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BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI (PRINCIPAL BENCH)

APPLICATION NO. 38/2011

IN THE MATTER OF 1. Rohit Choudhury

P.O. Lokhujan, Village - Garmur Bokakhat – 785612, Dist.-Golaghat Assam

…. APPELLANT

Versus

1. Union of India

Through the Secretary Ministry of Environment and Forests Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi -110 003

2. State of Assam Through its Chief Secretary, Assam Sachivalaya Complex Dispur, Guwahati Assam - 781006

3. Department of Forest

Government of Assam Through the Principal Chief Conservator of Forest (WL) Basistha, Guwahati Assam – 781029

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4. Karbi Anglong Autonomous Council Through its Principal Secretary Shri Bhupendra Nath Sarmah District Karbi Anglong 5. M/s. Paramount Industries Sri Gopal Kumar Poddar Village-Suljuri, P.O. Bokakhat District Golaghat, Assam – 785612 6. M/s. B.L. Agarwalla Stone Crusher Unit Through its Representative Sri Suresh Kumar Agarwalla District Karbi Anglong Village-Suljuri, P.O. Bokakhat District Golaghat, Assam – 785612 7. M/s. Kaziranga Stone Product Through its Proprietor Sri Mahabit Prasad Agarwalla Village-Latabari, P.O. Bokakhat District Golaghat, Assam – 785612 8. M/s. Baruah Stone Crusher Through its proprietor Sri Ajit Jalan Village-Sapjuri, P.O. Bokakhat District Golaghat, Assam – 785612 9. M/s. Assam Stone Crusher Through its proprietor Sri Syam Sundar Nimodia Village-Suljuri, P.O. Bokakhat District Golaghat, Assam – 785612 10. M/s. Mayur Stone Crusher Through its proprietor Sri Binod Kumar More Village-Borbheta, P.O. Bokakhat District Golaghat, Assam – 785612

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11. M/s. Maruti Stone Crusher Through its proprietor Sri Gaurav Poddar Village-Borbheta, P.O. Bokakhat Assam – 785612 12. M/s. H.P. Agarwalla Stone Crusher Through its proprietor Sri Hari Prasad Agrwalla Village-Borbheta, P.O. Bokakhat District Golaghat, Assam – 785612 13. M/s. Nimodia Stone Crusher Through its proprietor Sri Sandip Kumar Nimodia Village-Ahomgaon, Borbheta, P.O. Bokakhat District Golaghat, Assam – 785612 14. M/s. Balaji Blue Metal Industries Through its proprietor Sri Kailash Kumar Agarwalla Village-Balijan, P.O. Bokakhat District Golaghat, Assam – 785612 15. M/s. Borah Stone Crusher Through its Representative Sri Rajib Borah Village-Balijan, P.O. Bokakhat District Golaghat, Assam – 785612 16. M/s. Shyam Industrial & Commercial Enterprise (a partnership concern) No. 5, NH – 39, Rong Bong P.O. Kanaighat, District Golaghat, Assam – 785669

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17. M/s. Tanay Tea (a partnership concern) 5, Rong Bong, via – Telgaram, P.O. Kanaighat, District Golaghat, Assam – 785669 18. M/s. Jallan Golaghat Tea Co. Pvt. Ltd. Represented by its representative Shri Vikas Jallan No. 5, NH – 39, Rong Bong P.O. Golaghat, District Golaghat, Assam

…. RESPONDENTS

19. Numaligarh Refinery Local Area Development and Safety Forum H.O. – Numaligarh District Golaghat, Assam – 785669 …. INTERVENER

Counsel for Appellant(s):

Mr. Ritwick Dutta

Counsel for Respondent(s) :

Ms. Neelam Rathore for R – 1

Mr. Avijit Roy and Ms. Deepika Ghatowar for R – 2 & 3 Ms. Sumita Hazarika for R – 4

Mr. Ratan Kumar Singh and Mr. Sushil Kumar Kabra for R – 5 to R – 18 Mr. Gautam Dhamija for R – 19

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JUDGMENT

PRESENT:

Justice A.S. Naidu (Acting Chairperson)

Dr. G.K. Pandey (Expert Member)

Dated 7th September, 2012

Hon’ble Supreme Court in the case of Indian Council

for Enviro Legal Action Vs. Union of India and others

[1993(3) SCALE 579] has observed – tolerating infringement

of law is worse than not enacting law at all. The case in hand

is a clear example of infringement of law to the optimum.

2. Every Indian is proud of “Kaziranga National Park,”

which is not only declared as a National Park, Tiger Reserve

under the provisions of the Wildlife (Protection) Act, 1972, but

also is declared as a World Heritage Site by United Nations

Educational, Scientific and Cultural Organisation (UNESCO).

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The Applicant is a resident of village Bokakhat, and is

concerned about the ecology of the area and future of the

Indian Rhino, Elephant and wide species of flora and fauna

available in the Kaziranga National Park. He has approached

this Tribunal invoking jurisdiction under Section 14(1) of the

National Green Tribunal Act, 2010, inter-alia, praying for

appropriate directions to the Authorities to safe guard

Kaziranga and its ecology. According to the Applicant,

unregulated quarrying and mining activities permitted in and

around the area of “Kaziranga National Park”, not only

threatens the Eco-Sensitive Zone, but also the survival and

existence of Rhinos, Elephants and other wildlife species. It is

submitted that Kaziranga National Park harbours the largest

population of the Indian One Horned Rhinoceros and that its

survival is critically dependent on the protection of the

boundaries of the Kaziranga National Park as well as the

adjoining areas including the Karbi-Anglong hills, from

pollution.

3. The Ministry of Environment and Forests (MoEF), it is

alleged, showed an apathy to the irregularities, overt acts and

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several omissions and commissions committed by the

Authorities and acted as a mute spectator, to the rampant

violation of the provisions of the Environment (Protection) Act,

1986 as well as Rules framed thereunder, in as much as the

prohibition and restriction on the location of industries and

carrying on processes and operations in different areas

prescribed under the Environment (Protection) Rules, 1986

has been given a complete go by. The restrictions imposed

under Rule-5 of the Environment (Protection) Rules, 1986 is

also followed more on its breach than its compliance.

4. Drawing attention of this Tribunal to the Notification

dated 5th July, 1996 issued by the MoEF, it is submitted that

the latter on being satisfied that anthropogenic activities cause

air, water and land pollution thereby endangering forest,

genepool reserves, vegetation and living creatures and that

those activities should not be carried out at close proximity so

that our natural resources can be protected, and on being

further satisfied that Kaziranga National Park is the home of

three-fourth of the total population of the Rhino and contains

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largest single concentration of endangered species and wild

animals like swamp-deer, wild buffalo, elephants, tigers and

Gangetic Dolphins, it is the only park of its kind with a viable

low land grass land-ecosystem in South Asia, in exercise of

the powers conferred by sub-section(1) and clause(v) of sub-

section (2) of Section 3 of the Environment (Protection) Act,

1986 read with clause (d) of sub-rule (3) and sub-rule (4) of

rule 5 of the Environment (Protection) Rules, 1986, notified

that on and from the date of publication of the Notification the

expansion of industrial area, township, infrastructural facilities

and such other activities which would lead to pollution and

congestion shall not be allowed within “No Development Zone”

which was specified in the Appendix to the said Notification,

except with the prior approval of the Central Government.

The Appendix to the Notification is produced herein

below for better appreciation:

APPENDIX “No Development Zone”

The coordinates of the “No Development Zone” around Numaligarh refinery site are as follows:

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Sl. No.

Longitude Latitude

1. 930-32’-49” 260-40’-30”

2. 930-33’-15” 260-41’-45”

3. 930-36’-45” 260-37’-30”

4. 930-40’-30” 260-40’-45”

5. 930-47’-30” 260-43’-40”

6. 930-47’-10” 260-26’-08”

7. 930-58’-30” 260-34’-20”

5. The grievance of the Applicant before this Tribunal is

that, in flagrant violation to the aforesaid notification,

mushrooming of stone quarries were installed indiscriminately

within the “No Development Zone” (NDZ) thereby causing

immense adverse impact on the environment, wildlife and

ecology. Unfortunately, no action was taken by the Authorities

to stop illegal installation of quarries and crushing units, in

spite of the fact that the Applicant had submitted several

objections / representations and approached the State as well

as Central Authorities with a prayer to take action to stop

infringement and violation of law. The Applicant also sought

information from the Authorities under the Right to Information

Act (RTI) and came to know from the replies submitted by the

MoEF, vide letter dated 21st July, 2011, that there are no

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records regarding granting of permission to any of the stone

crusher unit near the Kaziranga National Park.

6. Relying upon the GPS Mapping and Google Earth

Software, the Applicant brought to the notice of this Tribunal

that at least seven (7) stone crushing units are situated within

10 km radius of the Kaziranga National Park and are within

the NDZ notified by the 1996 Notification. The Google Earth

Map further revealed that many other stone crusher units were

also functioning within the NDZ. The applicant, it is submitted

having no other way out, had to approach the portals of this

Tribunal with a prayer to direct the MoEF to take immediate

measures to identify the stone crusher units and other

processes, operating in the NDZ and pass necessary direction

to stop operation or to vacate and further direct the defaulting

units to restore the environment that has been damaged due

to their overt and illegal act, to its original position.

7. After receiving notice from this Tribunal, a reply has

been filed on behalf of MoEF (R-1) admitting the fact that in

the year 1996 a Notification was issued declaring NDZ in and

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around Numaligarh refinery site which includes the area of

Kaziranga National Park. It is, further, averred that in

consonance with the direction issued by this Tribunal by order

dated 19th April, 2012, the MoEF got conducted an inspection

of the site through responsible officers. The officers visited

the spot and had submitted a report with a map describing the

total area of NDZ and the number of industrial units

functioning in the said zone or on its vicinity. The positions of

the industrial units were demarcated on the map which was

annexed to the reply. After receipt of the report, it is averred,

that the Central Pollution Control Board (CPCB), Zonal Office

Shillong, the Regional Office (MoEF) Shillong, and the

Pollution Control Board, Assam, were informed to strictly

implement NDZ. In paragraph 5 of the reply, the MoEF

relying upon the report disclosed that total number of 64 (sixty

four) units are located in the area of NDZ, the break-up of

which is as under:

Stone crushers – 26 (twenty six),

Brick kilns – 14 (fourteen),

Tea Estates – 12 (twelve),

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Miscellaneous units – 12 (twelve).

The MoEF further took the plea that as the area covered

under the NDZ within its given co-ordinates is more than 600

sq. km. and the CPCB officials could not visit/cover the entire

area and assess the field situation due to heavy monsoon

and prayed for some more time to submit the correct position.

8. On behalf of the State of Assam (R-2), a reply has been

filed taking a bald stand that neither any stone crusher unit nor

stone quarry is operating in the NDZ, except in Karbi-Anglong

district. According to the State, Karbi-Anglong Autonomous

Council Authority is an independent Authority who is

competent to place the factual facts with regard to existence of

industries within their area.

9. However, in paragraph 4 of the reply, it is admitted that

12 (twelve) number of stone crusher units which were in

operation till 31st December, 2011 are situated within 10 km

from the boundary of Kaziranga National Park, and that the

order with regard to suspension of permission of those stone

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crusher units is sub-judiced before the Hon’ble Guwahati High

Court. The Government of Assam, further averred that it is

fully conscious of the importance of rich-biodiversity of Assam

and its status as a National Park, Tiger Reserve, Elephant

Reserve and World Heritage Site of UNESCO and has

constituted the Kaziranga Biodiversity Conservation and

Development Committee to find out the ways and means for

protecting the population of Rhino, Elephant, Tiger, Buffalo

and many other important species in Kaziranga.

10. In their reply, though, the State of Assam took the

stand that certain writ petitions were pending before the

Hon’ble Guwahati High Court and as such they were not able

to take action against the crusher units and stone crushers

situated within 10 km of NDZ, in the additional affidavit it is

admitted that the said statement was based on lack of

communication, and is a mistake of fact, in as much as all the

writ petitions have been disposed of in the meanwhile.

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11. A reply has been filed on behalf of Karbi-Anglong

Autonomous Council (R-4) taking the stand that the said

district is situated far away from the Kaziranga National Park

and as such the Applicant should have no grievance against

existence of any industry in the said district. In paragraph 8 of

the reply, relying upon the report submitted by the National

Tiger Conservation Authority, it is reiterated that there are

several stone crusher units next to the forest area and inside

the reserved forest.

12. Respondent Nos. 5 to 15 are the owners of the existing

units which are operating in or around NDZ. In their reply the

said Respondents took a positive stand that the units

belonging to the said Respondents are located outside the

NDZ as defined in Notification dated 5th July, 1996. According

to the said respondents, the stone crusher units are existing

since the year 1984/1993/1994 on the basis of valid

permissions issued by the Director, Kaziranga National Park /

Director/Divisional Forest Officer, Eastern Assam Wildlife

Division, Bokakhat and / or agreement executed by Divisional

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Forest Officer, Eastern Assam Wildlife Division, Bokakhat and

that they are running stone crusher units on the basis of

consent issued by the Pollution Control Board Guwahati,

Assam. The units being their bread and butter they should be

permitted to operate the same.

13. In course of hearing, a petition was filed by M/s.

Numaligarh Refinery Local Area Development and Safety

Forum, to implead it as an intervener. It claims to be a public

forum, formed with the objective to protect and safe guard

intents and rights of small industrial units and workers

engaged in the said units. According to the intervener, right to

life, includes livelihood and the industrial units are the

livelihood of its members. Relying upon the ratio of the

decision in the case of “Olga Tellis & Ors. Vs. Bombay

Municipal Corporation, (1985)3 SCC 545” intervener prayed

to quash the Notification dated 5th July, 1996 issued by the

MoEF with respect to the 15 km radius of the Numaligarh

Refinery Area as the same is contrary to the settled principles

of law enumerated under Article 21 of the Constitution of India.

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14. In course of hearing Mr. Ratan Kumar Singh,

Learned Counsel for Respondent Nos. 5 to 15 took pain to

convince us that the tea industries being eco-friendly and as

some of the industries are existing much prior to issuance of

notifications in the year 1999, their existence should not be

disturbed.

According to Mr. Ratan Kumar Singh, doctrine of

promissory estoppel squarely applies to the case in hand as

has been held in the case of PepsiCo India Holdings Pvt.

Ltd. Vs. State of Kerala and Ors. 2009 (13) SCC 55. Mr.

Singh also submits that the doctrine of legitimate expectation

also applicable which is in favour of Tea Processing units set

up by the respondents within NDZ prior to 1996. Mr. Singh

also relied upon the following decisions in support of his

submissions:

(i) State of Mizoram Vs. Ramengmawia 2006(2)

ALT (Cri) 3.

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(ii) Municipal Corporation for City of Pune and

Anr. Vs. Bharat Forge Ltd. and Ors (1995) 3

SCC 434.

(iii) PepsiCo India Holdings Pvt. Ltd. Vs. State of

Kerala and Ors. 2009 (13) SCC 55.

(iv) Casper W. Weinberger Vs. Carlos Romero-

Barcelo.

15. We have gone through the decisions cited by Mr.

Singh. The facts of the cases cited are quite different from

the facts of this case. However, we are conscious that some

of the tea industries are existing within NDZ prior to 1996. Be

that as it may, by afflux of time, science and technology has

advanced to such a stage where the level of pollution can be

reduced considerably. This Tribunal is required to decide the

controversies applying Section 20 of the National Green

Tribunal Act, 2010 which casts onerous duty upon this

Tribunal to consider, if any, precautionary measures can be

adopted for eradication of pollution applying the principle of

sustainable development. We will consider the submissions

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made by Mr. Singh while dealing with imposition of directions,

at a latter part of this judgement.

16. A petition has been filed by M/s. Numaligarh

Refinery Local Area Development and Safety Forum to permit

them to be impleaded as party. The said forum was granted

opportunity of hearing. The main grievance of the forum is

with regard to issuance of the Gazette Notification dated

5th July, 1996 by the MoEF declaring 15 km radius of the

Numaligarh Refinery Area as NDZ. A prayer is made to quash

the said Notification of 1996. Law is well settled that an

intervener cannot make a third case or traverse beyond the

pleadings of the parties. Even otherwise, no relief can be

granted to an intervener. This being the settled position of

law, it is open to the intervener to pursue its grievance in

accordance with law, if the same is available to it.

17. On the basis of the pleadings and arguments only three

issues arise for our consideration.

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(i) Whether the Kaziranga National Park and / or its

vicinity has been declared as No Development

Zone in consonance with Rule-5 of the

Environment (Protection) Rules, 1986?

(ii) Whether industries and other processing units

which would lead to pollution and congestion

thereby affecting ecology are existing in the NDZ?

(iii) What steps should be taken to eradicate the

hazards created by expansion of industrial areas

and / or installation of industrial units in the NDZ?

18. So far as issue no. 1 (one) is concerned, there is no

dispute that the Ministry of Environment & Forests (MoEF) by

Gazette Notification dated 5th July, 1996 has declared an area

of 15 km around the Numaligarh Refinery, adjoining the

Kaziranga National Park, more specifically described in the

Index appended to the Notification as a NO DEVELOPMENT

ZONE. As per the said Notification the Central Government

has specifically directed that on and from the date of

publication of the said notification, the extension of the

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industrial area, township, infrastructural facilities and such

other activities which could lead to pollution and congestion

shall not be allowed within the prohibited zone, except with

prior approval of the Central Government. A copy of the

Notification dated 5th July, 1996 was forwarded to the

Chairman, Assam Pollution Control Board (APCB) on

6th December, 1996. We fail to understand as to why there

was a delay of 5 months in forwarding the Notification, which

itself reveals lack of seriousness of the Central Government.

19. In course of hearing, it was brought to our notice that

even before issuance of Notification dated 5th July, 1996, the

Government of Assam had issued a Notification on

19th January, 1996 specifying No Development Zone in and

around Kaziranga National Park. In spite of issuance of such

notifications, the Central Government and the State

Government, maintained stony silence with regard to the

implementation of the notifications. Consequently, number of

stone crusher units, brick kilns and other polluting units were

illegally set-up in close proximity of Kaziranga National Park

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as well as within the No Development Zone. Non-

implementation of the notifications both by the Central

Government as well as State Government of Assam speaks

volumes with regard to their callousness and apathy in

protection of ecology of Kaziranga National Park which

resulted in causing pollution thereby damaging the

environment as well as ecology and eco-sensitive zone.

20. In their reply, the MoEF has clearly admitted that

approximately 64 (sixty four) units are functioning in the NDZ.

The said units consist of stone crushers, brick kilns, tea estate

and other miscellaneous units.

The reply given by the Central Pollution Control

Board, an autonomous regulatory body of MoEF by letter

dated 29th April, 2011, reveals that neither permission was

accorded nor clearance was granted to set-up any of stone

crusher units nor there was renewal of license of any stone

crusher units existing within the NDZ around Kaziranga

National Park. However, they clarify that stone crusher units

may not require environment clearance under the

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Environment (Protection) Act, 1986. By letter dated

31st March, 2011, the Wildlife Division of the Ministry clearly

admits that they have no information regarding existence of

any stone crusher units in the vicinity of Kaziranga National

Park. The said statement appears to be incorrect in view of

the reply filed by the MoEF before this Tribunal

21. It is well settled that pollution is a civil wrong. By its

very nature, it is a Tort committed against the community as a

whole. A person, therefore, who is guilty of causing pollution

has to pay damages for restoration of environment and

ecology. See M.C. Mehta Vs. Kamalnath 1997(1)SCC 388.

22. After hearing Learned Counsel for the parties and

perusing the records, this Tribunal finds materials to reveal

that 10 (ten) stone crusher units have been set-up in the NDZ

after issuance of Notification in 1996.

The Applicant, however, alleges that there are 27

(twenty seven) stone crusher units functioning within a

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distance of 500 m of the NDZ. However, CPCB report has

mentioned clearly 11 (eleven) stone crushers are located

within NDZ. 23 (twenty three) stone crushers are located

within 500 km of outer periphery of NDZ.

The Tribunal also finds materials to reveal that 34

(thirty four) Brick Kilns are operating within the NDZ and the

same were set up after 1996. The report submitted by CPCB

fortified the said fact. In fact, all the Brick Kilns are situated

within the NDZ, except 1 (one) which was set up before 1996.

23. It, further, appears that in the year 1999

Government of Assam notified the “Bokakhat Mini Industrial

Estate” (MIE) comprising of an area of 10 hectare for locating

saw mills within the NDZ. Surprisingly, it appears,

permissions were granted for setting up stone crushers,

steel fabrication units, hotels / guest houses within the

MIE. To the report submitted by the CPCB before this

Tribunal, a list of units operating in the Bokakhat MIE is

annexed. It is apparent that both the Forest Department and

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the SPCB have granted NOC / licenses for setting up of the

units after 1996 within NDZ, in flagrant violations to the

restrictions imposed by MoEF in the Notification as well as

Rule-5 of the Environment (Protection) Rules, 1986.

There are also number of wood based units

functioning in the NDZ.

24. Apart from all these, it appears, after 1996 number

of Tea Factories have been established within NDZ. The

CPCB admits existence of the said units and has furnished

details of tea factories out of which 3 (three) were set up after

1996. However, the report is silent with regard to the date of

establishment of other 12 (twelve) Tea Factories and it

appears due to climatic conditions and paucity of time, the

area where the said factories are situated could not be visited

by the CPCB officers.

25. The adverse impact on the ecology and the

environment by the units situated within the NDZ can be

classified as follow :

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i. The Brick Kilns, are most polluting

industries. None of the Brick Kilns have

stack emission monitoring provisions. They

also normally do not have fixed chimneys.

The emission from the Brick Kilns would

cause hazards and adverse impacts on the

environment, biodiversity and flora and

fauna.

ii. The stone crushing units are major source

of air pollution. They cause immense

damage to the ecology and environment.

iii. In the Tea gardens, toxic pesticides are

used which may pollute surface and ground

waters.

iv. The Tea Factories use coal normally in their

boilers. The sulphur content of such coal is

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very high and the air pollution therefrom

could pose a great threat to environment.

v. Majority of the Tea factories, it appears,

have not installed acoustic enclosure in their

generators in violation of the environmental

norms.

vi. The effluents of the tea factories, it appears

are directly released through surface drains

without any treatment.

Of course, these are only few examples and in fact,

existence of the industrial units in the NDZ amounts to causing

atrocity to the environment, ecology and to the nature.

26. The scenario of events discussed above reveal that

after issuing the Notification way back in the year 1996, no

follow up action was taken either by the MoEF or by the

Government of Assam. The stipulations and embargoes

created in the notification appear to have been ignored and

grossly violated with impunity. The MoEF, after issuance of

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the notifications, was required to prepare the road map with

regard to implementation of the prohibitions specified in the

notification, but that was not done. It remained satisfied after

issuing the notification and even did not communicate the

same for about five months. The State of Assam admittedly

has received a copy of the notification, may be after 5 months.

It had also issued a notification of its own specifying the NDZ

in Kaziranga. Unfortunately, the State Government also failed

to enforce the prohibitions imposed by the notification. No

effective steps appeared to have been taken in consonance

with Rule-5 of the Environment (Protection) Rules, 1986,

consequently there was mushroom growth of industrial units

within or in the vicinity of NDZ.

27. Facts, in the case in hand, make it clear that the

Notification declaring NDZ within the radius of 15 km around

the Numaligarh Refinery so as to protect Kaziranga National

Park was issued in the year 1996. The said Notification was

issued in exercise of the powers conferred under Section 5 of

the Environment (Protection) Rules, 1986, and is still in vogue

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and is not only binding but also enforceable. Issue no. 1 (one)

accordingly stands answered.

28. Continuous infringement of law and tolerance of

violations of law, for the reasons good, bad or indifferent, not

only renders legal provisions nugatory but also such tolerance

by the Enforcement Authorities encourages lawlessness which

cannot be tolerated by any civilised society.

29. In the case of Indian Council for Enviro Legal

Action Vs. Union of India and others (supra) the Hob’ble

Supreme Court has observed that “A law is usually enacted

because the legislature feels that it is necessary. It is with a

view to protect and preserve the environment and save it for

the future generations and to ensure good quality of life that

the Parliament enacted the Anti-Pollution Laws, namely the

Water Act, Air Act and the Environment (Protection) Act, 1986.

These Acts and Rules framed and Notification issued

thereunder contain provisions which prohibit and / or regulate

certain activities with a view to protect and preserve the

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environment. When a law is enacted containing some

provisions which prohibits certain types of activities, then, it is

of utmost importance that such legal provisions are effectively

enforced. If a law is enacted but is not being voluntarily

obeyed, then, it has to be enforced. Otherwise, infringement

of law, which is actively or passively condoned for personal

gain, will be encouraged which will in turn lead to a lawless

society. Violation of anti-pollution laws not only adversely

affect the existing quality of life but the non-enforcement of the

legal provisions often result in ecological imbalance and

degradation of environment, the adverse effect of which will

have to be borne by the future generations.”

30. In the case of M.C. Mehta Vs. Union of India

(2006) 3 SCC 399 the Hon’ble Supreme Court observed as

follows :

“This Court has a Constitutional duty to protect the

fundamental rights of Indian citizens. What happens

when violators and / or abettors of the violations are

those, who have been entrusted by law with a duty to

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protect these rights? The task becomes difficult and

also requires urgent intervention by court so that the

rule of law is preserved and people may not lose faith

in it finding violations at the hands of supposed

implementers. The problem is not of the absence of

law, but of its implementation.”

31. In the case of T.N. Godavarman Thirumulpad Vs.

Union of India 2012 (3) SCC 277, the Hon’ble Supreme Court

held :

“Environmental justice could be achieved only if

we drift away from the principle of anthropocentric to

eco-centric. Many of our principles like sustainable

development, polluter-pays principle, inter-

generational equity have their roots in anthropocentric

principles. Anthropocentrism is always human interest

focused and non-human has only instrumental value

to humans. In other words, humans take precedence

and human responsibilities to nonhuman based

benefits to humans. Eco-centrism is nature centred

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where humans are part of nature and non-human has

intrinsic value. In other words, human interest do not

take automatic precedence and humans have

obligations to non-humans independently of human

interest. Eco-centrism is therefore life-centred,

nature-centred where nature include both human and

non-humans.”

32. After meticulous perusal of documents filed and the

submissions made by Learned Counsel for parties, there is no

hesitation in our mind to come to a conclusion that number of

industrial units, some of which are hazardous and creating

pollution, are existing in or about “No Development Zone”.

Protection of environment, ecology, biodiversity and adverse

impacts on flora and fauna vis-a-vis conservation of forest and

other natural resources including enforcement of legal rights

relating to environment, being the paramount objective of the

National Green Tribunal, to maintain healthy environment and

eradicate the pollution, and to protect ecology in Kaziranga

National Park and in its vicinity, which is highly eco-sensitive.

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We feel certain directions are necessary to be

issued for protection and preservation of environment.

33. Therefore, we direct the Authorities to take following

actions :

(a). The 11 (eleven) stone crushers which

according to the CPCB report, are located

within the NDZ are non-functional at present.

Since, those 11(eleven) stone crushers have

been established / allowed to be established

within NDZ in contravention of the 1996

Notification, the State Government is

directed to take immediate steps to remove

all those illegal stone crushers except 1

(one) M/s Assam Stone Crusher from the

NDZ area forthwith.

It appears M/s. Assam Stone Crusher was

installed before 1996 i.e. prior to the

notification. But then, operation of the said

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stone crusher unit would cause significant air

pollution apart from noise pollution, and

would lead to adverse impact on the eco-

system. The State of Assam is, therefore,

directed to take steps to relocate the said

unit outside the NDZ. In other words, the

said unit should not be allowed to operate in

its present location with immediate effect.

(b). The Government shall take appropriate

steps not to allow operation of the 23

(twenty three) stone crusher units existing

in the vicinity of NDZ (outside the NDZ) till

necessary pollution control equipments and

other measures are installed to eradicate the

pollution, to the satisfaction of Assam

Pollution Control Board and Central Pollution

Control Board.

(c) According to the CPCB report 34 (thirty

four) Brick Kilns are operating within NDZ

34

out of which only 1 (one) unit was set up

before 1996. Brick Kilns being the main

pollution causing units are hazardous to

environment. The said 33 (thirty three)

Brick Kilns should be closed down

immediately.

So far as 1 (one) Brick Kiln which was

established before 1996, is concerned steps

should be taken to either relocate it outside

the demarcated zone or steps should also be

taken to insist stricter air pollution control

devices. The unit should be inspected by

the SPCB, Assam regularly and CPCB

occasionally so as to ensure that the

pollution level of the unit is within control. No

extension shall be granted to the said unit

after expiry of its lease or permission at its

present location.

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(d). The CPCB report further reveals that 11

(eleven) miscellaneous industries are

existing within NDZ. Out of them 4 (four) are

fuel dispensing stations (petrol pumps), 1

(one) is a saw mill, 1 (one) oil tanker making

unit (steel fabrication), 1(one) is a restaurant

(under construction), 1(one) concrete making

unit, 2 (two) mustered oil mills and 1(one)

flour mill.

Out of the aforesaid 11 (eleven) industries,

except 4 (four) petrol pumps and the

restaurant all other units generate lots of

pollution, therefore, they should not be

allowed to operate in their present locations

and action should be taken to shift them

immediately out of NDZ.

(e). The CPCB report further reveals that there

are 25 (twenty five) Tea Factories out of

which 22 (twenty two) are located within the

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NDZ and 3 (three) are within 500 m of outer

periphery of NDZ. It appears the CPCB

could visit only 13 (thirteen) Tea Leaf

Processing Factories, due to flood,

situation in Assam. The report reveals that

only 1(one) unit has made arrangements to

treat its effluent. The rest 22 (twenty two)

tea processing units located within NDZ

have installed boilers for which, coal, oil,

wood is the main feed stock. They have also

not installed any pollution control devices.

The SPCB and other Authorities are directed to

ensure that no tea processing units having boiler using fossil

fuel operates within the NDZ and take immediate steps to stop

their operation.

The 3 (three) tea leaf processing units located

within 500 m of the outer periphery of NDZ should be allowed

to operate only if necessary pollution control measures as may

be stipulated by SPCB, Assam are adhered to by those units.

37

Further, all the tea processing units must provide

acoustical enclosures in their electrical generators for

providing alternative electricity.

These are only some remedial measures, it is open

to MoEF, CPCB and SPCB to adopt any other appropriate

measure and take any other steps permissible under law to

remove all the industrial units from NDZ and prescribe

stringent standards to eradicate pollution so far as industrial

units situated outside NDZ but in its close proximity, say within

500 meters.

34. The MoEF and the State Government are directed

to prepare a Comprehensive Action Plan and Monitoring

Mechanism for implementation of the conditions stipulated in

the 1996 Notification specifying “No Development Zone” and

for inspection, verification and monitoring of the prohibitions

imposed in the notification referred to above, as well as the

provisions of Rule-5 of the Environment (Protection) Act,

1986.

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35. After giving the matter a conscious thought and

after taking into account all the factors, we are of the opinion

that MoEF and the State Government of Assam have totally

failed in their duties with respect to implementation of the

provisions of the 1996 Notification and due to the callous and

indifferent attitude exhibited by the Authorities, number of

polluting industries / units were established in and around the

No Development Zone of Kaziranga thereby posing immense

threat to the biodiversity, eco-sensitive zone, ecology as well

as environment. We are, further, satisfied that this is a clear

case of infringement of law. We, therefore, have no hesitation

to direct the MoEF and the Government of Assam to deposit

Rs. 1,00,000/- (Rupees one lakh only) each, with the Director,

Kaziranga National Park for conservation and restoration of

flora and fauna as well as biodiversity, eco-sensitive zone,

ecology and environment of the vicinity of Kaziranga National

Park in general and within the No Development Zone in

particular. The said amount shall be utilised exclusively by the

Director, Kaziranga National Park for conservation, protection

39

and restoration as well as for afforestation of suitable trees of

the local species in and around the No Development Zone.

36. Before parting, we feel it necessary to express our

appreciation to Shri Ritwick Dutta, Learned Counsel for the

Applicant for the endeavourance made and pain taken by him

to place different records and datas before this Tribunal to

substantiate rampant violation of the Environment (Protection)

Rules, 1986 at Kaziranga National Park as well as inside the

No Development Zone. We also appreciate the fair

submissions made by Ms. Neelam Rathore, Learned Counsel

appearing for MoEF, who has ably assisted us by filing replies

enclosing the report of CPCB which gave an impression with

regard to the gravity of the threat being posed to the

environment, ecology, eco-sensitive zone, biodiversity due to

establishment of number of industrial units causing pollution.

37. A copy of this judgement be communicated to the

Ministry of Environment and Forests, Central Pollution Control

Board (CPCB), State Government of Assam as well as Assam

40

Pollution Control Board (APCB) for due compliance of the

directions issued in the preceding paragraphs, within two

months from the date of communication of this judgement.

With the aforesaid observations/direction, the

Application is allowed. Parties to bear their own cost.

Dr. G.K. Pandey Justice A.S. Naidu Expert Member Acting Chairperson