# THE DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA v. AAM AADMI LOKMANCH & ORS

- **Citation:** [2020] 6 S.C.R. 1050
- **Court:** Supreme Court of India
- **Decided:** 2020-07-14
- **Case number:** Civil Appeal No. 6932 of 2015
- **Bench:** R. F. Nariman, S. Ravindra Bhat, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-director-general-road-development-national-highways-authority-of-india-v-34577
- **Pages:** 82

## Headnote

National Green Tribunal Act, 2010 - ss. 14, 15, 17 and
Schedules - Environment Protection Act, 1986 - Jurisdiction of the
NGT - Victim was driving a car with her young daughter on the
Highway - An over-mining resulted in the destruction of a small hill
by the side of the National Highway - The resultant debris and a
part of the hill collapsed and slid down to the road, claiming the
lives of the victim and her daughter - The NGT imposed a joint
penalty of Rs.50 lakhs for causing environmental damage on NHAI
and the persons who carried out the cutting of the hill - Further,
they were also directed to pay jointly and severally amount of
Rs. 15 lakhs towards compensation to the legal representatives of
the deceased and her daughter - Also, an amount of Rs. 10 lakhs
was ordered to be deposited for plantation of trees in order to restore
damage caused to environment - It was contended that NGT has
narrow and circumscribed jurisdiction in regard to issuing directions
as well as ordering compensation - Held: A conjoint reading of ss.
14, 15, and the Schedules would lead one to infer that the NGT has
circumscribed jurisdiction to deal with, adjudicate, and wherever
needed, direct measures such as payment of compensation, or make
restitutionary directions in cases where the violation (i.e. harm
caused due to pollution or exposure to hazards, etc.) are the result
of an infraction of any enactment listed in the first schedule -
However, the wide language of s.15(4) enables the Tribunal (NGT)
to direct, inter alia, payment of compensation,"having regard to the
damage to public health, property and environment" - This
interpretation is borne out by a reading of s.17(2) regarding the
apportionment of liability for payment of compensation - Under
ss.15(1)(b) and 15(1)(c), the NGT has the power to make directions
[2020] 6 S.C.R. 1050
1050
A
B
C
D
E
F
G
H
1051
and provide for "restitution of property damaged and for restitution
of the environment for such area as the Tribunal may think fit" -
Further, s.17(1) refers to first schedule enactments, it talks of death
of, or injury to, any person "or damage to any property or
environment" which "has resulted from an accident or the adverse
impact of an activity or operation or process, under any enactment"
in Schedule I - One of the enactments is Environment Protection
Act, 1986 - Environmental clearance is necessary even for minor
mineral extraction where the area of operation is less than 5 hectares
- In the instant case, there was violation of EPA, because there was
mining lease covered an area in excess of 5 hectares - There is
nothing on record to show that the relevant clearance was obtained
- Therefore, the facts of the present case disclose violation of the
EPA - This means that the NGT's jurisdiction u/s. 15(1)(a) and s.17
cannot be disputed and NGT correctly assumed jurisdiction, having
regard to the nature of the accident in the facts of the case.
National Green Tribunal Act, 2010 - Environment Protection
Act, 1986 - National Highways Act, 1956 - National Highways
Authority of India Act, 1988 - An over-mining resulted in the
destruction of a small hill by the side of the National Highway -
The resultant debris and a part of hill collapsed and slid down to
the road, claiming lives of a woman and her daughter - National
Green Tribunal directed payment of compensation towards death
and damages towards restitution - Propriety of - Held: A statutory
corporation or local authority can be held liable in tort for injury
occasioned on account of omission to oversee, or defective
supervision of its activities contracted out to another agency - In
the instant case, having regard to the duty imposed on the NHAI by
virtue of ss. 4 and 5 of the Highway Act r/w. s. 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
accident occurred - The report of Sub-Divisional Officer highlighted
the deficiencies, als

## Text

_Characters 0–39,969 of 188,080. This is a partial read: ask again with offset=39969 for what follows._

A
B
C
D
E
F
G
H
1050
SUPREME COURT REPORTS
[2020] 6 S.C.R.
THE DIRECTOR GENERAL (ROAD DEVELOPMENT)
NATIONAL HIGHWAYS AUTHORITY OF INDIA
v.
AAM AADMI LOKMANCH & ORS.
(Civil Appeal No. 6932 of 2015)
JULY 14, 2020
[R. F. NARIMAN, S. RAVINDRA BHAT AND
V. RAMASUBRAMANIAN, JJ.]
National Green Tribunal Act, 2010 - ss. 14, 15, 17 and
Schedules - Environment Protection Act, 1986 - Jurisdiction of the
NGT - Victim was driving a car with her young daughter on the
Highway - An over-mining resulted in the destruction of a small hill
by the side of the National Highway - The resultant debris and a
part of the hill collapsed and slid down to the road, claiming the
lives of the victim and her daughter - The NGT imposed a joint
penalty of Rs.50 lakhs for causing environmental damage on NHAI
and the persons who carried out the cutting of the hill - Further,
they were also directed to pay jointly and severally amount of
Rs. 15 lakhs towards compensation to the legal representatives of
the deceased and her daughter - Also, an amount of Rs. 10 lakhs
was ordered to be deposited for plantation of trees in order to restore
damage caused to environment - It was contended that NGT has
narrow and circumscribed jurisdiction in regard to issuing directions
as well as ordering compensation - Held: A conjoint reading of ss.
14, 15, and the Schedules would lead one to infer that the NGT has
circumscribed jurisdiction to deal with, adjudicate, and wherever
needed, direct measures such as payment of compensation, or make
restitutionary directions in cases where the violation (i.e. harm
caused due to pollution or exposure to hazards, etc.) are the result
of an infraction of any enactment listed in the first schedule -
However, the wide language of s.15(4) enables the Tribunal (NGT)
to direct, inter alia, payment of compensation,"having regard to the
damage to public health, property and environment" - This
interpretation is borne out by a reading of s.17(2) regarding the
apportionment of liability for payment of compensation - Under
ss.15(1)(b) and 15(1)(c), the NGT has the power to make directions
[2020] 6 S.C.R. 1050
1050
A
B
C
D
E
F
G
H
1051
and provide for "restitution of property damaged and for restitution
of the environment for such area as the Tribunal may think fit" -
Further, s.17(1) refers to first schedule enactments, it talks of death
of, or injury to, any person "or damage to any property or
environment" which "has resulted from an accident or the adverse
impact of an activity or operation or process, under any enactment"
in Schedule I - One of the enactments is Environment Protection
Act, 1986 - Environmental clearance is necessary even for minor
mineral extraction where the area of operation is less than 5 hectares
- In the instant case, there was violation of EPA, because there was
mining lease covered an area in excess of 5 hectares - There is
nothing on record to show that the relevant clearance was obtained
- Therefore, the facts of the present case disclose violation of the
EPA - This means that the NGT's jurisdiction u/s. 15(1)(a) and s.17
cannot be disputed and NGT correctly assumed jurisdiction, having
regard to the nature of the accident in the facts of the case.
National Green Tribunal Act, 2010 - Environment Protection
Act, 1986 - National Highways Act, 1956 - National Highways
Authority of India Act, 1988 - An over-mining resulted in the
destruction of a small hill by the side of the National Highway -
The resultant debris and a part of hill collapsed and slid down to
the road, claiming lives of a woman and her daughter - National
Green Tribunal directed payment of compensation towards death
and damages towards restitution - Propriety of - Held: A statutory
corporation or local authority can be held liable in tort for injury
occasioned on account of omission to oversee, or defective
supervision of its activities contracted out to another agency - In
the instant case, having regard to the duty imposed on the NHAI by
virtue of ss. 4 and 5 of the Highway Act r/w. s. 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
accident occurred - The report of Sub-Divisional Officer highlighted
the deficiencies, also NHAI's correspondence with the person
carrying out extraction of minor minerals by cutting hills, reveal
that authorities were aware of the danger and likelihood of risk to
human life - The failure of the NHAI to ensure remedial action and
likewise failure by person carrying out mineral extraction, to take
measures to prevent the accident, prima facie disclose their liability
- Therefore, the directions in this regard by the NGT, making NHAI
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH
A
B
C
D
E
F
G
H
1052
SUPREME COURT REPORTS
[2020] 6 S.C.R.
and the person carrying out extraction of mineral to pay Rs. 15
lakhs to legal representatives of the deceased is justified - Further,
the restitutionary order by the NGT, cannot be faulted.
National Green Tribunal Act, 2010 - Environment Protection
Act, 1986 - National Green Tribunal concluded that no development
and construction should 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' - Propriety of - Held: The decisions of the Supreme Court
in All Dimasa Students Union case, Mantri Technoze Pvt. Ltd. Case,
the Hanuman Laxman Aroskar case and the Tamil Nadu Pollution
Control Board case all show that 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 - 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 - Based on a final consideration
of all these materials, and the submissions of parties before it, the
NGT proceeded to issue directions - However, in the instant case,
what NGT had before it was the report of the SDM and a report
commissioned about the nature of the incident - Based on these
limited inputs, without any rationale and based on no scientific or
technical evidence, or experts' opinion, the Tribunal concluded that
development and construction should not be carried out within 100
feet of 'lowest slope i.e. incline of any hill within its territorial limits,
as well as hill-tops' - As a result, the directions issued by the Tribunal
were improper and procedurally indefensible - Therefore, the said
directions are set aside.
National Green Tribunal Act, 2010 - Environment Protection
Act, 1986 - The order/ notification dated 14.11.2017 of the State of
Maharashtra, issued u/s. 154 of the Maharashtra Regional and
Town Planning Act, 1966 - Legality of - Held: The State of
Maharashtra has not shown any material or file containing the
reasons behind the directive of 14.11.2017 - These directions were
consequential to, and solely based on the directions of the NGT -
The NGT directions with regard to no development and construction
within 100 feet of a 'lowest slope i.e., incline of any hill within its
territorial limits, as well as hill tops', were not based on any scientific
evidence or report of any technical expert - The impugned
A
B
C
D
E
F
G
H
1053
notification does not specify what constitutes 'hills' - This makes
the directions not only vague but also makes them arbitrary as they
can be applied at will by the concerned authorities - These directions
in the notification, only underlines the lack of any application of
mind on the part of the State - Consequently the directions issued
under the notification u/s. 154 (dated 14.11.2017) are quashed.
Disposing of the appeals, the Court
HELD: Jurisdiction of the NGT
1. A conjoint reading of Sections 14, 15, and the Schedules
of National Green Tribunal Act, 2010 would lead one to infer that
the NGT has circumscribed jurisdiction to deal with, adjudicate,
and wherever needed, direct measures such as payment of
compensation, or make restitutionary directions in cases where
the violation (i.e. harm caused due to pollution or exposure to
hazards, etc.) are the result of infraction of any enactment listed
in the first schedule. Yet, that interpretation, in the opinion of
this court, is not warranted. [Para 36][1085-D-E]
2. The reference to Schedule II, in Section 15(4) is not
merely by way of events which are actionable in relation to harm
caused due to the acts resulting in violation of any enactment
under Schedule I. The wide language of that provision enables
the tribunal (NGT) to direct, inter alia, payment of compensation,
"having regard to the damage to public health, property, and
environment". This interpretation is borne out by a reading of
Section 17(2) regarding the apportionment of liability for payment
of compensation. [Para 37][1085-F]
3. It is noteworthy that this court clearly held that under
Section 15(1)(b) and 15(1)(c), the NGT has the power to make
directions and provide for "restitution of property damaged and
for restitution of the environment for such area or areas as the
Tribunal may think fit. It is noteworthy that Section 15(1)(b) & (c)
have not been made relatable to Schedule I enactments of the Act."
Though a direction for compensation under Section 15(1)(a) is
relatable to violation of enactments specified under the first
Schedule, the power under Section 17 appears to be cast in wider
terms. [Para 43][1089-F]
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH
A
B
C
D
E
F
G
H
1054
SUPREME COURT REPORTS
[2020] 6 S.C.R.
4. Section 17 (1) refers to first schedule enactments; it talks
of the death of, or injury to, any person "or damage to any property
or environment"
which "has resulted from an accident or the
adverse impact of an activity or operation or process, under any
enactment" in Schedule I. One of the enactments is the
Environment Protection Act, 1986 (EPA). [Para 44][1089-G-H]
5. By virtue of a notification dated 14.08.2018 published by
the Government, environmental clearance is necessary even for
minor mineral extraction where the area of operation is less than
5 hectares; the procedure has been outlined under Appendix XI
of that notification. Clearly, therefore, mining of even minor
minerals, when resorted to on a large scale (i.e., where more
than a few leases or permits are granted), has a potential impact
on the environment. In the facts of this case, the State had granted
no less than 62 minor mineral permits in the vicinity;
unauthorized activity (in the form inter alia, of over-mining and
piling of debris) had resulted in the imposition of penalty. Clearly,
there was violation of the EPA in the present case, because the
person carrying out mineral extraction i.e. fifth respondent's
mining lease covered an area in excess of 5 hectares; it fell within
the regulatory notification of 2006. There is nothing on record to
show that the relevant clearance was obtained by fifth respondent.
Plainly, therefore, the facts of the present case disclosed violation
of the EPA- an enactment listed in Schedule I of the NGT Act.
This meant that the NGT's jurisdiction under Section 15(1)(a)
and Section 17 could not have been disputed. [Para 50][1096-FG; 1097-A-B]
6. The EPA effectively enunciates the critical legislative
policy for environment protection. It changes the narrative and
emphasis from a narrow concept of pollution control to a wider
facet of environment protection. 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" gives an
indication of the wide powers conferred on the Central
Government. A wide net is cast over the environment related
laws. The EPA also empowers the central government to
A
B
C
D
E
F
G
H
1055
comprehensively control environmental pollution by industrial
and related activities. For these reasons, and in view of the above
discussion, it is held that the NGT correctly assumed jurisdiction,
having regard to the nature of the accident in the facts of this
case. [Para 51][1097-D-F]
Was the direction to pay compensation towards death, and
damages towards restitution justified?
7. Having regard to the duty imposed on the NHAI by virtue
of Sections 4 and 5 of the National Highways Act, 1956 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. The
report of the sub-divisional officer clearly shows that inspection
reports were furnished to the NHAI shortly before the incident,
highlighting the deficiencies; also, the NHAI's correspondence
with fifth respondent, and the local administration, reveal that it
was aware of the danger and likelihood of risk to human life, and
the foreseeability of the event that actually occurred later. Further,
letters addressed by the local administration and the NHAI to
fifth respondent similarly show that it was incumbent upon him to
take remedial action. The failure of the NHAI to ensure remedial
action, and likewise the failure by fifth respondent to take
measures to prevent the accident, prima facie, disclose their
liability. [Para 65][1110-G-H; 1111-A-B]
8. The section 18(1) clearly implies that an application
without impleading the legal heirs cannot be rejected. At the most,
the tribunal has to implead all legal heirs. In the present case,
that procedure was not followed. However, the legal heirs have
instituted a suit. The ends of justice would be served if a direction
is issued to the concerned Court to revive and continue hearing
that suit. The directions in this regard by the NGT, towards
payment of compensation are to be regarded as indicative of a
prima facie determination. Consequently, the direction to the
NHAI and fifth respondent, jointly making them liable to pay 15
lakhs is justified. It is clarified that the civil suit will now proceed,
and based on evidence, the court would finally decide the issue
of liability, and make such further consequential orders or decrees
as may be found necessary in this regard, towards apportioning
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH
A
B
C
D
E
F
G
H
1056
SUPREME COURT REPORTS
[2020] 6 S.C.R.
of liability of the NHAI, fifth respondent, the state or any other
party (including the concessionaire). This court's order shall not
be treated as conclusive; the trial court shall independently
proceed to evaluate the evidence and hear the parties on the
merits of their submissions. The restitutionary order by the NGT,
directing payment by fifth respondent and NHAI of 10 lakhs too,
in this court's opinion, cannot be found to be at fault. It is upheld.
The NHAI and fifth respondent shall comply with the directions
of the NGT and deposit the sum of 15 lakhs with the said court
within four weeks, in equal proportion. The sum 10 lakhs shall
be deposited in the same proportion, in court, to be disbursed to
the state government for restoring the environment and carrying
out afforestation/planting of trees, etc. [Para 67][1111-F-H; 1112A-C]
Correctness of NGT's directions contained in Para 17 (e)
of its impugned order, and the legality of the order/notification of
the State of Maharashtra, issued under Section 154, Maharashtra
Regional and Town Planning Act, 1966.
9. Turning next to the question of the correctness of the
general directions contained in Para 17(e) of the NGT's order,
this court has no manner of doubt that such directions were
improper and not justified in the facts of this case. What the NGT
had before it, was the report of the SDM and a report
commissioned about the nature of the incident. 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". The decisions of this court,
including the All Dimasa Students Union case; Mantri Technoze
Pvt. Ltd case; the Hanuman Laxman Aroskar case; and the Tamil
Nadu Pollution Control Board case all show that 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. 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.
Based on a final consideration of all these materials, and the
A
B
C
D
E
F
G
H
1057
submissions of parties before it, the NGT proceeded to issue
directions. This procedure was wholly overlooked by the NGT in
the present case. As a result, it is held that the said tribunal's
directions were improper and are procedurally indefensible. The
directions contained in Para 17(e) are therefore set aside.
[Para 76][1118-G-H; 1119-A-C]
10. In the present case, the State of Maharashtra has not
shown any material or file containing the reasons behind the
directive of 14.11.2017. It is not in dispute that the direction was
consequential to, and solely based on the directions of the NGT
in Para 17(e). As noticed earlier, those directions were not based
on any scientific evidence or report of any technical expert.
Furthermore, even the impugned notification does not specify
what constitutes "hills", and how they can be applied in towns
and communities set in undulating areas and hilly terrain. This is
not only vague, but makes the directions arbitrary as they can be
applied at will by the concerned authorities. More importantly,
they amount to a blanket change of all regional and development
plans. While such directions can be issued, if situations so warrant,
such as in extraordinary or emergent circumstances, the complete
absence of any reasons as to why the State issued them, coupled
with the lack of any supporting expert report or input, renders it
an arbitrary exercise. That they are based only on the NGT's
orders, only underlines the lack of any application of mind on the
part of the State, while issuing them. [Para 90][1130-E-G]
State of Tamil Nadu v. M/s. Hind Stone & Ors (1981) 2
SCC 205 : [1981] 2 SCR 742; Lafarge Umiam Mining
(Pvt.) Ltd. v. Union of India & Ors. (2011) 7 SCC
338 : [2011] 7 SCR 954; State of Meghalaya and Ors.
v. All Dimasa Students Union, Dima-Hasao District
Committee & Ors. (2019) 8 SCC 177 : [2019] 8 SCR
297; Mantri Technoze Pvt. Ltd. v Forward Foundation
(2019) 18 SCC 494; M.C. Mehta v. Union of India
(2004) 12 SCC 118 : [2004] 3 SCR 126; Deepak Kumar
v. State of Haryana (2012) 4 SCC 629 : [2012] 4 SCR
819; Municipal Corpn. of Delhi v. Sushila Devi (1999)
4 SCC 317 : [1999] 2 SCR 1198; PTC India v. Central
Electricity Regulatory Commission (2010) 4 SCC 603 :
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH
A
B
C
D
E
F
G
H
1058
SUPREME COURT REPORTS
[2020] 6 S.C.R.
[2010] 3 SCR 609; T. Vijayalakshmi v. Town Planning
Member (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534;
Pune Municipal Corpn. v. Promoters and Builders Assn
(2004) 10 SCC 796 : [2004] 2 Suppl. SCR 207;
Machavarapu Srinivasa Rao v. Vijayawada, Guntur,
Tenali, Mangalagiri Urban Development Authority
(2011) 12 SCC 154 : [2011] 12 SCR 639; MIG Cricket
Club v. Abhinav Sahakar Education Society (2011) 9
SCC 97 : [2011] 11 SCR 141; Shri. Sitaram Sugar Mills
Company v. Union of India (1990) 3 SCC 223 : [1990]
1 SCR 909; Cellular Operators Association v. Telecom
Regulatory Authority of India (2016) 7 SCC 703 : [2016]
9 SCR 1 - relied on.
Tamil Nadu Pollution Control Board v. Sterlite Industries
(I) Ltd. & Ors. (2019) SCC OnLine SC 221; Hanuman
Laxman Aroskar v. Union of India (2019) 15 SCC
401 : [2019] 5 SCR 916; Hinch Lal Tiwari v. Kamala
Devi (2001) 6 SCC 496 : [2001] 1 Suppl. SCR 23;
Jitendra Singh v. Ministry of Environment & Ors (2019)
SCC OnLine SC 1510; Rajkot Municipal Corpn. v.
Manjulben Jayantilal Nakum (1997) 9 SCC 552 :
[1997] 1 SCR 304; Vadodara Municipal Corporation
v. Purshottam V. Muranji (2014) 16 SCC 14 : [2014] 7
SCR 810 - referred to.
Diplock L.J. in Griffiths v. Liverpool Corporation [1967]
1 Q.B. 374; Burnside v. Emerson [1968] 1 W.L.R.
1490; Haydon v. Kent County Council [1978] Q.B. 343;
Stovin v Wise (1996) 3 All ER 801; Gorringe v.
Calderdale Metropolitan Borough Council (2004) 1
WLR 1057; Robinson v. Chief Constable of West
Yorkshire Police (2019) 2 All ER 1041; Yetkin v.
Mahmood 2011 QB 827;
Securities Exchange
Commission v. Chenery Corp. 332 U.S. 194 (1947) -
referred to.
Case Law Reference
(2019) 18 SCC 494
referred to
Para 29
[2019] 5 SCR 916
referred to
Para 29
A
B
C
D
E
F
G
H
1059
(2019) 18 SCC 494
relied on
Para 30
[2001] 1 Suppl. SCR 23
referred to
Para 38
[1981] 2 SCR 742
relied on
Para 38
[2011] 7 SCR 954
relied on
Para 40
[2019] 8 SCR 297
relied on
Para 41
[2004] 3 SCR 126
relied on
Para 46
[2012] 4 SCR 819
relied on
Para 49
[1997] 1 SCR 304
referred to
Para 57
[1999] 2 SCR 1198
relied on
Para 63
[2014] 7 SCR 810
referred to
Para 63
[2010] 3 SCR 609
relied on
Para 74
[2006] 7 Suppl. SCR 534
relied on
Para 80
[2004] 2 Suppl. SCR 207
relied on
Para 81
[2011] 12 SCR 639
relied on
Para 82
[2011] 11 SCR 141
relied on
Para 83
[1990] 1 SCR 909
relied on
Para 88
[2016] 9 SCR 1
relied on
Para 89
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6932
of 2015.
From the Judgment and Order dated 19.05.2015 of the National
Green Tribunal, (Western Zone), Bench, Pune in Application No. 04 of
2014.
With
Civil Appeal Nos.5971 of 2019, 4379 of 2018, 2741 of 2020, 6862
of 2018, 2742 of 2020, 11803 of 2018, 2743, 2744 of 2020.
P. S. Narashimha, Shyam Divan, Sidharth Dave, Sr. Advs.,
Ms. Neetica Sharma, Dhruv Nayar, Ms. Aadti Tirpedi, M/s. M. V. Kini
& Associates, Kunal Cheema, Vilas Giri, Ms. Aditi Parkhi, Abhimanyu
Bhandari, Ms. Roohina Dua, Cheitanya Madan, Naveen Kumar, Saurav
Kirpal, Ankur Saigal, Mahesh Agarwal, Anshuman Srivastava, Anirudh
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH
A
B
C
D
E
F
G
H
1060
SUPREME COURT REPORTS
[2020] 6 S.C.R.
Bhatia, Rishi Agrawala, Ms. Ayushi Amodh, Shaishir S. Divatia,
Ms. Aashna Agrawal, E. C. Agrawala, Vijay Kumar Verma, Mata D.
Sagar, Tarun Verma, Amol Chitale, Mrs. Pragya Baghel, Ms. Shilpa
Chouhan, Jitender Chaudhary, Shawahiq Siddiqui, Rajesh Singh, Rahul
Chitnis, Aaditya A. Pande, Sachin Patil, Bhakti Vardhan Singh, Nishant
Ramakantrao Katneshwarkar, Ms. Bharti Tyagi, Arvind S. Avhad, Karri
Venkata Reddy, Ms. Aparna Jha, V. N. Raghupathy, Manendra Pal Gupta,
V. K. Verma, Rajesh Kumar, Advs. for the appearing parties.
Respondent-in-person
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. Leave granted in SLP (C) Nos. 28178/2018, 1706/2019, Diary
No. 19018 of 2018 and 1632 of 2019. With consent of counsel for the
parties, they were tagged with the companion civil appeals and heard
finally.
2. On 06 June, 2013, when Ms. Vishakha Wadekar, was driving
her car with her young daughter, Sanskruti Wadekar she had no inkling
that danger lurked round the corner of the highway; over-mining at the
height of 75 x 30 ft, in Gut No. 112, resulted in the destruction of a small
hill by the side of the national highway. The resultant debris and a part of
the hill collapsed and slid down to the road, claiming the lives of
Ms. Vishakha and her daughter. The directions made by the Pune bench
of the National Green Tribunal, on an application by a registered
organization, (the respondent in the appeal, the Aam Aadmi Lokmanch,
hereafter "Lokmanch") are the subject matter of the appeals (CA 6932/
2015 by NHAI; CA 5971/2019; CA 11803/2018 and CA 6862/2018)
before this court. The other appeals by special leave question the
judgments and orders of the Bombay High Court, which upheld the
regulations framed pursuant to the order of the NGT. The High Court
negatived the challenge to those regulations in the writ petitions presented
before it.
3. The facts in brief are that the National Highways Authority of
India (hereafter "NHAI") had entered into an agreement with M/s P.S.
Toll Road (Pvt.) Ltd., a unit/undertaking of Reliance Infrastructure Ltd.
(which is arrayed as the ninth respondent; PS Toll Road (Pvt.) Ltd.
hereafter referred to as "the concessionaire") on 10.03.2010 for the
maintenance and operation of the Pune-Satara section of National
A
B
C
D
E
F
G
H
1061
Highway No. 4, to an extent of 140 kms. The scope of the agreement
included construction of the project (i.e. the highway stretch) as well as
its operation and maintenance for a period of 24 years. The agreement
included stipulations mandating safety to the highway users (clause
18.1.1). The NHAI was duty bound to appoint experienced safety
consultants for carrying out safety audits of Project Highways (clause
18.1.2), the expenditure for which was to be borne by the concessionaire
(clause 18.1.3). An elaborate highway monitoring mechanism was also
contemplated by the agreement (clause 19.1) through which by the
seventh of each month, an independent engineer was to furnish a report
after due inspection (of the operation and maintenance arrangements),
containing defects or deficiencies (clauses 19.2). Additionally, the
independent engineer was to require the concessionaire to carry out
specified tests for confirming that the highway was operated in
accordance with applicable standards (clause 19.3). Other stipulations
included, inter alia, requirements that the concessionaire had to carry
out remedial measures (Clause 19.4.1) within a period of 15 days after
receipt of the report of the independent engineer. The concessionaire
was put to terms in that if relevant repairs or remedial measures were
not undertaken, the NHAI could recover damages in terms of Clause
17.8.1 Another obligation cast on the concessionaire was to send a periodic
report of various occurrences, including "unusual occurrences on the
Project Highway" such as death or injury to any person (clause 19.6),
any obstruction, or "flooding of Project Highway".
4. In the meanwhile, the fifth respondent (who has filed CA 5971/
2019 against the NGT's order, hereafter referred to as "Rathod") on
03.01.2011 applied to the Government of Maharashtra for a license to
1 In terms of Clause 19.4.2, the measure of damages which NHAI could recover was
calculable in terms of each days delay in complying with the remedial measures suggested
by the engineer, based on the "higher (a) 0.5% of the Average Daily Fee and (b) 0.1%
of the cost of such repair or repair estimated by the Independent Engineer" The same
clause (17.8.1) stated that:
"Notwithstanding anything contained in this agreement, should the actual traffic exceed
the design capacity during any year or part thereof and the Concessionaire fails to
repair or rectify any defect or deficiency set forth in the Maintenance Requirements
within the period specified therein, it shall be deemed to be in breach of this agreement
and the Authority shall be entitled from such date to recover damages, to be calculated
and paid for each day of the delay until the breach is cured, at the higher of (a) 5% (five
percent) of Average daily fee and 1% (one percent) of the cost of such repair or
rectification as estimated by the Independent Engineer, for the balance period of the
concession. The recovery of such damages shall be without prejudice to the rights of
the Authority under this agreement, including the right of termination thereof."
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
1062
SUPREME COURT REPORTS
[2020] 6 S.C.R.
extract minor minerals. This license was sought in respect of land bearing
survey number 112A to look more to an extent of 5 acres and 93 cents.
The license was granted by the appropriate authority of the government.
By clause 1 of the terms of this license, the period of the license was
two months; clause 5 stated that for extraction and minor minerals digging,
work could not exceed more than 20 feet down side of the land surface.
5. Apparently soon after the license was taken over, certain
demands were made regarding construction of a connecting road to the
village. The materials on record by way of letters written to the local
panchayat are to the effect that as a result of construction of the highway
and due to the passage of time the existing road had been washed away.
Consequently, the 2 km stretch from the left side of the new tunnel going
up to the village was virtually non-existent. The panchayat requested
that the road should be strengthened and widened.
6. On 31.01.2011, the local authorities of the State government
issued a show cause notice to Rathod alleging that debris were stored
illegally on the site. It was alleged that this was contrary to Section 48 of
the Maharashtra Land Revenue Code, 1966 (hereafter "land revenue
code"). Again, on 16.06.2011, the local panchayat issued a notice (which
is on the record) stating that as a result of mineral extraction, the natural
flow of rainwater was being obstructed. The notice also added that two
heavy machines in non-performing condition were lying idle on the land
and two JCB machines were also stationed there. Rathore evidently
received these notices; this is attested by his replies to the Tehsildar and
other local authorities. After obtaining a report from the local officials,
the Tehsildar, Bhor issued an order directing payment of ` 1,271,200 by
Rathod for violation of the land revenue code on account of illegal
extraction and use of minor minerals.
7. This activity of excavation and piling of debris, did not go
unnoticed on the part of NHAI; it wrote to the Collector of Pune, pointing
out that:
"...large scale and indiscriminate excavation in the upper side
hills of New Katraj Tunnel at both ends is in progress. Due to
this excavation, drainage system above and near tunnel has
been affected. This may lead to seepage of water inside tunnel
roof thereby collapse of walls and ceiling of tunnel resulting
in collapse of tunnel and may lead to major mishap. The
collapse in tunnel will block the entire traffic of NH4 from
A
B
C
D
E
F
G
H
1063
Mumbai/Pune to Bangalore and vice versa leading to chaotic
situation."
The letter also mentioned specifically that Rathod had been notified;
it sought action from the state government.
8. In the early hours of the morning of 6th June, 2013, due to the
monsoon, there was heavy rainfall at Mauje Shindewadi Tehsil, Bhor
and the surrounding areas. Water flowing through the hills at Mauje
Shindewadi entered the road near the octroi post of the Pune Municipal
Corporation, at Mauje Shindewadi Tehsil Bhor, District Pune, on NH-4,
with great force. This created an obstacle in the form of a large sheet of
water. Under these conditions, when the Alto car driven by Vishakha
Wadekar and her daughter Sanskruti, was obstructed, they alighted to
wade across to safety; however, the water gushed with great intensity
and swept them away, resulting in their death. The resulting magisterial
inquiry under Section 176, Code of Criminal Procedure resulted in a
report dated 04.10.2013. The Sub-Divisional Magistrate who inquired
into the incident appointed an expert, whose report was considered; he
also visited the site and held several hearings. During the hearings,
pursuant to notices issued to various parties, the statements of Rathod,
the local police authorities, eyewitnesses (Abhay Arvind Ranade, Vineet
Vasant George and relatives of the deceased), the Project Director
(General Manager) of NHAI, the team leader of the independent
engineering firm associated with checking quality of maintenance of the
highway, etc. were recorded.
9. Soon after the incident, the Lokmanch, through its president,
filed an application under Section 14(1) read with Sections 16 and 18 of
the National Green Tribunal Act, 2010 (hereafter "the NGT Act"), seeking
mandatory injunction to restore natural contours at the foot base of the
hill that had been destroyed by Rathod. Besides, general relief by way
of directions to other respondents to take necessary action for the
protection of hills from destruction and for maintaining foot base design
of the hills in the natural survey was sought.
10. The material produced before the NGT by the State of
Maharashtra in the form of an affidavit revealed that large scale
destruction of hills by individuals and concerns who had been given short
term mining licenses, had occurred. According to the affidavit, there
were 62 cases, and in many cases "hill-cutting" was resorted to by
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
1064
SUPREME COURT REPORTS
[2020] 6 S.C.R.
developers. The state had apparently imposed fines and penalties for
these illegal activities.
11. The NGT, in its impugned order, commenting on the role of
Rathod, held as follows, while justifying the imposition of liability upon
that respondent:
"It appears from the record that land Survey No. 112, is owned
by the Respondent Nos. 5 and 6 and their family members.
There are hills in the said land. They illegally cut hills without
permission and extract minor mineral, which reduced height
of hill, circumference of the hill and or peripheral nature,
surface of the hill in question. Acts of the Respondent Nos. 5
and 6 made the area of hill fragile, susceptible to danger to
the ecology and support of natural soil. In such a case, mere
recovery of additional royalty would not be a proper remedial
measure. At many places, the hill cutting is noticed prior to
and after the pathetic incident and now inquiry is undertaken
by the concerned revenue officials."
12. Thereafter, the NGT based on its reasoning that the regulation
of some activities, especially involving anything affecting hills has to be
strictly regulated, directed as follows:
"12. The question may arise as to what is the meaning of
expression 'Hill'. General perception is that it would
depend upon ocular assessment of the area, which is
rounded land that is higher than the land surrounded by
it, but is not expected to be as high as mountain. In other
words, it is usually rounded natural elevation of land, lower
than a mountain. There is no particular definition of the
word 'Hill'. The Oxford Dictionary gives meaning of word
'Hill' as follows:
Hill - noun a naturally raised area of land, not as high or
craggy as a mountain, a sloping stretch of road: they were
climbing a steep hill in low gear, a heap or mound of
something, a hill of sliding shingle.
The wordbook has given meaning of expression 'Hill' as
follows:
231 "Hill is an elevation of the earth's surface that has a
distinct summit. It has much less surface area than a
A
B
C
D
E
F
G
H
1065
mountain and is lower in elevation. Hills rise less than 305
metres above the surrounding area, whereas mountains
always exceed that height. However, a hill is not simply
Small Mountain. It is formed in a considerably different
way.
Hills may be classified according to the way they were
formed and the kinds of materials they are made of. There
are
two types, constructional and destructional.
Constructional hills are created by a built-up of rock debris
or sand deposited by glaciers and wind. Oval-shaped
landforms called drumlins and sand dunes are samples of
this type. Destructional hills are shaped by the deep erosion
of areas that were raised by disturbances in the earth's
crust. Such hills may consist of limestone overlying layers
of more easily eroded rock."
13. Draft Development Control Regulation Plan (DCR) of
Pune is yet not approved by the PMC or Government. The
cutting of hill by the Respondent Nos. 5 and 6, created
destruction to render a part of land useless, including
development thereof for plantation of trees. It goes without
saying that the destruction of hill could not have occurred
without connivance or at least purposeful act or omission by
the Project Proponent i.e. NHAI (Respondent No. 9). It is in
the affidavit of Mr. Rajeskumar Kundal, that agreement
requires to take necessary steps for stoppage of illegal
construction activity at Katraj hill top. However, a Notice
dated 25th April, 2011, was issued to the Respondent No. 5
and copy of the same was marked to the Tehsildar, Bhor before
occurrence of the incident. The Collector, Pune was requested
to look into the matter. The authorities were thus, asked to
take appropriate steps for stoppage of illegal activity in order
to avoid major mishap and to ensure not to occur. They stated
that one Mrs. Vishakha Vadekar, and her daughter died due
to water flow, which gushed from the hill top and poured on
the road.
14. We do not find any significant material to show that the
Respondent No. 9 (NHAI) has taken reasonable steps to avoid
the untoward incident. We do not find copies of the complaint
made by NHAI to the authority. Assuming for a moment that
DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS
AUTH. OF INDIA v. AAM AADMI LOKMANCH [S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
1066
SUPREME COURT REPORTS
[2020] 6 S.C.R.
such communications were made at the fag end of April, 2011,
yet, it was responsibility of NHAI to persuade said authority
or the higher authority about inaction after 2011. The incident
of raining in which Mrs. Vishakha Vadekar and her daughter
had flown away, is said to have occurred on 10th July, 2013.
Obviously, the Respondent No. 9, appears to have kept silence
for about two (2) years, inspite of knowledge that the work
of hill cutting was going on. In our opinion, NHAI
(Respondent No. 9) perhaps was likely to be impliedly
benefited due to the illegal act of hill cutting due to availability
of murum, stones and soil for the work for its project. The
contractor of NHAI was, therefore, interested in keeping the
fingers crossed.
15. Considering probability and circumstances appearing on
record, we have no hesitation in holding that there took place
degradation of environment to large extent due to hill cutting
at Katraj. We have further no hesitation in holding that the
hill cutting occurred due to illegal acts of the Respondent
Nos. 5, 6 and with or due to act of omission of the Respondent
No. 9. They are liable to pay compensation to the legal
representatives of the victims of incident in question. They
are also liable to pay restitution charges and penalty for
causing damage to the environment, in order to avoid such
incident in future.
16. We deem it proper to give certain further directions to the
concerned authority. In keeping with these findings, we direct:
17. a) The Respondent Nos. 5, 6 and 9 shall pay amount of
Rs. 50 Lakhs as joint penalty imposed on them for causing
environmental damage in the nearby area of Katraj, due to
the hill-cutting.
b) This amount shall be deposited with Collector (Pune) within
six (6) weeks, else Collector can recover the amount as arrears
of Land Revenue. This amount shall be deposited by Collector
in special escrow account, and the amount be spent for
environmental protection and conservation activities, including
hill protection and conservation in the district.
A
B
C
D
E
F
G
H
1067
c) The Respondent Nos. 5, 6 and 9 shall jointly and severally
pay amount of Rs. 15 Lakhs towards compensation to the legal
representatives of deceased Mrs. Vishakha Vadekar, and her
daughter if identity of legal representatives is proved before
the Collector. The above three (3) Respondents shall
immediately within four (4) weeks, deposit such amount in
the office of Collector, Pune for payment to the legal
representatives of deceased in the incident.