Mehta Vs. Union of India & Ors  INSC 1290 (11 October 1996)
Singh, N.P. Singh, S. Saghir Ahmad
O R D
Court by the order dated May 10, 1996 in I.A.29 [W.P(C) No.4677/85] dealt with
the question whether - to preserve environment and control pollution - mining
operations should be stopped within the radius of 5 kms. from the tourist
resorts of Badkhal lake and Surajkund in the State of Haryana. The Court gave five directions in
the said order. Direction 4 is in the following terms:- "We further direct
that no construction of any type shall be permitted now onwards within 5 km
radius of the Badkhal lake and Surajkund. All open areas shall be converted
into green belts." The Haryana Pollution Control Board (the Board) has
notified the ambient Air quality Standards by the notification dated April 11, 1994. The notification fixes limiting
standards of pollution in respect of sensitive areas, industrial areas and
residential areas. The standards for sensitive areas are stringent than the
standards prescribed for industrial and residential areas. The Board has
recommended that the area of 5 kms around the periphery of a centre of tourism
be notified as "sensitive area". With a view to control pollution and
save environment in the vicinity of Badkhal and Surajkund, the above quoted
direction was issued.
Municipal Corporation Faridabad, Haryana Urban Development Authority and
builders having interest in, the area have approached this Court for
modification/clarification of the above quoted direction. It is contended by
learned counsel appearing for the parties that in the said area of 5 kms. buildings
are under construction, plots have been allotted/sold under various
Development-schemes and the plot-holders have even started construction.
According to the learned counsel vested rights of several persons are likely to
be adversely affected causing huge financial loss to them.
the direction specifically says "no construction..................now
onwards................" and as such the areas which are already under
construction would obviously be excluded from the direction but in order to
allay the apprehensions of the property-owners in the area, we are of the view
that it is necessary to clarify the above direction.
Sibal, appearing for the Municipal Corporation Faridabad has taken lot of pains
in having the area surveyed and plans prepared with a view to find out as to
how best the direction of this Court regarding development of 200 mts. green
belt at one km. radius all around the boundaries of the two lakes can be
and Mr. Harish Salve have placed one record two plans showing the proposed
green belts around Badhkal lake and Surajkund. The Plan in respect of Badhkal
is marked Ex.A. Along with the Plan the detail of the khasra Nos. on which the
green belt is to be developed, has been given which is marked as Ex. A/l.
Similarly, the plan regarding Surajkund is marked as Ex. B and the detail of
the khasra Nos. is marked as Ex.B/l. It is agreed by all the parties that the
green belt as proposed in Ex. A and Ex. B shall be developed in the two areas.
Court by the order dated September
13, 1994 in I.A 18
[W.P(C) No.4677/85] has directed the Central Government to constitute an
authority (The Authority) under Section b(3) of the Environment (Protection)
Act, 1986. The said authority shall have the jurisdiction over the National
Capital Region as defined under the National Capital Region Planning Act, 1955.
It is thus obvious that the area of Badkhal and Surajkund, with which we are
concerned, comes within the jurisdiction of the said authority.
Bhushan, learned Senior Advocate, appearing for some of the builders has
vehemently contended that banning construction within one km. radius from Badkhal
and Surajkund is arbitrary. According to him it is not based on technical
reasons. He has referred to the directions issued by the Government of India
under the Environment Protection Act has contended that the construction can at
the most be banned within 200 to 500 metres as was done by the Government of
India in the coastal areas. He has also contended that restriction on
construction only in the areas surrounding Surajkund and Badkhal lakes is hit
by Article 14 of the Constitution of India as it is not being extended to other
lakes in the country. We do not agree with Mr. Shanti Bhushan. The functioning
of systems and the status of environment cannot be the same in the country.
Preventive measures have to be taken keeping in view the carrying capacity of
the eco-systems operating in the environmental surroundings under
consideration. Badkhal and Surajkund Lakes are popular tourist resorts almost
next door to the capital city of Delhi. We have on record the Inspection Report
in respect of these lakes by the National Environmental Engineering Research
Institute (NEERI) dated April 20, 1996 indicating the surroundings, geological
features, land use and soil types and archaeological significance of the areas
surrounding the lakes. According to the report Surajkund lake impounds water
from rain and natural springs. Badkhal lake is an impoundment formed due to the
construction of an earthern dam. The catchment areas of these lakes are shown
in a figure attached with the report. The land use and soil types as explained
in the report show that the Badkhal lake and Surajkund are monsoon- fed water
bodies. The natural drainage pattern of the surrounding hill areas feed these
water bodies during rainy season. Large scale construction in the vicinity of
these tourist resorts may disturb the rain water drains which in turn may badly
affect the water level as well as the water quality of these water bodies. It
may also cause disturbance to the acquifers which are the source of ground
water. The hydrology of the area may also be disturbed.
two expert opinions on the record - by the Central Pollution Control Board no
doubt on our mind that the large scale construction activity in the close
vicinity of the two lakes is bound to cause adverse impact on the local
has recommended greenbelt at one KM radius all around the two lakes. Annexures
A and B. however. show that the area within the greenbelt is much lesser than
one KM radius as suggested by the NEERI.
Court in Vellore Citizens Welfare Forum vs. Union of India & Ors. JT 1996 (7) S.C. 375 elaborately
discussed the concept of "sustainable development" which has been
accepted as part of the law of the land. It would be useful to quote the
traditional concept that development and ecology are opposed to each other, is
no longer acceptable. "Sustainable Development" is the answer. In the
International sphere "sustainable Development" as a concept came to
be known for the first time in the Stockholm Declaration of 1972......
the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable
concept to eradicate poverty and improve the quality of human life while living
within the carrying capacity of the supporting eco-systems.
Development" as defined by the Brundtland Report means "Development
that meets the needs of the present without compromising the ability of the
future generations to meet their own needs" We are, however, of the view
that "The Precautionary Principle" and "The Polluter Pays"
principle are essential features of "Sustainable Development". The
"Precautionary Principle" - in the context of the municipal law -
Environmental measures by the State Government and the statutory authorities
must anticipated, prevent and attack the causes of environmental degradation.
Where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a Season for postponing measures to prevent
The "Onus of proof" is on the actor or the developer/industrialist to
show that his action is environmentally benign ...
view of the above mentioned constitutional and statutory provisions we have no
hesitation in holding that the precautionary principle and the polluter pays
principle are part of the environmental law of the country even otherwise once
these principles are accepted as part of the Customary International Law there
would be no difficulty in accepting them as part of the domestic law. It is
almost accepted proposition of law that the rule of Customary International Law
which are not contrary to the municipal law shall be deemed to have been
incorporated in the domestic law and shall be followed by the Courts of Law. To
support we may refer to Justice H.R. Khanna's opinion in Addl, Distt.
Magistrate Jabalpur vs. Shivakant Shukla (AIR 1976 SC 1207), Jolly George Varghese`s
case (AIR 1980 SC 470) and Gramophone Company`s case (AIR 1984 SC 667)."
This Court in Rural Litigation and Entitlement Kendra, Dehradoon vs. State of Uttar Pradesh (1987) 1 SCR 641 held as under:
consequence of this order made by us would be that the lessee of limestone
quarries would be thrown out of business. This would undoubtedly cause hardship
to them, but it is a price that has to be paid for protecting and safeguarding
the right of the people to live in a healthy environment with minimal
disturbance of ecological balance and without avoidable hazard to them, to
their cattle, homes and agriculture and undue affectation of air, water and
environment." In M.C. Mehta vs. Union of India (1987) 4 SCC 463 this Court
held as under:
financial capacity of the tanneries should be considered as irrelevant while
requiring them to establish primary treatment plants.
like an industry which cannot pay minimum wages to its workers cannot be
allowed to exit, a tannery which cannot set up a primary treatment plant cannot
be permitted to continue to be in existence for the adverse effects on the
public health and ecology have priority over unemployment and loss of revenue
Precautionary Principle" has been accepted as a part of the law of the
land. Articles 21. 47, 48A and 51A(g) of the Constitution of India give a clear
mandate to the State to protect and improve the environment and to safeguard
the forests and wild life of the country. lt is the duty of every citizen of
India to protect and improve the natural environment including forests, lakes,
rivers and wild life and to have compassion for living creatures. "The
Precautionary Principle" makes it mandatory for the State Government to
anticipate, prevent and attack the causes of environment degradation. We have
no hesitation in holding that in order to protect the two lakes from environmental
degradation it is necessary to limit the construction activity in the close
vicinity of the lakes.
clarification of direction 4 quoted above, we order and direct as under:
construction of any type shall be permitted, now onwards, within the green belt
area as shown in Ex. A and Ex. B. The environment and ecology of this area
shall be protected and preserved by all concerned. A very small area may be
permitted, if it is of utmost necessity, for recreational and tourism purposes.
The said permission shall be granted with the prior approval of "The
authority", the Central Pollution Control Board and the Haryana Pollution
construction of any type shall be permitted, now onwards, in the areas outside
the green belt (as shown in Ex. A and Ex. B) upto one km. radius of the Badhkal
lake and Surajkund (one kilometer to be measured from the respective lakes) .
This direction shall however, not apply to the plots already sold/allotted
prior to May 10, 1996 in the developed areas. If any unallotted plots in the
said areas are still available, those may be sold with the prior approval of
'the authority'. Any person owning land in the area may construct a residential
house for his personal use and benefit. The construction on the said plots,
however, can only be permitted upto two and a half storeys (ground, first floor
and second half floor) subject to the Building Bye-laws/Rules operating in the
area. The residents of the villages, if any, within this area may
extend/reconstruct their houses for personal use but the said construction
shall not be permitted beyond two and half storeys subject to Building
Bye-laws/Rules. Any building/house/commercial premises already under
construction on the basis of the sanctioned plan, prior to May 10, 1996 shall not be affected by this
constructions which are permitted under directions 1 and 2 above shall have the
clearance of "The Authority", the Central Pollution Control Board and
the Haryana Pollution Control Board before 'occupation certificates' are issued
in respect of these buildings by the authorities concerned.
development schemes, and the plans for all types of constructions relating to
all types of buildings in the area from one km. to 5 km radius of the Badhkal lake
and Surajkund (excluding Delhi areas) shall have prior approval of
the Central Pollution Control Board and the Haryana Pollution Control Board.