Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.
CORRECTED COPY
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
..............
APPLICATION NO. 237 (THC)/2013
(CWPIL No.15 of 2010)
In the matter of:
Court on its own Motion ..... Petitioner
Versus
1. State of Himachal Pradesh
through Addl. Chief Secretary(Forests),
Govt. of Himachal Pradesh,
Shimla
2. Himachal Pradesh State Environment and
Pollution Control Board
through its Member Secretary,
Kings Hotel,
Shimla
3. The Deputy Commissioner of Kullu,
District Kullu (HP)
4. The Principal Secretary(Forests),
Government of Himachal Pradesh,
Shimla.
5. HIM URJA,
through its Chief Executive Officer,
Shimla
6. National Environmental Engineering
Research Institute, Mumbai Zonal Centre,
Dr. Annie Besant Road,
Near Worli Flyover,
MUMBAI ..... Respondents
APPLICATION NO.238 (THC)/2013
(CWP No.5087 of 2011)
In the matter of :
1. Durga Dutt, S/o late Shri Alam Chand,
R/o Village Sanag, P.O. Bahang, Tehsil Manali,
Distt. Kullu (HP)
1
2. Harinder Dutt Sharma
S/o Shri Bhawani Dutt Sharma,
R/o Village Sanag, P.O. Bahang, Tehsil Manali,
Distt. Kullu (HP)
3. Rajender Kumar S/o Shri Bui Lal,
R/o Village Ghoshal, P.O. Bahang,
Tehsil Manali,
Distt. Kullu (HP)
4. Rajesh S/o Shri Hiral Lal,
C/o Dev Thakur,
Village Shanag, P.O. Bahang, Tehsil Manali,
Distt Kullu (HP)
5. Hari Singh S/o Shri Jagdish,
R/o Village Ghoshal, P.O. Bahang,
Tehsil Manali,
Distt. Kullu (HP)
6. Hem Raj S/o Shri Megh Chand,
R/o Village Shanag, P.O. Bahang,
Tehsil Manali,
Distt. Kullu (HP)
7. Sher Singh, S/o Shri Karam Chand
R/o Village Goshal, P.O. Bahang,
Tehsil Manali,
Distt. Kullu (HP)
8. Krishan Chand, S/o Shri Karam Chand,
R/o Village & P.O. Aleo,
Tehsil Manali,
Distt. Kullu (HP)
9. Shyam Lal, S/o Shri Ishwar Dass,
R/o Village Shanag, P.O. Bahang,
Tehsil Manali,
Distt. Kullu (HP)
10. Ghanshyam Thakur, S/o Shri Gupt Ram,
R/o Village & P.O. Burua,
Tehsil Manali,
Distt. Kullu (HP)
11. Bablu, S/o Shri Satpal,
R/o Village & P.O. Bahang,
Tehsil Manali,
Distt. Kullu (HP) ..... Petitioners
2
Versus
1. State of Himachal Pradesh through Principal Secretary
(Transport), to the Government of Himachal Pradesh,
Shimla - 171 002.
2. Principal Secretary (Tourism),
Government of Himachal Pradesh,
Shimla - 171 002.
3. District Magistrate Kullu,
Distt. Kullu (HP)
4. Sub Divisional Magistrate, Manali,
Tehsil Manali,
Distt. Kullu (HP) ..... Respondents
APPLICATION NO.239 (THC)/2013
(CWP No.5088 of 2011)
In the matter of :
Sher Singh,
S/o Shri Megh Nath,
Village Ghoshal, P.O. Bahang, Tehsil Manali,
Distt. Kullu (HP) ..... Petitioner
Versus
1. State of Himachal Pradesh
Through the Chief Secretary to Government,
Shimla-171001
2. B.M. Nanta, IAS,
District Magistrate,
Kullu (H.P.)
3. The Sub-Divisional Magistrate,
Manali (H.P.)
4. The Superintendent of Police,
Kullu (H.P.) ..... Respondents
Counsel for Petitioners :
Mr. Gaurav, Advocate for the Petitioner
Mr. Anup Rattan, AAG, Mr. P.M.Negi, Dy.AG,
Ms. Parul Negi, Dy. AG and
3
Mr. Vivek Singh Attri, Dy. AG for the State of HP
Counsel for Respondents :
Mr. Sandeep Sharma, Advocate for Respondent No.2.
Mr. Tara Singh Chauhan , Advocates for Respondent No.3
Mr. Shivank Singh Panta, Advocate for Respondent No. 7.
ORDER/JUDGMENT
PRESENT :
Hon'ble Mr. Justice Swatanter Kumar (Chairperson)
Hon'ble Mr. U.D. Salvi (Judicial Member)
Hon'ble Dr. D.K. Agrawal (Expert Member)
Hon'ble Mr. Bikram Singh Sajwan (Expert Member)
Dated : February 6, 2014
JUSTICE SWATANTER KUMAR (CHAIRPERSON):
The State of Himachal Pradesh is mostly mountainous
nestling in western Himalayas, neighbouring Tibet and China
in the east, Jammu and Kashmir in the north and north-west,
Punjab, Haryana and Uttarakhand in the south. It has a
geographical area of 55,673 square kilometres with a
population of 6.1 million and is located at altitudes ranging
from 350 to 7000 meters (1050 feet to 21,000 ft.). The forests
of Himachal Pradesh constitute about 2/3rd of the State's
geographical area; are storehouse of rich biodiversity, vital in
preserving the fragile and sensitive Himalayan ecosystem and
are the primary source of livelihood of the residents. The
recorded forest area is 36,986 sq.km. as per the Forest Survey
of India report for the year 2011, which is 66.43% of the total
geographical area and the forest cover spreads over 14,679
sq.km.
4
2. One of the most significant gifts of nature to mankind in
the wide Himalayan range is Rohtang Pass at a height of
13,500 feet above the sea level. The satellite spots of major
tourist destination at Manali in the north-western Himalayas
are mostly spread in snow (environment) and include Rohtang
Pass, Marhi, Kothi, Salang Nala apart from other spots.
3. This tourist spot is termed as the 'Crown Jewel' of
Himachal Pradesh. It attracts a large number of tourists.
Heavy tourism, besides being a boon to the economy of
Himachal Pradesh, is also the cause for adverse impacts on
ecology and environment of the State. Diverse and devastating
impacts are attributable to unregulated and heavy tourism,
overcrowding, misuse of natural resources, construction of
buildings and infrastructure, littering of waste and other
activities associated with tourism. The characteristics of these
tourism spots are unique and are very vulnerable i.e. their
ecology and environment can be subjected to rapid
degradation because of the above activities. The negative
impacts of tourism can only be managed effectively if they
have been identified, measured and evaluated. These effects
could be direct or indirect. Direct impacts are caused by
presence of tourists and indirect impacts are by infrastructure
created and services required in connection with tourism
activities. The tourist spots to the north of Manali township
have an influx of around 11 lakh visitors annually. These
5
sites have a crucial and strategic role in governing the ecology
as well as the atmospheric conditions influencing the local
environment and economy of the area. The major ecological
components are the cleanliness condition, amount and quality
of water in the streams, land's proneness to erosion, physical
load bearing capacity of the land surface and the state of flora
and fauna etc. While the atmospheric components are
ambient air quality status, diurnal and seasonal fluctuations
in the atmosphere, rainfall and snowfall conditions ultimately,
in a collective form, influence the atmosphere as well as the
agriculture and water resources based activities throughout
this valley. As per the report of the Expert Committee
constituted by the High Court of Himachal Pradesh, vide order
dated 12th October, 2010, nearly 10,000 persons visit this
tourist spot and nearly 3600 (75% taxis) go to the Rohtang
Pass per day in the months of May and June, every year,
which number is continuously increasing. The available
amenities and facilities for tourists within the township are
becoming insufficient and thus, the carrying capacity of these
amenities and facilities have virtually crossed its physical and
ecological limits. Over-construction, increased vehicular traffic
and associated air pollution and its impact on snow caps
owing to unregulated tourism remain the notable impacts. As
per the available data, the highest construction rate was
recorded during 1980-85 at 2850 per cent followed by 161.1
per cent during 1990-95. It has also been reported that nearly
6
87.3 per cent of the total vehicles plying on Rohtang Pass
belong to tourists. Remaining small percentage of vehicles
going to Lahaul Valley consists of goods vehicles transporting
eatables and other essential materials. It needs to be noticed
that the only entrance to Lahaul Valley is the Rohtang Pass.
Such natural picnic spots being connected by roads in the
Himalayan region lead to these areas being over-pressurized.
The ambient air quality, due to high number of vehicles on the
top of these mountains, also gets polluted and traffic
congestion adds to it. The two snow points in the Himalaya,
Rohtang Pass (3938 m) in the north-western Himalaya and the
famous Hindu shrine-Badrinath (3133 m) in the central
Himalaya are the headwater regions which can be approached
directly by road. The snow cover is a source of recreation for
the visitors. However, as an adverse impact of heavy tourism,
there has been a considerable fall in the amount of snowfall
received by the region. It is reported that snow recorded at
Kaylong (3064 m.) in Lahaul & Spiti district in the north-
western Himalaya, which is ahead of Rohtang, is reduced by
357 per cent, i.e. from 685 cm in 1990 to 150 cm in 2000.
The Parbati Glacier in the Kullu Valley of Himachal Pradesh
has been receding at the rate of 52 metres per year based on a
study from 1990 to 2001. Based on another study conducted
by the Indian Institute of Technology, Kanpur, Black Carbon,
mostly produced by burning of agricultural waste and
vehicles, is being seen as the major causative factor for rapid
7
melting of glacier in the Himalayan region. Black Carbon is
primarily unburnt fuel that travels from warmer to colder
areas through air, settles on glaciers and makes them melt
and is believed to be the biggest contributor to global warming
after Carbon Dioxide.
4. The study suggests that 40% of the glacial retreat could
be attributed to Black Carbon impact and hence Black Carbon
emission reduction can lead to near term impact on warming
and thus reduce glacier melting. As per the latest reports
available, as a country, India emits 534 kilotons of Black
Carbon annually with major contributions from domestic
usage, burning of crop residues, sugar industry, dung cake
burning, vehicles, brick kilns, steel industry and power plants.
Dust and Black Carbon from forest fire also accelerate melting
of snow and glaciers in the Himalayas. This is because black
colour absorbs all colours of light. The light absorbed by the
black material interacts with atoms and molecules and
converts the light energy into heat energy. This heat energy
accelerates melting of glaciers. The increasing congestion in
the form of mass tourism in and around Rohtang Pass affects
the topographic fragility and ecological delicacy of this area. It
affects the ambient air pollution levels in and around that
area. The Total Suspended Particulate (TSP) Matter below 100
µ in size, particulate matter (PM10) below 10 µ in size,
particulate matter (PM2.5) below 2.5 µ in size, Black Carbon
8
(about 0.5 µ in size) monitored at Kothi village, on the way to
Rohtang Pass for the period 2010-2012 suggests that highest
ever TSP was observed to be 388.0 µg m-3 on June 6, 2010
followed by 382.8 µg m-3 on July 8, 2009 which indicates that
during certain time, TSP level remains above permissible limit.
This could be either due to high influx of vehicles or outside
transported aerosols. The monthly maximum average value of
TSP at Kothi was 138.4 µg m-3 in May 2011 indicating above
permissible limit in the month again which coincides with
tourist influx period. The highest ever value recorded for PM10
was 62.4 µg m-3 in May 2011 indicating that it is within
permissible limit. While analyzing ionic components, anions
like Cl⁻ (24%) were observed to be maximum followed by SO₄2⁻
(20%) and NO3- (18%) indicating their source to be of non-
marine origin or local source. But among cations, Na⁺ (22%)
was highest followed by Ca+ (6%) and K⁺ (5%) indicating mainly
their crustal source. Among transitional metals, Zn2⁺ stood to
be at top in PM10 followed by Cu+2, Cd+2 and Co+2 indicating
again local source through mainly forest fires, biomass
burning, and fossil fuel.
5. The monthly mean maximum concentration of PM2.5 at
Kothi was 40.4 µg m-3 in March 2009 indicating a
predominance of finer size particles due to anthropogenic
activities mainly. As far as its monthly mean concentration is
concerned during January 2009 - December 2012, its value
was again low i.e. 22.5 µg m-3.
9
6. Around 70% of cargo in our country is transported on
national highways. Over-loaded trucks are a perennial menace
on the transport infrastructure. Even though Indian
Government has issued a blanket ban on over-loading on
vehicles on highways across the country, but still the ground
reality is that majority of the trucks are over-loaded. Research
has indicated that increase in the gross weight, at which a
vehicle operates, will increase its fuel consumption. Much less
obvious is the precise relationship between payload and fuel
economy. Higher emissions from vehicular traffic directly
increase the damage to environment, particularly to glaciers at
high altitudes. So far, the authorities have not specified the
standards for fuel consumption for trucks and heavy duty
vehicles. Other countries like Japan have already introduced a
system for standarisation of fuel consumption for heavy duty
vehicles. The US, Europe and China have contemplated the
implementation of laws and standards for fuel consumption
for trucks. Heavy vehicular traffic and particularly over-loaded
heavy duty vehicles cause serious pollution, resulting in
adverse impact on ecological and environmental zones.
7. Considerable increase in vehicular traffic in Himachal
Pradesh, particularly, in this part, has resulted in
blackening/browning of snow cover in mountains, especially
emissions of unburnt hydrocarbon and carbon soot. The air
pollution problem has aggravated in the recent years due to
10
tremendous increase in the number of trucks and other
vehicles for tourists and local population, being plied on these
routes. Another serious impact of increased vehicular traffic in
these areas is on the wild animals living along the traffic
routes. These include walking or running away from vehicles.
Many wild animals including birds show "high response" to
vehicles. Increase in number of vehicles coincides with
decrease in walking activity and vice versa. The vehicles are
interfering with the animal activity and their mobility in
particular. In some sections, even survival of the animals is
affected. Curiosity on the part of tourists to approach the
animals too closely is another additional factor interfering with
their other activities such as searching for prey, mating and
seeking cover. Vehicular noise may disturb many animals in
their routine activities including breeding behaviour, which
may affect the sustenance of ecosystem
8. Based upon a study conducted by the Indian Institute of
Forest Management, Bhopal, the economic value of the
ecosystem services provided by forests of Himachal Pradesh is
Rs.106664 crores per annum in terms of direct and indirect
value. Therefore, degradation of forests in Himachal Pradesh is
a worrisome factor in the highly sensitive ecological zones in
the State. Forest Survey of India reports show shrinkage of
dense forests across the Himalayas including Himachal
Pradesh. While reasons for the same are many and inter-
11
linked, an underlying cause seems to be the debilitating
decline in moisture regimes in the hills. Himalayas are one of
the youngest mountainous regions of the world. Its ecosystem
is most fragile, sensitive and susceptible. The catchment areas
of most of the rivers originating in Himalayas lie in Himachal
Pradesh. Inter alia, the causes having a direct impact on
Himachal Pradesh's environment are deforestation,
uncontrolled and unsustainable grazing, soil erosion, siltation
of dams and reservoirs, industrial and human wastes, forest
fires and other effects of climate change.
9. Kullu district forms a transitional zone between the
lesser and the greater Himalayas and is characterized by high
NW-SE trending ridges and deep river valleys, a number of
which in their upper reaches bear imprints of glacial activity
in the near past. The altitude varies between 950 metres and
6,000 metres. The National Highway-21 closely aligned along
the Beas River, is the most affected stretch where slopes tend
to give way following human disturbance and heavy monsoon
rains. Furthermore human activities have perceptibly
influenced the general environment of the area.
10. The area of Gulaba, Kothi and Tunol in Manali was once
a dense forest with deodar, kail and chir trees standing tall.
This not only provided a forest area but also protected the
environment of the zone. Deforestation of the area has caused
serious environmental degradation which has further been
12
seriously affected by the vehicular traffic and human
interference. The trees in the hilly areas not only provide
environmental protection but are also essential for
maintaining the capacity to bind the soil in the hills. Thus,
indiscriminate deforestation results in landslides and soil
erosion as well as causes ecological obstructions in human
living.
RIGHT TO WHOLESOME AND DECENT ENVIRONMENT
11. The citizens of the country have a fundamental right to a
wholesome, clean and decent environment. The Constitution
of India, in terms of Article 48A, mandates that the State is
under a Constitutional obligation to protect and improve the
environment and to safeguard the forest and wild life in the
country. By 42nd Amendment to the Constitution, the
Parliament, with an object of sensitizing the citizens of their
duty, incorporated Article 51A in the Constitution, inter alia,
requiring a citizen to protect and improve the natural
environment including the forests, lakes, rivers and wild life
and to have a compassion for living creatures. The legislative
intent and spirit under Articles 48A and 51A(g) of the
Constitution find their place in the definition of 'environment'
under the Environment (Protection) Act, 1986 (for short the
'Act of 1986'). The legislature enacted various laws like the Air
(Prevention and Control of Pollution) Act, 1981, Water
(Prevention and Control of Pollution) Act, 1974 and the
13
Wildlife (Protection) Act, 1972, the Forest (Conservation) Act,
1980, the Indian Forest Act, 1927 and the Biological Diversity
Act, 2002 and other legislations with the primary object of
giving wide dimensions to the laws relating to protection and
improvement of environment. It is true that Part III of the
Constitution relating to Fundamental Rights does not
specifically devote any Article to the Environment or protection
thereof per se. However, with the development of law and
pronouncement of judgments by the Supreme Court of India,
Article 21 of the Constitution has been expanded to take
within its ambit the right to a clean and decent environment.
12. The risk of potential harm to the environment and
human health resulting from development should be
considered by somewhat tilting the balance in favour of the
environment and in the larger public interest. According to "a
reasonable person's test", life, public health and ecology have
priority over unemployment and loss of revenue. Development
and protection of environment are not enemies. Right to a
clean and decent environment has been held to be a
fundamental right, coupled with an obligation on the part of
the State and the citizens.
13. The legal history of our country shows that Supreme
Court entered into one of its most creative periods during
1980 onwards. It specifically expanded the fundamental right
enshrined in Part III of the Constitution. In the process, the
14
boundaries of fundamental right to life and personal liberty
guaranteed under Article 21 were expanded to include
environmental protection. The Supreme Court strengthened
Article 21 in two ways. First it required laws affecting personal
liberty to also pass the tests of Article 14 and Article 19 of the
Constitution, thereby ensuring that the procedure depriving a
person of his or her personal liberty be reasonable, fair and
just. Second, the court recognized several unarticulated
liberties that were implied by Article 21. It is by this second
method that the Supreme Court interpreted the right to life
and personal liberty to include the right to a wholesome
environment. ("Environmental Law and Policy in India" 2nd
Edition, by Shyam Divan & Armin Rosencranz, Oxford
University Press). This principle was initially explained by the
Supreme Court in Rural Litigation and Entitlement Kendra,
Dehradun v. State of Uttar Pradesh (AIR 1988 SC 2187). Even
at the stage of interim order, the Supreme Court articulated
the fundamental right to a healthful environment. In Virender
Gaur v. State of Haryana [1995 (2) SCC 577], explaining upon
this concept, the Supreme Court observed as under:
"Article 21 protects the right to life as a
fundamental right. Enjoyment of life...
including [the right to live] with human dignity
encompasses within its ambit, the protection
and preservation of environment, ecological
balance free from pollution of air and water,
sanitation, without which life cannot be
enjoyed. Any contra acts or actions would cause
environmental pollution. Environmental,
ecological, air, water pollution, etc. should be
15
regarded as amounting to violation of Article 21.
Therefore, hygienic environment is an integral
facet of right to healthy life and it would be
impossible to live with human dignity without a
human and healthy environment. ... [T]here is a
constitutional imperative on the State
Government and the municipalities, not only to
ensure and safeguard proper environment but
also an imperative duty to take adequate
measures to promote, protect and improve both
the man-made and the natural environment."
14. The Supreme Court then took the view that the factors
governing the quality of life have been included in the
expression "life" contained in Article 21 by reason of creative
interpretation of the said provision by the Court. It said that
Article 21 does not only refer to the necessity to comply with
procedural requirements, but also substantive rights of a
citizen. It aims at preventive measures as well as payment of
compensation in case human rights of a citizen are violated.
The provisions of law were to be susceptible or vulnerable to
challenge even on the ground of unreasonableness. To
examine the legislative impact of environmental laws, it would
be necessary to ascertain the object which the legislature
seeks to achieve and the intent of the legislature. Where the
statute ex facie points out degradation of the environment and
change of user envisaged by the Constitution, e.g. existing
open space to be used for commercial purposes, it may be
necessary to invoke the 'precautionary principle' and ensure
protection of environment. ("Environmental and Pollution Laws
in India", 2nd Edition, 2010 by Justice T.S. Doabia, Volume I,
LexisNexis Butterworths Wadhwa Nagpur).
16
15. The Courts have consistently taken the view that right to
life includes the right to a decent environment. The right to a
clean environment is a guaranteed fundamental right. The
Courts could even impose exemplary damages against the
polluter. Proper and healthy environment enables people to
enjoy a quality of life which is the essence of the right
guaranteed under Article 21. The right to have congenial
environment for human existence is the right to life. The State
has a duty in that behalf and to shed its extravagant
unbridled sovereign power and to forge in its policy to
maintain ecological balance and hygienic environment.
Though Government has power to give directions, that power
should be used only to effectuate and further the goals of the
approved scheme, zonal plans, etc. If without degrading the
environment or minimizing adverse effects thereupon by
applying stringent safeguards, it is not possible to carry on
development activity applying the principle of sustainable
development, in that eventuality, development has to go on
because one cannot lose sight of the need for development of
industries, irrigation resources, power projects, etc. including
the need to improve the employment opportunities and the
generation of revenue. So a balance has to be struck. (Durga
Das Basu's "Shorter Constitution of India", 14th edition,
LexisNexis Butterworths Wadhwa Nagpur).
17
SIGNIFICANT ASPECTS OF IMPORTANCE OF DEVELOPMENT
AND PROTECTION OF ENVIRONMENT
16. The significance of environmental protection and the
dimensions of the right to a clean and decent environment has
been the subject matter of various judicial decisions by the
Supreme Court of India. Causing environmental degradation
and disturbing the ecology may even result in impinging upon
the protected fundamental rights of the citizens. The State
has to, therefore, endure to provide clean and decent
environment and ensure that its wholesomeness is
maintained. In the case of Court on its own motion v. Union of
India JT 2012 Vol. 12 SC 503, the Supreme Court had the
occasion to discuss these aspects in some elaboration
whereupon the Court held as under:
"9. The scheme under the Indian Constitution
unambiguously enshrines in itself the right of a
citizen to life under Article 21 of the
Constitution. The right to life is a right to live
with dignity, safety and in a clean environment.
The ambit of Article 21 of the Constitution has
been expanded by judicial pronouncements
consistently. The judgments have accepted
such right and placed a clear obligation on the
part of the State to ensure meaningful
fulfillment of such right. Article 21 of the
Constitution, with the development of law has
attained wide dimensions, which are in the
larger public interest. Furthermore,
Article 19(1)(d) gives a citizen the right to move
freely throughout the territory of India. This
right, of course, like any other right is not
absolute in terms or free of restrictions. This
right, of course, like any other fundamental
18
freedom is neither absolute in terms nor is free
from restrictions. Article 19(5) subjects this
right to imposition of reasonable restrictions
which the State by law may enact. Such
restriction has to be in the interest of general
public or for the protection of interest of any
Scheduled Tribe besides being reasonable and
within its legislative competence.
Article 25 deals with the Right to Freedom of
Religion, subject to public order, morality,
health and other provisions stated in Part III.
All persons are equally entitled to freedom of
conscience and the right to freely profess,
practice and propagate religion. of course, again
this right is subject to reasonable restrictions
within the ambit of Article 25(2) of the
Constitution. In light of these three Articles,
now we have to examine which rights of the
citizens are being violated and what is the scope
of the present proceedings before the court and
what directions, if any, the court can issue
within the four corners of law. It has
undoubtedly and indisputably come on record
that the rights of yatris to the holy shrine
enshrined under Article 21 of the Constitution
of India, are being violated. There is admittedly
lack of basic amenities and healthcare. The
walking tracks are not only deficient but are
also not safe for the pedestrians. The
management and arrangements for the yatris at
the glacier and near the Holy Shrine are, to say
the least, pathetic. Keeping in mind the number
of yatris who come to pay their homage at the
Holy Shrine every year, the management suffers
from basic infirmity, discrepancies, inefficiency
and ill-planning. The Government of India,
State of Jammu and Kashmir and the Shrine
Board are under a constitutional obligation to
provide free movement, protection and health
care facilities along with basic amenities and
proper tracks to be used by the yatris.
10. Now, we may examine the dimensions of
the rights protected under Article 21 of the
Constitution of India. The socio-economic
19
justice for people is the very spirit of the
preamble of our Constitution. 'Interest of
general public' is a comprehensive expression
comprising several issues which affect public
welfare, public convenience, public order,
health, morality, safety etc., all intended to
achieve the socio-economic justice for people. In
the case of Consumer Education and Research
Centre v. Union of India (1995) 3 SCC 42, this
Court while noticing Article 1 of the Universal
Declaration of Human Rights, 1948 (for short
'UDHR') asserted that human sensitivity and
moral responsibility of every State is that "all
human beings are born free and equal in
dignity and rights. They are endowed with
reason and conscience and should act towards
one another in a spirit of brotherhood." The
Court also observed "the jurisprudence of
personhood or philosophy of the right to life
envisaged under Article 21, enlarges its sweep
to encompass human personality in its full
blossom with invigorated health which is a
wealth to the workman to earn his livelihood, to
sustain the dignity of person and to live a life
with dignity and equality."
11. Not only this, there is still a greater
obligation upon the Centre, State and the
Shrine Board in terms of Article 48A of the
Constitution where it is required to protect and
improve the environment. Article 25(2) of the
UDHR ensures right to standard of adequate
living for health and well-being of an individual
including housing and medical care and the
right to security in the event of sickness,
disability etc. The expression 'life' enshrined in
Article 21 of the Constitution does not connote
mere animal existence or continued drudgery
through life. It has a much wider meaning
which includes right to livelihood, better
standard of living, hygienic conditions in the
workplace and leisure. The right to life with
human dignity encompasses within its fold,
some of the finer facets of human civilization
which makes life worth living. The expanded
20
connotation of life would mean the tradition
and cultural heritage of the persons concerned.
In the case of Consumer Education & Research
Centre (supra), the Court discussing the case of
C.E.S.C. Ltd. v. Subhash Chandra Bose (1992) 1
SCC 441) stated with approval that in that case
the Court had considered the gamut of
operational efficacy of human rights and
constitutional rights, the right to medical aid
and health and held the right to social justice
as a fundamental right. The Court further
stated that the facilities for medical care and
health to prevent sickness, ensure stable
manpower for economic development and
generate devotion to duty and dedication to give
the workers' best performance, physically as
well as mentally. The Court particularly, while
referring to the workmen made reference to
Articles 21, 39(e), 41, 43 and 48-A of the
Constitution of India to substantiate that social
security, just and humane conditions of work
and leisure to workmen are part of his
meaningful right to life.
12. Security to citizens by the State is also a
very sensitive issue. The State has to draw a
careful balance between providing security,
without violating fundamental human dignity.
In the case of In Re: Ramlila Maidan Incident
(2012) 5 SCC 1, the Court observed "the
primary task of the State is to provide security
to all citizens without violating human dignity.
Powers conferred upon the statutory authorities
have to be, perforce, admitted. Nonetheless, the
very essence of constitutionalism is also that no
organ of the State may arrogate to itself powers
beyond what is specified in the Constitution."
13. In Bhim Singh v. Union of India (2010) 5
SCC 538, while referring to the obligations of
the State and its functions, the Court held:
53. ..it is also settled by this Court that in
interpreting the Constitution, due regard
has to be given to the Directive Principles
which has been recorded as the soul of the
21
Constitution in the context of India being
the welfare State. It is the function of the
State to secure to its citizens "social,
economic and political justice", to preserve
"liberty of thought, expression, belief, faith
and worship" and to ensure "equality of
status and of opportunity" and "the dignity
of the individuals" and the "unity of the
nation". This is what the Preamble of our
Constitution says and that is what which
is elaborated in the two vital chapters of
the Constitution on Fundamental Rights
and Directive Principles of the State Policy.
14. Where it is the bounden duty of the State
to protect the above rights of the citizen in
discharge of its constitutional obligation in the
larger public interest, there the law also casts a
duty upon the State to ensure due protection to
the forests and environment of the country.
Forests in India are an important part of the
environment. They constitute a national asset.
We may, at this stage, refer to the concept of
inter-generational equity, which has been
treated to be an integral part of Article 21 of the
Constitution of India. The Courts have applied
this doctrine of sustainable development and
precautionary principle to the cases where
development is necessary, but certainly not at
the cost of environment. The Courts are
expected to drive a balance between the two. In
other words, the onerous duty lies upon the
State to ensure protection of environment and
forests on the one hand as well as to undertake
necessary development with due regard to the
fundamental rights and values.
15. From the analysis of the above, it is clear
that the appropriate balance between different
activities of the State is the very foundation of
the socio-economic security and proper
enjoyment of the right to life.
16. In the present case, as already noticed,
there is hardly any dispute. In fact, all the
parties are ad idem on the issue that much is
22
required to be done before the State can claim
that it has discharged its constitutional
obligation in the larger public interest. In fact,
the report of the SHPC has accepted the
existence of lack of facilities, non-availability of
proper health care, need for proper
management, providing of proper
passage/walking tracks and finally the basic
amenities. The report proceeds on the basis
that much is required to be done by the State
and the Shrine Board. The State and the Shrine
Board under the umbrella of the Union of India
has to act in tandem, with great cooperation,
coordination and objectivity so as to ensure
protection of rights on the one hand and
discharge of its obligations on the other."
17. The fundamental right to a clean environment and its
implications were also considered by a Bench of the
Tribunal in a recent judgment in the case of M/s Sterlite
Industries Ltd. v. Tamil Nadu Pollution Control Board (2013
Vol.I All India NGT Reporter page 368) where the Tribunal,
upon deliberation, held as under:
"113. Article 21 of the Constitution of India
which provides that no person shall be deprived
of his right to life or personal liberty, except
according to the procedure established by law,
is interpreted by the Indian courts to include in
this right to life, the right to clean and decent
environment. Right to decent environment, as
envisaged under Article 21 of the Constitution of
India also gives, by necessary implication, the
right against environmental degradation. It is in
the form of right to protect the environment, as
by protecting environment alone can we provide
a decent and clean environment to the citizenry.
Right to clean environment is a guaranteed
fundamental right. Various courts, particularly
the superior courts in India are vested with wide
powers, especially in terms of Articles 32 and
226 of the Constitution of India to deal with
issues relating to the fundamental rights of the
persons. The courts, in fact, can even impose
exemplary damages against the polluter. Proper
and healthy environment enables people to
23
enjoy a quality life which is the essence of the
right guaranteed under Article 21. The State
and the citizens are under a fundamental
obligation to protect and improve the
environment including forests, lakes, rivers,
wild life and to have compassion for living
creatures. Right to have living atmosphere
congenial to human existence is a right to life.
The State has a duty in that behalf and to shed
its extravagant unbridled sovereign power and
to forge in its policy to maintain ecological
balance and hygienic environment. The power
to issue directions and other powers should be
exercised by the State to effectuate and further
the goals of approved scheme, zonal plans, etc.
The hazards to health and environment of not
only the persons residing in illegal colonisations
but of the entire town as well as the provisions
and schemes of the relevant Acts have to be
taken into consideration. The most vital
necessities, namely air, water and soil having
regard to the right to life under Article 21
cannot be permitted to be misused or polluted
so as to reduce the quality of life of others. Risk
of harm to the environment or to human health
is to be decided in public interest, according to
a "reasonable person's" test. Life, public health
and ecology have priority over unemployment
and loss of revenue. It is often said that
development and protection of environment are
not enemies but are two sides of the same coin.
If without degrading the environment or by
minimising the adverse effects thereupon by
applying stringent safeguards, it is possible to
carry on developmental activities applying the
principle of sustainable development, in that
eventuality, development has to go on because
one cannot lose sight of the need for
development of industry, irrigation resources,
power projects, etc. including the need to
improve employment opportunities and the
generation of revenue. A balance has to be
struck. Courts have exercised the power of
imposing exemplary damages against the
pollutants in order to protect the environment
and to restore the damage done to the
environment as well. In fact, even the
disturbance in the environment by undesirable
sound of various kinds, amounts to noise
pollution. It is a shadowy public enemy whose
growing public menace has increased in the
24
modern age of industrialisation and
technological advancement. Noise has become
one of the major pollutants and has serious
effects on human health. Consistent judicial
opinion in India has recognised the right to live
in freedom from noise pollution as a
fundamental right also, protected under Article
21 of the Constitution. If anybody increases the
volume of speech and that too with the
assistance of artificial devices so as to
compulsorily expose unwilling persons to hear a
noise raised to unpleasant or obnoxious levels,
then the person speaking is violating the right of
others to a peaceful, comfortable and pollution-
free life guaranteed under Article 21. Courts
have even held that Article 19(1)(a) cannot be
pressed into service for defeating the
fundamental right guaranteed under Article 21
of the Constitution. Thus, the right of an
individual to healthy and clean environment
including air, water, soil and noise-free
environment is of paramount consideration and
it is impermissible to cause environmental
pollution and particularly in violation of the
prescribed standards. Since the different facets
of environment are relatable to life and human
rights and concern a person's liberty, it is
necessary that resources are utilised in a
planned manner. Wherever industrialisation has
an impact on utilisation of essential resources
like air, water and soil and results in
irreversible damage to environment, then it may
be impermissible to utilise these resources in
that fashion. In the recent times, there has been
accelerated degradation of the environment,
primarily on account of lack of effective
enforcement of laws and non-compliance with
the statutory norms. Concentrated
industrialisation in some pockets has been the
other reason for enhanced damage to the
environment. It emerges from the desire of the
people to operate from the areas where the
industry presently exists. [ References: Subhash
Kumar v. State of Bihar (1991) 1 SCC 598;
Virendra Gaur v. State of Haryana (1995) 2 SCC
577; A.P. Pollution Control Board v. Prof. M.V.
Nayudu (1999) 2 SCC 718; M.C. Mehta v. Kamal
Nath (2000) 6 SCC 213; Narmada Bachao
Andolan v. Union of India (2000) 10 SCC 664;
Hinch Lal Tiwari v. Kamla Devi (2001) 6 SCC
496; T.N. Godavarman Thirumulpad v. Union of
25
India (2002) 10 SCC 606; M.C. Mehta v. Union of
India (2004) 6 SCC 588; M.C. Mehta v. Union of
India (2004) 12 SCC 118; In Re: Noise Pollution
(2005) 5 SC 733; Milkmen Colony Vikas Samiti
v. State of Rajasthan (2007) 2 SCC 413 ]."
18. The authors of Environmental Law and Policy in India
afore-noticed have observed that Indian environmental
statutes chiefly employ a system of licensing and criminal
sanctions to preserve natural resources and regulate their use.
Civil compensation recovered through private citizens' suits
plays a peripheral role in the overall regulatory strategy. The
environmental techniques have been strengthened with the
passage of time. Referring to the fundamental norms, the
author notices that the Indian Constitution is amongst the few
in the world that contains specific provisions on
environmental protection. "The issues of environment must
and shall receive the highest attention of the Supreme Court"
was the approach adopted by the apex Court. The Supreme
Court adopted and applied a range of principles to guide the
development of environment and jurisprudence and noticeably
amongst these fundamental norms, inter alia, were the
following:
(1) Every person enjoys the right to a
wholesome environment, which is a facet of the
right to life guaranteed under Article 21 of the
Constitution of India. [Subhash Kumar v. State
of Bihar (supra)]
(2) Enforcement agencies are under an
obligation to strictly enforce environmental
laws.[Indian Council for Enviro-Legal Action v.
Union of India 1996 (5) SCC 281]
26
(3) Government agencies may not plead non-
availability of funds, inadequacy of staff or other
insufficiencies to justify the non-performance of
their obligations under environmental laws.[Dr.
B. L. Wadehra v. Union of India AIR 1996 SC
2969]
(4) The 'polluter pays' principle which is a
part of the basic environmental law of the land
requires that a polluter bear the remedial or
clean up costs as well as the amount payable to
compensate the victims of pollution.[Indian
Council for Enviro-Legal Action v. Union of India
supra]
(5) The 'precautionary principle' requires
government authorities to anticipate, prevent
and attack the causes of environmental
pollution. This principle also imposes the onus
of proof on the developer or industrialist to show
that his or her action is environmentally
benign.[Vellore Citizens' Welfare Forum v. Union
of India AIR 1996 SC 2715]
(6) Government development agencies
charged with decision making ought to give due
regard to ecological factors including (a) the
environmental policy of the Central and state
government (b) the sustainable development
and utilization of natural resources; and (c) the
obligation of the present generation to preserve
natural resource and pass on to future
generations an environment as intact as the one
we inherited from the previous generation.[State
of Himachal Pradesh v. Ganesh Wood Products
AIR 1996 SC 149]
(7) Stringent action ought to be taken against
contumacious defaulters and persons who carry
on industrial or development activity for profit
without regard to the object of the law. [Indian
Council for Enviro-Legal Action v. Union of India
supra]
(8) The power conferred under an
environmental statue may be exercised only to
advance environmental protection and not for a
purpose that would defeat the object of the
law.[Bangalore Medical Trust v. B.S. Muddappa
AIR 1991 SC 1902]
(9) The state is the trustee of all natural
resources which are by nature meant for public
27
use and enjoyment. The public at large is the
beneficiary of the sea-shore, running waters,
air, forests and ecologically fragile lands. These
resources cannot be converted into private
ownership. [M.C. Mehta v. Kamal Nath 1997 (1)
SCC 388]
19. If one analyses the above principles esemplastic in their
correct perspective, what emerges from sustainable
development is that environmental protection cannot be
prescind from the balanced approach. Development may be
permitted but with enforcement of appropriate environmental
conditions and safeguards. The Polluter Pays principle, the
Precautionary Principle and the Principle of Proportionality
could be applied as facets of the said balanced approach.
Irretrievable damage to the environment is not acceptable.
The legislative intent behind the Act of 1986 evidently
demonstrates this principle. It is a general legislation for
environmental protection, as there were uncovered gaps in
areas of major environmental aspects and hazards in the
existing laws. The Act contains regulatory, prohibitory and
punitive provisions and are aimed at preservation of
environment.
DISCUSSION ON POLLUTANT-CONTENTS AND REMEDIES:
20. It is indisputable that the glacier of Rohtang Pass is
facing serious pollution issues and with the passage of time, is
being degraded environmentally, ecologically and aesthetically.
The time has come when not only the State Government, the
authorities concerned but even the citizens must realize their
28
responsibility towards restoring the degraded environment of
one of the most beautiful zones of the country as well as
preventing further damage.
21. There are various factors which are responsible for
degradation of environment and ecology in this eco-sensitive
area. Vehicular emission is one of the major contributors to
pollution. The impacts of vehicular pollution would seriously
affect the ambient air quality due to the emission of high
carbon content, Black Carbon, nitrogen oxide (NOx) and
Suspended Particulate Matter (SPM). All these are polluting
the clean and healthy air in that area. Vehicular pollution also
adversely affects the glacier, effects of which are evident in
blackening of snow, melting of glacier and other ecological
disturbances in the glacier. The diesel, commercial and
transport vehicles, which are over-loaded and even other
vehicles - public and private - including two-wheelers which
go to the glacier or pass through the glacier en route to further
destinations, are damaging the glacier.
22. At present, Bharat Stage-III norms are applicable in
Himachal Pradesh whereas BS-IV norms have been
implemented in 20 cities in the country. Introduction of more
stringent norms in that area, thus, would be desirable. The
vehicular traffic has to be restricted as well as regulated. BS-
IV compliant fuel should be provided. Preferably, CNG or
electrical vehicles should be used for tourism purposes, at
29
least at the initial stage. Only these vehicles should be plying
on those roads and more particularly the vehicles going to the
glacier for tourism or commercial purposes should be
subjected to regular pollution checks. There should be free
flow of traffic and over-loading of vehicles should be
prohibited. The vehicles which are unworthy of plying on such
terrain, should not be permitted to ply, particularly the
vehicles which are more than 10 years' old. Regulated tourism
for source point control of dust and BC emission should be
done. Roads for vehicular traffic should be maintained in a
good condition to achieve the desired results of curbing
vehicular pollution.
23. If proper steps in this direction are taken by all the
authorities concerned, certainly environmental and ecological
damage to this eco-sensitive area can be prevented to a large
extent. Thus, with this object in mind, we proceed to pass the
following directions, particularly in relation to vehicular
pollution:
(i) At the entry point to the climb, near Vashishta,
there shall be common check posts/barriers to
be provided by the authorities concerned, more
particularly, by the Department of Tourism, the
Border Roads Organisation (for short the 'BRO'),
the Police, the Pollution Control Board and the
Directorate of Weights and Measures of the State
30
Government of Himachal Pradesh. The State
Government shall also introduce and install
computerized weigh-in-motion systems to check
over-loading of the vehicles.
(ii) The officials posted at the barriers shall ensure
that the vehicles which are permitted and are
plying on this route, particularly, public and
private transport, trucks and even the other
private vehicles, including two wheelers, adhere
to the prescribed norms of emission. The vehicles
which are violating or are not in conformity with
the prescribed standards should not be
permitted to cross the barrier. In other words,
there should be regular pollution check of
vehicles plying on that route.
(iii) Irrespective of the fact that the vehicles are in
possession of PUC, still at the barrier, they shall
be subjected to random pollution checks. If any
vehicle is not adhering to the prescribed
emission norms, it shall not be permitted to ply
on that road. This will equally apply to
Government and private vehicles.
(iv) No heavy vehicle - public or private - more
particularly trucks will be permitted to cross the
barrier to ply on that road if such vehicles or
trucks exceed the prescribed permissible load. In
31
other words, no over-loaded vehicle would be
permitted to ply on that road, as recorded by the
weigh-in-motion systems.
(v) CNG or electricity operated buses or other
vehicles of any kind, which would provide
incentive to tourism are permitted to ply from
Vashishta onwards. The Government,
particularly, the Department of Tourism, shall
ensure that only CNG or electric operated buses,
including shuttle or deluxe service for a short
distance are permitted to ply from Vashishta to
Rohtang Pass. No other vehicle - public or
private or Government, including two wheelers -
shall be permitted to ply between Vashishta and
Rohtang Pass for tourism purposes.
The Government of Himachal Pradesh may
operate CNG/electric vehicles itself or may
outsource the same but directly under its control
and supervision in the public or public-private
sector by following the procedure in accordance
with rules.
(vi) The petrol driven vehicles plying in Manali and
other surrounding areas of Rohtang Pass should
have catalytic convertors in all types of vehicles.
Preferably even the diesel driven vehicles should
32
be provided with soot collector system to reduce
carbon soot pollution. This could be checked at
the time of issuing of PUC.
(vii) The Supreme Court of India, in the case of M.C.
Mehta v. Union of India [(1998) 6 SCC 63] had
directed that the vehicles which are more than
15 years old should not be permitted to ply on
the roads of Delhi. This was aimed at preventing
and controlling alarming air pollution levels in
Delhi. Likewise, the terrain from Manali to
Rohtang Pass and onwards is a very difficult
high altitude terrain and the old vehicles are
bound to cause more pollution there. This area,
is at a high altitude, eco-sensitive and pollution-
prone one, thus, there has to be more stringent
standards and restrictions in that area. Thus, we
direct that the vehicles which are more than 10
years' old and plying on this route, shall be
phased out and should not be permitted to
operate or ply on the route to Rohtang Pass from
Vashishta.
(viii)The State Government of Himachal Pradesh is
further hereby directed to take appropriate steps
in accordance with law to introduce BS-IV
norms, as have already been adopted and
implemented in more than 20 cities in India.
33
(ix) The Government of Himachal Pradesh should
explore the possibility of providing ropeway from
Vashishta to Rohtang Pass. Such ropeway is
bound to go a long way in preventing and
controlling the vehicular pollution. Such
decisions should be taken by the State
expeditiously.
24. For complete and effective implementation of the above
directions, it is necessary for the NGT to issue further
ancillary directions:
a. The public transport, army vehicles,
Government vehicles, which have to cross
Rohtang Pass and en route to their
destination ahead of Rohtang Pass will be
issued permits by the Deputy
Commissioner/SDM/Director of Transport/
Commanding Officer for grant of permission
to such vehicles to pass through Rohtang
Pass. Issuance of such permit will not entitle
these vehicles to station at Rohtang Pass
glacier. Even the individuals who are living
across Rohtang Pass would also be issued
such permits. The vehicles which are granted
such permits shall be BS-III and shall be
34
compliant of the prescribed pollution
standards.
b. The vehicles which are carrying goods to
Marhi, shall also be issued permits for
Vashishta upto Marhi and return. The
vehicles which are transporting goods will not
be permitted to Rohtang Pass.
c. It will be appropriate to restrict the use of
snow scooters at Rohtang Pass in the interest
of environment and ecology. We do agree with
the orders of the High Court dated 23rd May,
2013 wherein it had directed that snow
scooters which are less than four years' old
should be permitted to be used for the
purpose of tourism, recreation, etc. at
Rohtang Pass. The scooter should be battery-
operated. This direction shall be strictly
adhered to.
25. These steps should be taken at the earliest and in any
case not beyond three months from the date of passing of this
order.
CLEANLINESS AND PUBLIC AMENITIES:
26. Providing of public amenities and absolute cleanliness at
Rohtang Pass and even en route is absolutely essential in the
35
interest of environment. Cleanliness and hygiene are the
essence of environment. To provide a clean and decent
environment every authority concerned must ensure absolute
cleanliness and the tourists have to cultivate the habit of
neither littering nor spoiling the beauty and environment of
the glacier by throwing plastics and other wastes or remnants
of eatables on the glacier. Thus, it is imperative for the
Tribunal to issue directions even in this regard, which are as
follows:-
(i) Carrying and/or use of any kind of plastic bags,
packaging material of food or other items at
Rohtang Pass is strictly prohibited. Littering of
any kind in, around and also en route Rohtang
Pass is also strictly prohibited.
(ii) The Government of Himachal Pradesh may
develop a small market at Marhi, which will be
entirely eco-friendly and would not be a
permanent structure. This small market shall
provide eatables, medicines or such other goods
of necessities of day-to-day life for the tourists.
However, they shall maintain different containers
for collection of wastes in the market itself. It
shall be the obligation of the Government, the
persons running the market and the citizenry to
36
ensure that they do not indulge in littering of any
material in and around the market.
(iii) The Government shall also provide eco-friendly
toilets at Marhi. Collection of municipal solid
wastes and other wastes shall be the
responsibility of the State Government and it
shall be ensured that these places and the toilets
so provided are kept clean and hygienic. The
wastes so collected shall be taken to the nearest
Municipal Solid Waste (for short the 'MSW') plant
and/or the prescribed dumping ground. The
Government shall ensure and provide due
incentives for implementation of waste
prevention strategies like use of products that
minimize wastes and are non-toxic; composting
or anaerobically digesting biodegradable wastes;
reuse of material on site or collection of suitable
material for offsite recycling; efficient recycling
upon proper sorting out of materials and
providing proper bins.
(iv) There shall be public toilets provided at Rohtang
Pass which should be eco-friendly, the
cleanliness of which is to be strictly maintained.
These public toilets should be the ones which are
removable during non-tourism season. Urinating
37
in open space should be prohibited. The entire
glacier must be kept clean in all respects while
ensuring complete hygiene.
(v) To ensure hygiene, cleanliness and natural
beauty of the glacier, it is essential that no
commercial activity of any kind is permitted at
Rohtang Pass Glacier. Thus, we direct that no
commercial activity of any kind would be carried
on in, around and en route to Rohtang Pass
without any exception.
FORERSTS, DEFORESTATION, THEIR IMPACT ON
ENVIRONMENT AND REMEDIES:
27. As already noticed, forests of Himachal Pradesh
constitute about 2/3rd of the State's geographical area and are
the storehouse of rich bio-diversity, vital in preserving the
fragile Himalayan eco-system and is a primary livelihood
source for rural population. The recorded forest area of
66.43% of the total geographical area is the indicator of the
forestry in the State of Himachal Pradesh. Himalayas are one
of the youngest mountainous regions of the world where the
land mass has not yet found its final form, its eco-system is
most fragile, sensitive and susceptible.
28. The area of Gulaba, Marhi and Kothi, once a dense
forest, is presently nothing but an area of bald mountains. It
has lost its natural beauty and ecology, which is adversely
38
affecting the environment. Forests play a significant role in
controlling pollution. Trees help to clean the air borne
pollutants such as ozone, NO2, SO2, CO, CO2 and small
particulate matter particularly less than 10 microns in size.
Variety of reasons have led to extinguishment or considerable
reduction of forests. Deforestation, uncontrolled and
unsustainable grazing, soil erosion, discharge of industrial
and human wastes, effects of climate change on forests in
Himalayas, excessive tourism, forest fires and human conflict
are inter alia the primary factors, which, with the passage of
time, have reduced the forest cover in qualitative as well as
quanitative terms. It is the absolute need of the hour that
sincere efforts should be made to restore and maintain the
forest areas in the larger interest of environment and public
benefit. The solution lies in the urgent need to ensure that
tourism industry in the State is environmentally benign and
the benefits of decentralization are equally distributed,
particularly to rural and local households. High density of
traffic in the forest area should be controlled. There is a dire
need for carrying out reforestation activity rapidly and at a
massive scale. Taking adequate and effective measures for
prevention and control of forest fires is also another need of
the hour. Prevention of deforestation along all slopes,
promotion of appropriate cover of trees, shrubs, bushes and
grass would further help to prevent soil erosion. Preservation
39
of natural eco-system would also help in enhancing and
maintaining the forest cover.
29. Deforestation seriously affects local and regional
climates. Forests absorb more of the sun's radiation.
Deforestation in the tropics increases surface temperatures,
because grasslands are better reflectors of the sun's energy.
Research has demonstrated that replacement of tropical
forests with grassland increases local air and soil temperature,
decreases evapotranspiration and decreases precipitation. The
warming from a reduction in evapotranspiration more than
compensates for the cooling from the increased albedo.
Temperature decreases because of evapotranspiration, which
is a cooling process, is reduced by deforestation.
Evapotranspiration is reduced, in part because less radiant
energy is absorbed (more is reflected), in part because
atmospheric turbulence (surface roughness) is greater above a
forest than above a grassland and hence can evaporate water
more rapidly from forests, and in part because the roots of
trees generally penetrate to deeper layers of soil than the roots
of pastures, and hence have access to more water. If less
water is available, the vegetation will respond by closing
stomata and thereby increasing the resistance to
evapotranspiration and increasing temperatures. Preservation
of forested land helps reduce local and regional environmental
variability. The greatest effect that forest management could
40
have on atmospheric carbon dioxide would be through the
elimination of fossil fuels. Gross emissions from burning
would be approximately balanced by accumulations in forests
producing fuel for the future. Management would have to be
sustainable.
30. Having heard the learned counsel appearing for the
parties on this important facet of the present case, we issue
the following directions:
(i) The State Government and all authorities
concerned shall take immediate and effective
measures for reforestation of the area of Kothi,
Gulaba and Marhi. Reforestation shall be taken
up as a top priority project and all possible
efforts would be made for commencing and
completing the plantation in this area.
(ii) As a first step in this direction, the State
Government agencies should identify areas that
can be brought under reforestation, using latest
available remote sensing data coupled with
ground verification by the Forest Department.
(This exercise should be completed in the first
three months).
(iii) Such species may be used for afforestation as
the forest authorities in the State of Himachal
Pradesh consider appropriate but it is
41
recommended that upto 1000-metre height,
coniferous species of chil, and broad-leaved
species of siris, tun, behul, shisham, ritha, tut,
behera, etc. should be planted. At a height of
1000 to 2000 metres, coniferous species of kail,
deodar, chil, and broad-leaved species of poplar,
willow, ohi, robinia, drek, toon, behmi, chulli,
Walnut, khirik and oak while at a height ranging
from 2000 to 3000 metres, coniferous species of
deodar, kail, fir, spruce, taxus and broad-leaved
species of Maple, Ash, bhojpatra, oak, horse
chestnut, alder, robinia, poplar, walnut may be
planted.
(iv) It is difficult to do plantation at a height of
2000 metres and above. The seedlings at this
height are exposed to several biotic pressures of
cattle, tourists and villagers, who trample the
young saplings. Therefore, it is required that all
the plantations must use fairly tall seedlings
which have been grown and looked after in
nurseries at appropriate height at least for a
period of two to three years, having similar
climatic conditions such that they could adjust
or adapt to the harsh climatic conditions.
Considering the harsh climatic conditions at
higher elevations, it is necessary to provide
42
appropriately designed canopy cover to the
saplings in the first two to three years whereafter
they should be planted at the defined region by
providing due care and protection, while being
appropriately maintained and looked after at
least for a period of ten years.
(v) Keeping in view the ecological and geological
fragility of the area, it is directed that all forestry
programmes must be preceded by soil and
moisture conservation works including bio-
engineering measures in steep hills. A number of
plants, particularly chil and kail have thick mat
of needles on forest floor which make the forests
vulnerable to frequent fire hazards. Thus, the
Government should take all precautionary
measures and provide a scientific scheme for
forecasting, controlling and preventing the forest
fires.
(vi) The State Government shall provide due
regulatory mechanism in this regard without any
further delay and shall notify and implement the
same in all parts.
(vii) The plantation programme must include at least
50% broad leaved species, as stated above. Joint
forest management programme should be
promoted by involving the local villagers by
43
planting high conservation value medicinal
plants like atish, kutki, kuth, etc.
(viii)Preparing and declaring a working plan by the
Government is the sine qua non of scientific
forestry and so shall it be prepared and declared.
31. Global warming has a direct impact on environment
and ecology of any zone. Global warming, a succession of hot
summers through the 1980s seemed to bear out the
conservationist's warning that the earth's climate was
warming up. This global warming, if it is indeed the case, is a
consequence of the large quantities of carbon dioxide released
into the atmosphere by industries, power stations and motor
vehicles. The earth's temperature will rise, the polar caps will
melt, raising sea levels and causing catastrophic flooding in
low-lying areas and large areas of productive land will become
desert. This global warming - heat - has affected various
countries in the world. The glaciers on the Mount Blanc were
melting causing slush; the impact of what keeps on happening
in the solar atmosphere and the sun directly affects our
planet, hence, there is a need to tackle global warming.
Environmentalists present a grim picture of the effects of
global warming with the mean temperature of the earth
increased by about 1.6 degree celcius. This is a declaration
made at a Conference of Parties to the Framework Convention
on Climatic Changes. Global warming represents the increase
44
in the average temperature of earth's near-surface air and
oceans. (Ref: "Environmental and Pollution Laws in India", 2nd
Edition, supra)
32. According to a statistical report from the World
Meteorological Organisation, global temperature has registered
an increase of more than 0.6O celcius in the past 100 years. In
the near future, contamination of underground and surface
fresh water supplies is likely near coastal areas (Ref: Law
Relating to Environmental Pollution & Protection, 5th Edition,
Vol.I, by Dr. N. Maheshwara Swamy).
33. Global warming has its impacts in other parts of the
world, as in the Indian sub-continent. It is likely to affect the
glaciers. There will be early and untimely melting of ice
resulting in various environmental issues. Rohtang Pass being
one of the eco-sensitive and fragile areas of the glacier, is likely
to get affected more than other areas. Thus, there is a need
for evolving schemes and mechanism to take greater care of
the glacier in the interest of environmental and ecological
balance.
34. The other relevant principle is the 'Polluter Pays'
principle which can be applied to prevent as well as control
further environmental damage in the area. The 'Polluter Pays'
principle is one which is aimed at ensuring that the costs of
environmental damage caused by the polluting activities are
45
borne in full by the person responsible for such pollution. It is
said that this principle means that the polluter should pay for
the administration of the pollution control system and for the
consequences of the pollution, for example, compensation and
clean up. Under this principle, the Government alone cannot
be held responsible for preventing and controlling the
environmental pollution. If this fiscal incident in its entirety is
shifted to the Government, then it would amount to unduly
burdening the common tax payer, for none of his fault, for
taking anti-pollution, preventive and remedial measures. The
actual polluter, thus must be held liable for the damage done.
This doctrine has been accepted in larger parts of the world as
the fundamental principle on environmental matters and has
been one of the underlying principles for action programme on
the environment.
35. In the case of M.C. Mehta v. Kamal Nath supra, the
Supreme Court, while reiterating the Vellore Citizens' Welfare
Forum v. Union of India case supra, held that "one who
pollutes the environment must pay to reverse the damage
caused by his acts". (Ref: Environmental Laws in India:
Contribution of the Supreme Court, by A.K. Tiwari, Deep & Deep
Publications Pvt. Ltd.).
36. The liability of the polluter is absolute for the harm
done to the environment which extends not only to
compensate the victims of pollution but is also aimed to meet
46
the cost of restoring environment and also to remove the
sludge and other pollutants. [Ref: Indian Council for Enviro-
Legal Action and Ors. Vs. Union of India and Ors. supra]. The
Supreme Court held that the person causing pollution by
carrying on any hazardous or dangerous activity is liable to
make good the loss caused to any other person by his activity
irrespective of the fact whether he took reasonable care while
carrying on his commercial or industrial activity. In the light
of these principles, it is clear that the persons who are causing
pollution in the eco-sensitive areas resulting in environmental
hazards must be required to compensate for the damage
resulting from their activity. A large number of tourists and
vehicles which are using the roads and are carrying on such
other activities for their enjoyment, pleasure or commercial
benefits must be made to pay on the strength of the 'Polluter
Pays' principle. It will be entirely uncalled for and unjustified if
the tax payers' money is spent on taking preventive and
control measures to protect the environment. One who
pollutes must pay. We have already discussed at some length
that the high tourist activity, vehicular pollution and
deforestation attributable to acts of emission require to be
compensated, restored and maintained in a manner that there
is minimum damage and degradation of the environment.
Such an approach can even be justified with reference to the
doctrine of sustainable development.
47
DIRECTIONS:
37. The directions that we have recorded supra are
essential and are required to be obeyed by all concerned in the
interest of sustainable development and protection of the
ecological and eco-sensitive area of Rohtang Pass. It is a
settled proposition of law that the Courts can issue directions
or guidelines for implementation, particularly in cases where
there is absence of specific legislation on the subject. In this
regard, we may refer to the judgment of the Supreme Court in
the case of Shri Amar Nath Shrine supra. There are a number
of cases on the subject, which are reproduced below:
"24. The next question that arises is as to what
directions generally and particularly in the
cases of the present kind, the Court is
competent to issue.
25. In the case of M.C. Mehta v. Union of
India (1987) 1 SCC 395), the Court, while
discussing the ambit and scope of Article 32 of
the Constitution, held as under:
We have already had occasion to consider
the ambit and coverage of Article 32 in
the Bandhua Mukti Morcha v. Union of
India and we wholly endorse what has
been stated by one of us namely,
Bhagwati, J. as he then was in his
judgment in that case in regard to the true
scope and ambit of that article. It may now
be taken as well settled that
Article 32 does not merely confer power on
this Court to issue a direction, order or
writ for enforcement of the fundamental
rights but it also lays a constitutional
obligation on this Court to protect the
fundamental rights of the people and for
that purpose this Court has all incidental
and ancillary powers including the power
48
to forge new remedies and fashion new
strategies designed to enforce the
fundamental rights. It is in realisation of
this constitutional obligation that this
Court has in the past innovated new
methods and strategies for the purpose of
securing enforcement of the fundamental
rights, particularly in the case of the poor
and the disadvantaged who are denied
their basic human rights and to whom
freedom and liberty have no meaning.
We are also of the view that this Court
under Article 32(1) is free to devise any
procedure appropriate for the particular
purpose of the proceeding, namely,
enforcement of a fundamental right and
under Article 32(2) the court has the
implicit power to issue whatever direction,
order or writ is necessary in a given case,
including all incidental or ancillary power
necessary to secure enforcement of the
fundamental right. The power of the court
is not only injunctive in ambit, that is,
preventing the infringement of a
fundamental right, but it is also remedial
in scope and provides relief against a
breach of the fundamental right already
committed vide Bandhua Mukti Morcha
case. If the court were powerless to issue
any direction, order or writ in cases where
a fundamental right has already been
violated, Article 32 would be robbed of all
its efficacy, because then the situation
would be that if a fundamental right is
threatened to be violated, the court can
inject such violation but if the violator is
quick enough to take action infringing the
fundamental right, he would escape from
the net of Article 32. That would, to a large
extent, emasculate the fundamental right
guaranteed under Article 32 and render it
impotent and futile. We must, therefore,
hold that Article 32 is not powerless to
assist a person when he finds that his
fundamental right has been violated. He
can in that event seek remedial assistance
under Article 32. The power of the court to
grant such remedial relief may include the
power to award compensation in
appropriate cases. We are deliberately
49
using the words "in appropriate cases"
because we must make it clear that it is
not in every case where there is a breach
of a fundamental right committed by the
violator that compensation would be
awarded by the court in a petition under
Article 32.
26. In the case of Vishaka v. State of Rajasthan
(1997) 6 SCC 241, this Court held as under:
Each such incident results in violation of
the fundamental rights of "Gender
Equality" and the "Right to Life and
Liberty". It is a clear violation of the rights
under Articles 14, 15 and 21 of the
Constitution. One of the logical
consequences of such an incident is also
the violation of the victim's fundamental
right under Article 19(1)(g) "to practise any
profession or to carry out any occupation,
trade or business". Such violations,
therefore, attract the remedy under
Article 32 for the enforcement of these
fundamental rights of women. This class
action under Article 32 of the Constitution
is for this reason. A writ of mandamus in
such a situation, if it is to be effective,
needs to be accompanied by directions for
prevention, as the violation of fundamental
rights of this kind is a recurring
phenomenon. The fundamental right to
carry on any occupation, trade or
profession depends on the availability of a
"safe" working environment. Right to life
means life with dignity. The primary
responsibility for ensuring such safety and
dignity through suitable legislation, and
the creation of a mechanism for its
enforcement, is of the legislature and the
executive. When, however, instances of
sexual harassment resulting in violation of
fundamental rights of women workers
under Articles 14, 19 and 21 are brought
before us for redress under Article 32, an
effective redressal requires that some
guidelines should be laid down for the
protection of these rights to fill the
legislative vacuum.
50
15. In Nilabati Behera v. State of Orissa a
provision in the ICCPR was referred to
support the view taken that "an
enforceable right to compensation is not
alien to the concept of enforcement of a
guaranteed right", as a public law remedy
under Article 32, distinct from the private
law remedy in torts. There is no reason
why these international conventions and
norms cannot, therefore, be used for
construing the fundamental rights
expressly guaranteed in the Constitution
of India which embody the basic concept of
gender equality in all spheres of human
activity.
16. In view of the above, and the absence
of enacted law to provide for the effective
enforcement of the basic human right of
gender equality and guarantee against
sexual harassment and abuse, more
particularly against sexual harassment at
workplaces, we lay down the guidelines
and norms specified hereinafter for due
observance at all workplaces or other
institutions, until a legislation is enacted
for the purpose. This is done in exercise of
the power available under Article 32 of the
Constitution for enforcement of the
fundamental rights and it is further
emphasised that this would be treated as
the law declared by this Court under
Article 141 of the Constitution.
27. In the case of Vineet Narain v. Union of
India (1998) 1 SCC 226), the Court held as
under:
There are ample powers conferred by
Article 32 read with Article 142 to make
orders which have the effect of law by
virtue of Article 141 and there is mandate
to all authorities to act in aid of the orders
of this Court as provided in Article 144 of
the Constitution. In a catena of decisions
of this Court, this power has been
recognised and exercised, if need be, by
issuing necessary directions to fill the
vacuum till such time the legislature steps
in to cover the gap or the executive
discharges its role. It is in the discharge of
51
this duty that the IRC was constituted by
the Government of India with a view to
obtain its recommendations after an in-
depth study of the problem in order to
implement them by suitable executive
directions till proper legislation is enacted.
The report of the IRC has been given to the
Government of India but because of
certain difficulties in the present context,
no further action by the executive has
been possible. The study having been
made by a Committee considered by the
Government of India itself as an expert
body, it is safe to act on the
recommendations of the IRC to formulate
the directions of this Court, to the extent
they are of assistance. In the remaining
area, on the basis of the study of the IRC
and its recommendations, suitable
directions can be formulated to fill the
entire vacuum. This is the exercise we
propose to perform in the present case
since this exercise can no longer be
delayed. It is essential and indeed the
constitutional obligation of this Court
under the aforesaid provisions to issue the
necessary directions in this behalf. We
now consider formulation of the needed
directions in the performance of this
obligation. The directions issued herein for
strict compliance are to operate till such
time as they are replaced by suitable
legislation in this behalf.
28. In the case of University of Kerala v. Council
of Principals of Colleges, Kerala and Ors. ((2010)
1 SCC 353), this Court held as under:
32. It may be noted that this Court has on
several occasions issued directions,
directives in respect of those situations
which are not covered by any law. The
decision in Vishaka v. State of Rajasthan
is one such instance wherein a three-
Judge Bench of this Court gave several
directions to prevent sexual harassment of
women at the workplace. Taking into
account the "absence of enacted law" to
provide for effective enforcement of the
right of gender equality and guarantee
against sexual harassment, Verma, C.J.
52
held that guidelines and norms given by the Court will hold the field until legislation was enacted for the purpose. It was clarified that this Court was acting under Article 32 of the Constitution and the directions "would be treated as the law declared by the Court under Article 141 of the Constitution". (para 16) XXXXX XXXXX XXXXX XXXXX
33. Similarly, the Supreme Court issued directions regarding the procedure and the necessary precautions to be followed in the adoption of Indian children by foreign adoptive parents. While there was no law to regulate inter-country adoptions, Bhagwati, J., (as His Lordship then was) in Laxmi Kant Pandey v. Union of India, formulated an entire scheme for regulating inter-country and intra-country adoptions. This is an example of the judiciary filling up the void by giving directions which are still holding the field."
38. This Tribunal must issue directions which would be in consonance with the Constitutional mandate contained under Articles 21, 48-A and 51-A(g) and are the very essence of the Act of 1986. The State Government has neither formulated nor issued any specific guidelines - statutory or otherwise - on prevention and control of environmental degradation and damage in relation to the glacier of Rohtang Pass valley. In addition to the specific directions issued by us supra, we would also issue the following general directions:
(i) We were informed by the State Government that it had created 'Green Tax Fund' in order to ensure proper development for protecting the 53 environment in all its spheres. The persons who are travelling by public or private vehicles to the glacier of Rohtang Pass must pay a very reasonable sum of money as contribution on the principle of 'Polluter Pays'. Thus, we direct that every truck, bus and vehicle of any kind which passes through the route ahead of Vashishta and Rohtang Pass shall be liable to pay a sum of Rs.100/- for heavy vehicles and Rs.50/- for light vehicles. The passengers travelling through the CNG or electric buses to Rohtang Pass as tourists shall be liable to pay a sum of Rs.20/-
per head, which shall form part of the ticket for the bus.
(ii) The funds so collected shall be kept by the State Government under the existing head of Green Tax Fund. The amounts so collected shall be used exclusively for development of this area i.e. from Vashishta to Rohtang Pass and five kilometers ahead of Rohtang Pass. This amount should also be used for prevention and control of pollution, development of ecologically-friendly market at Marhi, for restoring the vegetative cover and afforestation. The funds shall not be used for any other purpose whatsoever. 54
(iii) The operational vehicles like those of BRO/Army would be exempted from paying the Green Tax.
(iv) The GREF i.e BRO is hereby directed to ensure that the road remains in a very good motorable condition round the year.
(v) The State Government, particularly the Department of Tourism, shall immediately take steps for collection and disposal of MSW on the entire route from Vashishta to Rohtang Pass.
(vi) To start with, the State Government shall provide all requisite funds for commencement and progress of the various projects that are to be commenced by it under these directions. These funds shall be provided on top priority basis.
(vii) The State Government and all its authorities, municipalities and all private organizations are directed to fully co-operate, co-ordinate and ensure that these directions are complied with, without default or demur.
(viii)We hereby constitute a Monitoring Committee consisting of Secretary (Environment), State Govt. of Himachal Pradesh; Conservator of Forests concerned of Kullu Division; Director (Tourism), Govt. of Himachal Pradesh; Environmental Engineer, Himachal Pradesh Pollution Control Board; and an eminent 55 environmentalist from G.B. Pant Institute of Himalayan Environment and Development, Kosi- Katarmal, Almora.
This Committee shall tour the area of Rohtang Pass and en route and ensure that the directions contained in this order are carried out in true spirit and substance. If any department, person or authority is found to be erring in such matter, then it shall bring the same to the notice of the Tribunal for appropriate action.
(ix) The above Monitoring Committee shall submit quarterly reports to the NGT, clearly stating non- compliances with the directions, if any, the persons responsible for such default(s) and also suggestions, if any, as it may consider appropriate in order to make further improvements and catalyze the prevention and control of pollution in that area more effectively.
(x) The State Government of Himachal Pradesh has already taken a definite stand and made a statement that it shall follow the 'Madhya Pradesh Model' for prevention and control of forest fires. Thus, we direct that an extra effort should be made by the State Government of Himachal Pradesh, for ensuring prevention and 56 control of forest fires, particularly in the Himalayan region, as they are the direct source of deposition of Black Carbon and suspended particulate matter on the glacier.
(xi) The authorities concerned of the State Government of Himachal Pradesh including the Departments of Forest and Agriculture would ensure that no remnants of crops in agricultural fields are burnt, as this also results in deposits of Black Carbon and suspended particulate matter on the glacier.
(xii) G.B. Pant Institute of Himalayan Environment and Development, Kosi-Katarmal, Almora, after expiry of six months from the date of passing of this order, shall conduct a study of the glacier of Rohtang Pass in all respects and submit a report to the Tribunal immediately thereafter. The report, inter alia, shall deal with cleanliness, deposits of Black Carbon and suspended particulate matter, ambient air quality, progress in reforestation in the stated area and collection and disposal of municipal solid waste at, around and en route Marhi. The report shall specifically deal with comparative analysis of vehicular pollution, pre and post this order. 57
(xiii) Preferably, no horses shall be permitted at Rohtang Pass. However, if the authorities and the committee concerned are of the view that horses should be permitted at Rohtang Pass in the interest of healthy tourism, then the authorities and the committee shall ensure that all the horsemen permitted to ply their horses at Rohtang Pass are permit holders. These permits will be issued by the representative of the committee concerned and the Deputy Commissioner, Kullu. The conditions of the permit should clearly state that horse dung be instantaneously removed/lifted and stored appropriately in the bins specifically provided for that purpose. Cleaning of horse dung, MSW and such other waste shall be the responsibility of the staff appointed at Rohtang Pass. In the event of default, the permit issued to such horsemen shall be liable to be cancelled in accordance with law.
39. In view of the above discussion and the specific and general directions contained in this judgment, let Civil Writ Petition Nos. 5087/2011, 5088/2011 and PIL No. 15/2010 now be listed for final disposal.
58
40. We make it clear that, in this order, we are not dealing with the rights of the persons engaged in commercial activity at Marhi and en route. We are also not dealing with the land rights claimed by the persons in the main Writ Petition at this stage.
41. A copy of this order be sent immediately to the Chief Secretary, the Secretary (Tourism), the Secretary (Environment) and the Secretary (Forests) of the State Government of Himachal Pradesh for compliance. It may also be sent to the BRO and the Commander-in-Chief, Western Command of the Army, Chandi Mandir, for compliance.
42. We must place on record our appreciation for the assistance rendered by the learned counsel appearing for the parties, particularly the Advocate General of Himachal Pradesh, who had assured the Tribunal that the Government was very keen to protect the environment and ecology of this eco-sensitive area and was quite willing to take various effective steps in that direction.
43. We grant liberty to all the parties or even to the persons not being a party to this case to move the Tribunal for any clarification or variation of the directions contained in this order.
59
44. However, there shall be no order as to costs.
Hon'ble Mr. Justice Swatanter Kumar Chairperson Hon'ble Mr. Justice U.D. Salvi Judicial Member Hon'ble Dr. D.K. Agrawal Expert Member Hon'ble Mr. Bikram Singh Sajwan Expert Member New Delhi February 6, 2014 60