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2024 Supreme(Online)(NGT) 5456
NATIONAL GREEN TRIBUNAL NEW DELHI (PRINCIPAL BENCH)
Prakash Shrivastava, Chairperson, Sudhir Agarwal, Judicial Member, A. Senthil Vel, Expert Member
Prem Mohan Gaur – Appellant
Versus
National Highway Authority of India – Respondent
ORIGINAL APPLICATION NO. 892/2022
For the Respondents:Mr. AP Singh and Mr. Shreyansh Rathi, Advocates for NHAI, Ms. Praveena Gautam and Mr. Pawan Shukla, Advocates for MoEF&CC (Respondent 4), Mr. Rahul Khurana, Advocate for Respondents-3, 5, 6, 9 and HSPCB
Statutory acquisition does not override protections for notified ponds/grazing lands; environmental compensation (5% project cost) imposed for violations including illegal filling, tree felling, drain encroachment, applying Polluter Pays for restoration/deterrence.
Headnote:(A) National Green Tribunal Act, 2010 - Sections 14, 15 - Forest (Conservation) Act, 1980 - Section 2 - Haryana Pond and Waste Water Management Authority Act, 2018 - Sections 14, 15 - Punjab Land Preservation Act, 1900 - Section 4 - Indian Forest Act, 1927 - Section 68 - National Highways Act, 1956 - Environmental violations by statutory authority in highway construction - Encroachment on notified pond, grazing land, stormwater drains; illegal tree felling - Acquisition of land does not permit change in user of grazing land or filling of notified pond without statutory permissions - Gochar/charagah land for village community use cannot be diverted without lawful change of user (Paras 39-44) - Construction over pond land violates prohibition under Sections 14, 15 without authority permission, destroying ecological benefits (Paras 55-66) - Illegal tree cutting requires environmental compensation beyond compounding penalty (Paras 45-47).
(B) Polluter Pays Principle - Sustainable Development - Computation of environmental compensation - For construction projects violating environmental laws, compensation up to 10% of project cost; average 5% appropriate absent aggravating factors - Cumulative assessment for multiple violations covering restoration, deterrence, penalty (Paras 143-144).
(C) Statutory authorities - Strict compliance with environmental laws mandatory; violations by State instrumentalities condemnable, affecting fundamental right to clean environment under Article 21 (Para 145).
Facts of the case:
Applicant challenged highway construction encroaching pond (UID notified), grazing land, nallahs, cutting trees without permissions across villages in three districts - Joint Committee confirmed violations including 263 trees felled illegally (penalty paid but no environmental compensation), 0.58 acres pond filled sans pond authority nod, nallahs obstructed, grazing land divided/inaccessible - Project proponent denied violations claiming valid acquisition, but admitted no specific permissions for pond/grazing user change.
Findings of Court:
Five serious violations established: (i) diversion of grazing land sans user change; (ii) 441 trees cut illegally; (iii) trees on private land/nallah banks felled sans compensation; (iv) nallahs encroached; (v) pond partially filled/destroyed - Demolition avoided balancing public interest; environmental compensation fixed at 5% project cost (Rs.45 crores) for restoration/rejuvenation.
Issues: Whether violations of environmental laws by highway authority in executing access-controlled road project; appropriate remedy post-completion - computation of environmental compensation.
Ratio Decidendi: Land acquisition vests ownership but preserves community rights in grazing land; pond protection statutes bar construction/filling without permission even on acquired land - Compensation computed applying Polluter Pays, considering project cost, violations' gravity, restoration needs, deterrence.
Result: Original Application partly allowed - Environmental compensation of Rs.45 Crores imposed on project proponent, depositable with Pollution Control Board for environmental restoration plan by Joint Committee; non-compliance triggers restoration of affected pond, grazing land, nallahs (Para 147).
| Table of Content |
|---|
| 1. encroachment on pond and tree felling alleged. (Para 1 , 2 , 3 , 8 , 9 , 10 , 11 , 12 , 13) |
| 2. tribunal orders joint committee inspection. (Para 15 , 16 , 17 , 18 , 19) |
| 3. joint committee confirms multiple violations. (Para 20 , 21) |
| 4. nhai defends project compliance. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28) |
| 5. applicant's objections to reports. (Para 29 , 30 , 31) |
| 6. parties' arguments summarized. (Para 32 , 33 , 34 , 35) |
| 7. gochar land diversion illegal. (Para 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44) |
| 8. illegal tree cutting requires compensation. (Para 45 , 46 , 47 , 48) |
| 9. culvert damage not environmental violation. (Para 49 , 50 , 51) |
| 10. nallah encroachment harms water recharge. (Para 52 , 53 , 54) |
| 11. pond construction violates hpwwma. (Para 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 66) |
| 12. multiple violations warrant compensation. (Para 67 , 68) |
| 13. polluter pays principle applied. (Para 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83) |
| 14. ec computation considers deterrence. (Para 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92 , 93 , 94 , 95 , 96 , 97) |
| 15. cpcb guidelines critiqued. (Para 98 , 99 , 100 , 102 , 103 , 104 , 105 , 106 , 107 , 108 , 109 , 110 , 111 , 112 , 113 , 114 , 115 , 116 , 117 , 118 , 119 , 120 , 121 , 122) |
| 16. judicial precedents guide ec. (Para 123 , 124 , 125 , 126 , 127 , 128 , 129 , 130 , 131 , 132 , 133 , 134 , 135 , 136 , 137 , 138 , 139 , 140 , 141 , 142 , 143) |
| 17. rs.45 crores ec on nhai. (Para 144 , 145) |
| 18. restoration and compliance ordered. (Para 146 , 147 , 148) |
JUDGMENT
BY HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. Aggrieved by the encroachment/covering/construction over the pond/water body and other violations at village Kiranj, Distgrict Nuh, State of Haryana by National Highway Authority of India (hereinafter referred to as ‘NHAI’), present Original Application (hereinafter referred to as ‘OA’ has been filed by Shri Prem Mohan Gour, resident of village/Post Office Hajipur, Tehsil Sohna, Gurugram, State of Haryana under Sections 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as ‘NGT Act 2010’).
2. The facts in brief as stated in OA are that there is a pond with UID No. 01HRNUHINR0187KIRA001, identified under Haryana Pond and Waste Water Management Authority Act, 2018 (hereinafter referred to as ‘HPWWMA Act, 2018’) at village Kiranj, District Nuh, State of Haryana. It was surrounded by a large number of trees. NHAI had to construct NH- 148NA comprising construction of six Lane access-controlled Highway from DND Maharani Bagh to Junction to near KMP Expressway with NH-148N Delhi-Vadodara Expressway Section of NH-148NA.
3. As per NHAI, this project is to improve connectivity particularly on economic corridors, border areas and remote areas with an aim of rapid and safe movement of cargo to boost exports. Near the pond, there was a forest area running in 15 acres with large number of trees. Forest land comprised of khasra nos. 3/10, 3/11, 3/20, 4/6, 4/15, 4/16 and 4/17 having area of 1k3m, 5k6m, 1k2m, 0k1m, 2k18m, 6k16m and 0k5m, respectively. In the course of execution of the project, NHAI illegally cut 441 trees in the area falling in village Hajipur; made over-bridges over revenue rasta of three villages i.e., Paroli (District Palwal), Hajipur (District Gurugram) and Kiranj (District Nuh) making them a water logging site causing health hazards to the local residents; demolished a mini-bridge over Gurugram canal, a culvert and made encroachment upon the water body of village Kiranj at khasra no. 91 and 92 creating a situation of water logging and flooding in the area.
4. Applicant has placed on record a copy of project note submitted by Project Director, Corridor Management Unit, NHAI, Mathura (at Faridabad) as annexure A1 which provides justification for locating the project in protected forest area (hereinafter referred to as ‘Project Note’). It was stated that Ministry of Road, Transport and Highways (hereinafter refer
