The World Cultural Festival was held on the banks of the Yamuna by the Art of Living (AOL) Foundation from March 11-13, 2016. Prior to the festival, an environmentalist, Mr. Manoj Mishra, petitioned the NGT to halt the event's continuing construction on the Yamuna flood plains, citing irreversible environmental devastation. The NGT permitted the festival's conduct on the grounds of fait accompli, notwithstanding an investigation by an appointed expert who also revealed widespread damage to the plains.

Initially, the Tribunal assessed the AOL Foundation a fine of Rs. 5 crores. However, an expert panel established by the NGT recommended a fine of Rs. 42 crores for the flood plains' physical and ecological repair. However, the Tribunal's ultimate judgement held the Art of Living foundation liable for the damage and instructed the Delhi Development Authority to use the already-paid fine of Rs. 5 crores for restoration of the flood plains. This paper presents an analysis of the said order of the NGT in Manoj Misra v. DDA & Ors. (Original Application No. 65 of 2016) while applying the polluter pay principle for holding the foundation accountable for the pollution.

Factual Matrix Of The Case
The applicant, i.e. Shri Manoj Mishra, is a former Indian Forest Service officer who is the convenor of the "Yamuna Jiye Abhiyaan" campaign. Upon learning that the sacred river Yamuna is gravely endangered by persistent development on its flood plains and an increasing pollution load caused by domestic waste as well as agricultural and industrial effluents, the campaign Yamuna Jiye Abhiyaan was convened in 2007.

The Applicant alleged that he initially learned through local farmers and the Art of Living Organization's website (Respondent no. 3) that they were intending to bring in around 3.5 million people from all over the world for their 2016 World Culture Festival Celebration scheduled for March 11th  13th, 2016. The Respondent began construction on the Yamuna flood plain in preparation for arranging the event, which necessitated illegal and unauthorised dumping and construction in the river's active flood plains. It was stated that this construction activity could adversely impact the river system. Thus, according to the applicant, an environmental impact assessment of the activity, which included construction work, was required.

According to reports, the DDA improperly enabled Respondent No. 3 to use land in the river bed/flood plain for the event. This sets a dangerous precedent, as repeated occurrences of similar events will result in major environmental damage and deterioration of the river Yamuna and its flood plains. As a result of these facts and the fact that the event would result in irreparable harm to the flood plains and river, the applicant sought the National Green Tribunal to request that the ongoing construction work be halted and that no activity be permitted on the Yamuna's flood plains. Further, Shri Mishra had previously filed a written complaint against the respondents with the Governor of Delhi, on 11-12-2015, and subsequently filed the application present with the NGT.

Issues To Be Considered:
Whether the Respondent no. 3 i.e. the Art of living Foundation has caused irreparable harm to the flood plains of the Yamuna River on an ecological, environmental and biological level?
Whether the Respondent no. 3 is liable to pay any damages as a consequence of such adverse environmental impact and to restore the site to its pre-existing condition?

Stand Of The Applicant:
The Applicant prayed before the Tribunal that the event be postponed because it would cause an adverse impact on the environment and ecology and establish a dangerous precedent for the future. It was also requested that respondent no. 3 should be fined heavily for environmental degradation and be ordered to restore the entire venue to its previous state.

Stand Of The Respondent
Respondent no. 1 (DDA) took up the stand that a meeting of the High-Powered Committee was held on 18th September 2015 to discuss specific directions given by the Tribunal to DDA in the Yamuna judgment (Manoj Misra Case came to be decided on 13th January, 2015). It was decided to conduct a site visit of the river Yamuna's eastern and western banks, and during the tour, no debris or building material was discovered in the DDA's flood areas.

The DDA recorded the inspection on video. According to the report, the DDA has been diligent in carrying out its responsibilities, as well as in respect to the project that is being reviewed by the High-Powered Committee. Further, it is stated that a part of the Yamuna River's flood plain is not within DDA's authority, and that there may be debris in that area which is not under the control of DDA.

Respondent number two, the Ministry of Environment and Forests, filed an independent response claiming that, according to the Government of India's allocation of business rules, the development, conservation, management, and abatement of pollution in the Yamuna and its tributaries are the responsibility of the Water Resources Ministry, River Development, and Ganga Rejuvenation (abbreviated 'MoWR').The River Yamuna is a tributary of the River Ganga and, therefore, lies under the domain of the Ministry of water resources. Further, it was submitted because the event necessitated only minor and temporary construction, it did not require clearance from the Ministry of Environment, Forestry, and Climate Change or SEIAA under the EIA Notification process. Moreover, the responsibility for the protection of flood plains lies with the MoWR.

Respondent No. 3, i.e. The Art of Living Foundation asserts that it obtained all required permissions from the appropriate authorities in order to hold the event in question. The authorities granted permission without reservation, and only the respondent proceeded to hold the event. The direction issued in the Yamuna judgment is not binding upon the Respondent since it was not a party to the said judgment and Respondent No. 3 is not liable for the floodplain damage because holding of a cultural event does not fall under the category of prohibited activity; rather, it is a permissible activity under the Yamuna judgement. Additionally, Respondent no. 3 claimed that the floodplains had been destroyed long ago as a result of agricultural activities, debris dumping, and other activities.

Order Of NGT:
The NGT permitted the festival's conduct on the grounds of fait accompli, (something that is already done) notwithstanding an investigation by an appointed expert who also revealed widespread damage to the plains.

For the reason of delay on the part of the applicant in approaching the tribunal and for the reason of fait accompli capable of restoration and restitution, we are unable to grant the prayer of prohibition order and a mandatory direction for removal of construction and restoration of the area in question to the applicant at this stage.

Concerning harm already done to the environment and ecology as a result of the illegal and unauthorised actions of the Project Proponents, the parties are required to pay compensation for its repair and restitution under Section 15 of the National Green Tribunal Act. The Tribunal assessed the AOL Foundation a fine of Rs. 5 crores. However, an expert panel established by the NGT recommended a fine of Rs. 42 crores for the flood plains' physical and ecological repair. However, the Tribunal's ultimate judgement held the AOL foundation liable for the damage and instructed that the Delhi Development Authority use the already-paid fine of Rs. 5 crores for restoration work (DDA).

Additionally, it held the DDA accountable for failing to carry out its statutory responsibilities, but while the Tribunal castigated DDA for failing to carry out its statutory duties in environmental preservation, it did not impose any more fines on the authority because it was satisfied that it had previously agreed to establish Biodiversity Parks and enhance the area's environmental state using its funds. The court found no merit in the foundation's challenges to the report of the High-Powered Committee.

Analysis:
It is observed in this judgment that the liability of AOL Foundation was predicated on the principles of absolute liability and polluter pay principle. However, the issue is how the polluter pay principle is to be interpreted. This ruling has the potential to be detrimental, as such a mechanical application of the concept will establish an unfavourable precedent. It makes it abundantly evident that as long as you can pay, you can pollute.

This interpretation is largely regarded as invalid, and the Supreme Court has likewise clearly rejected it. In Research Foundation for Science v. Union of India, the Supreme Court said unequivocally that the polluter pay principle means that the producer of goods or other items shall bear the expense of preventing or remediating any pollution caused by the process. Additionally, the notion does not imply that the polluter can pollute and escape paying for it.

The Supreme Court has clearly applied the polluter pay principle in a number of decisions to hold polluters accountable for contamination they have already created. However, in this case, the NGT was approached before the event's conduct, and it was the Tribunal that granted authorization to proceed with the festival after payment of the fine imposed. Such an approach appears to provide a path forward for people who wish to destroy the environment for their own ends and compensate for it.

The identical case may have been made to serve as a deterrent to those seeking to pollute if the NGT had compensated excessively. Even though the expert panel constituted by the NGT recommended an increased amount of compensation, the Tribunal missed an opportunity to apply a negative interpretation of the polluter pay principle, which would have resulted in a more favourable conclusion in the long term.

Furthermore, the manner in which compensation amounts were reduced demonstrates that the tribunal lacked a standardised process for quantifying environmental damages.
 Additionally, it is unclear if the tribunal's decision to cut the compensation amount by such a large amount was influenced by the presence of high-ranking dignitaries at the event.
The NGT possesses the expertise required to estimate environmental impacts, but this case demonstrates that it is extremely hesitant to use this expertise.

Perhaps resorting to such a solution would be too time-consuming or costly, and so avoided. However, such arbitrary decisions are unlikely to be warmly received by the public. People may lose faith in the tribunal's ability to decide effectively on environmental matters fraught with scientific uncertainty, for which the tribunal was established.

Another shortcoming of the NGT's order is that it made no mention of holding the Delhi Development Authority (DDA) or any other government entity accountable for anything. Before holding the event, the authorities obtained authorization from a number of authorities. The Tribunal should have sanctioned them for providing permission, but it did not, despite the fact that the permissions were provided incorrectly. Additionally, if the area's ecosystem was in such disrepair prior to the occurrence, why was the DDA or any other government agency absolved of responsibility for the "destruction of all vegetation"?

Conclusion
The NGT's ruling regarding the Art of Living Foundation's pollution of the Yamuna flood plains is considered a contentious matter because the tribunal applied both the absolute liability and polluter pay principles in holding the foundation accountable for the pollution. The matter became a source of contention after NGT came under fire for its handling of the situation.

The tribunal was established to give concrete form to the State's commitment to environmental protection and is possibly the most important and competent entity to adjudicate matters involving environmental issues and damage to the environment.

However, despite the fact that the Yamuna floodplains are significantly harmed from an environmental aspect, it allowed the organisers to proceed with the event despite the fact that the condition of flood plains would deteriorate further following such a large event.

Therefore, this case has created a bad precedent since it will encourage environmental deterioration based on the idea of 'pay and pollute.' Moreover, there is a need to improve the Polluter Pays Principle's implementation. Seeing a polluter punished installs confidence and a feeling of justice in society, and deters future polluters from endangering the environment.

Award Winning Article Is Written By: Ms.Gauri Saxena

Authentication No: JL120254109716-21-0721