In an order, which reads like admission of helplessness, the National Green Tribunal (NGT) today declined to prohibit the holding of multi-crore World Culture Festival (WCF) organized by the Art of Living Foundation on the flood plains of the river Yamuna, after two days of hectic hearing of the parties concerned.

The event, to be attended by several lakh people from all over the world, is to be held from 11 to 13 March.

The reason, attributed by the NGT, for the denial of relief to the applicant Manoj Mishra and others, is delay and laches on their part in approaching the NGT and for the reason of fait accomplicapable of restoration and restitution.

The following were the three petitions before the bench and they raised identical pleas to shift the venue of the event, considering the likely grave threat to the ecological system, if it was allowed and the alleged violations of the tribunal’s orders by the organisers:

• - Manoj Mishra vs Delhi Development Authority and others
• - Pramod Kumar Tyagi vs Art of Living International Center and others
• - Anand Arya vs DDA and Ojasvi Party vs MoEF & CC

Today’s order was delivered by the bench comprising chairperson Swatanter Kumar, Justice MS Nambiar (judicial member), Dr. Devendra Kumar Agrawal (expert member), and BS Sajwan (expert member).

The order said that the principles, as stated in the judgment of the NGT in the case of SP Muthuraman v Union of India and Ors, delivered on 7 July 2015 can be squarely applied to the facts and circumstances of the present case.

The NGT’s order noted that the present application seeking cancellation of the AoL’s event was filed by the applicant only on 8 February, when the organisers had substantially completed the construction work on the flood plains and allied areas which would squarely fall within the jurisdiction of the NGT

Paltry fines

The NGT, in today’s brief order, imposed a fine of Rs 1 lakh on the Delhi Pollution Control Board (DPCC), even though its findings against it are quite serious.

The NGT has rejected the DPCC’s contention that it was not obligatory on its part to grant or refuse to consent to the Vyakti Vikas Kendra-India (the Foundation, which is the AoL’s ancillary, responsible for the preparations for the event).

The NGT has held that it was expected of the Board to issue appropriate directions in exercise of its statutory powers.  The NGT found that the DPCC has failed to discharge its statutory obligation despite the fact that the Foundation had submitted an application for obtaining its consent.

Although NGT  found the Police Department, Fire Department and the Ministry of Water Resources, River Development and Ganga Rejuvenation also guilty of not exercising due diligence in fulfillment of their public duties, it did not impose any fines on them.

The NGT also rejected the contention of Ministry of Environment and Forests and Climate Change (MoEF & CC) that it was not required for the Foundation to seek Environmental Clearance (EC) for the project relating to all matters of construction and related issues.

Nevertheless, the MoEF & CC got away with no fines.

The NGT has recorded that flood plains have been drastically tampered with while destroying the natural flow of the river, reeds, grasses, natural vegetation on the river bed.

For the damage caused to the environment, ecology, biodiversity and aquatic life of the river, the Foundation should be held liable for its restoration in all respects, the NGT held and imposed an Environmental Compensation, initially of Rs 5 crores, to be paid prior to the commencement of the event.

This amount would be adjusted towards the final compensation determined to be paid by the Foundation for restoration work.

The NGT directed the Principal Committee, to submit a report within four weeks, in relation to the steps required to be taken for restoration, restitution and rejuvenation of the flood plains to its original status.

The report will also state the approximate cost that would have to be incurred for such restoration and restitution.

The NGT also found the permission granted by the Delhi Development Authority (DDA) on 30 June 2015 erroneous, as it sought to justify the grant of permission on the ground that it is a recreational activity.  

The NGT held that the construction of ramps, roads, accumulation of debris, alteration of the natural topography and removal of natural vegetation from the flood plains cannot be said to be recreational.

The NGT, therefore, imposed a fine of Rs 5 lacs on DDA, for non-performance of its statutory functions.

The reliance of today’s order on the NGT’s earlier judgment in SP Muthuraman case has led observers to wonder whether the NGT was powerless in the face of gross violations of environmental laws, with the authorities, entrusted with certain powers to prevent such violations, looking the other way, and permitting them.

In SP Muthuraman, the NGT noted that it would not be advisable to direct complete demolition of properties, where the project proponents did not care to obtain EC and other due permissions.

The Project Proponents claim to have invested huge amounts in raising these projects, and most importantly interest of 3rd party have been created in these projects, the NGT reasoned.

Highlights of hearing on 9 February

Interestingly, the relevance  of SP Muthuraman to the facts of the present case, was not seriously addressed during the arguments before the bench yesterday and today. 

Earlier, the bench expressed surprise at the detailed cost estimate for the event, as given by the AoL’s counsel, and also over the number of likely participants expected to attend the three-day programme.

AoL told the bench that about 3 lakh people from 155 countries are expected to attend the event.  

Sanjay Parikh, senior advocate for the petitioner, argued that the AoL Foundation cannot invoke Article 19(1)(a) to organize the event at the chosen venue, because the prohibition in Article 21, under which right to life and liberty has been held to include also the right to a clean environment.

Besides, Articles 51A (g) and 48A impose duties on the citizen and the state to protect and promote environment, he said.

When the chairman specifically asked Parikh to explain whether the NGT has the jurisdiction to debar the activity being planned at the site, Parikh explained that freedom of expression gives no right to occupy any place, and that one can’t read everything under  Article 19(2) restrictions, meaning they are not exhaustive, in terms of a Supreme Court judgment delivered in 1969.

Today’s brief order is silent on this contention of Parikh.

Parikh also pointed out that the organizers of the event have used 40 hectares of area in excess of the area for which they obtained permission from the DDA

Although today’s order clearly says that a detailed judgment will be delivered later, its justification of denial of the plea to cancel the event on a mere technical ground of laches, probably requires more reasoning in the final judgment.

Highlights of hearing on 8 March

Parikh for the petitioner set the tone by suggesting that some order is required to be passed, and the NGT ought to determine whether there has been a violation of its orders.

The bench then asked Rajiv Bansal, advocate for DDA to recapitulate his submissions.   He began saying that the NGT had never prohibited the user from using the flood plain in question for any temporary purpose and that any construction of permanent nature only has been barred.

He also suggested that any activity, if regulated, can be permitted.  He contended that flood plain is meant for recreational purpose.   He asked why the petitioners did not challenge the permission to hold the event, before substantial arrangements have been made.

He claimed that DDA’s hands are absolutely clean, and was categorical that there was no debris at the site from October to December 2015.  He was willing to be examined on evidence on  this issue.

Bansal submitted that an adverse inference could not be drawn from DDA’s letter which said that debris must be removed, as per NGT’s orders.  “It cannot be interpreted as an admission that there was or is debris”, he argued.

When Bansal argued that an admission must be unambiguous, the Chairman suggested that his view cannot apply to documents.

Bansal then submitted that DDA stood by its permission to the organizers of the event. “I have not disowned the permission”, he clarified, and accused Sanjay Parikh of distorting his views, in his interactions with the media.  The misreporting of his views and that of the DDA, is a media trial, he alleged.

The hearing was held  in the wake of a report submitted by the committee, formed by the NGT, for visiting the site of the WCF.

The committee comprised of Shashi Shekhar, Prof AK Gosain of IIT Delhi, Prof Brij Gopal, and senior officials of DDA and Irrigation and Flood Control Dept of GNCTD   The team visited the site near DND Flyover where WCF is being organized by AoL Foundation from 11 to 13 March.

The committee observed that the entire area of the flood plain between the river and DND flyover has been leveled flat,  and the small water bodies that existed earlier have been filed and all the natural vegetation has been removed and the site has been compacted.

It also noted that construction debris has been dumped especially on some of the roads that are constructed along the river margin.

Its other findings were:

Two ramps have been constructed joining the DND flyover with the flood plains close to the stage for the festival for providing access to the VIPs on the rear side of the stage by filling with debris  and earth.

One pontoon bridge has been completed on river Yamuna and another one is under construction and few more are proposed on the river and Barapullah drain.

Besides the natural floodplain vegetation, even most of the trees have been removed or lopped.

On 8 March, when Parikh told the bench that the event constitutes contempt of NGT’s orders, and therefore the present proceedings must be construed as contempt proceedings, the Chairman disagreed and said that this is a original proceeding, and cannot be termed as contempt proceeding.

Read NGT order

Photo by ceeabraham