Citation Codes

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Case Number

IA No. 363/2020 / DELHI

Disposition

Judges

Mr. Justice Adarsh Kumar Goel
Mr. Justice Sheo Kumar Singh
Dr. Nagin Nanda

Acts

SECTION 5 PUNJAB SCHEDULED ROADS AND CONTROLLED AREAS RESTRICTION OF UNREGULATED DEVELOPMENT ACT 1963
Section 15 of the NGT Act, 2010

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Smart Summary

National Green Tribunal — Principal Bench, New Delhi: Order Summary (03.12.2020)

Factual and Procedural Background

The Society for Protection of Culture, Heritage, Environment, Traditions and Promotion of National Awareness (Applicant) approached the National Green Tribunal under Section 15 of the NGT Act, 2010 seeking directions for mandatory green cover on both sides of highways. The relief sought included preservation of space for tree plantation and highway expansion, prevention of direct access to highways without bye-lanes/exit routes, and regulation of direct openings from buildings onto highways.

The Applicant relied on various planning documents and guidelines (including a Haryana draft plan, a DDA layout plan and IRC/NHAI plantation policies) and invoked judicial authority in Ahuja Vaishno Dhaba No.1 v. State of Haryana for the proposition that construction should be prohibited within a specified distance of highways.

Earlier (05.09.2017) the Tribunal recorded the statement by NHAI that the "2015 Policy" (NHAI's Green Highways Policy-2015) would be followed and gave directions to States and local authorities to ensure plantations and related action. The present proceeding is an execution application (EA No. 29/2018) seeking enforcement of those earlier directions and compliance reporting.

Subsequent hearings identified inadequate compliance and an absence of an effective institutional monitoring mechanism. The Tribunal issued detailed directions to MoEF&CC and MoRTH to evolve a national monitoring mechanism, asked for state-wise data and affidavits from NHAI and NHIDCL, and gave opportunities to file compliance affidavits. Affidavits filed by NHAI and NHIDCL were found to be inadequate or evasive. MoEF&CC did not file a substantive response.

Legal Issues Presented

What remedial action is required for protection of the environment along highways, including green belts, regulation of direct access and control of encroachments?
Whether adequate steps are being taken for maintenance of green belts on both sides of all categories of highways consistent with the principle of 'Sustainable Development'?
Whether the progress in removing encroachments and in leaving highways free from direct access and sufficient space for plantation is adequate, or if further measures are required?

Arguments of the Parties

Applicant's Arguments

Continuous vehicular movement on highways causes dust pollution and increases PM2.5 and PM10 with consequential health hazards.
Large numbers of structures built alongside highways have direct illegal access to NH8 and other roads, destroying space required for mandatory green cover and road expansion.
Planning instruments and guidelines (Haryana Draft Plan 2031, DDA layout plan, IRC SP-21-2009, and NHAI's Green Highways Policy-2015) support the requirement for green belts and restricted construction close to highways.
Relied upon the High Court of Punjab and Haryana judgment in Ahuja Vaishno Dhaba No.1 v. State of Haryana for the proposition that no construction can be allowed within 30–50 metres of highways.
Under RTI, deficiencies in compliance were acknowledged by authorities but not remedied; the Applicant sought enforcement of the Tribunal's prior directions.

Respondents' Position and Responses (as recorded)

On 05.09.2017 NHAI stated it would follow the 2015 Policy to ensure plantation of green belts on both sides of roads wherever government land is available after leaving scope for expansion; States and local authorities were directed to act as well.
Affidavits filed by NHAI and NHIDCL later asserted the primary responsibility for protection from encroachments, removal of illegal access, and plantation/maintenance lies with the Concessionaire (contractor), implying limited direct responsibility of NHAI/NHIDCL.
MoEF&CC did not file a substantive response (no effective steps recorded in this proceeding).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ahuja Vaishno Dhaba No.1 v. State of Haryana, (2003) 2 RCR (Civil) 598 (DB)	Authority cited by Applicant for the proposition that no construction can be allowed within 30–50 metres of highways.	The Tribunal noted that the Applicant relied upon this judgment; the citation formed part of the demonstrative material supporting the need to prevent constructions close to highways. The order records this reliance but does not purport to make a distinct new legal holding based solely on that precedent.

Court's Reasoning and Analysis

The Tribunal's analysis proceeds from factual findings recorded in the affidavits and the history of the proceedings:

The Tribunal identified the central environmental problem: lack of adequate green cover along highways aggravates dust pollution (raising PM2.5 and PM10) and consequential health hazards, which is exacerbated by constructions and encroachments close to the highways making provision of green belts infeasible.
The Tribunal examined compliance with earlier directions (including the recordation on 05.09.2017 that NHAI would follow the 2015 Policy). It found that steps taken by NHAI, NHIDCL, MoEF&CC and State authorities were inadequate and that there was no effective institutional mechanism to monitor and ensure compliance with norms for green belts, prevention of direct access, and removal of encroachments.
Given the identified lacunae, the Tribunal reiterated and amplified earlier directions: it directed MoEF&CC, in collaboration with MoRTH, to evolve a national-level effective monitoring mechanism. The Tribunal specified the data to be compiled (extent of encroachment and removal plans; provisions for leaving space for expansion and plantation; extent of direct access allowed; regulation of buildings near roads; extent of plantation; highways where no space is left; PPP projects where plantation cannot be done by NHAI).
The Tribunal delineated the monitoring mechanism to cover three parts: future policy for new highways; policy for highways already constructed or in progress where space is available; and policy for highways where construction already exists (examining legality and nature of such construction).
The Tribunal reviewed affidavits filed by NHAI and NHIDCL and found them unsatisfactory and evasive. It criticised the NHAI's contention that responsibilities lie primarily with Concessionaires, stating that public authorities' liability and duty cannot be abandoned by hiring contractors — criminal and civil liability under environmental law continues; such inalienable duty cannot be shed by a specious plea that a contractor is responsible.
Emphasising the constitutional and statutory duty of public authorities to protect environment and public health, the Tribunal directed that NHAI, NHIDCL, MoEF&CC and State authorities must develop appropriate mechanisms for compliance, overseen by environmental regulatory authorities at central and state levels. It further ordered that MoEF&CC ensure the existence of an effective monitoring mechanism as a condition when granting environmental clearance.
Procedurally, the Tribunal required detailed, tabulated, quarterly state-wise information on encroachments, removals, direct openings on national highways, provision and maintenance of green belts, and survival percentages of planted trees/saplings. It gave opportunities and deadlines for filing such affidavits and directed that higher-level officers should personally take ownership where previous responses were inadequate.

Holding and Implications

Holding: The Tribunal recorded its disapproval of the attitude and inadequate compliance by NHAI and NHIDCL, issued the directions summarized above for development of an effective national monitoring mechanism and remedial action, and made procedural orders regarding affidavits and data collection. The Tribunal disposed of the interlocutory application and the execution application on the terms recorded.

Core Ruling: The Execution Application (EA No. 29/2018) and I.A. No. 363/2020 stand disposed of in the terms recorded in the order dated 03.12.2020.

Direct consequences imposed on the parties and authorities (as recorded):

MoEF&CC, in collaboration with MoRTH, must evolve and implement an effective monitoring mechanism at the national level covering data collection, monitoring, and reporting as specified in the order.
NHAI and NHIDCL are directed to file comprehensive affidavits providing required state-wise data on encroachments, plantations, direct openings, survival of saplings, and action plans for removal of encroachments; NHAI and NHIDCL must ensure responsible officers give undertakings and take ownership of environmental compliance rather than shifting responsibility to contractors.
MoEF&CC must ensure, while granting Environmental Clearances, that an effective monitoring mechanism exists and is capable of ensuring roadside plantations and keeping roadsides free from encroachments up to the specified distance.
The Applicant was given liberty to make representations to concerned authorities within one month; the I.A. was disposed of in those terms.
Copies of the order are to be forwarded to central and state authorities (Secretaries, MoEF&CC and MoRTH, Managing Directors of NHAI and NHIDCL, CPCB, Chief Secretaries, Secretaries PWD of all States/UTs and PCBs/PCCs) for compliance.

The Tribunal did not purport to set a new legal precedent beyond enforcing and clarifying compliance obligations and monitoring requirements; the order focuses on remedial and supervisory directions and on ensuring implementation of existing statutory and policy mandates.

Bench: Hon'ble Mr. Justice Adarsh Kumar Goel (Chairperson), Hon'ble Mr. Justice Sheo Kumar Singh (Judicial Member), Hon'ble Dr. Nagin Nanda (Expert Member). Date of order: 03.12.2020.

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SOCIETY FOR PROTECTION OF CULTURE HERITAGE ENVIRONMENT TRADITIONS & PROMOTION OF NATIONAL AWARENESS v. NATIONAL HIGHWAY AUTHORITY OF INDIA

Item No. 5 Court No. 1

BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

Execution Application No. 29/2018

O. A. No. 386/2016 (I.A. No. 363/2020) (With additional affidavits dated 05.08.2020 and 17.11.2020) Society for Protection of Culture, Heritage, Environment, Traditions and Promotion of National Awareness Applicant Versus

National Highway Authority of India & Ors. Respondent(s) Date of hearing: 03.12.2020

CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER HON'BLE DR. NAGIN NANDA, EXPERT MEMBER

For the Respondents: Mr. Pinaki Misra, Senior Advocate with Mr. Kshitez Kaushik, Advocate for NHAI

Mr. A.K. Jain, Advocate for NHIDCL

ORDER

1. The issue for consideration is the remedial action for protection of environment along the highways. The steps include green cover to minimize the impact of dust pollution on account of traffic, leaving of space on both sides of highways for tree plantation and expansion, preventing direct access to the highways without bye-lanes/exit routes and regulating the opening of access to the buildings directly from the highways.

2. We may refer to the background of thr proceedings. The Applicant approached this Tribunal for directions under Section 15 of the NGT Act, 2010 for mandatory green cover on both sides of highways on the pattern

of notification dated 25.07.2012 issued by the Town and Country Planning Department ("T&CPD"), Government of Haryana under Section 5(4) of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. The said notification published the Draft Plan 2031 AD for Sohna and provided that "the eastern and western peripheral roads of 75m width has been proposed with 100m wide green belt on outer side and 50m green belt on inner side. A minimum width of 60 meters has been proposed for sector dividing roads. The width of Gurgaon-Sohna-Alwar road, Rewari- Sohna-Palwal (NH-71) road and Sohna-Ballabgarh road has been proposed to be widened to 60m with 50m wide green belt on either sides."

3. The applicant alleged that continuous movement of vehicles caused dust pollution and increase of PM2.5 and PM10 and consequential health hazards. Large number of structures were built on the sides of highways having direct illegal access to NH8, destroying the space for mandatory green cover. Reference was also made to layout plan of Delhi Development Authority ("DDA") dated 28.09.2017 providing for 30 mts wide green strip on either side of the highway. The applicant relied upon the judgement of the High Court of Punjab and Haryana in Ahuja Vaishno Dhaba No.1 v. State of Haryana¹to the effect that no construction can be allowed in 30 - 50 mts of highway on either side. Further reliance was placed on the 2009 Guidelines (Guidelines on Landscaping and Tree Plantation (IRC: SP-21-2009) prepared by IRC, stipulating maintaining green areas on the highways and to "Green Highways (Plantation, Transplantation, beautification and Maintenance)

1 (2003) 2 RCR (Civil) 598 (DB)

Policy-2015" ("the 2015 Policy") of the National Highway Authority of India ("NHAI"), further revising the said guidelines.

4. On 05.09.2017, the application was disposed of by recording the statement on behalf of the NHAI that the 2015 Policy will be followed to ensure plantation of green belts on both sides of the roads, wherever Government land was available, after leaving scope for expansion. The NCT Delhi, State of Haryana and State of Rajasthan were also directed to ensure such action. The State Governments and all Local Authorities were to issue directions to the Group Housing Societies, owners of commercial plots, offices, and residential blocks for plantation of the trees along the boundaries of the plots and around the buildings. The State Government and Local Authorities were to encourage plantation of trees in public parks for better environment and for better ambient air quality.

5. Present execution application seeks enforcement of the above directions.

6. The matter was last considered on 03.12.2019. It was observed:

"6. The matter was further reviewed on 21.05.2019 with reference to the following questions:

i) Whether adequate steps are being taken for maintenance of green belts on both sides of all categories of highways consistent with 'Sustainable Development' principle?

ii) Whether progress of removing encroachments to achieve the object of leaving the highways free from direct access and leaving sufficient space for plantation is sufficient or any further steps are required?

7. The Tribunal found that the steps taken for maintenance of green belts on both sides of the highways and for removing encroachments were not adequate in absence of

effective institutional mechanism to monitor compliance of such norms.

8. Accordingly, following directions were issued:

"24. Accordingly we direct the Secretary MoEF&CC in collaboration with Secretary MoRTH to evolve an effective monitoring mechanism at national level with the object of ensuring maintenance of Green Belts on both sides of all Highways upto specified distance, there is no construction upto specified distance, there is no direct access to the Highway, there is no encroachment and buildings on roadsides are regulated in terms of environmental norms so that no air/water pollution or encroachment of Highway is caused. For this purpose, MoEF&CC may collect the requisite data in respect of National Highways from NHAI and in respect of State Highways from respective States and UTs. The data by the State may be compiled by the Chief Secretaries of States/UTs in coordination with their respective Environment, Forests and Public Works Departments. We suggest that data should be compiled with reference to the following:

i) Extent of encroachment and action plan for its removal.

ii) Provisions for leaving space up to a particular distance from the road for expansion and for plantation.

iii) Extent of access directly allowed from Highway to buildings and ensuring that there is no direct access to the road obstructing existing or potential plantation.

iv) Buildings near roads upto a specified distance are regulated to ensure that no air, water or other pollution is 23 caused and no encroachment takes place or space on roads on account of activities of such buildings.

v) Extent of plantation carried out.

vi) Highway where no space is left for ensuring green belt on the sides.

vii) Highway projects on PPP model where green plantation cannot be done according to NHAI.

25. The monitoring mechanism may deal with the issue in following parts:

i) Future policy with regard to Highways to be constructed henceforth;

ii) Policy with regard to Highways already constructed or in progress where space is available;

iii) Policy with regard to Highways where constructions have already been made with regard to division in nature of construction and legality thereof.

26. The MoEF&CC may file an affidavit within two months.

27. Member (Administration), NHAI may file further affidavit about the extent of encroachment on National Highway, action plan for removal of such encroachment, extent of plantations,

extent of access directly allowed from highways to buildings, requirement of distance from highways for construction and indicating the status of preparation and execution of action plans by individual teams to ensure green work development and status of removal of encroachment by Task Force constructed by NHIDCL."

9. Compliance affidavit has been filed on behalf of the NHAI and NHIDCL which furnishes some information on the subject but the same is not adequate. Let further affidavit be filed giving complete information before the next date.

10. The information also be provided in brief in a tabulated format giving details in cumulative manner on quarterly basis for last one year on State-wise numbers and extent of encroachments, numbers and extent of encroachments removed in the quarter for the last one year and number of direct openings created on national highways and action taken.

Similarly, details be provided with regard to provision and maintenance of green belt on either side of highways and survival percentage of trees/saplings planted. MoEF&CC has also not filed any response whatsoever nor is represented today. Last opportunity is granted for compliance and filing of response failing which the Joint Secretary concerned may remain present on the next date. MoEF&CC may coordinate with NHAI and concerned States/UTs or any other concerned authority.

11. We are informed that NHIDCL is a separate corporate identity. Accordingly, NHIDCL may file a separate status report on the subject on similar lines before the next date."

7. The matter was last considered on 18.06.2020 and it was found that NHAI had not filed any affidavit while the NHIDCL had given some particulars which were inadequate. Response of the MoEF&CC was formal without any effective steps. Accordingly, the matter was deferred for further consideration with a direction to the NHAI and the NHIDCL to file a proper response.

8. In pursuance of the above, an additional affidavit has been filed by the NHIDCL giving the status of encroachments and plantations without mentioning the action plan to take remedial action against acknowledged illegal encroachments and steps to strengthen the monitoring

mechanism. An additional affidavit has also been filed by the NHAI without providing information which may show that an effective monitoring mechanism is in place. The affidavit shows indifference to the issue by stating that it is the primary responsibility of the Concessionaire to protect the sites from any encroachments and for removal of illegal access and plantation of trees along carriage way and median as well as maintenance thereto. The affidavits filed can hardly be held to be satisfactory. Ownership of responsibility is sought to be avoided which is a matter of regret.

9. As already held and is acknowledged by the concerned authorities that green cover on both sides of highways is absolutely essential to mitigate adverse impact of vehicular pollution on the highways. The dust leads to increase of PM2.5 and PM10 and consequential health hazards. The pollution is aggravated by permitting constructions close to the highways, making it impossible to provide green cover. This happens with or without connivance of the authorities. Encroachments are allowed close to the highways, in spite of requirement of keeping open space for road expansion and green belts upto specified distance from the highways. The guidelines on tree plantations require leaving of the space for the plantations upto 30 meters width. Encroachments obstruct compliance of such mandate. The stand of the NHAI that the roads are constructed by Concessioners and it is only their responsibility to comply with the mandate of law is patently untenable and shows indifference and breach of public trust and statutory duties. If the NHAI in the course of its activities hires its agents, the liability of the principal does not end. The Criminal as well as Civil liability of NHAI and its highest officers under the Environmental Law to be prosecuted and to be required to pay compensation continues. Such inalienable duty cannot be abandoned on

specious plea that a contractor is being hired. Moreover, being public authorities, taking such plea shows lack of responsibility or lack of knowledge of law. Indifference to issues of environment affecting public health by a public authority can hardly be appreciated. The NHAI as well as the NHIDCL have to be the role model to ensure compliance of environmental norms. Same is expected from the State PWD and other concerned Authorities. There has to be continuous meaningful and responsible monitoring at highest levels. It is not a charity but Constitutional mandate. The record shows that on every occasion the matter has been taken up, the Tribunal has regretfully found lack of involvement of the concerned authorities on the subject. We are stating so with a hope that the authorities realise their responsibility in the matter and coercive measures are avoided against erring officers. We expect the highest in the organisations to look into these aspects to ensure change of attitude and counselling. We are compelled to make these observations after observing indifference for long. Accordingly, we direct the NHAI and the NHIDCL and concerned Central and State Ministries to develop appropriate mechanism for compliance of the law, which may be overseen by the Environmental Regulatory Authorities in the Central Government as well as in the States.

10. We further direct that while granting Environmental Clearance, the MoEF&CC must ensure that an effective monitoring mechanism exists to ensure compliance of requisite safeguards including the plantations on the road sides and keeping such roadsides free from encroachments upto specified distance. NHAI and NHIDCL must give undertaking of responsible level officers to take ownership of maintaining environmental norms instead of taking a plea that it was not their basic responsibility and responsibility was of the contractor.

11. We have also perused I.A. No. 363/2020 filed by the Applicant pointing out violations at Highway from Gurugram - Kotputli - Jaipur and several other places including Kundli border, Ambala - Chandigarh road, Indore, Bhopal, Jaipur. The applicant has also mentioned an order of the Rajasthan High Court. Under RTI, deficiencies have been acknowledged but not remedied. We direct the NHAI/NHIDCL and other authorities to take remedial action. The applicant is at liberty to make a representation to the concerned authorities within one month. This IA will stand disposed of in these terms.

12. As regards the Execution Application, having recorded our disapproval for the attitude of the NHAI and NHIDCL and directed remedial action, we do not feel it necessary to keep the same pending for indefinite period. We expect higher level authorities in the establishments to take remedial action in the light of observations already made. If any grievance survives, the same can be further considered in fresh proceedings. The application will thus stand disposed of. A copy of this order be forwarded to the Secretaries, MoEF&CC and MoRTH, Central Government, the Managing Directors of NHAI and NHIDCL, CPCB, the Chief Secretaries and the Secretaries PWD of all the States/UTs and the PCBs/PCCs for compliance.

Adarsh Kumar Goel, CP

S.K. Singh, JM

Dr. Nagin Nanda, EM

December 03, 2020

EA No. 29/2018 in O. A. No. 386/2016

SOCIETY FOR PROTECTI... v. NATIONAL HIGHWAY AUT...