Supreme Court

Jitendra Singh Vs. Ministry of Environment and Ors.

MANU/SC/1615/2019

25.11.2019

Environment

'Ponds' are a public utility meant for common use and could not be allotted or commercialised

The instant statutory appeal has been preferred under Section 22 of the National Green Tribunal Act, 2010 ("NGT Act") against the order of the Principal Bench of the National Green Tribunal ("NGT"), whereby Appellant's grievance against allotment of local ponds to private industrialists has been dismissed summarily without any adjudication of the lis or merits, but merely on the basis of an affidavit filed by Respondent No. 5 (Greater Noida Industrial Development Authority- "GNIDA") claiming that, it was developing bigger alternative water-bodies.

Question raised in present case is whether it is permissible for the State to alienate common water- bodies for industrial activities, under the guise of providing alternatives.

In Hinch Lal Tiwari v. Kamala Devi, this Court settled that 'ponds' were a public utility meant for common use and held that they could not be allotted or commercialised. It had refused to give any weight to similar arguments of the pond having become levelled, with merely some portion getting covered during rainy season by water.

The action of the Respondent-authorities contravenes their Constitutional obligations. Article 48-A of the Constitution of India, 1950 casts a duty on the State to "endeavour to protect and improve the environment and to safeguard the forests and wild life of the country", and Article 51-A(g) expects every citizen to perform his fundamental duty to "protect and improve the natural environment". A perusal of Constitutional scheme and judicial development of environmental law further shows tha, all persons have a right to a healthy environment. The State is nothing but a collective embodiment of citizens, and hence collective duties of citizens can constructively be imposed on the State.

It is the responsibility of the Respondents to ensure the protection and integrity of the environment, especially one which is a source for livelihood for rural population and life for local flora and fauna. Protection of such village-commons is essential to safeguard the fundamental right guaranteed by Article 21 of our Constitution. These common areas are the lifeline of village communities, and often sustain various chores and provide resources necessary for life. Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.

The Respondents' scheme of allowing destruction of existing water bodies and providing for replacements, exhibits a mechanical application of environmental protection. Although, it might be possible to superficially replicate a waterbody elsewhere, however, there is no guarantee that the adverse effect of destroying the earlier one would be offset. Destroying the lake would kill the vegetation around it and would prevent seepage of groundwater which would affect the already low water-table in the area. The people living around the lake would be compelled to travel all the way to the alternative site. Many animals and marine organisms present in the earlier site would perish, and wouldn't resuscitate by merely filling a hole with water elsewhere.

Further, the soil quality and other factors at the alternate site might not be conducive to growth of the same flora, and the local environment would be altered permanently. The Respondents' reduction of the complex and cascading effects of extinguishing natural water-bodies into mere numbers and their attempt to justify the same through replacement by geographically larger artificial water-bodies, fails to capture the spirit of the Constitutional scheme and is, therefore, impermissible.

Hence, it is clear that, schemes which extinguish local waterbodies albeit with alternatives, as provided in the 2016 Government Order by the State of UP, are violative of Constitutional principles and are liable to be struck down. The allotment of all water bodies (both ponds and canals) to Respondent No. 6, or any other similar third party in village is held to be illegal and the same is hereby quashed. The impugned order passed by the NGT is set aside. Appeal allowed.

Relevant

Hinch Lal Tiwari v. Kamala Devi MANU/SC/0410/2001

Tags : Allotment Ponds Legality

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