TaxTMI 
TaxTMI 
2010 (12) TMI 1367
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....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 Thirumulkpad v. Union of India and Ors. (1997) 2 SCC 267 and the action of the Uttar Pradesh Government in cutting down a veritable forest without the prior permission 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 dev....
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.... 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, 1990 issued 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....
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....oject. 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. HardLandscape 129140.80 (38.6%) 98544.99 (29.48%) aBoundaryWall 2700.79 (0.81%) 2700.79 (0.81%) bPlatforms, Plinths, Sculpture & Surrounding Paved Areas 126440.00 (37.79%) 95844.99 (29.48%) 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 wi....
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....e 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 the case of T.N Godavarman Thirumulkpad [Writ Petition (C) No. 202 of 1995), (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) ident....
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....ficiently 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 a report 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 coveri....
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.... 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, 2009 it 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 th....
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....assed 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 com....
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....hushan 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 and Ors. (1997) 8 SCC 191 (paragraphs 119, 120, 121, 123) and M.C. Mehta v. Union of India and 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....
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.... not for afforestation!). The trees, thus, planted were allowed to stand and grow for about 12-14 years 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, 2006 there 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 ....
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....te of Bihar v. Banshi Ram Modi has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate 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 Gove....
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....eases. 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 and evident. 29. In M.C. Mehta v. Union of India and 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 afforestation was done by spending crores of rupees of foreign funding in an effort to repair the deep ravages caused to the Aravalli Hills range over the years by mostly illegal mining. The context is once again evident. 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 ....
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....uld 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, 2009 approached 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 August 22/24, 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....
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....e 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 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....
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....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 88th meeting 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 July 22, 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 August 19, 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 the notification. 42. Mr. Harish Salve, learned amicus curiae and M....
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....ereas 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 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 th....
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.... 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 8 Building /Construction projects/Area Development projects and Townships (1) (2) (3) (4) (5) 8(a) Building and Construction projects ?20000 sq.mtrs and <1,50,000sq.mtrs. of built- up area# #(built up area for covered construction; in the case of facilities open to the sky, it 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 Note: General....
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....ted as category 'A' by application of the general condition (on account of its location being within a distance of ten km from a protected area notified 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 ....
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.... 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 from the 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 th....
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....ubmitted that the general condition would have no application to projects under items 8(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 developme....
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....tres 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 of 1,50,000 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 not a "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, s....
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....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 cov....
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....ate 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....
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....rdly 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) 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. Environm....
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....of the project done by some expert agencies. NOIDA, the project proponent got three studies made of the impact assessment of the project. 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 ....
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....st 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.... ...Such carbon sequestration value of the erstwhile woodland was lost, though the NOIDA has already taken up ameliorative steps in form of afforestation 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 Pape....
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....hatsoever must not exceed 25% of the total project area; of the rest, 25% should be used for soft/green landscaping 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 t....