Back
1996 Supreme(All) 1192
IN THE HIGH COURT OF ALLAHABAD
RAVI S. DHAVAN, A. B. SRIVASTAVA
OM PRAKASH BHATT - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
W. P. 23534 Of 1995
Decided On : 10/28/1996
Sudhanshu Dhilya
The Court held that the occupation of the bugiyal below the temple of Tungnath and on the spur of Chopta by the Nigam is illegal and unjustified. The Court also held that the indiscriminate import of plastic and non-biodegradable material is playing havoc with the environment of the hills and that the tourist and trekking pilgrimage routes are being littered with indiscriminate evidence of deliberately created garbage.
Headnote:
TUNGNATH TEMPLE - ENVIRONMENT PROTECTION - ECOLOGICAL BALANCE - BUGIYAL - TOURISM - GARHWAL MANDAL VIKAS NIGAM - PLASTIC AND NON-BIODEGRADABLE MATERIALS - FOREST FIRES - HIMALAYAN ENVIRONMENT - GANGOTRI-GOMUKH-TAPOVAN ROUTE - GARHWAL MANDAL VIKAS NIGAM LODGES - HARSHIL VILLAGE - ENVIRONMENT (PROTECTION) ACT, 1986 - ARTICLES 48-A AND 51-A (G) OF THE CONSTITUTION OF INDIA - PRECAUTIONARY PRINCIPLE - POLLUTER PAYS PRINCIPLE - SUSTAINABLE DEVELOPMENT.
Fact of the Case:
The petition was filed by Om Prakash Bhatt and others, residents of the hills, particularly of Garhwal, and more particularly of the district of Chamoli, who felt threatened by the invasion by State organisations and the erosion of the sanctity and the peace and tranquillity of the bugiyal. The complaint was that these areas are pastura lands to the sheep and the shepherd. The submission was that the bugiyal is basically an ecosystem in itself and this delicate balance between ecology and environment has to be understood and respected.
Finding of the Court:
The Court found that the Garhwal Mandal Vikas Nigam (Nigam) had put up pre-fabricated lodging houses as a hotel for tourist on the slopes of a bugiyal which is below the peak of the temple of Tungnath. This has happened at Chopta. The Court also found that indiscriminate import of plastic and non-biodegradable material is playing havoc with the environment of the hills as each seasons plastic collects on the slopes of the hills to be covered by autumn leaves of one season and this exercise is repeated year by year with plastic being sandwiched between leaves preventing rain water from seeping and per polating into the hill slopes and causing another ecological disbalance; the disappearance of little streams and water resources on which the hill people rely upon.
Issues: 1. Whether the occupation of the bugiyal below the temple of Tungnath and on the spur of Chopta by the Nigam is legal and justified? 2. Whether the indiscriminate import of plastic and non-biodegradable material is playing havoc with the environment of the hills? 3. Whether the tourist and trekking pilgrimage routes are being littered with indiscriminate evidence of deliberately created garbage?
Ratio Decidendi: 1. The Court held that the occupation of the bugiyal below the temple of Tungnath and on the spur of Chopta by the Nigam is illegal and unjustified. The Court observed that the bugiyal is an ecosystem in itself and this delicate balance between ecology and environment has to be understood and respected. The Court directed the Nigam to remove its camp side on the slope of the bugiyal below the temple of Tungnath and above Chopta by 31/03/1997. 2. The Court held that the indiscriminate import of plastic and non-biodegradable material is playing havoc with the environment of the hills. The Court directed the State administration to take steps to discourage the entry of plastics and nonbiodegradable materials into the hills. 3. The Court held that the tourist and trekking pilgrimage routes are being littered with indiscriminate evidence of deliberately created garbage. The Court directed the State administration to take steps to clean up the pilgrimage/trekking routes and to provide facilities for toilets and receptacles for receiving garbage.
Final Decision: The Court directed the Nigam to remove its camp side on the slope of the bugiyal below the temple of Tungnath and above Chopta by 31/03/1997. The Court also directed the State administration to take steps to discourage the entry of plastics and nonbiodegradable materials into the hills and to clean up the pilgrimage/trekking routes and to provide facilities for toilets and receptacles for receiving garbage.
( 1 ) THE Court is of the opinion that these proceedings must now draw to a close. The issue is not whether the petitions have to be allowed or dismissed as in matters of environment and ecology there is no such thing as winning or losing a case. This Court has repeated more than often and the Supreme Court has said so repeatedly that protecting the environment and ecology is a constitutional obligation and a fundamental duty of the citizen, the State not excluded.
( 2 ) THIS petition by Om Prakash Bhatt and others was basically brought to Court as the residents of the hills, particularly of Garhwal, and more particularly of the district of Chamoli, felt threatened by the invasion by State organisations and the erosion of the sanctity and the peace and tranquillity of the bugiyal. Bugiyal, in Garhwal, basically means meadows and pasture land which exists above a certain altitude in the mountains no different than the alpine meadows of Switzerland and Austria. Closer to home the meadows at Khilanmarg above Gulmarg in Kashmir are called "marg". The complaint to the Court was that these areas are pastura lands to the sheep and the shepherd. The submission was that the bugiyal is basically an ecosystem in itself and this delicate balance between ecology and environment has to be understood and respected. It cannot be defiled and the intricate balance of nature does not suffer the presence of aliens on these pasture lands as it keeps away the sheep and shepher, thus, disturbing the ecology. This living phenomenon may be watched but cannot be tread upon.
( 3 ) THE complaint is that the Garhwal Mandal Vikas Nigam (hereinafter, in short, the Nigam) had put up pre-fabricated lodging houses as a hotel for tourist on the slopes of a bugiyal which is below the peak of the temple of Tungnath. This has happened at Chopta. Tungnath incidentally, is accepted and reported even by the State administration as one of the highest temples in India.
( 4 ) THE next issue presented was that indiscriminate import of plastic and nonbio-degradable material is playing havoc with the environment of the hills as each seasons plastic collects on the slopes of the hills to be covered by autumn leaves of one season and this exercise is repeated year by year with plastic being sandwiched between leaves preventing rain water from seeping and per polating into the hill slopes and causing another ecological disbalance; the disappearance of little streams and water resources on which the hill people rely upon. This deposit of plastic materials also kills the green life on the slopes of the mountains.
( 5 ) THE third aspect is about the tourist and trekking pilgrimage routes, where the tourist, the pilgrim and the trekker devoid of all civic sense with no respect of the environment throw nonbiodegradable material on the slopes of the hills and the mountain routes are being littered with indiscriminate evidence of deliberately created garbage. Besides on these mountain routes commercial activity, like kiosks and tea shops at places where they ought not to be, has been encouraged by the State administration. Courts attention was drawn to the garbage strewn in the slopes of the hills right up to the glacier of Gomukh and of man made deposits of synthetic and non-bio-degradable materials at the source of the river Ganga at above 14,000 feet. Environmentalists have voiced concern on the receding glacier at Gomukh, the source of the river Ganga. A leading news agency reported that the glacier at Gomukh was drying up. Discussion on this dangerous retardation of the glacier at Gomukh has even been broadcast on the British Broadcasting Corporation. 1 Today, as this matter is being considered by the Court, a national daily reports, summarised in effect, that the glacier at Gomukh is receiving the harmful impact of spreading deforestation and urbanisation and ill mannered anti-environment recreational visits of city dwellers to these regions. This newspaper h
