incident. We do not find copies of the complaint H made by NHAI to the authority. Assuming for a moment that 1066 SUPREME COURT REPORTS [2020] 6 S. C. R.

A such communications were made at the fag end of April, 2011, yet, it was responsibility of NHAI to persuade said authority or the higher authority about inaction after 2011. The incident of raining in which Mrs. Vishakha Vadekar and her daughter had flown away, is said to have occurred on 10th July, 2013. Obviously, the Respondent No. 9, appears to have kept silence B for about two (2) years, inspite of knowledge that the work of hill cutting was going on. In our opinion, NHAI (Respondent No. 9) perhaps was likely to be impliedly benefited due to the illegal act of hill cutting due to availability of murum, stones and soil for the work for its project. The C contractor of NHAI was, therefore, interested in keeping the fingers crossed. 15. Considering probability and circumstances appearing on record, we have no hesitation in holding that there took place degradation of environment to large extent due to hill cutting D at Katraj.

We have further no hesitation in holding that the hill cutting occurred due to illegal acts of the Respondent Nos. 5, 6 and with or due to act of omission of the Respondent No. 9. They are liable to pay compensation to the legal representatives of the victims of incident in question. They are also liable to pay restitution charges and penalty for E causing damage to the environment, in order to avoid such incident in future. 16. We deem it proper to give certain further directions to the concerned authority. In keeping with these findings, we direct: 17. a) The Respondent Nos. 5, 6 and 9 shall pay amount of F Rs. 50 Lakhs as joint penalty imposed on them for causing environmental damage in the nearby area of Katraj, due to the hill-cutting. b) This amount shall be deposited with Collector (Pune) within six (6) weeks, else Collector can recover the amount as arrears G of Land Revenue.

This amount shall be deposited by Collector in special escrow account, and the amount be spent for environmental protection and conservation activities, including hill protection and conservation in the district. H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1067 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] c) The Respondent Nos. 5, 6 and 9 shall jointly and severally A pay amount of Rs. 15 Lakhs towards compensation to the legal representatives of deceased Mrs. Vishakha Vadekar, and her daughter if identity of legal representatives is proved before the Collector. The above three (3) Respondents shall immediately within four (4) weeks, deposit such amount in B the office of Collector, Pune for payment to the legal representatives of deceased in the incident.

The Collector may issue a publication for locating legal representatives of above deceased women for payment of compensation and pay to them compensation after satisfaction of identity of the legal representatives by making due proportion as provided under C the relevant provisions of the Succession Act. d) The Respondent Nos. 5, 6 and 9 shall also deposit amount of Rs. 10 Lakhs with the office of Collector for plantation of trees in order to restore damage caused to environment, though it may not be a sufficient remedy. D e) The Respondent Nos. 1, 2, 3, 4, 7 and 8 shall give instructions to the concerned revenue officials working within all districts to have regular vigil within their areas to verify whether fringes or nearby any hill or hill-top construction is/ are noticed and if found to be so, due inquiry may be made E as to whether it is authorized or unauthorized.

So also, instructions may be issued to the Municipal authorities to ensure that no construction permission shall be given to any construction/development work, which is being proposed and is located at a distance may be of 100 ft. away from lowest F slope i. e. incline of any hill within its territorial limits, as well as hill-tops, except for Bamboo cottages. f) In case of emergency or public purpose, the Hill cutting may be done by the concerned office of the Collector/ Commissioner by passing a reasoned order or if so required G by Law as provided under the Environment (Protection) Act, 1986 and the Regulations thereunder. ” Rathod, the NHAI and three other appellants (Patel India Pvt Ltd, Fern Constructions (India) Ltd and D. B. Realty Ltd. ) have preferred appeals against the impugned order of the NGT; their grievance is from H 1068 SUPREME COURT REPORTS [2020] 6 S. C. R. A the general directions issued in the impugned order, implicating buildings near hills. 13.

In the second set of matters, i. e. the appeals by special leave, the facts are that acting on the directions of the NGT, the State of Maharashtra invoked its powers under Section 154 of the Maharashtra B Regional and Town Planning Act, 1966 (for short “MRTP Act”) and directed, by a notification/circular dated 14. 11. 2017 that development (relating to construction) was impermissible in an area abutting hills up to 100 feet. 14. By the impugned common judgment, the High Court held that C there was no denial that the power to issue such directions or circulars existed by way of the amended Section 154 and that such power was essential. The court further held that no individual or entity could claim any absolute right and contend that he could develop or construct anywhere and that the directions contained in the notification supplemented bye-laws and building codes already in place in Mumbai D and Pune.

It was also observed that: “In Regulation 2 we have the definitions and as far as Part II is concerned, that is general planning and building requirements. Regulation 11. 1 says that no piece of land shall be used as site for construction of building if the site is hilly E and having gradient more than 1:5. Thus, these stipulations are already in place. What the National Green Tribunal brought to the notice of the authorities is in-discriminable cutting of hills in the Katraj Ghat. This unauthorized construction by breaking of hills resulted in an accident. That is why the NGT directed that on hill tops and hill slopes and F the portion at the foot of the hill and surrounding 100 feet, no construction activity should be permitted and no development permission be issued and such directions be issued to the Municipal Corporations and Municipal Councils.

Bearing in mind that there are in place legal provisions G restricting the development activity on hill top and hill slope zones, all that the NGT and this Government Resolution directs is that in cases where there has already been a permitted development activity within 100 feet of the hill, then, no permission for additional construction be granted nor any development be permitted by sanctioning additional Floor H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1069 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] Space Index (FSI) or Transferable Development Rights (TDR). A In the event in sanctioned development plans if area of the above nature is in buildable zone, then, for carrying out development in such zone and while granting individual development permissions, an area of 100 feet surrounding the hills should be demarcated as non-buildable. It can be B used as open space, road etc.

We are surprised that an order and direction of the NGT traceable to and in accordance with the planning law it challenged before us. Further, the directions of the State Government, which are but reiteration of the existing regulations, are under challenge. The impugned Government Resolution is in consonance with the provisions C of the MRTP Act and the constitutional mandate enshrined in Article 21 and 48 thereof. 24. We are not in agreement with Dr. Sathe, Mr. Godbole and Dr. Saraf that merely because such directions are issued in exercise of the powers conferred by sub-section (1) of section D 154, the development Plan for the limits of the Municipal Corporations, namely Pune and Mumbai is altered or modified. We are also not impressed by their argument that by such a Government Resolution, a modification is brought about in the Development Control Regulations and all this is E without recourse to the specific powers conferred by the MRTP Act.

In other words, these are bypassed and by a Government Resolution, the above stand amended. In that regard our attention has been invited to the provisions in the MRTP Act enabling modifications or changes in the Development Plan and the procedure prescribed in that behalf. F 25. We do not see any modification to the plan being brought about by the subject Government Resolution. If at all, the directions therein complement the provisions of the Development Control Regulations for the cities of the Mumbai and Pune or the concerned Municipal Corporation/Municipal G Council areas. As it is, there was no permission to construct buildings other than a electric sub-stations, water works etc. on hill tops. As far as these slopes are concerned, by their very nature, a hill slides down and if the slope is steep, then, no construction activity can be carried out. There is no H 1070 SUPREME COURT REPORTS [2020] 6 S. C. R.

A guarantee or assurance that any construction activity in such areas would be able to withstand a landslide or accidents, resulting from erosion of the hills on account of natural reasons. It is experienced that human intervention is necessarily not responsible for a landslide, mudslide etc. On account of natural causes and calamities, such events can B occur. Apart from that, the occurrence increases because of human intervention including a construction activity carried out at the foot of the hill or on top thereof. It is also possible if the hill is cut from its sides indiscriminately. It is also possible if there is damage to a hill while extracting minor minerals. C The hill then becomes uneven. Then, it is not possible to prevent any calamity.

Hence, in order to take care of the natural calamities and which have occurred in various places in the State of Maharashtra recently and also on account of unrestricted and unregulated breaking and cutting of the hills resulting in accidents endangering human life and safety that D these supplemental directions have been issued. If they are for efficient administration of the Act and if they subserve larger public interest, then no fault can be found with the Government Resolution. Each of the operative directions, namely, serial Nos. 1, 2 and 3 of this Government Resolution E subserve this object and purpose. If the Government Resolution has been issued after the attention of the Government has been invited to an accident in Katraj Ghat occurring due to unauthorized and illegal cutting of hills, then, it is not as if the State Government has construed it as a command or a binding order and issued the subject F Government Resolution.

The attention of the State Government being invited to such illegal and unauthorized so also uncontrolled, unregulated and unrestricted hill-cutting, that in order to prevent the same, the Government stepped in. It took recourse to its power conferred by section 154 of the G MRTP Act in order to prevent future occurrences of this nature. If accidents and calamities can be prevented by timely intervention of the State Government in this manner, then, we do not think that on the specious and unsubstantiated pleas of the petitioners, we should strike down the Government Resolution. ” H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1071 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] 15. The NHAI in its appeal contends that the NGT fell into error A in issuing sweeping directions against it without considering that was no evidence to establish that it was in any way responsible for the degradation of the environment, which led to the tragedy.

It is urged by Senior Counsel Mr P. S. Narasimha that the NGT’s findings are contrary to established facts and have also resulted in grave miscarriage of justice. He highlighted B that there was no material on record to establish that the NHAI was in any way culpable or had failed to perform a public duty or neglected to avert a foreseeable calamity. Elaborating on this, it was urged that the illegal mining activity was not carried on within the right-of-way or the carriageway of the highway. What occurred was the result of an act of God, i. e. extremely heavy rains, which resulted in flooding on the highway C caused entirely on account of the debris collected which acted to obstruct the smooth flow of water. 16. It was highlighted that in any case, the NHAI could not be held responsible or made liable for the occurrence which led to the tragedy.

Mr Narasimha also argued that the NGT did not return any D finding that the construction of the highway was in any way contrary to environmental clearances or permissions secured by the NHAI. Therefore, the findings of the Tribunal in so far as they pertained to the neglect or alleged omission of the NHAI, were contrary to law. He urged that the findings were illogical and irrational, and deserve to be set E aside. 17. The NHAI also highlights that it wrote letters to the local administration on 24. 04. 2011 and 15. 07. 2011, seeking its intervention on account of the illegal mining and activities and hill destruction, for which Rathod was responsible. However, the State government did not take F any action. Likewise, Rathod did not take any remedial steps or cease the activity.

The resultant tragedy entirely on account of the omissions of the state’s authorities to take action and the neglect and culpable negligence on the part of Rathod, was the cause of the tragedy and the events which led to the loss of two lives. It was also emphasized that the direction to pay compensation was contrary to legal principles and G undermined the law. It was argued that neither the NHAI nor its concessionaire had any control over the activities of the state, which granted the mining licences. Rathod, the licensee, had continued illegal mining in the vicinity causing the accumulation of debris. This in turn, resulted in the obstruction of a culvert which resulted in collection of a H 1072 SUPREME COURT REPORTS [2020] 6 S. C. R. A large volume of water. A huge sheet of water gushed out into the highway, sweeping away the car, tragically resulting in the death of two individuals.

It was argued that in these circumstances, the NHAI could not be saddled with the responsibility of either paying damages to the dependents and legal representatives of the deceased nor could it be made liable to restore the environment through the payment of 50 lakhs or any part of it. B 18. Rathod urges that the NGT’s findings against him are contrary to law. He argues that the NGT did not implead those who had standing, i. e. the legal representatives of the deceased; in fact, they had filed a civil suit, claiming compensation against him, as well as the NHAI and the state, for alleged negligence and tortious liability. In those proceedings, C the court is bound to record evidence and render findings based on the facts. The NGT could not thus have unilaterally, based on a one-sided view of the materials, held that he was liable. 19.

It was submitted that the allegation that Rathod was primarily responsible for degradation of the hill, which clogged the culverts and D water channels, resulting in the tragedy, was contrary to the facts. Mr. Vijay Verma, counsel for Rathod, relied on some portions of the magisterial report to say that the NHAI had the report of an independent engineer, who had pointed to certain deficiencies on the part of the concessionaire. Therefore, to hold him responsible for the tragedy, and E direct him to pay a huge sum of 15 lakh and further pay amounts towards environmental damage, was unwarranted. 20. It was argued that the NGT could not have issued directions with respect to payment of any sums, in the absence of any application by the legal representatives of the deceased.

It is further argued in Rathod’s appeal that apart from issuing notice for recovery of amounts F towards alleged illegal mining, neither the state authorities nor the NHAI took any positive remedial action for strengthening the culvert and the catch water drains which were in disrepair, and constructed on the hill above the tunnel for drainage of rainwater. The masonry on the culvert for draining water was choked due to lack of maintenance. Such G maintenance was the sole responsibility of the concessionaire and for that, the NHAI had to be held liable. It is also highlighted that Section 18 of the NGT Act mandates that the procedure established by the statute to exercise jurisdiction had to be followed. Since the legal heirs of the deceased had not applied to the NGT for any relief and had instead approached the civil court claiming compensation on account of wilful H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1073 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J.

] neglect and culpable inaction on the part of NHAI, the NGT ought to A have left the matter for proper decision in accordance with the evidence led. Instead the NGT took upon itself the task of a judging the appellant as one of those responsible for the incident. It is emphasised that the mining activity carried on was in accordance with the license and if there was any irregularity that was cured on payment of fine. So far as B the collection of debris which ultimately led to the overflow of water and the deaths of two individuals goes, it is argued that the proper functioning of the drainage system would have ensured that such collection of vast quantities of water would not have occurred. Therefore, the inaction of the NHAI in taking timely action and intervening with the state authorities, led to the tragic incident. The responsibility for this incident could not C have been placed at the doorstep of Rathod.

The actions of Rathod, it is stated were too remote and could not have been the subject of damages at all. 21. In the appeals (by special leave as well as the statutory appeals by third parties), where the grievance is on account of the directions D issued by the State of Maharashtra under Section 154 of the MRTP Act, the third party appellants challenge the order of the NGT arguing that the provisions of the NGT Act, especially sections 14, and 19 do not authorise that tribunal to issue sweeping and unilateral directions requiring stoppage and cessation of all manner of building activity or developments E within hundred feet of hill slopes. It is highlighted that such sweeping directions are illogical and are not based on any scientific study or analysis. It is argued that the NGT has issued general directions couched in a vague manner in para 17 (e) of its order. 22.

These appellants argue that the Bombay High Court also fell F into error and did not appreciate that the entire basis of the Directions/ Resolution of 14. 11. 2017 by the State of Maharashtra were the directions issued by the NGT. Highlighting various provisions of the MRTP Act, learned counsel argued that wherever development codes were formulated, they were in accordance with established principles, after following the prescribed procedure. Based upon these codes and the G building regulations framed by various town planning departments, clearances and permissions/approval for development and construction were issued. It was argued that the mandatory and sweeping nature of the directions in para 17 (e) by the NGT has resulted in these directions H 1074 SUPREME COURT REPORTS [2020] 6 S. C. R. A being embodied in the impugned resolution, which has a catastrophic effect on those clearances. 23. Learned senior counsel, Mr.

Shyam Divan, highlights that apart from the fact that the definition of ‘hill’ is vague, and even the regulations under the MRTP Act are silent in this regard, the NGT failed to consider B that the impact of its directions and the impugned notification, in hilly terrains where the population is concentrated in particular areas, in small towns, semi urban and rural areas would be devastating inasmuch as all nature of buildings would be banned. It is pointed out that hill development is based upon consideration of individual local soil conditions, the stability of the surrounding terrain, etc. All these are taken into account by C individual local town planning authorities when they permit or refuse permission to individual development or construction projects. The uniform adoption of the “no construction within the hundred feet area” rule, it is submitted, is completely contrary to well-established principles of town planning. D 24.

It is argued that the directions issued by the state government impugned in the writ petitions before the Bombay High Court, are contrary to the provisions of the MRTP Act inasmuch as they amount to supplanting provisions of the existing master plan and other development codes, which have the force of law and were framed after widespread E consultations. It is pointed out that the provisions of the MRTP Act require that any change in such codes or master plans would have to be made after mandatory due consideration of objections, which are to be preceded by publication of the proposals. By directing the state government to follow the order in paragraph 17(e), the NGT in fact made directions contrary to law. It is argued that the state also acted contrary to the F express provisions of the MRTP Act inasmuch as it did not follow the procedure required by the Act to change the master plan and the development codes. 25.

It is further submitted that the NGT’s directions were the basis of the state government’s notification. It was argued that the state G government’s blind adherence to these directions amounted to abdication of its duties, was in contravention of express provisions of the MRTP Act and also amounted to acting on the dictates of another authority. It was submitted that for these reasons, the impugned notification cannot be sustained. Counsel relied on the decision of this court in Tamil Nadu 2 Pollution Control Board v. Sterlite Industries (I) Ltd. & Ors. to H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1075 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] highlight that the NGT has a narrow and circumscribed jurisdiction in A regard to issuing directions as well as ordering compensation. 26.

The Lokmanch justified the order of the NGT and blamed the NHAI, the concessionaire, Rathod and the state government for not taking adequate and timely measures in public interest. It is alleged that proper channels were not created and maintained alongside the highway B to avoid water clogging on the main carriageway. It is argued that existing water channels were extremely narrow and were incapable of handling significant volumes, and that even those channels were clogged due to construction debris which had fallen on the sides. It is pointed out that under Section 4 of the National Highways Act, 1956 (hereafter “Highways C Act”) “highways” include lands appurtenant thereto, all bridges, culverts, tunnels, causeways and other structures constructed on or over the highway and all fences, trees, posts, etc. The duty of keeping them in good repair, clearly was that of the NHAI and the concessionaire. 27. So far as the Rathod’s role is concerned, learned counsel, D Ms.

Shilpa Chohan, submitted that the NGT acted well within its rights and acted within its jurisdiction in entertaining and proceeding with the application, under Sections 14 read with 16 and 18 of the NGT Act. The Lokmanch sought mandatory injunction to restore the natural contour at the foot base of the hills, particularly the hill that was destroyed by the private respondents. It was submitted that apart from the enquiry report E of the magistrate /sub-divisional officer, a report was also commissioned by the NGT through the local tehsildar; that report dated 15. 09. 2014 disclosed that unauthorised hill destruction under the pretext of minor mineral extraction was widespread during 2011-2013. This report showed that as many as 62 cases of hill destruction (mostly indulged in by F developers), came to light. Many of these occurred without obtaining any permit or authorisation and were plainly illegal. 28.

It is argued further that the private respondents were permitted to extract minor minerals only for a short period. However, they exceeded not only the permit, but also went further and destroyed the hill for the G purpose of mining minerals. This over-mining as well as hill destruction was not within the permission or the terms of the license. It is highlighted that “hill cutting” or hill destruction causes shortening of hills, poses a potential danger of soil erosion and reduces vegetation, forestry, flora and fauna, and deprives natural support to the earth, therefore ultimately 2 2019 SCC OnLine SC 221. H 1076 SUPREME COURT REPORTS [2020] 6 S. C. R. A posing an environmental hazard to nearby areas, including residential areas. It is argued that the destruction of hills results in the distortion of the flow of streams and rivers, which change their courses resulting in heavy loss to human life and also to flora and fauna, besides at times, destruction of property.

It is submitted that the NGT’s decision requiring payment of compensation was within its jurisdiction; to support this, B learned counsel relied upon the provisions of Schedule II to the NGT Act, particularly referring to the heads of compensation relief for damages that can be claimed and granted, i. e. death, permanent, temporary, or total, or partial disability or other injury, damages to private property, expenses incurred by the government for any administrative or legal C action, or to cope with any harm or damage, including compensation for environmental degradation and restoration of the quality of the environment.

It was submitted that the statutory basis for calculating these damages under Schedule II to the NGT Act is provided by Section 15, which empowers the NGT to provide relief and compensation to victims of pollution in terms of Schedule I for restitution of property, D restitution of environment, and also importantly Section 17, which empowers the NGT to direct the payment of compensation on account of death of or injury to any person or damage to property, under all any of the heads specified in Schedule II, which is the result of any accident or is an adverse impact of any activity or operational process. It is E submitted that there is nothing in the enactment which confines the jurisdiction of the NGT to adjudicate complaints, especially those relating to fatalities caused by environmental damage, to applications initiated by legal representatives or persons directly affected.

It is submitted that if a particular accident or incident is so widespread as to affect an entire area, it would be well within the jurisdiction of the NGT to entertain an F application made by anyone. Learned counsel highlighted the difference in phraseology between Sections 15 and 17 on the one hand, and Section 18 on the other. It is submitted that Section 18(2) clearly is without prejudice to the provisions contained in Section 16 and primary jurisdiction can be invoked by the Tribunal upon being moved by anyone in this G regard. 29. Ms. Chohan cited the decision of this court in Mantri Technoze 3 Pvt. Ltd. v Forward Foundation to say that the NGT could legitimately issue directions which are binding on all other statutory authorities. She also relied on Section 33 of the NGT Act, emphasizing that the enactment H 3 2019 (18) SCC 494 DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1077 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] overrides all other enactments.

Reliance was also placed on the decision A 4 in Hanuman Laxman Aroskar v. Union of India. 30. The State of Maharashtra supported the arguments made on behalf of the Lokmanch. It was pointed out that the jurisdiction to issue general directions to preserve and protect the environment, through restitution orders is found in Section 15(1)(c) of the NGT Act. It is also B submitted that the power and jurisdiction to order compensation in the case of death, is independent and can be invoked in case of fatal accidents, as is evident from the provisions of Schedule II. The state further argues that the judgment of the Bombay High Court too is unexceptionable, inasmuch as it correctly appreciated and upheld the exercise of regulatory C power under Section 154 of the MRTP Act. Counsel urged that the said provision was amended in 2015 and in the absence of any challenge to it, the exercise of power after due consideration of relevant factors, could not be countenanced. The Issues D 31.

Four issues arise for consideration. Firstly, the jurisdiction of the NGT to award compensation; secondly the merits and soundness of the NGT’s decision to award compensation and the legal principles applicable; thirdly, the NGT’s wide directions with respect to the ban on construction in and around foothills and lastly, the vires of the directions/ E notifications issued under Section 154, MRTP Act. I. Jurisdiction of the NGT 32. The relevant provisions of the NGT Act are extracted below: “2. Definitions. — (1) In this Act, unless the context otherwise requires F XXXXXX XXXXXX XXXXXX (m) “substantial question relating to environment” shall include an instance where— (i) there is a direct violation of a specific statutory G environmental obligation by a person by which— 4 2019 (15) SCC 401 H 1078 SUPREME COURT REPORTS [2020] 6 S. C. R.

A (A) the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or (B) the gravity of damage to the environment or property is substantial; or B (C) the damage to public health is broadly measurable; (ii) the environmental consequences relate to a specific activity or a point source of pollution; XXXXXX XXXXXX XXXXXX C 14. Tribunal to settle disputes. —(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. D (2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.

(3) No application for adjudication of dispute under this E section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the F application within the said period, allow it to be filed within a further period not exceeding sixty days. ” 15. Relief, compensation and restitution. —(1) The Tribunal may, by an order, provide,— (a) relief and compensation to the victims of pollution and G other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance); (b) for restitution of property damaged; (c) for restitution of the environment for such area or areas, H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1079 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J.

] as the Tribunal may think fit. A (2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991). B (3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: C Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

(4) The Tribunal may, having regard to the damage to public D health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit. (5) Every claimant of the compensation or relief under this E Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority. ” “16. Tribunal to have appellate jurisdiction.

—Any person aggrieved by, F (a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); G (b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under Section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under H 1080 SUPREME COURT REPORTS [2020] 6 S. C. R.

A Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977); B (e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under Section 2 of the Forest (Conservation) Act, 1980 (69 of 1980); C (f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981); (g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under Section 5 D of the Environment (Protection) Act, 1986 (29 of 1986); (h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, E operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986); (i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant F environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986); (j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal G Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which the order or decision or direction or determination is H communicated to him, prefer an appeal to the Tribunal: DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1081 AUTH.

OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] Provided that the Tribunal may, if it is satisfied that the A appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days. 17. Liability to pay relief or compensation in certain cases. B (1) Where death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment specified in Schedule I, the person responsible shall be liable to pay such relief or compensation for such death, injury or damage, C under all or any of the heads specified in Schedule II, as may be determined by the Tribunal.

(2) If the death, injury or damage caused by an accident or the adverse impact of an activity or operation or process under any enactment specified in Schedule I cannot be attributed to D any single activity or operation or process but is the combined or resultant effect of several such activities, operations and processes, the Tribunal may, apportion the liability for relief or compensation amongst those responsible for such activities, operations and processes on an equitable basis. E (3) The Tribunal shall, in case of an accident, apply the principle of no fault 18. Application or appeal to Tribunal. (1) Each application under sections 14 and 15 or an appeal under section 16 shall, be made to the Tribunal in such form, F contain such particulars, and, be accompanied by such documents and such fees as may be prescribed.

(2) Without prejudice to the provisions contained in section 16, an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by— G (a) the person, who has sustained the injury; or (b) the owner of the property to which the damage has been caused; or H 1082 SUPREME COURT REPORTS [2020] 6 S. C. R.

A (c) where death has resulted from the environmental damage, by all or any of the legal representatives of the deceased; or (d) any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or B (e) any person aggrieved, including any representative body or organisation; or (f) the Central Government or a State Government or a Union territory Administration or the Central Pollution C Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority, or any environmental authority constituted or established under the Environment (Protection) Act, 1986 (29 of 1986) or any other law for the time being in force: Provided that where all the legal representatives of the D deceased have not joined in any such application for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be E impleaded as respondents to the application: Provided further that the person, the owner, the legal representative, agent, representative body or organisation shall not be entitled to make an application for grant of relief or compensation or settlement of dispute if such F person, the owner, the legal representative, agent, representative body or organisation have preferred an appeal under section 16.

(3) The application, or as the case may be, the appeal filed before the Tribunal under this Act shall be dealt with by it G as expeditiously as possible and endeavour shall be made by it to dispose of the application, or, as the case may be, the appeal, finally within six months from the date of filing of the application, or as the case may be, the appeal, after providing the parties concerned an opportunity to be heard. XXXXXX XXXXXX XXXXXX H DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS 1083 AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J. ] 29. Bar of jurisdiction. —(1) With effect from the date of A establishment of the Tribunal under this Act, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.

(2) No civil court shall have jurisdiction to settle dispute B or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the C Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil court. ” XXXXXX XXXXXX XXXXXX D “33. Act to have overriding effect. —The provisions of this Act, shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. ” E 33.

A plain reading of the above provisions of the NGT Act would reveal that the tribunal possesses two kinds of power and jurisdiction: one, primary jurisdiction under Sections 14-15, and appellate jurisdiction under Section 16. Under Section 14, the NGT has the power to adjudicate upon disputes relating to “civil cases where a substantial question relating to environment (including enforcement of any legal right F relating to environment), is involved” relating to the implementation of “the enactments specified in Schedule I” [Section 14 (1)]. The other provisions [Sections 14(2) and (3)] are incidental to the primary jurisdiction under Section 14(1). Section 15, on the other hand, is couched in wide terms.

Section 15(1) provides that compensation or damages G can be given by the NGT to “victims of pollution and other environmental damage arising under the enactments specified in the Schedule I” [Section 15 (1)(a)]; for restitution of property damaged [Section 15(1)(b)] and for restitution of the environment for such area or areas [Section 15(1)(c)]. Section 15(2) is procedural; Section 15(3) H 1084 SUPREME COURT REPORTS [2020] 6 S. C. R. A prescribes the period of limitation for applications. Section 15(4) enables the NGT to, having regard to the damage to public health, property and environment, “divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation B or relief to the claimants and for restitution of the damaged property or environment, as it may think fit. ” 34.

The enactments specified under Schedule I are the Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of Pollution) Cess Act, 1977; the Forest (Conservation) Act, C 1980; the Air (Prevention and Control of Pollution) Act, 1981; the Environment (Protection) Act, 1986; the Public Liability Insurance Act, 1991; and the Biol

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