BlogSUPREME COURT ON THE PROTECTION OF COMMONS

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CASE COMMENT: JITENDRA SINGH v. MINISTRY OF ENVIRONMENT & ORS. 

Supreme Court of India

Civil Appeal No. 5109 of 2019, decided on 25.11.2019

– VIKAS GAHLOT,

TEACHING ASSISTANT, CEERA, NLSIU

This decision of the Supreme Court of India reaffirms the accepted theory of “Commons”, which forms the basis of environmental protection and law. The bench comprised Justices Arun Mishra and Surya Kant in this appeal, filed under Section 22 of the National Green Tribunal Act, 2010[1] against the order of the Principal Bench of the National Green Tribunal (NGT) dated 06.03.2019, addressed the question ‘Whether it is permissible for the State to alienate common water-bodies for industrial activities, under the guise of providing alternatives?’

The Appellant, Jitendra Singh, a permanent resident of village Saini (in Uttar Pradesh India, 7 km away from Ghaziyabad). The village falls under the National Capital Region.

The brief facts leading to the appeal can be summarized as follows:

  1. In January 2017, M/s Sharp Enterprises Pvt Ltd (hereinafter ‘Sharp’) attempted to forcibly takeover possession of a ‘common pond’ using excavators and heavy machinery. The pond had been in use by local villagers for a century.
  2. This was objected to the villagers and the complaints were made to various authorities including the district collector. Revenue records were pointed out which indicated the ‘commons-status’ of the pond.
  3. However, no action was taken by the authorities even after repeated complaints.
  4. Jitendra Singh approached the NGT under Sections 14 r/w 15 and 18 of the NGT Act.
  5. Sharp submitted an affidavit to the NGT that they are developing an alternate area which is 1.25 times bigger, as a new waterbody. Based on this affidavit the NGT dismissed the application filed by Mr. Jitendra Kumar stating that his substantial grievance had been addressed.

In this regard the question arose as to ‘whether it is permissible for the State to alienate common water-bodies for industrial activities, under the guise of providing alternatives?’

In response to this question the appellant argued that the manner of dismissal of their application by the NGT is hasty and led to the conferment of illegal benefits on the respondents at the cost of environment and local residents and further stressed by demonstration that the flora and fauna of the region is unlikely to survive anywhere else.

In reply to this the Greater Noida Industrial Development authority (GNIDA) placed reliance on a Government Order dated 03.06.2016 which permitted destruction of existing ponds and allotment of filled-up land to third-parties in certain extraordinary circumstances with the stipulation that 25% larger alternate bodies be developed elsewhere. The respondents have also contended innovatively that the plots were not ponds and ‘merely slightly low lying land’ over which some water would get accumulated during rainy season. They also alleged that appellant, was in fact, aggrieved by the non-disbursement of compensation and had set up the entire dispute as rouse to stall development of the area so that he could instead use it for his private purpose of cattle grazing.

 However, the Apex court rejecting the contention of the respondents allowed the appeal and set aside the order passed by the NGT. The Supreme court also held the allotment of all water bodies in village Saini was held to be illegal and was quashed. Further, the Apex Court ordered the respondents to restore, maintain and protect the waterbodies in the Saini Village. And, the respondents were further directed to remove all obstruction from the catchments area through which natural water accumulates in the village ponds. The task has to be completed within a period of three months.

Though the technical reasoning of the Supreme Court was that the 2016 order of the Government of India allowing for alternative construction of water bodies with 25% increased area is not applicable retrospectively to a possession which has been given in 2012. Further, the SC also stated that 2016 order could only be applied in an extraordinary circumstance and there is no extraordinary circumstance in this case.

Further, on a more philosophical side of the judgement, in para 21 the Supreme Court observed that:

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 water body 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, in this case allegedly almost 3 kilometres away. 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”.

Image sourced from International Business times

[1] Section 22 of the National Green Tribunal Act, 2010 (hereinafter NGT Act) provides that “Any person aggrieved by any award, decision or order of the tribunal, may file an appeal to the Supreme Court within 90 days for the date of communication of the award, decision or order of Tribunal, to him, or any one or more of the grounds specified in section 100 of the CPC, 1908: Provided that the Supreme Court may, entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal.”; Section 100 provides the following grounds of appeal: Substantial question of law, ex parte decree,

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