Supreme Court discusses 'Environmental Rule of Law' and highlights its importance

Supreme Court discusses 'Environmental Rule of Law' and highlights its importance

On 12 January 2021, the Supreme Court of India (SC) comprising a three-judge bench Justices DY Chandrachud, Indu Malhotra, and Indira Banerjee gave directions that Hotel cum restaurant on forest land in Himachal Pradesh should be demolished as it has been made illegally

Brief Facts of the case

In 1997 the Ministry of Environment and Forest (MoEF) had permitted the state of Himachal Pradesh to divert 0.093 hectares of forest land for the construction of a parking space at McLeod Ganj. The MoEF issued a further order dated 1 March 2001, diverting another 0.48 hectares of forest land for the construction of a bus stand at McLeod Ganj.

Only one bidder came up for the said project, the state body decided to alter the nature of the Bus Stand Complex to make it financially feasible for private entities. It issued a new Request for Proposal on 13 July 2004 for the regarding the construction of the modified Bus Stand Complex.

Apart from this a further construction in the complex of-

(i) A multi-level commercial complex with shops at the road level;

(ii) A dormitory and a budget hotel at the first, second, and third levels;

(iii) A dining facility/restaurant/food plaza at the top level; and

(iv) A parking provision for fifty cars at the road level, was asked for.

On 13 October 2004, the Board of the appellant approved the lowest bid submitted by the second respondent for the construction of the Bus Stand Complex. The second respondent was awarded construction rights through a 'notice of award' dated 18 November 2004. Both the parties entered into a 'Concession Agreement'.

In January/February of 2006, the land diverted for non-forest use under the above orders dated 12 November 1997 and 1 March 2001 was transferred on a 99-year lease to the appellant.

Order of the NGT

The State of Himachal Pradesh had no power to authorize the construction of the Hotel-cum-Restaurant structure and, therefore, the construction was entirely illegal.

The NGT found out that the Bus Stand complex at McLeod Ganj, where the said Hotel-cum-Restaurant was situated, violated the provisions of the Forest (Conservation) Act, 1980 (Act). That it has also disturbed the ecology of the region.

The NGT ordered that the authority would pay the compensation of Rs. 15 lakh as per Section(s) 15 and 17 of the National Green Tribunal Act, 2010. The NGT further directed that the State of Himachal Pradesh and its Tourism Department would pay Rs. 5 lakh each as compensation.

Environmental Rule of Law: Concept discussed in detail by SC

The bench discussed in length the concept of Environmental rule of law and it also emphasized the role of Courts in ensuring that the environment is protected. In its judgment, the bench made the following observations regarding environmental rule of law-

"The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools – conceptual, procedural, and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges – of how they have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present, and the prospects for the future if we were not to radically alter the course of destruction which humanity's actions have charted.

It recognizes that the 'law' element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change, and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts."

The SC further observed that there are significant linkages between concepts such as sustainable development; the polluter pays principle and the trust doctrine. It emphasized that the state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. It is this inseparable bond and connects which the environmental rule of law seeks to explore and understand to find solutions to the pressing problems which threaten the existence of humanity.

While emphasizing the importance of environmental rule of law the SC further stated that it is important to understand that our actions have a direct impact on the environment and we must be careful that we should not adversely affect the environment that is the gift of nature to us.

While discussing the 'Environmental Rule of Law' the SC said that we cannot be stupefied into inaction by not having access to complete details about how an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding.

SC upheld the NGT order and the bench observed

According to the Supreme Court, the permission which was granted by MoEF on 12 November 1997 was only for the construction of a 'parking place' at McLeod Ganj. On 1 March 2001 again the permission granted was only for constructing a 'bus stand' in the same area. The Department did not grant permission for the construction of a hotel or commercial structure.

The SC accepted the findings of the NGT on this count. The SC stated that the NGT has acted within its mandate in a case of this nature, where the appellant actively allowed the perpetration of a structure in breach of environmental norms.

The SC said that construction of the Hotel-cum-Restaurant structure, is in the 'lap of nature', and it cannot be sanctioned as it is causing environmental destruction.

The Court reiterated that any construction made on the land or its utilization for "non-forest purposes" without Central Government approval was violative of the Forest Act and therefore illegal.

It further directed for the demolition of the structure and stated that the process of demolishing the Hotel-cum-Restaurant structure in the Bus Stand Complex be commenced within two from the date of the judgment and the structure shall be demolished by the second respondent within one month thereafter.