T.N. Godavarman
Thirumulpad Vs Union of India & Ors.
WITH I.A. NOS.2896/10
& 2900/10 IN I.A. NOS.2609-2610 OF 2009 AND I.A. NO.2928/10 IN I.A.
NOS.2609-2610/09 IN W.P. (C) NO.202 OF 1995
JUDGMENT
AFTAB ALAM, J.
1.
At
the centre of the controversy is a very large project of the Uttar Pradesh
government at NOIDA. Objecting to the project are the two applicants who are
residents of Sector 15A, NOIDA, U.P. They claim to be public spirited people,
committed to the cause of environment. According to them, the project,
undertaken at the instance of Uttar Pradesh Government is a "huge
unauthorized construction". The applicants state that a very large number
of trees were cut down for clearing the ground for the project. The trees that were
felled down for the project formed a "forest" as the term was construed
by this Court in its order dated December 12, 1996 in Writ Petition (C) No.202
of 1995; T.N. Godavarman Thirumulk pad v. Union of India & Ors., (1997) 2
SCC 267 and the action of the Uttar Pradesh Government in cutting down a
veritable forest without the prior per mission of the Central Government and
this Court, was in gross violation of section 2(ii) of the Forest
(Conservation) Act, 1980(hereafter "the FC Act"). The project
involved massive constructions that were made without any prior environmental
clearance from the Central Government based on Environment Impact Assessment.
The constructions were, therefore, in complete breach of the provisions of the
Environment Protection Act, 1986 (hereafter "the EP Act") and the notification
issued under the Act. More importantly, the project was causing great harm, and
was bound to further devastate the delicate and sensitive ecological balance of
the Okhla Bird Sanctuary to which the site of the project lay adjacent. The project
was, thus, in complete disregard of this Court's directions concerning `buffer
zones'.
2.
The
State of Uttar Pradesh, of course denies, equally strongly, all the allegations
made by the applicants. According to the State, it was setting up a park that
would develop and beautify the area in a unique way. The park was conceived as
a fine blend of hard and soft landscaping with memorial structures and
commemoration pieces. The construction of the park did not violate any law or
the order of the Court. There was no infringement of the provisions of the FC
Act or the EP Act or the notification made under it. Further, the setting up of
the park caused no harm to the bird sanctuary. The applicants' objections to
the construction of the park were fanciful and imaginary and actuated by
oblique motives. THE PROJECT:
3.
Before
proceeding to examine the arguments of the two sides in greater detail it would
be useful to take a look at the project and to putat one place the basic facts
concerning it that are admitted or at any rate undeniable. i. The project is
sited at sector 95, Noida. According to the applicants, at the site of the
project previously there used to be five parks on the Yamuna front, namely, Mansarovar,
Nandan Kanan, Children's Park, Smriti Van and Navagraha, opposite Sectors 14A,
15A and 16A, Noida. ii. The project site, on its western side, lies in very
close proximity to the Okhla Bird Sanctuary. The bird sanctuary was formed as a
large water body with the adjoining land- mass of the embankment as a result of
the construction of the Okhla Barrage. It falls partly in Delhi and partly (400
hectares in area) in the district of Gautam Budh Nagar, U.P. The administrative
control of the area of the Sanctuary is under the Uttar Pradesh Irrigation
Department and its management is with the Uttar Pradesh Forest Department. The
Sanctuary is home to about 302 species of birds. According to the Bombay Natural
History Society, out of the bird species found here, 2are critically
endangered, are vulnerable and 7 are nearly threatened. About 50 species are
migratory in nature and come here mainly during the winter months. The annual population/visit
is estimated as under:
2006- 2007 - 24166
2007-2008 - 17111
2008-2009 - 21272
This haven for birds
was declared a bird sanctuary ("the Okhla Bird Sanctuary") vide
notification dated May 8, 1990issued by the State of Uttar Pradesh under
section 18 of the Wildlife (Protection) Act, 1972. The project, subject of the present
controversy, is sited in very close proximity to the Okhla Bird Sanctuary on
its eastern side. The applicants refer to it as adjoining the left afflux bund
of the Okhla Bird Sanctuary but to be accurate it lies about 35-50 metres away from
the outer limit of the Sanctuary. According to the applicants, the boundary of
the project site is as under:
North- Delhi-UP DND
Toll Road
South- Not clearly
stated
East- Dadri Road
West- Okhla Bird
Sanctuary, left
afflux bund
i.
The
project is spread over an area of 33.43 hectares, equal to 334334.00 square
metres of land surrounded by a boundary wall made of stone, 2 metres in height
and 0.3 metres in thickness. The estimated cost of the project is Rupees 685
crores.
ii.
At
the site of the project there used to be a tree cover, thin to high- moderate
in density and for clearing the ground for the project six thousand one hundred
and eighty six (6186) trees were cut down and one hundred and seventy nine
(179) were "shifted". These trees were of Subabul, Bottle Brush, Bottle
Palm, Morepankhi, Ficus benjamina, Cassia siamia, Eucalyptus, Fishtail palm, Rubber
plant, Silver oak, etc.
iii.
The
project, though insisted upon by the Uttar Pradesh Government is nothing but a
`recreational park', involves the construction of dedicatory columns,
commemorative plaza, national memorial, plinth with sculptures, larger than
life-size statues on tall pedestals, large stone tablets with tributary engravings,
pedestrian pathways, service block, boundary wall, hard landscape, soft
landscape, etc. As initially planned the breakup of the area under different
uses was as under:
Total Area within
boundary Wall
|
3,34,334.00 sq.m.
|
|
Total built up
covered area for activities Memorial Building & toilet blocks
|
3,499.50 sq.m.
|
1.05%
|
Utilities &
facilities
|
3,500.00 sq.m.
|
1.05%
|
Area Under Hard
Landscape (including platforms, plinth, sculptures & surrounding paved areas,
paths)
|
1,29,140.80sq.m.
|
38.62%
|
Total area under
Soft Landscape Area under grass plantation
|
1,57,161.79 sq.m.
|
47.01%
|
Area under planters
built within paved areas
|
6,181.91 sq.m.
|
1.85%
|
Total area for
vehicular
|
34,850.00 sq.m.
|
10.42%
|
movement with grass
pavers (maintenances, fire path etc.)
i. According to the
State Government, the work on the project commenced in January 2008. The
applicants filed IA no.1179 before the Central Empowered Committee (hereafter
"CEC") constituted by this Court on March 5, 2009. They filed IA nos.
2609-2610 of 2010 (presently in hand) before this Court on April 22, 2009.
According to the State Government, by that time 50% of the construction work of
the project was complete. The report from the CEC was received in this Court on
September 4, 2009 and on October 9, 2009, this Court by an interim order
restrained the State Government from carrying on any further constructions till
further orders. By that time, according to the government, 70-75% of the
construction work of the project was completed. i. In course of hearing of the
matter, on a suggestion made by the Court, the State Government modified the
layout plan increasing the soft/green area from 47% to 65.28% of the total area
of the project. The revised layout plan is as under:
S. No.
|
DESCRIPTION
|
EXISTING (in sq.
metres +%)
|
MODIFIED (in sq.
metres +%)
|
1.
|
Green Area
|
157161.79 (47%)
|
218246.51 (65.28%)
|
2.
|
Hard Landscape
|
129140.80 (38.6%)
|
98544.99 (29.48%)
|
aBoundary Wall
|
2700.79 (0.81%)
|
2700.79 (0.81%)
|
bPlatforms,
Plinths, Sculpture & Surrounding Paved Areas
|
126440.00 (37.79%)
|
95844.99 95844.99
|
3.
|
Area for vehicular movement
|
34850.00 (10.42%)
|
0.00 (NIL)
|
4.
|
Area under
ornamental water feature (may be considered part of the Eco Friendly Area)
|
0.00 (NIL)
|
6302.00 (1.88%)
|
5.
|
Area under parking
with grass pavers (may be considered part of the Eco Friendly Area)
|
0.00 (NIL)
|
4241.00 (1.27%)
|
6.
|
Utilities and
Facilities
|
3500.00 (1.05%)
|
3500.00 (1.05%)
|
7.
|
Memorial Building
and Toilets
|
3499.50 (1.05%)
|
3499.50 (1.05%)
|
8.
|
Total Area
|
334334.00 (100%)
|
334334.00 (100%)
|
Under the amended
plan, around 7300 trees, more than 4 years of age and measuring 8-12 feet in
height, belonging to the native species such as Neem, Peepal, Pilkhan, Maulsari,
Imli, Shisham, Mango, Litchi and Belpatra will be planted in the project area.
4.
According
to the State Government, the revised plan that includes planting of trees in
such large numbers would not only restore the tree cover that was in existence
at the site earlier but would make the whole area far better, more beautiful
and environment friendly. The applicants however, would have none of it. On
their behalf it is contended that the whole project is bad and illegal from
every conceivable point of view; its construction was started and sought to be completed
at a breakneck speed in flagrant violation of the laws. According to the
applicants therefore, all the structures at the project site, complete,
semi-complete or under construction must be pulled down and the project site be
restored to its original state. THE PROJECT AND SECTION 2 OF THE FC ACT:
5.
Mr.
Jayant Bhushan, learned senior counsel appearing for the applicants submitted
that over six thousand trees were admittedly cut down for clearing the area for
the construction of the project and itwas, thus, clearly a case of forest land
being put to use for non-fores tpurpose in complete violation of section 2 (ii)
of the FC Act.
Section 2 of the FC
Act, in so far as relevant for the present, provides as follows: "2.
Restriction on the de-reservation of forests or use of
forest land for
non-forest purpose.- Notwithstanding
anything contained
in any other law for the time being in force in a State, no State Government or
other authority shall make, except with the prior approval of the Central Government,
any order directing.- (i) xxxxxxx
(ii) that any forest
land or any portion thereof may be used for any non-forest purpose.
(iii) xxxxxxx
(iv) xxxxxxx Explanation.-
For the purpose of this section "non-forest purpose" means the
breaking up or clearing of any forest land or portion thereof for- (a) the
cultivation of tea, coffee, spices, rubber, palms, oil bearing plants,
horticulture crops or medicinal plants; (b) any purpose other than re-a
forestation, but does not include any work relating or ancillary to conservation,
development and management of forests and wild-life, namely, the establishment
of check-posts, ire lines, wireless communications and construction of fencing,
bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines
or other like purposes."The restriction imposed by section 2(ii) is in
respect of forest land. It, therefore, needs to be ascertained whether the
project area can be said to be forest land where there was a forest that was
cut to make the site clear for the project.
6.
In
support of the contention that the trees that were cleared for the construction
of the project comprised a forest, the applicants rely heavily on the order
passed by this court on December 12, 1996 in thecase of T.N Godavarman
Thirumulkpad [Writ Petition (C) No.202 of1995), (1997) 2 SCC 267], being the
first in a series of landmark orders passed by this Court in an effort to save
the fast diminishing forest cover of the country against the greedy and wanton
plundering of its natural resources. In that order the Court gave a number of
directions. One such direction, at serial no.5 to each of the State
Governments, is as under: "Each State Government should constitute within
one month an Expert Committee to:
i. Identify areas which
are "forests", irrespective of whether they are so notified,
recognized or classified under any law, and irrespective of the ownership of
the land of such forest;
ii. identify areas which
were earlier forests but stand degraded, denuded or cleared; and
iii. identify areas
covered by plantation trees belonging to the Government and those belonging to
private persons. "
7.
In
pursuance of the direction of the Court, the Uttar Pradesh Government
constituted the State Level Expert Committee for identifying forests and
forest-like areas. The Committee in its report dated December 12, 2007 framed
certain parameters for identification of forest-like areas according to which,
in the plains, any stretch of land over 2 hectares in area with the minimum
density of 50 trees per hectare would be considered as "forest". On
January 11, 2008 (as taken note of in the order of that date) it was reported
to this Court that the guidelines were issued for identification of forest-like
areas and steps would be taken to identify "forest-like areas" in all
the districts in the State of Uttar Pradesh within four months and such areas
would be handed over to the forest department, excepting the private areas, if any.
As the process of search and identification of forest like areas in the
districts of Uttar Pradesh proceeded, the District Level Committee headed by
the District Collector, Gautam Budh Nagar, by its letter dated February 26,
2008 addressed to Conservator Forests & Regional Director intimated that
there was no forest-like area in the district and consequently the project site
was not identified as a forest or forest-like area by the State Level Expert
Committee constituted in pursuance of this Court's order dated December 12,
2006.
8.
It
was in this background that the project started, according to the State
Government, in January 2008. When the work on the project became noticeable
from the outside the applicants filed their complaint before the CEC on March
5, 2009. As the controversy erupted with regards to "large scale
construction near the Okhla Bird Sanctuary bythe State Government" the
Ministry of Environment and Forests(hereafter "MoEF") asked the Chief
Conservator of Forests (CCF),Central Region, Lucknow, to make a site inspection
of the project and to give his report. The CCF in his report dated July 10,
2009 did not accept the stand of the State Government that there was no forest
on the project site. He stated that 6000 trees were "sacrificed" in
an area of32.5 hectares and that showed that the area had sufficiently dense
forest cover and would qualify as "forest" according to the
dictionary meaning of the word and as directed by the Supreme Court. He, however,
suggested that before taking a final view on the matter are port may be called
for from the Forest Survey of India (hereafter "FSI") in order to
verify the vegetation cover over the area before the construction work started
there. In light of the report by the CCF, the MoEF noted that the number of cut
trees, in ratio to the project area, was apparently more than three times in
excess of the criterion fixed by the State Level Expert Committee for
identification of forest like areas (i.e., minimum of 50 trees per hectare). As
suggested by the CCF, therefore, the MoEF called for a report from the FSI
based on satellite imagery and properly analysed by GSI application from the
year 2001 onwards (vide letter dated July 17, 2009 from the Dy. Conservator of Forest
(C) to the Director, Forest Survey of India). The FSI gave its report on August
7, 2009 which we shall examine presently. In light of the report of the CCF and
the report from the FSI, the MoEF in its first response to applicants'
complaint before the CEC (under covering letter that is undated, received at
the CEC on August 12, 2009) stated that at the project site "there was
good patch of forests and which could be treated as deemed forest". It
further said that the report of the FSI showed that the forest cover existed
there up to 2006 and the felling of trees might have taken place after that
only.
9.
In
the meeting convened by the CEC on the applicants' complaint on August 12,
2009, the Chief Conservator of Forests (CCF) MoEF, Lucknow stated that the
plantation done in the project area was naturalized and having regard to the
number of trees that existed in the area, the project area should be seen as
"deemed forest" and, therefore, it attracted the provisions of the FC
Act, and any non-forest use of the land required prior approval of the Central
Government. In view of the stand taken by the CCF, the CEC by its letter of
August 13, 2009requested the MoEF to give its response on the issue. Here it
may be noted that till that stage the stand of the MoEF, based on the reports
of the CCF and the FSI, though tentative seemed to be definitely inclined towards
holding that the trees that were felled for clearing the site comprised a
forest/deemed forest and the construction at the project site was hit by the
provisions of the FC Act. But now in a perceptible haft in its stand the MoEF
informed the CEC by its letter of August22/24, 2009 that in its view, the
project site did not attract the provisions of the FC Act. It referred to the
order of this Court dated December 12, 1996 and pointed out that the project
site did not appear in the list of deemed forest land identified by the State
Level Expert Committee in pursuance of the order of the Court. It concluded by saying
as follows: "In view of the above, it is informed that the area under discussion
is neither recorded as forest nor deemed forest and actually an urban tree
park. Therefore, construction work in this area does not attract the provision
of the Forest (Conservation) Act, 1980."
10.
The
letter dated August 22/24, 2009 from the MoEF was followed by another letter of
September 2, 2009. This was purportedly to put the observation in the previous
letter that "...[Construction work in this area does not attract the
provisions of the Forest (Conservation) Act1980'' in context. This letter
referred to the satellite images provided by the FSI and the reports submitted
by the CCF but in the end, "given the sensitivity of the matter and the
high degree of public interest" left it to the CEC to draw appropriate
conclusions from the materials furnished to it.
11.
The
CEC on a consideration of all the materials made available to it, including the
report of the FSI (on which the applicants heavily rely),came to hold and find
that the project site was not a forest or a deemed forest or a forest-like area
in terms of the order of this Court dated December 12, 1996. In its report to
this Court dated September 4, 2009it observed in this regard as follows: "28.....
In the present case, even though as per the Report of the Forest Survey of
India, the area was having good forest/tree cover and the project area had more
than 6000 trees, it does not fall in the category of "forest" for the
purpose of section 2 of the Forest (Conservation) Act and therefore does not
require any approval under the Forest (Conservation) Act. The project area does
not have naturally grown trees but planted trees. The area has neither been
notified as "forest" nor recorded as "forest" in the
Government record. In the exercise carried out by the State of Uttar Pradesh,
after detailed guidelines for identification of deemed forest was laid down,
the project area was not identified to be deemed forest. The CEC does not agree
with the Regional Chief Conservator of Forests, MoEF, Lucknow that the
plantation done in the area has naturalised because of natural regeneration and
therefore now falls in the category of deemed forest. Most of the trees are of
species such as Subabul, Bottle Brush, Bottle Palm, Morepankhi, Ficus benjamina
Cassiasiamia, Eucalyptus, Fishtail Palm, Rubber plant, Silver ok e etc which
are not of natural regeneration. As such hardly any tree of natural regeneration
exist. 29. As per the definition of "forest" as held by the Hon'ble Supreme
Court in its order dated 12.12.1996, the project area therefore cannot be
treated as "forest" for the purpose of the Forest (Conservation)
Act." (emphasis added)
12.
Mr.
Jayant Bhushan strongly assailed the finding of the CEC as erroneous. Learned
counsel stated that the CEC took the view that the project area could not be
described as "forest" and did not attract the provisions of FC Act
mainly because the trees in the project area that were cut down for making
space for the constructions were planted trees and not naturally grown trees.
He contended that the reason given by the CEC was quite untenable being
contrary to the judgments of this Court where it is held that forest may be
natural or man-made. He further submitted that the view that in order to
qualify as forest the trees must be "naturally grown" is fraught with
grave consequences inasmuch as a very large portion of the forests in India are
planted forests and not original, natural forests. Further, any afforested area
would also cease to be recognized as a forest if the view taken by the CEC were
to be upheld.
13.
The
other reasons given by the CEC for holding that the project area was not a
forest was that it was neither notified as "forest" nor recorded as
"forest" in the Government record and even in the exercise carried
out by the State of Uttar Pradesh, after detailed guidelines for identification
of deemed forest were laid down, the project area was not identified to be
deemed forest. Mr. Bhushan contended that these reasons were as misconceived as
the previous one. The area was not notified or recorded as forest meant nothing
since this Court had passed a series of orders with the object to bring such
areas within the protection of the FC Act that were not notified or recorded as
forest. In the same way the failure of the State Level Expert Committee to identify
the project area as forest even though it fully satisfied the criterion set by
the Committee itself for the purpose will not alter the true nature and
character of the area as forest land.
14.
Mr.
K.K. Venugopal, learned senior counsel appearing for the State of U.P. strongly
supported the view taken by the CEC. Learned counsel submitted that the
omission to identify the trees at the project site as forest or deemed forest
was not due to any mistake or by chance. He pointed out that in the parameters
set out by the State Level Expert Committee for identification of forests or
forest-like areas it was clarified that "trees mean naturally grown
perennial trees" and it was further stipulated that "the plantation
done on public land or private land will not be identified as forest like
area". Mr. Venugopal submitted that the guidelines made by the Expert
Committee were reported to this Court and accepted by it on December 12, 2007.
The project site clearly did not come within the parameters fixed by the Expert
Committee and it was rightly not identified as a forest like area. The
parameters fixed by the expert committee for identification of forests or
forest like area were never challenged by anyone and now it was too late in the
day to question those parameters, more so after those were accepted by this Court.
Mr. Venugopal contended that the non inclusion of the project site as a forest
or forest-like area by the State Level Expert Committee should be conclusive of
the fact that the area was not forest land and the trees standing there were no
forest.
15.
Mr.
Bhushan contended that a tract of land bearing a thick cluster of trees that
would qualify as forest land and forest as defined by the orders of this Court
would not cease to be so simply because the parameters adopted by the Expert
Committee were deficient and inconsistent with this Court's orders. In support
of the submission that there was actually a forest in that area that was cut
down for the project he relied upon the report of the FSI dated August 7, 2009
in which the forest cover status at the project site based on IRS 1D/P6 LI88
III data is shown as follows: Forest Cover Status in the Area of Interest (AOI)
of NOIDA from 2001 to 2007 Area in ha. Date of Very Moderately Open Total Non Total
Satellite Data Dense Dense Forest Forest Forest Forest Area Assessment (sic) Forest
Cover (State of Forest Report) 8th (2001) October-2000 0 3.74 10.42 14.16 32.27
46.439th (2003) November- 0 6.05 10.71 18.76 29.67 46.43 200210th (2005) November-
0 7.54 14.23 21.77 24.66 46.43 200411th (2007) October-2006 0 9.04 12.73 21.77 24.66
46.43
16.
In
the report it was also stated that the latest forest cover assessment by the
FSI was based on satellite data of 2006 and it did not have any data of the
later period. It further stated that the felling of trees might have taken
place after October, 2006. Mr. Bhushan invited our attention to the order of
this Court in the case of T.N. Godavarman v. Union of India, (2006) 5 SCC 28
(paragraphs 16, 18, 33, 37, 38) to show that this Court had accepted the
reliability of the FSI report based on satellite imagery.
17.
Mr.
Bhushan also relied upon the report of the CCF, MoEF, Lucknow, a reference to
which has already been made above. He also relied upon the first response of
the MoEF, where it was stated that at the project site there was a "good
patch of forests and which could be treated as a deemed forest" and
further that the report of the FSI showed that the forest cover existed there
up to 2006 and the felling of trees might have taken place after that only. Mr.
Bhushan lastly relied upon the Google image which has a dark patch in
approximately 1/3 rd of the area interpreted by him as a dense cover of trees.
18.
In
support of the submissions learned counsel relied greatly on the order passed
by this Court on December 12, 1996 in the case of T.N Godavarman Thirumulkpad.
He also relied upon the decisions of this court in Samatha v. State of Andhra
Pradesh & Ors., (1997) 8 SCC 191(paragraphs 119, 120, 121, 123) and M. C.
Mehta v. Union of India &Ors., (2004) 12 SCC 118 (paragraphs 55, 56, 57).
19.
The
point raised by Mr. Bhushan may be valid in certain cases but in the facts of
the case his submissions are quite out of context. In support of the
applicants' case that there used to be a forest at the project site he relies
upon the report of the CCF based on site inspection and the Google image and
most heavily on the FSI report based on satellite imagery and analysed by GSI
application. A satellite image may not always reveal the complete story. Let us
for a moment come down from the satellite to the earth and see what picture
emerges from the government records and how things appear on the ground.
20.
20.
In the revenue records, none of the khasras (plots) falling in the project area
was ever shown as jungle or forest. According to the settlement year 1359 Fasli
(1952A.D.) all the khasras are recorded as agricultural land, Banjar
(uncultivable) or Parti (uncultivated).
21.
NOIDA
was set up in 1976 and the lands of the project area we reacquired under the
Land Acquisition Act mostly between the years1980 to 1983 (two or three plots
were notified under sections 4/6 of the Act in 1979 and one or two plots as
late as in the year 1991). But the possession of a very large part of the lands
under acquisition (that now form the project site) was taken over in the year
1983. From the details of the acquisition proceedings furnished in a tabular
form (annexure 9to the Counter Affidavit on behalf of respondents no. 2 &
3) it would appear that though on most of the plots there were properties of
one kind or the other, there was not a single tree on any of the plots under acquisition.
The records of the land acquisition proceedings, thus, complement the revenue
record of 1952 in which the lands were shown as agricultural and not as jungle
or forest. There is no reason not to give due credence to these records since they
pertain to a time when the impugned project was not even in anyone's
imagination and its proponents were nowhere on the scene. Further, in the
second response of the MoEF, dated August 22/24, 2009 there is a reference to
the information furnished by the Deputy Horticulture Officer, NOID A according
to which plantations were taken up along with seed sowing of Subabul during the
year 1994-95 to 2007-08. A total of 9,480 saplings were planted (including 314
saplings planted before 1994-95). NOID A had treated this area as an
"Urban Park".
22.
It
is, thus, to be seen that on a large tract of land (33.45 hectares in area)
that was forever agricultural in character, trees were planted with the object
of creating an urban park (and not for a forestation!).The trees, thus, planted
were allowed to stand and grow for about 12-14years when they were cut down to
make the area clear for the project.
23.
The
satellite images tell us how things stand at the time the images were taken. We
are not aware whether or not the satellite images can ascertain the different
species of trees, their age and the girth of their trunks, etc. But what is on
record does not give us all that information. What the satellite images tell us
is that in October, 2006there was thin to moderately dense tree cover over
about half of the project site. But this fact is all but admitted; the State
Government admits felling of over 6000 trees in 2008. How and when the trees
came up there we have just seen with reference to the revenue and land acquisition
proceedings records. Now, we find it inconceivable that trees planted with the
intent to set up an urban park would turn into forest within a span of 10 to 12
years and the land that was forever agricultural, would be converted into
forest land. One may feel strongly about cutting trees in such large numbers
and question the wisdom behind replacing a patch of trees by large stone
columns and statues but that would not change the trees into a forest or the
land over which those trees were standing into forest land.
24.
The
decisions relied upon by Mr. Bhushan are also of no help in this case and on
the basis of those decisions the trees planted in the project area cannot be
branded as "forest".
25.
In
order dated December 12, 1996 in Godavarman Thirumulkpadthis Court held and
observed as under:
26.
It
has emerged at the hearing, that there is a misconception in certain quarters
about the true scope of the Forest Conservation Act, 1980 (for short the 'Act')
and the meaning of the word "forest" used therein. There is also a resulting
misconception about the need of prior approval of the Central Government, as
required by Section 2 of the Act, in respect of certain activities in the
forest area which are more often of a commercial nature. It is necessary to clarify
that position. Forest Conservation Act, 1980 was enacted with a view to check
further deforestation which ultimately results in ecological imbalance; and
therefore, the provisions made therein for the conservation of forests and for
matters connected therewith, must apply to all forests irrespective of the
nature of ownership or classification thereof. The word "forest: must be
understood according to its dictionary meaning. This description covers all
statutorily recognised forests, whether designated as reserved, protected or
otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The
term "forest land", occurring in Section 2, will not only include
"forest" as understood in the dictionary sense, but also any area
recorded as forest in the Government record irrespective of the ownership. This
is how it has to be understood for the purpose of Section 2 of the Act. The
provisions enacted in the Forest Conservation Act, 1980 for the conservation of
forests and the matters connected therewith must apply clearly to all forests
so understood irrespective of the ownership or classification thereof. This
aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry
Works v. State of Gujarat, Rural Litigation and Entitlement Kendra v. State of
U.P. and recently in the order dated 29.11.1996 (Supreme Court Monitoring
Committee v. Mussorie Dehradun Development Authority). The earlier decision of
this Court in State of Bihar v. Banshi Ram Modi has, therefore, to be
understood in the light of these subsequent decisions. We consider it necessary
to reiterate
27.
27
this settled position emerging from the decisions of this Court to dispel the
doubt, if any, in the perception of any State Government or authority. This has
become necessary also because of the stand taken on behalf of the State of Rajasthan
even at this late stage, relating to permissions granted for mining in such
area which is clearly contrary to the decisions of this court. It is reasonable
to assume that any State Government which has failed to appreciate the correct
position in law so far, will forthwith correct its stance and take the
necessary remedial measures without any further delay."26. In the above
order the Court mainly said three things: one, the provisions of the FC Act must
apply to all forests irrespective of the nature of ownership or classification
of the forest; two, the word" forest" must be understood according to
its dictionary meaning and three, the term "forest land", occurring
in section 2, will not only include "forest" as understood in the
dictionary sense, but also any area recorded as forest in the Government record
irrespective of the ownership. The order dated December 12, 1996 indeed gives a
very wide definition of "forest". But any definition howsoever wide
relates to a context. There can hardly be a legal definition, in terms
absolute, and totally independent of the context. The context may or may not
find any articulation in the judgment or the order but it is always there and
it is discernible by a careful analysis of the facts and circumstances in which
the definition was rendered. In the order the Court said "The term `forest
land occurring in section 2, will not only include `forest' asunder stood in
the dictionary sense, but also an area recorded as forest in the Government
record irrespective of the ownership" (emphasis added).Now what is meant
by that is made clear by referring to the earlier decision of the court in
State of Bihar v. Banshi Ram Modi, (1985) 3SCC 643. In the earlier decision in
Banshi Ram Modi the Court had said: "10......Reading them together, these
two parts of the section mean that after the commencement of the Act no fresh
breaking up of the forest land or no fresh clearing of the forest on any such
land can be permitted by any State Government or any authority without the
prior approval of the Central Government. But if such permission has been accorded
before the coming into force of the Act and the forest land is broken up or
cleared then obviously the section cannot apply....."
28.
The
observation in Banshi Ram Modi (which again was made in the peculiar context of
that case!) was sought to be interpreted by some to mean that once the land was
broken in course of mining operations it ceased to be forest land. It was in
order to quell the mischief and the subversion of section 2 of the FC Act that
the court in the order dated December 12, 1996 made the observation quoted
above italics.28. In Samatha, this Court was dealing with cases of grant of
mining leases to non tribal’s in reserved forests and forests that were
notified as scheduled area under the Andhra Pradesh Scheduled Areas Land Transfer
Regulation, 1959. It was contended on behalf of the leaseholders that the
Regulation and the Mining Act do not prohibit grant of mining leases of
government land in the scheduled area to non-tribals. The Forest (Conservation)
Act or the Andhra Pradesh Forest Act, 1967,does not apply to renewal of leases.
The observations in regard to what constitutes a forest made in paragraphs 119,
120, 121 and 123, relied upon by Mr. Bhushan, was made when it was sought to be
argued by the leaseholders that unless the lands are declared either as
reserved forests or forests under the Andhra Pradesh Forest Act, 1967, the FC Act
had no application. Hence, there was no prohibition to grant mining lease or to
renew it by the State government. The context in which the Court expanded the
definition of forest is, thus, manifest andevident.
29.
In
M.C. Mehta v. Union of India & Ors., (2004) 12 SCC 118, in the paragraphs
relied upon by Mr. Bhushan, this Court was considering the question of
permitting mining in Aravalli Hills where large scale affore station was done
by spending crores of rupees of foreign funding n an effort to repair the deep
ravages caused to the Aravalli Hills range over the years by mostly illegal
mining. The context is once againevident.
30.
Almost
all the orders and judgments of this Court defining "forest" and
"forest land" for the purpose of the FC Act were rendered in the
context of mining or illegal felling of trees for timber or illegal removal of
other forest produce or the protection of National Parks and wild life
sanctuaries. In the case in hand the context is completely different. Hence,
the decisions relied upon by Mr. Bhushan can be applied only to an extent and
not in absolute terms. To an extent Mr. Bhushan is right in contending that a
man made forest may equally be a forest as a naturally grown one. He is also
right in contending that non forest land may also, with the passage of time,
change its character and become forest land. But this also cannot be a rule of
universal application and must be examined in the overall facts of the case otherwise
it would lead to highly anomalous conclusions. Like in this case, Mr. Bhushan
argued that the two conditions in the guidelines adopted by the State Level
Expert Committee, i.e., (i) "trees mean naturally grown perennial
trees" and (ii) "the plantation done on public land or private land
will not be identified as forest like area" were not consistent with the
wide definition of forest given in the December 12, 1996 order of the Court and
the project area should qualify as forest on the basis of the main parameter
fixed by the Committee. If the argument of Mr. Bhushan is accepted and the
criterion fixed by the State Level Expert Committee that in the plains a
stretch of land with an area of 2 hectares or above, with the minimum density
of 50 trees/hectare would be a deemed forest is applied mechanically and with
no regard to the other factors a greater part of Lutyens Delhi would perhaps
qualify as forest. This was obviously not the intent of the or derdated
December 12, 1996.
31.
In
light of the discussion made above, it must be held that the project site is
not forest land and the construction of the project without the prior
permission from the Central Government does not in any way contravene section 2
of the FC Act. THE PROJECT AND THE EIA NOTIFICATION 2006:
32.
Mr.
Jayant Bhushan next contended that the construction of the project was started
by the U.P. Government (and was sought to be completed in great haste!) without
obtaining the prior environmental clearance from the Central Government or the
State Level Environment Impact Assessment Authority in complete violation of
the notification issued by the Central Government on September 14, 2006under
section 3 (3) of the EP Act.
33.
Before
proceeding to examine the issue in detail it would be useful to see the views
taken by the different authorities, agencies and the MoEF on the question
whether the law required prior environmental clearance for the project. It
appears that once the controversy was raised, the project proponents, by letter
dated April 24, 2009approached the State Level Environment Impact Assessment
Authority, Uttar Pradesh constituted under the EIA notification, 2006, seeking environmental
clearance for the project. In reply the SEIAA by its letter dated May 7, 2009
stated that having regard to the nature and the area of the project it was not
covered by the schedule of the notification No. S.O.1533 (E) dated September
14, 2006 issued by the Government of India.
34.
Before
the CEC, the MoEF in its first response dated August22/24, 2009 took the stand
that the project would not require any prior environmental clearance under the
EIA notification 2006. It further stated that in the EIA notification 2006, all
building/ construction projects/ area development projects and townships, were
categorized as category `B' projects and the `general condition' prescribed in
the notification was not applicable to construction projects. It went on to say
that the project did not require any prior environmental clearance under the
EIA notification 2006 even though "being within the prescribed distance
from a wildlife sanctuary/national park or inter-state boundary". It needs
to be stated here that the first response of the MoEF before he CEC was
evidently based on the inputs received from the UP Government about the nature
of the project and the extent of constructions involved in it.
35.
In
the second response before the CEC dated September 2, 2009the MoEF did not
appear so sure of its earlier stand. It stated that after its earlier letter of
August 22, 24, 2009, the MoEF had received further information about the
project from various sources and the fresh findings raised far-reaching issues
of public concern that extended beyond the parameters set by the EIA
notification of 2006. It further stated that the certificate issued by the
SEIAA of UP stated that the total built-up covered area was only 9,542 square
metres and the report of the CCF was not clear as to the extent of the covered
area vis-`-vis concrete landscaping, pillar(s), platform(s), lawn(s), tree
planting, etc. To put it simply, the MoEF was not fully in possession of the
basic facts relating to the project and its likely impact on the environment.
It left the decision in the hands of the CEC.
36.
The
CEC in its report to this Court dated September 4, 2009 held and found that the
project was covered by the EIA notification 2006and it required prior
environmental clearance in terms of the notification. In its report, the CEC
observed as follows: "30. The CEC does not agree with the stand taken by
the State Government as well as the MoEF that the project does not require
environmental clearance in terms of the MoEF notification dated 14.9.2006. The
MoEF, as well as the State of Uttar Pradesh has taken this view primarily on the
ground that the built up area of the project is less than 20,000 sq. meter and
therefore the project does not require environmental clearance. The built up
area has been calculated by the State of Uttar Pradesh on the basis of its building
bye-laws. The CEC is of the view that for the purpose of environmental
clearance, the building bye-laws of the State Government have no relevance at
all. As per the details provided by the State Government itself, out of 33.43 ha
of the project area, 3499.50 sq. meter is being used for memorial building
& toilet blocks, 3500 sq. meter is being used for utilities and facilities,
129140.80 sq. meter area is being used for hard landscape including for
platforms, plinth, sculptures & surrounded paved area, path etc. Another
34850 sq. meter area is to be used for vehicular movement. The above comes to
more than 50% of the project area which in CEC's view qualify to be included in
the activity area. The project cost is about Rs. 685 crores. As per the MoEF
notification dated 14.9.2006, for building/construction project, in the case of
facilities open to the sky, the activity area is to be included in the built up
area. In the present case, after including the activity area the total built up
area, for the purpose of environmental 35 clearance, far exceeds the threshold
limit of 20,000 sq. meter of built up area provided in the Notification. The MoEF,
on its own admission, has merely relied on the details of the built up area as
provided by the State Government without independently verifying it and has not
included the area falling in the category of activity area. In any case, even
if there was any doubt in the MoEF regarding the applicability of the
environmental clearance in the present case, in view of precautionary principle
it should have erred on the side of the caution and should have insisted for
the environmental clearance."
37.
When
the matter finally came up before the Court the MoEF was once again asked to
take a clear stand on the issue whether the project was covered by the EIA
notification 2006. The MoEF filed a brief affidavit on October 21, 2009 in
which it acknowledged that the CEC in its report dated September 4, 2006 had
stated that the State of UP should be directed to seek environmental clearance
for the project from the MoEF in terms of the notification. The MoEF, however, reiterated
its stand in very definite and unequivocal terms that the project in question
did not fall within the ambit of the EIA notification 2006 and no environmental
clearance was required for such kind of projects. The stand of the MoEF was
based on the premise that the area of the project(33.43 hectares) was less than
50 hectares and its built up area (9,542square metres) was less than 20,000
square metres. Having thus made its stand clear, the MoEF went on to say that
in case the Court desired the project to be appraised from the environmental
angle it would do so and submit its recommendations. It, however, put in a
caveat that such appraisals were made before the commencement of the
construction activity at the site and in the present case the project was
already in the advanced stage of construction.
38.
On
April 22, 2010, this Court passed an order in which after extracting the
relevant passage from the affidavit it directed the MoEF, to make a study of
the environmental impact of the project. The MoEF was further directed to suggest
measures for undoing the environmental degradation, if any, caused by the
project and the amelioration measures to safeguard the environment, with
particular reference to the adjacent bird sanctuary.
39.
As
directed by the Court, the MoEF asked the project proponents to submit the
details concerning the project in the format prescribed under the EIA
notification. It also asked the project proponents to have the environmental
impact assessment of the project done by some expert agencies. As required by
the MoEF, NOIDA submitted the requisite details concerning the project and the
reports on the environmental impact assessment of the project based on studies
made by three different agencies (We shall have the occasion to consider those
reports in the latter part of the judgment). Thereafter, the Expert Appraisal Committee
(EAC) constituted by the Central Government for the purpose of the EIA
notification examined the project in its 88thmeeting held on June 28-29, 2010
and gave its report which is brought on record along with an affidavit filed by
the State Government on July22, 2010. In this report the EAC made as many as 15
recommendations to check any environmental degradation or any harm to the Okhla
Bird Sanctuary by the project.
40.
The
MoEF filed yet another affidavit before the Court on August19, 2010 in which it
tried to explain the distinction between clauses 8(a)and 8(b) in the schedule
to the EIA notification, 2006 without changing its stand that the project in
question did not come within the ambit of the notification.
41.
In
course of the oral hearing as well, Mr. Raval, learned ASG, firmly maintained
that the project did not come under the notification and no prior environmental
clearance was required for it under thenotification.
42.
Mr.
Harish Salve, learned amicus curiae and Mr. Jayant Bhushan, Counsel appearing
for the applicants, both staunchly contended that the stand of the MoEF was
patently wrong and incorrect. The project clearly fell within the ambit of the
EIA notification 2006. The CEC had taken the correct view on the issue. And to
start the construction of the project and take it into an advanced stage of
construction without obtaining prior environmental clearance from the Central
Government was in blatant violation of the provisions of the notification. Mr.
Salve also criticized the Central Government for taking a shifting and
inconsistent stand on the issue.
43.
Now
is the time to take a closer look at the provisions of the EIA notification no.
S.O.1533(E). dated September 14, 2006 issued by the Central Government under
section 3 (3) of the EP Act and to consider the submissions advanced by the two
sides on that basis. Section 3 (3) ofthe EP Act provides as follows: Power of
Central Government to take measures to protect and improve environment. (1)
xxxxxx (2) xxxxxx (3) The Central Government may, if it considers it necessary
or expedient so to do for the purpose of this Act, by order, published in the
Official Gazette, constitute an authority or authorities by such name or names
as may be 39 specified in the order for the purpose of exercising and performing
such of the powers and functions (including the power to issue directions under
section 5) of the Central Government under this Act and for taking measures
with respect to such of the matters referred to in sub-section (2) as may be
mentioned in the order and subject to the supervision and control of the
Central Government and the provisions of such order, such authority or
authorities may exercise and powers or perform the functions or take the measures
so mentioned in the order as if such authority or authorities had been
empowered by this Act to exercise those powers or perform those functions or
take such measures."
44.
In
exercise of the powers conferred by the above provision the Central Government
in the Ministry of Environment and Forests issued notification no. S. O.
1533(E) on September 14, 2006, which in so far as relevant for the present is
reproduced below: "MINISTRY OF ENVIRONMENT AND FORESTS Notification New
Delhi, the 14th September, 2006 S.O. 1533(E).- whereas xxxxxx And whereas
xxxxxx And whereas xxxxxx 2. Requirements of prior Environmental Clearance
(EC):- The following projects or activities shall require prior environmental
clearance from the concerned regulatory authority, which shall hereinafter
referred to be as the Central Government in the 40 Ministry of Environment and
Forests for matters falling under Category `A' in the Schedule and at State
level the State Environment Impact Assessment Authority (SEIAA) for matters
falling under Category `B' in the said Schedule, before any construction work,
or preparation of land by the project management except for securing the land,
is started on the project or activity:i All new projects or activities listed
in the Schedule to this notification; (ii) Expansion and modernization of
existing projects or activities listed in the Schedule to this notification
with addition of capacity beyond the limits specified for the concerned sector,
that is, projects or activities which cross the threshold limits given in the Schedule,
after expansion or modernization; (iii) Any change in product - mix in an
existing manufacturing unit included in Schedule beyond the specified range. 3.
xxxxxx 4. Categorization of projects and activities:-(i) All projects and
activities are broadly categorized in to two categories - Category A and
Category B, based on the spatial extent of potential impacts and potential
impacts on human health and natural and man made resources.(ii) All projects or
activities included as Category `A' in the Schedule, including expansion and
modernization of existing projects or activities and change in product mix, shall
require prior environmental clearance from the Central Government in the Ministry
of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal
Committee (EAC) to be constituted by the Central Government for the purposes of
this notification;(iii) All projects or activities included as Category `B' in
the Schedule, including expansion and modernization of existing projects or
activities as specified in sub paragraph (ii) of paragraph 2, or change in
product mix as specified in sub paragraph (iii) of paragraph 2, but excluding
those which fulfill the General Conditions (GC) stipulated in the Schedule,
will require prior environmental clearance from the State/Union territory
Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its
decision on the recommendations of a State or Union territory level Expert Appraisal
Committee (SEAC) as to be constituted for in this notification. In the absence of
a duly constituted SEIAA or SEAC, a Category `B' project shall be treated as a Category
`A' project;5. xxxxxx 41 6. Xxxxxx 7. Stages in the Prior Environmental
Clearance (EC) Process for New Projects:- 7(i) xxxxxx I. Stage (1) - Screening:
In case of Category `B' projects or activities, this stage will entail the
scrutiny of an application seeking prior environmental clearance made in Form 1
by the concerned State level Expert Appraisal Committee (SEAC) for determining whether
or not the project or activity requires further environmental studies for preparation
of an Environmental Impact Assessment (EIA) for its appraisal prior to the grant
of environmental clearance depending up on the nature and location specificity
of the project . The projects requiring an Environmental Impact Assessment
report shall be termed Category `B1' and remaining projects shall be termed
Category `B2' and will not require an Environment Impact Assessment report. For
categorization of projects into B1 or B2 except item 8 (b), the Ministry of
Environment and Forests shall issue appropriate guidelines from time to time. 8.
xxxxxx 9. xxxxxx 10. xxxxxx 11. xxxxxx 12. xxxxxx
SCHEDULE
(See
paragraph 2 and 7)
LIST
OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL
CLEARANCE
Project or Activity
|
Category with
threshold limit
|
Conditions if any
|
|
A
|
B
|
|
|
Building
/Construction projects/Area Development projects and Townships
|
|
|
|
|
|
8(a)
|
Building and covered
|
|
?20000 sq.mtrs and
|
#(built up area for
|
|
Construction case
of projects sky, it
|
|
<1,50,000
sq.mtrs.
built-up area#
|
of construction; in
the facilities open to the will be the activity
|
area ) 8(b)
|
Townships and Area Development
projects.
|
|
Covering an area ?
50++ ha and
or built up area 1,50,000 sq .mtrs ++
|
All projects under
Item ?8(b) shall be appraised as Category B1
|
General Condition
(GC):
Any project or
activity specified in Category `B' will be treated as Category A, if located in
whole or in part within 10 km from the boundary of: (i) Protected Areas notified
under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as notified
by the Central Pollution Control Board from time to time, (iii) Notified Eco- sensitive
areas, (iv) inter-State boundaries and international boundaries." Specific
Condition (SC): xxxxxx (I) Basic Information xxxxxx (II) Activity 1.
Construction, operation or decommissioning of the Project involving actions,
which will cause physical changes in the locality (topography, land use,
changes in water bodies, etc.)
S.No.
|
Information/Checklist
confirmation
|
Yes/No
|
Details thereof (with
approximate quantities /rates, wherever possible) with source of information data
|
1.1
|
Permanent or
temporary change in land use, land cover or topography including increase in intensity
of land use (with respect to local land use plan)
|
|
|
1.2
|
Clearance of
existing land, vegetation and buildings?
|
|
|
1.3
|
Creation of new
land uses?
|
|
|
1.4
|
Pre-construction
investigations e.g. bore houses, soil testing?
|
|
|
1.5
|
Construction works?
|
|
|
1.6
|
Xxxxxx
|
|
|
45.
In
substance the EIA notification provides that all projects and activities enumerated
in its Schedule would require prior environmental clearance before any
construction work or preparation of land for the project is started on the
project or activity. The projects and activities depending upon various factors
such as the potential hazard to environment, location, the extent of area
involved, etc. are categorized in categories `A' or `B'. For projects or
activities falling in category `A', the competent authority to grant prior environmental
clearance is the MoEF and for projects or activities falling in category `B',
the State Environment Impact Assessment Authority (SEIAA). The constitution of
the SEIAA is provided for in clause 3 of the notification with which we are not
concerned in this case. In certain cases a project or activity, though
categorized in category `B' may be treated as category `A' by application of
the general condition (on account of its location being within a distance of
ten km from a protected are anotified under the Wildlife (Protection) Act
etc.). In other words, if a project or activity attracts the general condition,
the competent authority to grant prior environmental clearance in that case
would be the Central Government, even though, the project or activity may figure
in the Schedule in category `B'. Further, projects or activities categorized as
category `B' may or may not require an environmental impact assessment before
the grant of environmental clearance depending on the nature and location specificity
of the project. The projects requiring an EIA report shall be termed as
category `B1' and the remaining shall be termed as `B2' and will not require an
EIA report. For categorization of projects into B1 and B2, the MoEF would issue
appropriate guidelines from time to time. The schedule to the notification has
a table that is divided into five columns. The first column contains the serial
numbers, and the second the description of the project or activities; the third
column lists those projects or activities that fall in category `A' and the
fourth, those falling in category `B'; the fifth column against each item
indicates whether any general or specific condition applies to the project or
activity described in that item. In some cases where the project or the
activity is shown in column 4 as category `B', the application of the general
condition is expressly indicated in column 5 of the table.
46.
For
the project under consideration, the relevant entries in the schedule are 8(a)
and 8(b). Both items 8 (a) and 8 (b) are listed in column 4, i.e., in category
`B'. In column 5, against any of the two items, there is no mention of
application of the general condition but it is expressly said that all projects
in item 8(b) would be appraised as category `B1', that is to say, for a project
under item 8(b) the prior environmental clearance must be preceded by an
environmental impact assessment.
47.
Item
8(a) deals with Building and Construction projects and the threshold mark that
would bring the project within the ambit of the notification is equal to or
more than 20,000 square metres and less than1,50,000 square metres of `built-up
area'. It is further clarified that the aforementioned figures relate to
built-up area for covered construction; in case of facilities open to the sky,
the built up area would be the activity area. Item 8(b) deals with Townships
and Area Development projects and the threshold mark for the project to come
within the ambit of the notification is an area equal to or more than 50
hectares or built-up area of more than 1,50,000 square metres.
48.
Mr.
Jayant Bhushan, supported by the amicus curiae forcibly argued that the project
under consideration would clearly fall under item 8 (a) of the Schedule. He
submitted that though the area of covered construction in the project was only
6999.50 square metres, the project by its very nature provided facilities open
to the sky and in that case, the whole of the activity area would constitute
the built-up area. He then referred to the definition of activity [that
includes (i) permanent or temporary change in land use, land cover or
topography including increase in intensity of land use (with respect to local
land use plan), (ii)clearance of existing land, vegetation and buildings? (iii)
creation of new land uses? and (iv) pre-construction investigations e.g. bore
houses, soil testing?]. He contended that in view of the definition of
activity, virtually the entire area of 33.43 hectares from where over 6000
trees were removed for clearing the project site would come within the` activity
area' and would, thus, form the built-up area under item 8 (a)of the schedule.
Further, since the project was located adjacent to the Okhla Bird Sanctuary, it
would, without doubt, attract the general condition which provided that any
project or activity specified in category `B' will be treated as category `A',
if located within 10km fromt he boundary of protected areas notified under the
Wildlife (Protection)Act, 1972. Mr. Bhushan insisted that the general condition
would apply to the project by virtue of its very close proximity to the Okhla
Bird Sanctuary, regardless of the fact that in column 5 of the table there is
no mention of application of the general condition against item 8(a). The application
of the general condition would take the project out of category `B' and put it
in category `A' for which the competent authority to grant prior environmental
clearance is the MoEF. He then referred to the office memo dated December 2,
2009 issued by the MoEF which in course of hearing was, in all fairness,
produced by Mr. Raval, learned ASG, appearing for the MoEF. The office
memorandum inter alia provides that ".....while granting environmental
clearance to projects involving forestland, wildlife habitat (core one of
elephant/tiger reserve, etc.) and or located within 10km of the National Park/
Wildlife Sanctuary (at present the distance of 10km has been taken in
conformity with the order dated 4.12.2006 in writ petition no. 460 of 2004 in
the matter of Goa Foundation v. Union of India), a specific condition shall be
stipulated that the environmental clearance is subject to their obtaining prior
clearance from forestry and wildlife angle including clearance from the
Standing Committee of the National Board for Wildlife as applicable.....".
Mr. Bhushan submitted that the project under consideration thus does not only
require a prior environmental clearance but also a clearance from forestry and
wildlife angle including clearance from the Standing Committee of the National
Board for Wildlife as precondition for the grant of environmental clearance by
theMoEF.
49.
Mr.
Bhushan's arguments proceed in four steps. He first puts the project in item
8(a) of the Schedule as a Building and Construction project. Then, in the
second step, in order to cross the threshold marker he refers to the definition
of "activity" to contend that since the project provides facilities
open to sky its entire area of 33.43 hectares would constitute the built-up
area. In the third step, he brings in the general condition (even though in
regard to item 8(a) its application is not mentioned in column 5 of the table)
that would make the Central Government as the competent authority for granting prior
environmental clearance for the project. And lastly, in the fourth step he refers
to the office memorandum dated December 2, 2009 to contend that a clearance
from the Standing Committee of the National Board for Wildlife was a
precondition for the grant of the prior environmental clearance by the MoEF.
50.
Long
and elaborate submissions were made from both sides in regard to the
application of the general condition to this project. Mr. Venugopal, senior
counsel appearing for the State of U.P. and Mr. Raju Ramachandran, senior
counsel appearing for NOIDA submitted that the general condition would have no
application to projects under items8(a) or 8(b) for the simple reason that in
regard to those items there was no mention of the general condition in column 5
of the table. Mr. Venugopal submitted, and not entirely without substance that
if the general condition were to apply to items 8(a) and 8(b) without being mentioned
in column 5 of the table then it would not make any sense to expressly mention
it in column 5 in respect of some other projects and activities classified in
category `B' in the schedule.
51.
Mr.
Raval, learned ASG, produced before the Court, the draft notification no. S.O.
1324E, published in the Gazette of India: Extraordinary of September 15, 2005.
In the draft notification there were two general conditions, GC1 and GC2 and in
regard to (a)"Construction of all projects (residential and non
residential)", and (b)"New Townships and Settlement Colonies, the
application of GC2 was expressly indicated in column 5 of the table. Later on,
in a meeting held on July 6, 2006, chaired by none else than the Prime
Minister, it was decided to leave all construction and township projects,
housing and area development projects in the hands of the State Government. It
was further decided that for all projects involving more than 1,50,000square metres
of built up area and/or covering more than 50 hectares, the EIS requirements
should correspond to category `A, even though the clearance would be granted by
the State Government. Mr. Raval submitted that in light of the decision taken
in that meeting, in the final notification issued on September 14, 2006, the
application of general condition was removed in respect of items 8(a) and 8(b)
in the schedule. In view of the changes made in the two items in the final
notification, Mr. Raval also contended that the general condition has no
application to items 8(a) and 8(b), regardless of the project's proximity to
any sanctuary or reserved area.
52.
But
before considering the latter three limbs of Mr. Bhushan's arguments it is
necessary to examine whether the project in question can be legitimately
categorized as a Building and Construction project falling under item 8(a) of
the schedule which is the first premise of his arguments.
53.
In
the schedule to the notification "Building and Construction projects"
and "Townships and Area Developments projects" are enumerated
separately, the former in item 8(a) and the latter in item8(b). This would
normally suggest that the notification treats those two kinds of projects
separately and differently. It would, therefore, be reasonable to say that an
"Area Development project" though involving a good deal of
construction would yet not be a "Building and Construction project".
When it was pointed out to Mr. Bhushan that the project in question may be put
more appropriately in category 8(b)as an "Area Development project"
rather than a "Building and Construction project" under category
8(a), in reply he took a line that nullifies any distinction between the two.
Mr. Bhushan submitted that so far as construction projects are concerned there
is no qualitative difference between items 8(a) and 8(b) and the difference
between the two items was only quantitative. Projects were categorized under
items8(a) or 8(b) as "Building and Construction projects' or
"Townships and Area Development projects" not on the basis of their
nature and character but depending upon the extent of construction. Learned counsel
pointed out that the upper limit under item 8(a) (1,50,000square metres of
built-up area) was the threshold mark under item 8(b) and contended that this
was a clear indication that projects with built up area up to 1,50,000 square
metres would be defined as "Building and Construction projects" and
projects with built up area in excess of1,50,000 square metres would be
categorized as "Townships and Area Development projects". In support
of the contention, Mr. Bhushan gave the example of a "Building and
Construction project", consisting of a number of multi-storied buildings,
the aggregate of the built-up area of which exceeds 1,50,000 square metres. Mr.
Bhushan submitted that since the total built-up area of the project crosses the
upper limit of item 8(a) the project would not fall within that item. But at
the same time since the project is a "Building and Construction
project" and nota "Township and Area Development project", it
would not come under item 8(b) and this would be indeed a highly anomalous
position where a project with a smaller built-up area would fall within the
ambit of the notification, whereas a project with a larger built-up area would
escape the rigours of the notification.
54.
The
amicus, also arguing in the same vein, submitted that as far as building and
construction projects are concerned there was no qualitative difference in
items 8(a) and 8(b) of the schedule to the notification. A combined reading of
the two clauses of item 8 of the schedule would show the continuity in the two
provisions; 1,50,000square metres of built up area that was the upper limit in
item 8(a) was the threshold marker in item 8(b). This clearly meant that
building and construction projects with built-up area/activity area between
20000square metres to 1,50,000 square metres would fall in category 8 (a) and projects
with built up area of 1,50,000 square metres or more would fall in category 8
(b). The amicus further submitted that though it was not expressly stated, the
expression "Built Up area" in item 8(b) must get the same meaning as
in item 8(a), that is to say, if the construction had facilities open to sky
the whole of the "activity area" must be deemed to constitute the
"built-up area".
55.
It
is extremely difficult to accept the contention that the categorization under
items 8 (a) and 8 (b) has no bearing on the nature and character of the project
and is based purely on the built up area. A building and construction project
is nothing but addition of structuresover the land. A township project is the
development of a new area for residential, commercial or industrial use. A
township project is different both quantitatively and qualitatively from a mere
building and construction project. Further, an area development project may be connected
with the township development project and may be its first stage when grounds
are cleared, roads and pathways are laid out and provisions are made for
drainage, sewage, electricity and telephone lines and the whole range of other
civic infrastructure. Or an are a development project may be completely
independent of any township development project as in case of creating an
artificial lake, or an urban forest or setting up a zoological or botanical
park or a recreational, amusement or a theme park.
56.
The
illustration given by Mr. Bhushan may be correct to an extent. Constructions
with built up area in excess of 1,50,000 would be huge by any standard and in
that case the project by virtue of sheer magnitude would qualify as township
development project. To that limited extent there may be a quantitative
correlation between items (a) and 8(b). But it must be realized that the
converse of the illustration given by Mr. Bhushan may not be true. For example,
a project which is by its nature and character an "Area Development
project" would not become a "Building and Construction project"
simply because it falls short of the threshold mark under item 8 (b) but comes
within the area specified in item 8 (a). The essential difference between items
8(a) and 8(b) lies not only in the different magnitudes but in the difference
in the nature and character of the projects enumerated there under.
57.
In
light of the above discussion it is difficult to see the project in question as
a "Building and Construction project". Applying the test of` Dominant
Purpose or Dominant Nature' of the project or the" Common Parlance"
test, i.e. how a common person using it and enjoying its facilities would view
it, the project can only be categorized under item 8(b) of the schedule as a
Township and Area Development project". But under that category it does
not come up to the threshold marker inasmuch as the total area of the project
(33.43 hectares) is less than 50 hectares and its built-up area even if the
hard landscaped area and the covered areas are put together comes to
1,05,544.49 square metres, i.e., much below the threshold marker of 1,50,000
squaremetres.
58.
The
inescapable conclusion, therefore, is that the project does not fall within the
ambit of the EIA notification S.O. 1533(E) dated September 14, 2006. This is
not to say that this is the ideal or a very happy outcome but that is how the
notification is framed and taking any other view would be doing gross violence
to the scheme of the notification.
59.
Since
it is held that the project does not come within the ambit of the notification,
the other three arguments based on the activity area, the application of
general condition and the application of the office memorandum dated December
2, 2009 become irrelevant and need not be gone into in this case.THE PROJECT
AND THE OKHLA BIRD SANCTUARY:
60.
Mr.
Bhushan next raised the issue of the project being located virtually adjoining
the Okhla Bird Sanctuary. The very close proximity of the project site to the
bird sanctuary actually raises issues of serious concern and poses a dilemma.
On the one hand the project proponents can not be said to have broken any law
or violated a definite order or direction of the court but on the other hand
the project may possibly cause serious and irreparable harm to the bird
sanctuary.
61.
Before
the CEC the State Government took the plea that the project area was situated
well outside the boundaries of the bird sanctuary and the construction of the
project had caused no adverse impact on the Sanctuary. It was further stated
that NOIDA which was the project proponent was equally conscious about its
responsibility in regard to the preservation and conservation of the habitat of
the Sanctuary. A management plan for the Sanctuary was being prepared by the
Wildlife Institute of Dehradun for which NOIDA had releasedRs.17,35,350.00 in
favour of the Institute and the NOIDA was also planning to set up a corpus for
the Scientific and effective implementation of the Management Plan.
62.
On
this issue the MoEF in its responses before the CEC put the blame squarely on
the State Government. It stated that despite its letter of May 27, 2005
followed by a number of reminders the Government of Uttar Pradesh did not
submit its proposal for declaration of "Eco-sensitive Zone" around
the Sanctuaries and National Parks. It further stated that the State Government
failed to take any steps in this regard even after the order of this Court
passed on December 4, 2006 in Writ Petition (Civil) No. 460/2004 by which the
MoEF was directed to give all the States final opportunity to send their
proposals for declaration of" Eco-sensitive Zones" to the MoEF within
four weeks. The MoEF made the accusation that in the case of the present
project the State Government of Uttar Pradesh was trying to take advantage of
its own omission. In its second response dated August 22-24, 2009, however, the
MoEF, though still blaming the UP Government for its failure to notify the
"Eco-sensitive Zones" conceded that "till Eco-sensitive zone is declared
the construction work did not seem to violate any law/Act". But it went on
to say that having regard to its location the project was better suited to be
made part of extension of the bird sanctuary.
63.
The
State Government of Uttar Pradesh took the stand that no proposals were sent
from its side because the MoEF failed to issue the necessary guidelines for the
purpose. On behalf of the State of UP, reference was made to a meeting called
by the Director General of Forests and Special Secretary, MoEF on May 13, 2010.
In that meeting it was decided that the Director General of Forests, MoEF would
constitute a committee of officers to finalize the guidelines for declaration
of eco-sensitive zones. A reference was also made to a subsequent meeting held
on July 4, 2010 at Lucknow in which the attention of the Government of India
was drawn to the decision taken in the earlier meeting. Yet, no guidelines were
issued by the Government of India so far.
64.
The
CEC in its report to the Court dated September 4, 2009 put the blame on the
State Government of UP for its omission to identify the Eco-sensitive zones but
like the MoEF seemed to accept that in the absence of a decision/notification
there was no legal bar against the construction of the project on the ground
that it was sited adjacent to the bird sanctuary. In its report to the Court,
the CEC observed as follows: The issue regarding identification/notification of
Eco-Sensitive Zone around the National Park and Sanctuaries is presently
pending for consideration before this Hon'ble Court. The National Board of Wild
Life (NBWL) had earlier decided that area within 10 km around National
Parks/Sanctuaries should be the Eco-Sensitive Zone. Later on, it was decided by
the NBWL that Eco-Sensitive Zone should be specific to each National
Park/Sanctuary. The CEC had recommended that 500 meter around National
Park/Sanctuary should be declared as Eco- Sensitive Zone. The recommendation of
the CEC has not so far been accepted by the Hon'ble Supreme Court after the
Learned Amicus Curiae took a view that 500 meter may not be adequate. Pursuant
to this Hon'ble Supreme Court order dated 4.8.2006 in the TWP matter, mining is
presently prohibited up to a distance of one kilometre from the boundary of National
Parks/Sanctuaries. For other projects, no restriction has so far been imposed.
The MoEF has time and again requested the States/UT's to identify the
eco-sensitive zone around the National Parks/Sanctuaries. However, the State of
Uttar Pradesh has so far not prepared any proposal in this regard. The CEC is
of the view that in the absence of a decision/notification, presently there is
no legal restriction against the implementation of the project on the ground
that the project is adjacent to the Okhla Bird Sanctuary.33. However, it has to
be borne in mind that the project area is hardly at a distance of 50 meter from
the Okhla Bird Sanctuary and that in all probability the project site would
have fallen in the Eco-Sensitive Zone, had a timely decision in this regard
been taken by the State Government/ MoEF. (emphasis added) 60
65.
The
report of the CEC succinctly sums up the situation. Though everyone, excepting
the project proponents, views the construction of the project practically adjoining
the bird sanctuary as a potential hazard to the sensitive and fragile
ecological balance of the Sanctuary there is no law to stop it. This unhappy
and anomalous situation has arisen simply because despite directions by this
Court the authorities in the Central and the State Governments have so far not
been able to evolve a principle to notify the buffer zones around Sanctuaries
and National Parks to protect the sensitive and delicate ecological balance required
for the sanctuaries.
66.
But
the absence of a statute will not preclude this Court from examining the
project's effects on the environment with particular reference to the Okhla
Bird Sanctuary. For, in the jurisprudence developed by this Court Environment
is not merely a statutory issue. Environment is one of the facets of the right
to life guaranteed under article 21 of the Constitution1. Environment is,
therefore, a matter M.C. Mehta & Anr. v. Union of India & Ors., AIR
1987 SC 985
M.C. Mehta v. Union
of India & Ors., (1987) 4 SCC 463
M.C. Mehta &
Anr. v. Union of India & Ors., AIR 1988 SC 1115
Chhetriya Pardushan
Mukti Sangarsh Samiti v. State of U.P., AIR 1990 SC 2060
Subhash Kumar v.
State of Bihar, AIR 1991 SC 420
Virender Gaur v.
State of Haryana, (1995) 2 SCC 577
B.L. Wadehra v.
Union of India, (1996) 2 SCC 594
Vellore Citizens
Welfare Forum v. Union of India, AIR 1996 SC 2715
Andhra Pradesh
Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718
Narmada Bachao
Andolan v. Union of India, (2000) 10 SCC 664 directly under the Constitution
and if the Court perceives any project or activity as harmful or injurious to
the environment it would feel obliged to step in. The question of the
likelihood of the project causing anyadverse effects on the Okhla Bird
Sanctuary must, therefore, beexamined from this angle.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
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15.
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65.
66.
We
may note here that Mr. Venugopal presented before us some photographs trying to
show the situation on the western boundary o fthe Okhla Bird Sanctuary at its
Delhi end. In the photographs there is a road, about forty to sixty feet wide,
(The Kalindikunj- Irrigation Colony-Batla Road) running right next to the wire
mesh fencing of the Sanctuary. Next to the road is a long row of cheek by jowl
concrete structures/houses that seem to lean against one another. The road has the
bustling traffic of Delhi where all kinds of vehicles (and cattle!)appear
jostling for space. The situation on the western boundary of the Sanctuary is
indeed deplorable but that is no reason to strangulate the Sanctuary from the
NOIDA side as well.68. Earlier in the judgment, it is noted that on April 22,
2010, the Court had asked the MoEF to make a study of the environmental
T.N. Godavarman
Thirumulkpad v. Union of India, (2002) 10 SCC 606
Ramji Patel v. Nagrik
Upbhokta Marg Darshak Manch, (2000) 3 SCC 29
67.
State
of M.P. v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389 impact of the
project and to suggest measures for undoing the environmental degradation, if
any, caused by the project and the amelioration measures to safeguard the
adjacent bird sanctuary. In pursuance of the Court's directions the MoEF had
asked the project proponents to have the environmental impact assessment of the
project done by some expert agencies. NOIDA, the project proponent got three studies
made of the impact assessment of the project.
68.
One
is a joint study prepared by the Salim Ali Centre for Ornithology and Natural History
(SACON), Deccan Regional Station, Hyderabad and the All India Network Project
on Agricultural Ornithology, Aacharya N.G.Ranga Agricultural University,
Hyderabad (Annexure II of Paper book Volume IV); the other by the Wildlife
Institute of India (WII)(Annexure III of Paper book Volume IV); and the third
by a group of three individuals that was vetted by the Indian Institute of
Technology, New Delhi (Annexure IV of Paper book Volume IV).
69.
The
SACON, in its report practically gave a clean chit to the project and made the
following observations in connection with the felling of trees and the impact
of the project construction on the Okhla Bird Sanctuary: The Okhla Bird
Sanctuary is primarily an urban wetland and supports primarily water birds
majority of them migrating and using in the winter season. These are confined
to the water bodies and peripheral marshy vegetation and were not nesting or
roosting on the trees of the adjacent parks. The extent of terrestrial habitat
is the sanctuary is very small or insignificant.7 The entire development works
including removal of trees and construction had taken place outside the
boundary of the sanctuary and the construction and felling of trees in the project
site has not altered or interfered with the wetland ecosystem of the OBS and
the area was undisturbed.7 The birds in the wetland of Okhla Bird Sanctuary are
estimated during the month of January by the Wildlife Wing of U.P. Forest
Department during winter, which is the period for the migratory birds. The
estimation of birds are as under: 2007-08 : 17,111 2008-09 : 21,272 2009-10 :
22,0047 The clearing of the project site for construction and landscaping was
started in the month of the January, 2008 and continued till 9th October, 2009.
The bird estimates during migratory season clearly shows that there has been no
reduction in the number of birds in the sanctuary despite developmental activities
in the park. This clearly shows that the construction and felling of trees in
the project site has no impact on OBS.
70.
It
appears that the existence of High tension line along the boundary wall of the
project site before the start of the project might have been a barrier for
movement of the birds from OBS as high electro magnetic influence would
restrict the movement of birds. Hence, the construction and the felling of
trees in the project site has minimal influence on the OBS. 64 In view of the
above, we are of the opinion that felling of trees and construction have no
perceptible impact on the OBS habitat." The SACON suggested certain
proactive environmental measures(see Paper book Volume IV, page 110) that would
form part of thisjudgment.
71.
The
other report by the Wildlife Institute of India (WII) is not so sanguine about
the project's impact on the bird sanctuary. In the WIIreport under the heading
"Assessment of the Impact" it was observed asunder: "....From
this, it is concluded that the erstwhile woodland would have been used by
51-101 species of terrestrial birds and was an extended habitat for the
wildlife of the Okhla Bird Sanctuary, primarily terrestrial birds. Some of
these birds may be using the erstwhile woodland for breeding as well... ".....The
erstwhile woodland was acting as a buffer against these disturbances. The
project area which was in continuation with the vegetation along the left
afflux bund was providing a green belt approximately 2 km long and 218 m wide
on and average. Before the felling of trees this patch might have acted as a
protective green belt of approximately 190 m width with a tree density of 203.5
trees/ ha (density of trees felled) which is now reduced to approximately 28 m
(between the western wall of the project and OBS boundary of left afflux dam).
From this it is concluded that the Sanctuary lost its buffer of around 33.43 ha
that will have significant impact on the OBS and its tranquility.... 65 "...Such
carbon sequestration value of the erstwhile woodland was lost, though the NOIDA
has already taken up ameliorative steps in form of a forestation in and around the
project site.... "....With the loss of buffer and increased artificial
light at the project site, it is likely that the migratory bird population may
get affected in long run. Bird friendly diffused light with blue tinge may
reduce the negative impacts, though much research on this aspect is
required."
72.
The
WII also suggested certain mitigation measures (see Paper book Volume IV, page
134) that would form part of this judgment.
73.
The
IIT, New Delhi in its review of the report prepared by the group of three
people does not record any serious negative finding in regard to the effects
that the project may have on the Sanctuary.
74.
Finally,
the Expert Appraisal Committee (EAC) constituted by the Government of India,
MoEF in its 88th meeting held on June 28-29,2010, reviewed the project in
question in light of the aforementioned reports and made a number of
recommendations (Paper book Volume III, page 32) that would form part of this
judgment.
75.
It
is significant to note that none of the expert bodies has taken the view that
the project is so calamitous or ruinous for the bird sanctuary that it needs to
be altogether scrapped in order to save the Sanctuary. The expert bodies have
given recommendations which allow thecompletion of the project subject to
certain conditions. On behalf of the State of U.P. it is unequivocally stated
that all the conditions laid in the reports of the Expert Bodies are acceptable
to the State Government/NOIDA in their entirety. In light of the two study
reports and the report submitted by the EAC, we see no justification for
directing the demolition of the constructions made in the project, as prayed
for on behalf of the applicants. We would rather allow the project to be completed,
subject, of course to the conditions suggested by the three expert bodies and
further subject to the directions contained here in below.
76.
It
may be noted that the report of the WII has focused on the felling of trees
resulting in the disappearance of the woodland that acted as a protective
buffer for the bird sanctuary and its first recommendation is to compensate the
loss of vegetation. It has secondly focused on the increased artificial light
at the project site, which is likely to affect the migratory bird population in
the long run. Apart from this, we feel that the extent of stone and concrete
constructions in the name of "hard landscaping" is highly out of
proportion. In the modified layout plan, the project proponents have reduced
the area under hard surface to 35.54% of the total project area. In our
opinion, even that is unacceptable from the environmental point of view. The
area under hard surface, whether covered, uncovered (including pathways and boundary
wall etc.) or of any kind whatsoever must not exceed 25% of the total project
area; of the rest, 25% should be used for soft/greenland scaping and the
remaining, preferably 50% must have a thick cover of trees of the native
variety, a list of which is given by the State of UP(Annexure 4(b), Paper book
Volume IV) The plantation of trees should be especially dense towards the Okhla
Bird Sanctuary on the western side of the project area. Any construction work
should commence only on completion of the planting of the trees.
77.
In
order to ensure full compliance with the recommendations of the expert bodies
(which form part of the judgment) and the directions of this Court, the
construction of the project needs to be overseen by an expert committee. One
member of the committee, preferably an ornithologist will be nominated by the
MoEF, the other member will be nominated by the CEC in consultation with the
amicus and the Chairman-cum-CEO of NOIDA will be the member-secretary of the committee.
The committee should be constituted within two weeks from today.
78.
It
is made clear that the above directions are given in the peculiar facts of this
case and nothing said in the judgment shall form precedent when the court is
hearing the matter of the "buffer zones".79. Before putting down the
records of the case a few observations may not be out of place. The EIA
notification dated September 14, 2006urgently calls for a close second look by
the concerned authorities. The projects/activities under items 8(a) and 8(b) of
the schedule to the notification need to be described with greater precision
and clarity and the definition of built-up area with facilities open to the sky
needs to be freed from its present ambiguity and vagueness. The question of application
of the general condition to the projects/activities listed in the schedule also
needs to be put beyond any debate or dispute. We would also like to point out
that the environmental impact studies in this case were not conducted either by
the MoEF or any organization under it or even by any agencies appointed by it.
All the three studies that were finally placed before the Expert Appraisal
Committee and which this Court has also taken into consideration, were made at
the behest of the project proponents and by agencies of their choice. This
Court would have been more comfortable if the environment impact studies were made
by the MoEF or by any organization under it or at least by agencies appointed
and recommended by it.80. The IAs stand disposed of with the above observations
and directions.
................................................CJI.
..................................................J.
(AFTAB ALAM)
..................................................J.
(K.S. PANICKER RADHAKRISHNAN)
New
Delhi,
December
3, 2010
APPENDIX I (by
SACON):7. SUGGESTED PROACTIVE ENVIRONMENTAL MEASURES Although there appears to
be no perceptible impact, as a precautionary approach, we suggest following
measures for the overall improvement of the OBS:1. The periodical removal of
water hyacinth should be ensured for better quality of water.1. Artificial nest
boxes should be placed along the western boundary of the sanctuary and
adjoining parts to enhance breeding potential of birds.1. Periodical monitoring
of water quality parameters should be undertaken to enhance wetland dependent
species and their population.1. Regular monitoring of population of avi fauna
should be undertaken. On the terrestrial habitat, also monitoring of small mammals
may be carried out.1. Extensive planting of native species suitable for urban
habitat should be done more than 10 times in and around the project area. This
will in turn help in sustainability of key bird species. It is noteworthy to
mention that NOIDA Authority has already planted 1,70,000 saplings.1. For the
scientific management of the OBS, the prescriptions of the Management Plan
under preparation by the Wildlife Institute of India, Dehradun should be
followed with necessary financial support.1. Inside the sanctuary, battery
operated vehicles should be used for visitors.1. For the effective protection
and management of the OBS, the sanctuary should be suitably fenced. 711. In
view of its unique location and interspersion of ecological settings of various
landscape elements, it is suggested that the proposed park may have an
ecological interpretation centre. APPENDIX II (by WII):
5. SUGGESGED
MITIGATION MEASURES To mitigate the loss of tree cover and the change in
landscape structure due to the construction of the Park and subsequent
anticipated increase in disturbance due to the increased human activities
adjacent to the OBS, following mitigation measures have been suggested: (1)
Re-vegetation of the Project site to compensate the loss of vegetation:
Ameliorative measures have already been taken up by the NOIDA by planting both
native and exotic species within in the project area and on the eastern flank
of left afflux bund of the Yamuna River/OBS at close spacing. However, emphasis
should be given to propagate only the native species. (1) Reduction of adverse
impact on the OBS: It is suggested that buffer at the north and north eastern
side of the Sanctuary to reduce direct disturbance to the OBS may be created.
The area north of the weir bund of the OBS is a promising site for water birds
which prefer shallow water or grass growth particularly geese and waders. It is
suggested that the waterlogged Yamuna floodplain north to the OBS and up to the
DND flyover having an area of 130 ha (Fig.1) may be included with the OBS or
protection to it as the buffer under the provision of WPA, 1972 be provided. The
strip of woodland with an area of 24 ha immediately to the north of the project
area (Fig.1) needs to be protected as buffer of the OBS also and its land-use
needs to be maintained unaltered. Being in close proximity of the OBS it 72 will
have an ameliorative effect on the Sanctuary. It would also provide additional
habitat to the terrestrial bird species of the OBS. Efforts should also be made
to keep the intensity of artificial light and noise at the project site to a
bare minimum during night, especially after sunset in migratory seasons of
birds (October-March). Bird friendly diffused light with blue tinge during
night, may reduce the negative impacts if any on OBS, though much research on
this aspect is required. It is suggested that at the periphery of the OBS,
fence wherever not existing be created and the breach in the existing fence be
mended on priority. (1) Eliciting support from the Government of Delhi for the conservation
of OBS: As the OBS is a interstate Protected Area having open access from all
side it is imperative that the Government of Delhi may also be persuaded to
take active part in its management.
(1) Ensuring
financial commitment for the improved conservation management of the Park: As
per the Order of the Honorable Supreme Court granted for other development project
adjacent to Protected Area (e.g. IA No.856/2006), 5% of the total costs of the
project be deposited with the Forest Department, Government of U.P. to improve
the ecosystem structure and functions, water bird habitat, public amenities and
interpretation centre and improved management of the OBS. APPENDIX III (by
EAC):During discussions following points emerged:
i.
Noida
Authority, while making presentation, informed that the project involves the
renovation, preservation and beautification of Park 73 on a total plot area is
33.43 Ha. The total built-up area of the covered construction is 6,999 sq. m.
Before the development of site there were 6,803 trees of different species out
of which 6241 trees were cut and 562 trees were shifted to other parks. Further
they informed that the following components of the project have already been
completed:
a. Boundary wall and
gate - 90%
b. Construction of
Monument building - 60%
c. Landscaping and
plantation - 80%
d. Pavements - 75% The
other infrastructural works proposed by Noida Authority for environmental
safeguards/measures and for effective EMP are use of treated waste water, sold
waste management, energy saving, tree plantation and parking etc. The other
works which are important in the context of Okhla Bird Sanctuary are control of
noise, glare and efficient traffic management.
i.
ii.
Possibility
should be explored to increase the greenery and plant broad leaf native trees
along the pathways inside and outside the park. This will help in the reduction
of surface runoff.
iii.
The
water quality and water balance are key elements and require detailed
management and monitoring. No fresh water/ground water should be used for
gardening/horticulture purposes. The requirement of water should be met from
self recycling treated sewage without placing of strain on the supply system
for the nearby residential and commercial areas.
iv.
Treated
waste water from Sector 54 Sewerage Treatment Plant is proposed for
horticulture purposes. It must also be utilised as much as possible for such
purposes as toilet flushing and pavement/ floor washing. The aforesaid purposes
will need tertiary treatment of sewage.
v.
No
more than 20 per cent of rain water shall be discharged out of the project site
into the existing drain. The rain water harvesting system should be designed
based on the soil characteristics and highest level of ground water table.
vi.
The
species of trees inside the park and in buffer zone both on Okhla Bird
Sanctuary side and road side should be of indigenous types that do not disturb
the water balance of the area. The grass and artificial plantations which are
not native should be avoided.
vii.
Adequate
noise barriers in the form of thick plantation of appropriate species of trees
and bushes laid in a tiered form to create a green screen on either side of
bund road should be provided. A no horn zone should be declared and maintained
around the Okhla Bird Sanctuary. The development of green belt and tree
plantation shall be carried out in consultation with Indian Council of Forest
Research and Education, Dehradun.
viii.
Solar
energy should be utilized for illumination of common areas, lighting of gardens
and paved footpaths etc.(
ix.
No
artificial illumination on tall poles or towers should be allowed inside the
park during the night hours. The street lights on the bund road and the roundabout
should be of special design, low intensity and low height with least disturbance
to the birds' habitat.
x.
The
solid waste generated should be properly collected and segregated before
disposal. The in-vessel bio-conservation technique should be used for
composting the organic waste.
xi.
The
opening of the park would increase the traffic load on the front road and
adjoining link road intersections. A detailed traffic study should be carried
out and proposals for necessary widening redesign of intersections and
strengthening of road structure should be prepared.
xii.
Provision
of a parking area is proposed inside the park. Allocation and configuration of
spaces for other modes of transport like mini buses, 2-3 wheelers,
cycle-rickshaws and bicycles and even pedestrians have to be considered for
realistic assessment of traffic and parking management.
xiii.
All
required sanitary and hygienic measures should be in place before the opening
of the park and should be maintained throughout the operation.
xiv.
Adequate
drinking water and sanitary facilities should be provided in the park.(xv) A
monitoring committee should be constituted for overseeing the project so as to
ensure effective implementation and compliance to environmental safeguards.
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