NGT cannot pass directions without scientific or technical evidence before it: Supreme Court

The SC on July 14, 2020 {THE DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA vs AAM AADMI LOKMANCH & ORS.} held that the expression “environment” and “environmental pollution” have to be given a broader meaning, having regard to Parliamentary intent to ensure the objective of the Environment Protection Act, 1986 (in short “EPA”). It was held that it effectuates the principles underlying Article 48A of the Constitution of India. 

It was held by the Bench, comprising of Justice R. F. Nariman, Justice S. Ravindra Bhat and Justice V. Ramasubramanian, that having regard to the duty imposed on the NHAI by virtue of Sections 4 and 5 of the Highways Act, read with Section 16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, including the stretch upon which the accident occurred. It was held that the failure of the NHAI to ensure remedial action, and likewise the failure by Rathod to take measures to prevent the accident, prima facie, disclose their liability. 

The issue that arose for consideration in present case before the SC, inter alia, was the jurisdiction of the NGT to award compensation and NGT’s directions with respect to the ban on construction in and around foothills.

The SC held that EPA is in essence, an umbrella legislation enacting a broad framework for the central government to coordinate the activities of various central and state authorities established under other laws, such as the Water Act and Air Act. It was held that the EPA also effectively enunciates the critical legislative policy for environment protection. It was held that changes the narrative and emphasis from a narrow concept of pollution control to a wider facet of environment protection. It was held that the expansive definition of environment that includes water, air and land “and the interrelation which exist among and between water, air and land, other human creatures, plants, micro-organisms and property” give an indication of the wide powers conferred on the Central Government. It was held that a wide net is cast over the environment related laws. It was held that the EPA also empowers the central government to comprehensively control environmental pollution by industrial and related activities. It was held by the SC that the NGT correctly assumed jurisdiction, having regard to the nature of the accident in the facts of this case.

It was held that the absence of legal representatives or heirs of the deceased in the proceedings, or the fact that they had initiated independent civil action was not an impediment, nor could it have precluded the NGT from exercising its jurisdiction, given the gravity of the matter and the danger posed to the members of the public. It was held that the initiation of civil action did not mean that the NGT had to either reject the application (as far as it claimed relief for the accident), or await the outcome of the civil suit.

The SC further held that in present case what the NGT had before it, was the report of the SDM and a report commissioned about the nature of the incident. It was held that based on these limited inputs, the tribunal concluded without any rationale and based on no scientific or technical evidence, or experts’ opinion, that development and construction should not be carried out within 100 feet of a “lowest slope i.e. incline of any hill within its territorial limits, as well as hill-tops”.

It was held that in earlier cases, the NGT resorted to the appointment of technical and scientific experts in the relevant field, who studied the issue, made site inspections and furnished reports. It was held that such reports were subjected to discussion by the parties before the NGT, who were also given the opportunity of objecting to or making representations against such reports. It was held that based on a final consideration of all these materials, and the submissions of parties before it, the NGT proceeded to issue directions. It was held by the SC that this procedure was wholly overlooked by the NGT in the present case.

As a result, it was held by the SC that the tribunal’s directions were improper and are procedurally indefensible. The directions contained in Para 17(e) i.e. construction should not be carried out within 100 feet of a “lowest slope - incline of any hill within its territorial limits, as well as hill-tops” were therefore set aside by the SC.