Rafting per se does not cause any serious pollution of river or environment.
National Green Tribunal (NGT): The Bench of Justice Swatanter Kumar (Chairperson) and M.S. Nambiar (Judicial Member), Dr D.K. Agarwal (Expert Member) and Prof. A.R. Yousuf (Expert Member), allows rafting at Rishikesh but bans camping activity.
Reason for filing the present application
Being aggrieved by the haphazard and unregulated licensing of the river rafting camps operating in river Ganga from Shivpuri to Rishikesh on one hand which is a serious source of pollution of pristine river Ganga on one hand and encroachment and degrading of various areas, on the other hand, the instant application was filed.
The applicant organization has been raising various issues with regard to environmental protection across the country.
Rafting and Camping
In northern India, rafting is commonly exercised on the river Ganges near Rishikesh and the Beas River in Himachal Pradesh. Recent times have witnessed that the said area has been denoted as eco-tourism zone namely Kaudiyala-Tapovan eco-tourism zone where various activities besides rafting and camping have been permitted.
Activities of camping and rafting in a very huge number has caused excessive pressure on the river. On the said sites, either there are no toilet facilities, making people defecate in the open or where they exist they are in the nature of pit disposal.
Causes of Pollution
During monsoon, the discharge remains to flow into the river, thereby causing pollution and interfering in the river eco-system. The tourists and rafters also throw polythene, wrappers and various kinds of bottles on the sites and on the river bed which ultimately flow into the river. Ganga is also polluted because of high use of detergents, soaps and shampoo.
State Government’s approach is violative of the doctrine of public trust as enunciated by the Supreme Court in the decision of M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 and Centre for Environment Law v. Union of India, (2013) 8 SCC 234.
- Trees have been cut in the process of encroaching upon the forest area for the purpose of campsites and beach camps.
- Noise and Air Pollution: Rafting campsites are located upstream and rafters are taken to the campsite in diesel vehicles, creating noise and air pollution.
- Alcohol along with the food is served by the owners, the leftover of which flows into the river causing pollution.
- Wildlife is being affected due to the above-stated camps and the increase in man-animal conflict.
Hence, on the applicant’s behalf, it was submitted that since rafting camps are a ‘non-forest activity’, therefore it cannot be carried on without clearance from the competent authority under the Forest (Conservation) Act, 1980.
Mushrooming of rafting camps cannot be termed as a sustainable development activity or a permissible eco-tourism activity.
Analysis and Decision
Following questions fall for determination of the Tribunal:
- Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?
- Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires approval of the Central Government as contemplated in terms of Section 2 of the Conservation Act?
- Whether in the facts and circumstances of the present case, permitting the establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of sub-section (iii) of Section 2 of the Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?
- Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) of sub-section 2 of Section 8 of Uttarakhand Tourism Development Board Act, 2001 (for short ‘Act of 2001’) when the field was already covered under the Central legislation, i.e., the Conservation Act?
- Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28th August, 1998 issued by MoEF is liable to be quashed?
- Whether camping site is a purely commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on the environment in mind and should be barred?
- If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?
- What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?
- What directions should be issued by the Tribunal?
Discussion
Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?
Under Section 14 of the NGT Act, the Tribunal has the jurisdiction to entertain and decide all civil cases where substantial question arises to environment (including enforcement of any legal right relating to environment) is involved and such question arising out of the implementation of the enactments specified in Schedule-I of the NGT Act.
The ‘cause of action first arose’ would have to be understood in reference to continuing cause of action, where the cause of action is recurring and is distinct or is a new cause of action.
Rafting and camping is an activity which has been carried on for years now. Rules were framed in 2014 by the State of Uttarakhand under which permission and licenses for rafting and camping respectively are to be granted.
According to the affidavit filed on behalf of the State, it is an annual feature and permission/license are granted from September to June every year. Thus, every year it is a fresh cause of action.
Applicant claims and has rightly invoked Precautionary Principle in terms of Section 20 of the NGT Act. The Precautionary Principle can be safely applied to protect and prevent the environment and ecology.
Tribunal stated that the issue in the present application was in regard to proper regulation of rafting and camping activity to prevent damage, degradation and pollution being caused in relation to the forest area, river bank and river Ganga. Hence, such an action would not be hit by limitation.
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Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires or not approval of the Centre as contemplated in terms of Section 2 of the Conservation Act?
Whether in the facts and circumstances of the present case, permitting establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of Section 2(iii) of Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?
In the case of Lafarge Umiam Mining (P). Ltd. v. Union of India, (2011) 7 SCC 338 while referring to Section 2 of the Conservation Act the Supreme Court held that this is how the concept of prior approval from the Central Government comes into picture and thus prior determination of what constitute forest land is required to be done.
The State of Uttarakhand had issued permissions to carry on the non-forest activity in the reserved forest area under the provisions of relevant laws. It had also made a reference to MoEF vide its letter dated 31st July, 1998. This letter was responded by MoEF vide letter dated 24th August, 1998.
MoÉF expressed the view that camps on sandy stretch of river banks for rafting does not fall under the provision of Conservation Act and it is basically an eco tourism activity.
MoEF vide its letter dated 7-10-2014 issued guidelines for diversion of forest land for non-forest purposes or execution of temporary work in the forest land. Vide this letter it clarified that the work which does not involve any tree cutting, is a temporary work and the approval as contemplated under Section 2 of the Conservation Act is not required.
Till 1998 the view of MoEF was that camping should not be permitted in the sandy banks of the river and the forest area. However, the letter dated 28th August, 1998 made some variations.
Tribunal stated that,
“…provisions of Section 2 of the Conservation Act, therefore, must have precedence over any other law for the time being in force in the State of Uttarakhand.”
In the present case, we are primarily concerned with the interpretation of Section 2(ii) and (iii) read with explanation to the section.
Bench observed that ‘Camping Activity’ is an activity which has impacts on environment and ecology and bio-diversity of the river. There are allegations and even records to suggest that number of camping areas have been found to be offending the conditions imposed by the State Government. Cases of breach had been registered against them and in a case even fire-arms were found to be in possession of the visitors coming to these camps.
Further, there are permanent, semi-permanent and temporary structures raised and large scale tenting is done in the river bed. This activity from its nature, substance and actualities extending on the site clearly show that it is a non-forest activity for a non-forest purpose.
Once it is held that the activity of camping on the forest land or any portion thereof is a non-forest activity and for a non-forest purpose, the provisions of Section 2(ii) of the Conservation Act would be applicable and it would be expected of the State Government to issue permission/order in terms thereof only upon taking approval of the Central Government.
Hence the contention that the said activity is not a non-forest activity could not be accepted.
Whether setting up of rafting camps along the beach of river Ganga and its tributaries qualifies as breaking up of the forest as comprehended under Section 2(ii) of the Conservation Act or not?
The term ‘breaking up’ has to be understood with the object of the Conservation Act in mind.
The instant case cannot be compared to the case of S Jayachandran, Joint Secretary, T.N Greens Movement (supra) rather if the activity of camping is carried on for ten months every year it has certain degree of permanency as understood and digging of the area is carried on. Thus, even according to that judgment, it would be breaking up of the forest area.
Furthermore, this is an act being carried on by the private respondents with the permission of the State and is certainly not an act/purpose of reforestation. Thus, we are unable to accept this contention of the respondent.
Hence for the issues mentioned above, tribunal held that the cases of camping activities in the reserved forest areas are activities which are for non-forest purpose or are non-forest activity in the forest area. These cases would attract the provisions of Section 2(ii) and (iii) of the Conservation Act.
It is obligatory upon the State of Uttarakhand to seek approval at least as a matter of scheme from MoEF and then issue orders/permits in terms of Section 2 of the Forest Conservation Act.
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- Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) Section 8(2) of Uttarakhand Tourism Development Board Act, 2001 when the field was already covered under the Central legislation, i.e., the Conservation Act?
- Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28-08-1998 issued by MoEF is liable to be quashed?
Ecotourism is about uniting conservation communities and sustainable travel. It is defined as responsible travel to natural areas that conserves the environment and improves the welfare of the local people.
Examples of negative environmental impacts of tourism to the protected natural areas have been listed as: overcrowding, environmental stress, trail erosion, deterioration of vegetation, noise pollution, contamination of air, water and land, forest fires, wildlife mortality, health hazard, habitat destruction, deforestation, erosion, ecological changes, behavioral changes of animals, groundwater pollution, scarring of landscape, etc.
The provision which empowers the State Government under the Act of 2001 to grant permission for camping activity in the forest area which is a non-forest activity would be ultra vires the provisions of the Conservation Act.
Tribunal in view of the above stated issues held that the MoEF letter dated 28-08-1998 is liable to be quashed the provisions or rules which deal with the implementation and proposal to grant permits for carrying on of camping activity in the forest area are concerned, they are in conflict with the provision of Section 2 of the Conservation Act and hence are ultra virus and cannot be implemented. It is obligatory upon the State of Uttarakhand at best as a matter of policy to seek prior approval of the Central Government before issuance of any permit for said camping activity.
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What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?
Rapid Impact Assessment Report was not found worthy of acceptance by the State of Uttarakhand according to the Inter- Departmental Meeting of the State of Uttarakhand. The said meeting was held as a one day affair in which the team had gone in the river through the motor boat which was not permissible and they had no fair opportunity to examine the sites and offer fair comments. The said contention was not accepted by the tribunal.
The above-stated were verifiable facts and whether the State Government wanted to accept the report or not was a matter, exclusively in the domain of the State Government. But to treat it as an irrelevant document was certainly a mistake, the State Government ought to have considered the report objectively and taken its decision while granting permissions so as to ensure that there was no degradation of environment, biodiversity, ecosystem and particularly the forest area.
Hence, it was observed that the conduct of the State and the private parties are of relevancy in determining the main issue. The Rapid Assessment Report would provide an insight into the working of these camp sites. Undisputedly, there are violations committed by the management as well as the guests at the camp sites.
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- Whether camping site is a pure commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on environment in mind and should be barred?
- If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?
It is clear that this eco-tourism activity is completely a commercial activity intended to provide financial benefit to the State and provide employment to the people of the area.
It is true that rafting does not have any adverse impacts on the environment, ecology and river per se but carrying on of camping activity in the forest area does have substantial impacts.
Bench observed that despite the fact that eco-tourism is a commercial activity still it could be permitted, but subject to a strict regulatory regime and its enforcement without default.
Responsibility lies upon the State to protect its environment, forest and rivers.
Camping activity does cause contamination of river and ground water particularly when the activity is not carried on strictly in terms of the regulatory regime in force.
Further it was stated that the camping activity cannot be permitted as a primary activity as it has been there for continued period of 5 years. It is a matter of common knowledge that a person who wish to make investment for a period of 5 years would be having some reluctance not to raise structure of atleast some permanence to give greater comfort, convenience and service to its visitors, though at the cost of adverse impacts upon environment, ecology, river and wildlife.
Thus, it is absolutely essential that a proper stringent Regulatory Regime is placed on record so that such activity can be permitted to continue longer.
Tribunal also noted that the Ganga river from Gaumukh to Rishikesh which few years back was a river of pristine and without any pollution today, because of various factors, of which camping is one, has altered water quality, therefore it is absolutely necessary that a High Powered Committee is constituted.
There has to be very serious supervision with physical inspections at regular intervals by team of high officers of the Forest Department of Uttarakhand and Uttarakhand Environment Protection and Pollution Control Board.
there would be no camping or camping site in the mid of the river or river bed and anywhere within the area which is less than 100 meters measured from the middle of the river upto 2 km beyond boundary of the Rishikesh upstream and not less than 200 meters measured from middle of the river there onwards till boundary of Haridwar downstream.
The concept of ‘Back to Nature’ ought not to be used for developing revenue at the cost of Environment and Ecology.
Directions:
Tribunal passed the following directions in view of the above discussion:
- No camping activity shall be carried out in the entire belt of Kaudiyala to Rishikesh and the Government would abide by its statement made before the Tribunal on 31st March, 2015. Rafting activity is permitted to be carried with immediate effect.
- A committee of officers is constituted not below te rand of a Joint Secretary from the Ministry of Environment and Forests and along with a specialist in this from the Ministry.
- The Rapid Impact Assessment Report shall be treated as a relevant document and the Committee would conduct or get conducted a further survey to satisfy itself.
- Committee shall consider all aspects of Environment, Wildlife, River and Biodiversity while preparing the relevant regulatory regime.
- Committee shall give recommendation for all preventive and curative measures and steps that should be taken for ensuring least disturbance to wildlife and least impact on the environment and ecology.
- After preparation of this report which should be prepared within 3 weeks from the pronouncement of this Judgement, the State of Uttarakhand through Secretary, Forests would submit a Comprehensive Management Plan cum proposal for approval to MoEF. MoEF would consider the same in accordance with law and accord its approval in terms of Section 2 of the Forest Conservation Act.
- Committee shall ensure that it not only identifies the sites which can be appropriately used for camping activity but also the manner and methodology in which such sites should be put to use for carrying on of these activities.
- After grant of approval, the State of Uttarakhand shall issue an order under Section 2 of the Forest Conservation Act and give permits in terms of its policy.
- In terms of revenue and technical aspects, the State is free to take its decisions.
- Tribunal further directs that if the Committee is of the opinion that rafting stations and number of rafting shafts to be permitted should be more than camp sites, it may so recommend but then, those rafting stations shall be used for very limited purposes of picking up and dropping the visitors without any other infrastructure.
- local persons should be provided with maximum chances of employment or other financial gains resulting from this Eco-Tourism.
- Complete prohibition on use of any plastic in the entire belt covered under the present judgement.
- It shall be obligatory upon every person to whom permit/license for camping is granted by the State to collect the Municipal Solid Waste or all other wastes from the camping site at its own cost and ensure their transport to the identified sites for dumping.
- No structure of any kind would be permitted to be raised, temporary, semi-permanent or permanent. We make it clear that making of the cemented platforms or bricked walls would not be permitted within the limits aforestated.
- Committee also has to make this Report in relation to source, quantum of Water and source of Power needed keeping in view the camping activity.
[Social Action for Forest and Environment (Safe) v. Union of India, 2015 SCC OnLine NGT 843, decided on 10-12-2015]