Case no 1 B.N. KIRPAL, V.N. KHARE & M.B. SHAH JUDGMENT: 2000 (3) SCR 902 The following Order of the Court was delivered : This is an application by the learned Amicus Curiae seeking clarifi-cation hi relation to the working of the High Power Committee which was constituted by this Court. The first clarification which is sought is with regard to the orders passed by the High Power Committee (HPC) imposing a penalty based on actual adjudication at the behest of the units even if it results in the imposition of penalty larger than the penalty originally imposed. The question is whether such a penalty and/or additional penalty which is imposed on the basis of the documents produced by the units is valid and permissible. The HPC fixed normal recovery norms after obtaining data and expert advice from different sources. The norms so fixed showed as to how much veneer etc. could be recovered from the timber and it is on that basis that it proceeded to examine the records of the different units and then determined whether there has been excess production indicating use of illegal timber and thereby justifying imposition of penalty and/or additional penalty. After hearing the leamed counsel for the parties, we are in agreement with the norms adopted by the HPC. We also hold that on the basis of the documents and records produced by the units, the HPC was and would be entitled to impose penalty larger than the penalty originally imposed, as long as this penalty is based on the records so produced. A question has arisen with regard to cases where orders had not been made by the HPC on or before 15th January, 1998. This Comt's order dated December, 1996 had contemplated documents being filed and orders being passed by 15th January, 1998. It is possible
This is an application by the learned Amicus Curiae seeking clarifi-cation hi relation to the working of the High Power Committee which was constituted by this Court.
The first clarification which is sought is with regard to the orders passed by the High Power Committee (HPC) imposing a penalty based on actual adjudication at the behest of the units even if it results in the imposition of penalty larger than the penalty originally imposed. Thequestion is whether such a penalty and/or additional penalty which is imposed on the basis of the documents produced by the units is valid and permissible.
The HPC fixed normal recovery norms after obtaining data and expert advice from different sources. The norms so fixed showed as to how much veneer etc. could be recovered from the timber and it is on that basis that it proceeded to examine the records of the different units and then determined whether there has been excess production indicating use of illegal timberand thereby justifying imposition of penalty and/or additional penalty.
After hearing the leamed counsel for the parties, we are in agreement with the norms adopted by the HPC. We also hold that on the basis of the documents and records produced by the units, the HPC was and would be entitled to impose penalty larger than the penalty originally imposed, as long as this penalty is based on the records so produced. A question has arisen with regard to cases where orders had not been made by the HPC on or before 15th January, 1998. This Comt's order dated December, 1996 had contemplated documents being filed and orders being passed by 15th January, 1998. It is possible that due to volume of work, the HPC may not have been able to pass orders by 15th January, 1998 even though papers and otherrelevant material had been submitted to the HPC by that date. We, therefore, make it clear that the HPC would be entitled to look into the records and pass orders in every case where documents and material had been placed before the HPC by 15th January, 1998.
We further make it clear that wherever any penalty and/or additional penalty has been imposed by the HPC, the unit concerned will have a right to approach the HPC to examine the matter afresh. In modiflcation of paragraph 14 of the order of December 1996, we permit any unit in respect of which penalty and/or additional penalty has been levied by the HPC to approach the HPC for reconsideration on the basis of the material which it may choose to produce provided such a request is made by the unit within one month of the passing of the order by the HPC or, in those cases where orders have already been passed, within one month from today.
Inasmuch as the HPC would in effect be discharging quasi-judicial functions, it will be appropriate that the HPC may briefly indicate the reasons in support of the order passed by it.It is further clarified that wherever the HPC has given clearance to a unit after 9th February, 1998, the unit will be entitled to relocation.
It is, however, made clear that no unit which had not famished the record and particulars before 15th January, 1998, will be entitled to the benefit to this order. This IA stands disposed of.Case no2
CASE NO.:Suo Motu Contempt Petition 301 of 2003 Writ Petition (civil) 202 of 1995
By order dated 29/30th October, 2002, this Court directed closure of all unlicensed saw mills and prohibited opening of any new saw mill without prior permission of the Central Empowered Committee (CEC). The proliferation of wood based industry was one of the causes of degradation of forest. It is evident that the order was passed with a view to ensure protection of the forest wealth and to enforce measures to stop illegal felling, removal and utilization of timber. The relevant portion of the said order reads as under :"No State or Union Territory shall permit any unlicensed saw-mills, veneer, plywood industry to operate and they are directed to close all such unlicensed unit forthwith. No State Government or Union Territory will permit the opening of any saw-mills, veneer or plywood industry without prior permission of the Central Empowered Committee. The Chief Secretary of each State will ensure strict compliance of this direction. There shall also be no relaxation of rules with regard to the grant of licence without previous concurrence of the Central Empowered Committee."
In Orissa, Section 4 of Orissa Saw Mills and Saw Pits (Control), Act, 1991 prohibits establishment or operation of saw mills within reserve forest, protected forest or any forest area or within 10 kilometers from the boundary of any forest or forest area. The licences of five saw mills were cancelled by the Divisional Forest Officer (DFO) as a licensing authority
as licensees were found to be within a radial distances of 10 kilometers from the boundary of nearest forest. The following are those saw mills :
The cancellation of licences by saw mills at serial Nos.4 and 5 was not challenged. It attained finality. The saw mills at serials 1, 2 and 3, however, filed appeals against the cancellation ordered by DFO. In appeal, the Conservator of Forest directed the DFO to reconsider their cases. On reconsideration, the DFO again rejected their licences. The saw mill at serial No.3 did not this time challenge the decision of the DFO. The saw mills at serial Nos.1 and 2, however, filed appeals against the decision of the DFO, but the appeals were dismissed by the Conservator of Forest.
The respondent joined as DFO, Puri Division on 23rd December, 2002. These licences were granted during January and February, 2003. Despite the aforesaid facts and the abovenoted order of this Court, all the 5 saw mills were granted licences by the respondent-contemner. The grant of licences in the above manner was brought into the notice of CEC. CEC considering the affidavit of the Chief Secretary of the State Government, submissions of the Principal Secretary, Forest, Government of Orissa and that of the respondent opined that the issue of saw mill licences was in violation of the State Act above referred, the orders of the superior officers and also in violation of the orders dated 30th October, 2002 passed by this Court. Considering the recommendations of CEC, contained in its report dated 18th August 2003, this Court issued suo motu notice of contempt to the respondent Pravakar Behera. In reply to the contempt notice, the respondent has filed his affidavit. We have perused affidavit of the respondent dated 20th September, 2003 and have also heard Shri P.P. Rao, learned senior counsel appearing for the respondent. While tendering unconditional apology, the respondent has sought to explain that since he joined as Divisional Forest Officer, Puri Division only on 23rd December, 2002, he was not very much conversant with the latest developments in the management of forest division in general and the order of this Court dated 30th October, 2002, in particular. He has tried to explain that when the Principal Chief Conservator of Forest, Orissa, vide a memo dated 27th December, 2002, sent the case of Laxmi Saw Mill, Lingipur and Bhawani Saw Mill, Lingipur to him for disposal along with the report of the Tehsildar, he committed mistake of renewing the licencebona fide believing that the case of renewal is not prohibited. Under these circumstances, he stated to have renewed the licences of these two mills on 13th January, 2003. Before the CEC, the respondent had stated that the order of this Court dated 30th October, 2002 was received in his office on 16th January, 2003 whereas he had already issued licences on 13th January, 2003. The decision in respect of all other saw mills was taken on the same lines as that of Laxmi Saw Mill. It was also pleaded that he was not aware that the Conservator of Forest had already rejected the appeals filed by saw mills otherwise he would have never overruled the decision taken by the superiors.
The State Government, however, does not support the stand of the respondent which is apparent from the affidavit of the Chief Secretary and the stand of the Principal Secretary, Forest. According to the State Government, the saw mills were closed after cancellation of their licences. Their appeals had been dismissed. Therefore, these cases could not be treated
as renewal of licences and were clearly cases of grant of fresh licences and that the Principal Chief Conservator of Forest had merely forwarded the applications to the respondent for decision thereof in accordance with law and that did not empower the respondent to grant licences in violation of the order of this Court dated 30th October, 2002 in addition to the further fact of the appeals of the saw mills having been dismissed as above narrated.
From the aforenoted facts, it is clear that the grant of licences to saw mills by the respondent was in clear violation of orders of this Court. The plea that the respondent came to know about the orders of this Court only on 16th January, 2003 and in ignorance of the said orders, the licences were granted is not tenable for more than one reason. Firstly, it appears that the said order was sent to the office of the respondent on 30th December, 2002 and the licences were granted for the first time on 13th January, 2003. Secondly, assuming the respondent came to know of the order on 16th January, 2003, as claimed, he took no action on his own to recall the grant of licence. Thirdly, he granted licences to other saw mills admitted after 16th January, 2003 allegedly on the ground of their cases being similar to that of Laxmi Saw Mill. Fourthly, the licences were granted despite cancellation of licences having already attained finality.
Apart from the above, even if we assume that the respondent did not know about the cancellation having been upheld by his superiors, as claimed by him, clearly it would show utter negligence of the respondent. The fact that licences were cancelled later on 17th May, 2003 by the respondent is not of much consequence since the cancellation was a result of directions sent to him by the Conservator of Forest on 12th May, 2003 directing cancellation of licences and on receipt of the said directions on 16th May, the cancellation by the respondent was ordered the next day. It is not a case of suo motu cancellation by the respondent.
The respondent has tried to overreach this Court by violating the order dated 30th October, 2002 and is clearly guilty of contempt of court. Having regard to the facts abovenoted, we are unable to accept the apology tendered by the respondent. Having bestowed anxious considerations on the aspect of punishment, considering that respondent had joined as DFO only few days before grant of licences and it to being a case of first lapse on his part, on the facts of the case, in our view the ends of justice would be met by reprimanding the respondent and by issue of a warning to him so that he will be careful in future so as not to repeat such an act and also by imposing on him heavy amount which can be utilized for protection of environments. We order accordingly and impose a cost of Rs.50,000/- which shall be deposited by the respondent in the Registry within four weeks. The suo motu petition is disposed of accordingly.
Case no 3CASE NO.:Contempt Petition (civil) 301 of 2003Writ Petition (civil) 202 of 1995
By order dated 29/30th October, 2002, this Court directed closure of all unlicensed saw mills and prohibited opening of any new saw mill without prior permission of the Central Empowered Committee (CEC). The proliferation of wood based industry was one of the causes of degradation of forest. It is evident that the order was passed with a view to ensure protection of the forest wealth and to enforce measures to stop illegal felling, removal and utilization of timber. The relevant portion of the said order reads as under :"No State or Union Territory shall permit any unlicensed saw-mills, veneer, plywood industry to operate and they are directed to close all such unlicensed unit forthwith. No State Government or Union Territory will permit the opening of any saw-mills, veneer or plywood industry without prior permission of the Central Empowered Committee. The Chief Secretary of each State will ensure strict compliance of this direction. There shall also be no relaxation of rules with regard to the grant of licence without previous concurrence of the Central Empowered Committee."
In Orissa, Section 4 of Orissa Saw Mills and Saw Pits (Control), Act, 1991 prohibits establishment or operation of saw mills within reserve forest, protected forest or any forest area or within 10 kilometers from the boundary of any forest or forest area. The licences of five saw mills were cancelled by the Divisional Forest Officer (DFO) as a licensing authority as licensees were found to be within a radial distances of 10 kilometers from the boundary of nearest forest. The following are those saw mills :1. Laxmi Saw Mill, Lingipur2. Bhawani Saw Mill, Lingipur3. Gopinath Timber Saw Mill, Balakati4. Sidheswari Saw Mills, Balakati5. Siula Saw Mill (Maa Tarini Timber Trades)
The cancellation of licences by saw mills at serial Nos.4 and 5 was not challenged. It attained finality. The saw mills at serials 1, 2 and 3, however, filed appeals against the cancellation ordered by DFO. In appeal, the Conservator of Forest directed the DFO to reconsider their cases. On reconsideration, the DFO again rejected their licences. The saw
mill at serial No.3 did not this time challenge the decision of the DFO. The saw mills at serial Nos.1 and 2, however, filed appeals against the decision of the DFO, but the appeals were dismissed by the Conservator of Forest.
The respondent joined as DFO, Puri Division on 23rd December, 2002. These licences were granted during January and February, 2003. Despite the aforesaid facts and the abovenoted order of this Court, all the 5 saw mills were granted licences by the respondent-contemner. The grant of licences in the above manner was brought into the notice of CEC. CEC considering the affidavit of the Chief Secretary of the State Government, submissions of the Principal Secretary, Forest, Government of Orissa and that of the respondent opined that the issue of saw mill licences was in violation of the State Act above referred, the orders of the superior officers and also in violation of the orders dated 30th October, 2002 passed by this Court. Considering the recommendations of CEC, contained in its report dated 18th August 2003, this Court issued suo motu notice of contempt to the respondent Pravakar Behera. In reply to the contempt notice, the respondent has filed his affidavit. We have perused affidavit of the respondent dated 20th September, 2003 and have also heard Shri P.P. Rao, learned senior counsel appearing for the respondent. While tendering unconditional apology, the respondent has sought to explain that since he joined as Divisional Forest Officer, Puri Division only on 23rd December, 2002, he was not very much conversant with the latest developments in the management of forest division in general and the order of this Court dated 30th October, 2002, in particular. He has tried to explain that when the Principal Chief Conservator of Forest, Orissa, vide a memo dated 27th December, 2002, sent the case of Laxmi Saw Mill, Lingipur and Bhawani Saw Mill, Lingipur to him for disposal along with the report of the Tehsildar, he committed mistake of renewing the licence bona fide believing that the case of renewal is not prohibited. Under these circumstances, he stated to have renewed the licences of these two mills on 13th January, 2003. Before the CEC, the respondent had stated that the order of this Court dated 30th October, 2002 was received in his office on 16th January, 2003 whereas he had already issued licences on 13th January, 2003. The decision in respect of all other saw mills was taken on the same lines as that of Laxmi Saw Mill. It was also pleaded that he was not aware that the Conservator of Forest had already rejected the appeals filed by saw mills otherwise he would have never overruled the decision taken by the superiors.
The State Government, however, does not support the stand of the respondent which is apparent from the affidavit of the Chief Secretary and the stand of the Principal Secretary, Forest. According to the State Government, the saw mills were closed after cancellation of their licences. Their appeals had been dismissed. Therefore, these cases could not be treated as renewal of licences and were clearly cases of grant of fresh licences and that the Principal Chief Conservator of Forest had merely forwarded the applications to the respondent for decision thereof in accordance with law and that did not empower the respondent to grant licences in violation of the order of this Court dated 30th October, 2002 in addition to the further fact of the appeals of the saw mills having been dismissed as above narrated.
From the aforenoted facts, it is clear that the grant of licences to saw mills by the respondent was in clear violation of orders of this Court. The plea that the respondent came to know about the orders of this Court only on 16th January, 2003 and in ignorance of the said orders, the licences were granted is not tenable for more than one reason. Firstly, it appears that the said order was sent to the office of the respondent on 30th December, 2002 and the licences were granted for the first time on 13th January, 2003. Secondly, assuming the respondent came to know of the order on 16th January, 2003, as claimed, he took no
action on his own to recall the grant of licence. Thirdly, he granted licences to other saw mills admitted after 16th January, 2003 allegedly on the ground of their cases being similar to that of Laxmi Saw Mill. Fourthly, the licences were granted despite cancellation of licences having already attained finality. Apart from the above, even if we assume that the respondent did not know about the cancellation having been upheld by his superiors, as claimed by him, clearly it would show utter negligence of the respondent. The fact that licences were cancelled later on 17th May, 2003 by the respondent is not of much consequence since the cancellation was a result of directions sent to him by the Conservator of Forest on 12th May, 2003 directing cancellation of licences and on receipt of the said directions on 16th May, the cancellation by the respondent was ordered the next day. It is not a case of suo motu cancellation by the respondent.
The respondent has tried to overreach this Court by violating the order dated 30th October, 2002 and is clearly guilty of contempt of court. Having regard to the facts abovenoted, we are unable to accept the apology tendered by the respondent. Having bestowed anxious considerations on the aspect of punishment, considering that respondent had joined as DFO only few days before grant of licences and it to being a case of first lapse on his part, on the facts of the case, in our view the ends of justice would be met by reprimanding the respondent and by issue of a warning to him so that he will be careful in future so as not to repeat such an act and also by imposing on him heavy amount which can be utilized for protection of environments. We order accordingly and impose a cost of Rs.50,000/- which shall be deposited by the respondent in the Registry within four weeks. The suo motu petition is disposed of accordingly.
Case no4 CASE NO.:Writ Petition (civil) 202 of 1995
PETITIONER:T.N. Godavarman Thirumulpad
RESPONDENT:Union of India & Ors.
DATE OF JUDGMENT: 26/09/2005
BENCH:Y.K.Sabharwal,Arijit Pasayat & S.H.Kapadia
JUDGMENT:J U D G M E N TIA NO.826 IN IA NO.566 INWRIT PETITION (C) NO.202 OF 1995
[WITH IA NO.932 IN 819-821, 955, 958, 985, 1001-1001a, 1013-1014, 1016-1018, 1019, 1046, 1047, 1135-1136, 1137, 1164, 1180-1181 AND 1182-1183, 1196, 1208-1209, 1222-
1223, 1224-1225, 1229, 1233, 1248-1249, 1253, 1301-1302, 1303-1304, 1312, 1313, 1314, 1315-1316, 1318 AND 1319 IN WP (C) NO. 202 OF 1995]
Y.K. Sabharwal, J.
Natural resources are the assets of entire nation. It is the obligation of all concerned including Union Government and State Governments to conserve and not waste these resources. Article 48A of the Constitution of India requires the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. Under Article 51A, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wild-life and to have compassion for living creatures.
In the present case, the question is about conservation, preservation and protection of forests and the ecology. When forest land is used for non-forest purposes, what measures are required to be taken to compensate for loss of forest land and to compensate effect on the ecology, is the main question under consideration.
Forests are a vital component to sustain the life support system on the earth. Forests in India have been dwindling over the years for a number of reasons, one of it being the need to use forest area for development activities including economic development. Undoubtedly, in any nation development is also necessary but it has to be consistent with protection of environments and not at the cost of degradation of environments. Any programme, policy or vision for overall development has to evolve a systemic approach so as to balance economic development and environmental protection. Both have to go hand in hand. In ultimate analysis, economic development at the cost of degradation of environments and depletion of forest cover would not be long lasting. Such development would be counter productive. Therefore, there is an absolute need to take all precautionary measures when forest lands are sought to be directed for non forest use.
The point in issue is whether before diversion of forest land for non-forest purposes and consequential loss of benefits accruing from the forests should not the user agency of such land be required to compensate for the diversion. If so, should not the user Agency be required to make payment of Net Present Value (NPV) of such diverted land so as to utilize the amounts so received for getting back in long run the benefits which are lost by such diversion? What guidelines should be issued for determination of NPV? Should guidelines apply uniformly to all? How to calculate NPV? Should some projects be exempted from payment of NPV? These are the main aspects which require examination and determination in the backdrop of various legislations which we would presently notice.
The legislature to provide for conservation of forest and for matters connected therewith or ancillary or incidental thereto enacted the Forest (Conservation) Act, 1980 (for short, the 'FC Act'). It postulates that no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing that any forest land or any portion thereof may be used for any non-forest purpose. The Central Government under the FC Act has been empowered to constitute a Committee to advice it with regard to grant of approval. Under Section 2 of the Act the question of use of any forest land for non-forest purposes and any other matter connected with the conservation of forest may be referred to such a committee by the Central Government under the FC Act. The contravention of any of the provisions of Section 2 has been made an offence. Noticing the decline in
environment quality due to increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support system, the Environment (Protection) Act, 1986 (for short, the 'EP Act') has been enacted. It has been noted in the Statement of Objects and Reasons that although there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation for environmental protection. Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are inadequate linkages in handling matters of industrial and environmental safety. Control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals, in the environment are weak. Because of a multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long-term requirements of environmental safety and to give direction to, and co-ordinate a system of speedy and adequate response to emergency situations threatening the environment. The EP Act was, therefore, enacted to provide for protection and improvement of environment and for matters connected therewith.
The Central Government has been given wide powers to take measures to protect and improve the environment as provided under Section 3 including the power to constitute an authority or authorities 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 the Act and for taking measures with respect to such of the matters referred to in sub-section (2) of Section 3 as may be mentioned in the order and subject to the prejudice and control of the Central Government. Section 5 of the EP Act empowers the Central Government, in exercise of its powers and performance of its function under the Act, to issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. The Central Government has the power to direct the closure, prohibition or regulation of any industry, operation or process or stoppage of regulation of the supply of electricity or water or any other service. Parliament has also enacted enactments to prevent and control water pollution and air pollution [The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981].
A statement was placed before this Court by the Central Government showing the position as on 20th March, 2000 of the cases approved for diverting forest lands, stipulation for compensatory afforestation under the FC Act and the compensatory afforestation done, funds to be utilized and actually utilized. The Court noted the dismal situation as there was a shortfall to the extent of 36% of total afforestation compensatory or otherwise afforestation. It further noted that though funds had been realized by all the States in connection with such afforestation, a very large number of States had spent 50% or less amount on afforestation. In this background, taking suo moto action, notices were directed to be issued to the States mentioned in the Order dated 17th April, 2000 to explain as to why moneys realized have not been spent on carrying out afforestation.
On 23rd November, 2001, after considering the affidavits that had been filed, it was noted that large sums of money had been realized by various States from the user-agency to whom permits were granted to use forest land for non-forest purposes. The moneys were paid
by user agencies to the State Governments for compensatory afforestation but the utilization was only about 83% of the funds actually realized by the State Governments, the shortfall being of nearly Rs.200 crores.
The Ministry of Environment and Forests (MOEF) was directed to formulate a scheme providing that whenever any permission is granted for change of use of forest land for non-forest purposes and one of the conditions of the permission is that there should be compensatory afforestation, then the responsibility of the same should be that of user-agency and it should be required to set apart a sum of money for doing the needful. In such a case the State Government will have to provide or make available land on which reforestation can take place and this land may have to be made available either at the expense of the user-agency or of the State Government, as the State Government may decide. It was decided that the scheme shall ensure that afforestation takes place as per the permissions which are granted and there should be no shortfall. The scheme was submitted by MOEF alongwith an affidavit dated 22nd March, 2002.
The Central Empowered Committee (CEC) on consideration of relevant material including the scheme submitted by MOEF made its report (IA 826) containing recommendations dated 9th August, 2002. The report, taking note of the present system of compensatory afforestation as per guidelines issued by MOEF from time to time under the FC Act, the procedure for receipt and utilization of funds for compensatory afforestation, activities permissible under compensatory afforestation, adequate compensation for loss of forest land recovery of Net Present Value, funds for catchment area, treatment plant and involvement of user-agency for compensatory afforestation, made the following recommendations :
(a) in addition to the funds realized for compensatory afforestation, net present value of the forest land diverted for non-forestry purposes shall also be recovered from the user agencies, while according approval under the Forest (Conservation) Act, 1980; (b) a 'Compensatory Afforestation Fund' shall be created in which all the monies received from the user-agencies towards compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation, net present value of forest land, Catchment Area Treatment Plan funds, etc., shall be deposited. The rules, procedure and composition of the body for management of the Compensatory Afforestation Fund shall be finalized by the Ministry of Environment & Forests with the concurrence of Central Empowered Committee within one month;(c) the funds received from the user-agencies in cases where forest land diverted falls within Protected Areas i.e. area notified under Section 18, 26A or 35 of the Wild Life (Protection) Act, 1972, for undertaking activities related to protection of bio-diversity, wildlife, etc., shall also be deposited in this Fund. Such monies shall be used exclusively for undertaking protection and conservation activities in protected areas of the respective State/UT;(d) the amount received on account of compensatory afforestation but not spent or any balance amount lying with the State/UT or any amount that is yet to be recovered from the user agency shall also be deposited in this Fund;(e) besides artificial regeneration (plantations), the funds shall also be utilized for undertaking assisted natural regeneration, protection of forests and other related activities. For this purpose, site specific plans should be prepared and implemented in a time bound manner;
(f) the user agencies especially the large public sector undertakings such as Power Grid Corporation, NTPC, etc., which frequently require forest land for their projects should also be involved in undertaking compensatory afforestation by establishing Special Purpose Vehicle. Whereas the private sector user-agencies may be involved in monitoring and most importantly, in protection of compensatory afforestation. Necessary procedure for this purpose would be laid down by the MOEF with the concurrence of the Central Empowered Committee.(g) Plantations must use local and indigenous species since exotics have long term negative impacts on the environment; and (h) an independent system of concurrent monitoring and evaluation shall be evolved and implemented through the Compensatory Afforestation Fund to ensure effective and proper utilization of funds.
The aforesaid report, inter alia, notes that there was general consensus amongst the States/Union Territories that the present practice of concentrating only on artificial regeneration through plantations should be dispensed with as it does not adequately compensates the loss of natural forest and that a part of the fund should also be used for assisted natural regeneration wherein the natural forests are allowed to regenerate and grow by undertaking silvicultural and cultural operations such as fire tracing, singalling of seedlings, protection, etc. These activities help in regenerating the rootstock which may exists in the degraded forests.
Besides, this helps in restoring the natural forests, which is not possible through plantations. It also noted that to compensate for the loss of tangible as well as intangible benefits flowing from the forest lands which has been diverted for non-forest use, the NPV of such land is being recovered from the user agency in the States of Madhya Pradesh, Chhattisgarh and Bihar. In the states of Madhya Pradesh and Chhattisgarh, the NPV is being recovered at the rate of Rs.5.80 lac per hectare to Rs.9.20 lac per hectare of the forest land depending upon the quality and density of the forest land diverted for non-forestry use. The underlying principle for recovery of NPV was that the plantations raised under the compensatory afforestation scheme could never adequately compensate for the loss of natural forests as the plantations require more time to mature and even then they are a poor substitute to natural forest. It noted that States/Union Territories as well as MOEF are of the view that in addition to the funds realized for compensatory afforestation, the NPV of the forest land being directed for non-forestry purposes should also be recovered from the user-agencies.
The MOEF, in principle, accepted the aforesaid recommendations of CEC. The order dated 29th October, 2002 notices this fact. Further noticing that no other State had filed any response to the report of CEC, the Court presumed that the State Governments were also not opposed to the said report and have accepted the same in the same manner as Union of India. On detailed examination of the report, the recommendations of CEC were accepted and Union of India was directed to frame comprehensive rules with regard to the constitution of a body and management of the compensatory afforestation funds in concurrence with the CEC. It was directed that the compensatory afforestation funds which had not yet been realized by the States shall be transferred to the aforesaid body by respective States and the user agencies within six months of its constitution. In addition, while according approval under the FC Act for change in user, the user-agency shall also pay into the said fund, the NPV of forest land diverted for non-forest purposes at the rate of Rs.5.80 lac per hectare to Rs.9.20 lac per hectare of forest land depending upon the quality and density of the land in question converted for non- forest use. The amount was subject to upward revision by the MOEF in
consultation with CEC as and when necessary. The aforesaid recommendations of CEC were accepted.
An application (I.A.No.1046) was filed by the MOEF, inter alia, seeking directions that the NPV calculation shall be part of the detailed project report submitted to it for a forestry clearance under the FC Act. During the course of hearing, learned Solicitor General informed this Court that the Government was agreeable to the suggestions of CEC that money received from user-agencies for compensatory afforestation fund should be kept in an interest bearing account, though initially it had some reservations about it. Reference has also been made in the application about exemption being granted to some projects from payment of NPV, an aspect which we would consider later at an appropriate stage so also the basis of the calculation of the NPV. We may, however, note that although in the application it was stated that the format issued by the World Bank for calculation for NPV for the projects shall be the basis of its calculation, the learned Solicitor General stated that he was not relying upon the said format. Regarding the mining projects, the application mentions that there has to be difference in approach for mineral of high volume and low volume and low value and minerals of high value and low volume. It is stated that levying of flat rates of NPV per hectare basis will, therefore, not be rational. The application states that in case of mining, NPV should be calculated at the rate of 10% for the major minerals and 5% for the minor minerals to be levied on the annual royalty. An application (IA 1047) has also been filed by the Ministry of Mines, Government of India taking similar pleas as are taken in IA 1046 seeking directions that in mining NPV may be calculated at the rate of 10% and 5% as above noted.
Now, we may refer to Notification dated 23rd April, 2004 issued by MOEF in exercise of the powers conferred by sub-section (3) of Section 3 of the EP Act constituting an authority known as Compensatory Afforestation Fund management and Planning Authority (hereinafter referred to as 'CAMPA') for the purpose of management of money towards compensatory afforestation, NPV and any other money recoverable in pursuance of this Court's order and in compliance of the conditions stipulated by the Central Government while according approval under the FC Act for non-forestry uses of the forest land. The Executive Body of the Authority comprises of the following:"(i) Director General of Forests and - Chairperson
Special Secretary, Ministry ofEnvironment and Forests, Governmentof India
(ii) Addl.Director General of Forests - Member(Forests) Ministry of Environment andForests, Government of India
(iii) Addl.Director General of Forests - Member(Wildlife)
(iv) Inspector General of Forests (Forest - MemberConservation), Ministry of EnvironmentAnd Forests, Government of India
(v) Joint Secretary and Financial Advisor, - MemberMinistry of Environment and Forests,Government of India
(vi) Chief Executive Officer (CEO) - Member
(vii) A professional ecologist, not being from - MemberThe Central and State Government, forA period of two years at a time, for upTwo consecutive terms."
The powers and functions of the Executive Body are:"(a) deployment of staff on contractual basis or on deputation;(b) financial procedure;(c) delegation of financial or administrative powers;(d) other day-to-day working in respect of receipts of funds;(e) investment of funds;(f) expenditure on establishment and other overheads including office accommodation subject to the approval of the annual budget by the Governing Body."
The management of the fund is provided in clause 6.3 and the disbursement of the fund in clause 6.4 of the Notification. These clauses read as under:"6.3 Management of the Fund:(i) The amount collected by the CAMPA shall be invested in Reserve Bank of India, Nationalized Banks, Post Office, Government Securities, Government Bonds and deposits.(ii) The non-recurring as well as recurring cost for the management of CAMPA including the salary and allowances payable to its officers and staff shall be met by utilizing a part of the income by way of accused interest on the funds invested by the CAMPA excluding income from funds received as per para 6.2(ii).(iii) The expenditure incurred on independent monitoring and evaluation shall be borne by the CAMPA out of the income by way of interest on the funds invested by the CAMPA excluding income from funds received as para 6.2(iii).(iv) The CAMPA shall get the annual accounts audited internally as well as externally through chartered accountant(s) who are on the panel of the Comptroller and Auditor-General of India and the auditor(s) shall be selected on the approval of the Governing Body.6.4 Disbursement of Funds:(i) The money received for compensatory afforestation, additional compensatory afforestation may be used as per the site specific schemes received from the States and Union Territories along with the proposals for diversion of forest land under the Forest (Conservation) Act, 1980.(ii) The money received towards Net Present Value (NPV) shall be used for natural assisted regeneration, forest management, protection, infrastructure dev elopement, wildlife protection and management, supply of wood and other forest produce saving devices and other allied activities.(iii) Monies realized from the user agencies in pursuance of the Hon'ble Supreme Court's order or decision taken by the National Board for Wildlife involving cases of diversion of forest land in protected areas shall form the corpus and the income there from shall be used exclusively for undertaking protection and conservation activities in protected areas of the States and the Union Territories and in exceptional circumstances, a part of the corpus may also be used subject to prior approval of the CAMPA.
(iv) CAMPA shall release monies to concerned State and Union Territory in predetermined installments through the State Level Management Committee as per the Annual Plan of Operation (APO) finalized by the concerned State and the Union Territory.(v) The monies received in CAMPA from a State or the Union Territory as per para 6.2 and the income thereon after deducting expenditure incurred by the CAMPA on its establishment cost, monitoring and evaluation on a prorate basis shall be used only in that particular State or the union Territory."
Clause 6.6 provides for other functions and reads thus:"(i) The CAMPA may establish Special Purpose Vehicles (SPV) for undertaking compensatory afforestation particularly by involving large public sector undertakings which frequently require forests and for their projects, in consultation and as far as possible with the concurrence of the CEC.(ii) The CAMPA may also consider evolving new mechanism to generate additional sources of fund for forest conservation works and to create capacity and data base for better conceptualization and management of fund."
Having regard to the nature of the functions of the Executive Body of the CAMPA, we find substance in the suggestion of learned Amicus Curiae that there should be more involvement of NGOs by including in the Executive Body, the conservationists, environmentalists, economists and experts in forestry. We are of the view that the Executive Body deserves to be expanded as, presently, only one professional ecologist is its member, remaining all being officers of the Government. We may note here that a forthright and fair stand was taken by the learned Solicitor General not only in regard to the constitution of CAMPA but on other aspects also, keeping in view the non-adversarial nature of the litigation.
Learned Solicitor General submitted that the Government is committed to conserve the forest and protect the environments, and would implement, in letter and spirit, the directions issued by this Court. In view of above, we direct that clause 2.2 shall be suitably amended so as to include two more environmentalists, one of whom may be expert in the field of forest and the other in the field of forest economy development. These members shall be included in the Executive Body in consultation with the Chairperson of the CEC.
Regarding clause 6.3(iv), it was suggested that there should be corporate accounting based on double entry system and auditing should be conducted by the Comptroller and Auditor-General (CAG). We see substance in this suggestion as well.
Clause (v) in 6.4 provides that the monies received in CAMPA shall be used only in that particular State or Union Territory. The clause seems to be too rigid. Many a times, the effect of degradation of environment or depletion of forest can be felt more in the adjoining area which may be in a different State or Union Territory. The effect of environmental degradation cannot be restricted to a particular area. The impact cannot be limited to the place of origin. Therefore, we direct that a suitable modification of the clause shall be made so as to provide that ordinarily expenditure shall be incurred in the particular State or Union Territory but leaving it to the discretion of the CAMPA to also incur expenditure in the State or Union Territory other than the one mentioned in clause 6.2 if it considers it necessary.Clause 6.6 which by use of the word 'may' leaves it to the discretion of the CAMPA to establish Special Performance Vehicle (SPV) for undertaking compensatory afforestation
deserves to be amended so as to substitute the word 'may' by the word 'shall' so that the regeneration is done by some SPV in specified areas.
Now, we come to the question of the guiding principle to be laid for determining the NPV. Reference was made to opinions of various experts laying down as to what is the concept of NPV and how it is to be calculated. The question is also about the legal and jurisdictional basis to levy NPV. Most of the States did not object to the recovery of the NPV from the user-agency but strenuously urged that since the land under the forest belongs to the State, the amount deposited by the user-agency as NPV shall be paid to them. It was also contended on behalf of the States that there should be no NPV on degraded forest. The further submission was that all public utility projects shall be exempted from payment of NPV. On the other hand, relying upon the principles of inter-generational equity and sustainable development, Mr. Harish Salve, learned senior counsel and Amicus Curiae contended that forest is a part of eco-system and, therefore, the value to be put and calculated is not only on trees and leaves but the basis has to be the preservation of bio-diversity. It is submitted that NPV is to be levied and collected not because property rights of the States are affected but on account of effect on ecology by conversion of forest land for non-forest purpose. Further, Mr. Salve submits that the basis for calculation of NPV should be the economic value, spread over a period of 50 years, which would be regenerational value for forest regeneration to be taken into account as opposed to restoration value, i.e., financial value. Regarding legal and jurisdictional basis to levy NPV, Mr. Salve contended that there are various legal principles which act as source of power to levy NPV. In this regard, reference has been made to provision of the FC Act, EP Act and Forest Policy of 1988. It is contended that these enactments and the policy are the measures taken by the legislature and the Government to discharge the constitutional obligation to protect the environments. Reliance is also placed upon the doctrine of public trust, which learned counsel submits is a constitutional doctrine. First, we may consider the meaning of NPV and determine what is NPV. The NPV is the present value (PV) of net cash flow from a project, discounted by the cost of capital.
Forestry is a public project. It is important to bear in mind that a benefit received today is worth more than that received later. The benefit received today is in fact 'cost incurred' today. Time value of the cash inflow/outflow is important in investment appraisal. NPV is a method by which future expenditures (costs) and benefit are levelised in order to account for the time value of money. The object behind NPV is to levelise costs. What is the value of Rupee today would not be the value of Rupee say 50 years later. For example, let us have the starting point of value of Rupee in India in the year 2005 and analyse it with the value of Rupee that may be in the year 2050. Cost incurred or to be incurred in 2050 have to be discounted by using appropriate parameters like rate of discount, gestation period, ratio of deflators to GDP. Therefore, expenses incurred in each year between say 2005 and 2050 have to be brought down to their present values by using appropriate discount rate in the NPV.
The project like forestry has long gestation period of 40-50 years. It goes through cost cycles each year depending upon inflation, rate of interest, internal rate of return etc. Therefore, costs for the year 2005 will differ from the cost of 2006 and cost of 2006 will differ from that of the year 2007 and so on and so forth. However, this constitutes what is called as conventional method of accounting cost which does not take into account social and economic cost of diversion of forest.
Cost is a function of the discount rate (a measure of the value of capital) used. Under NPV, all costs are discounted to some reference date which we have taken as 2005 for illustration. The total cost reckoned at this reference date is the sum of present value or future value of costs discounted to the year 2005. Similarly, one can calculate the present value of the revenues from the expected benefits of forest regeneration.
The question then is why charge NPV. In the case of a conventional project like Hydro-electric Project, the accounting procedure is normally based on Return On Investment (ROI) in which the unit cost of energy includes return on capital, investment, depreciation of capital, annual fuel cost and operational and maintenance costs. However, ROI excludes the time value of money. It also excludes the gestation period of the project. Therefore, we have the NPV method which discounts future costs and future benefits by use of appropriate discount rate and brings down such costs and benefits to the reference date which in the present case has been assumed to be the year 2005.
The question, which we have to answer, is concerning the relevance of fixing appropriate discount rate in valuation of the costs and benefits arising from forestry as a project.
The value of any asset is discounted by present value of the economic benefits it will generate in future years. For example, timber asset value is the discounted future stumpage price for mature timber after deducting costs of bringing the timber to maturity. NPV is one of the methods for valuation of standing timber. The general expression V for the value of an asset, in the base year O, is simply the sum of the net economic benefits it yields in each year over the life time, T, of the Asset, discounted to the present value by the discounted rate.
The current method of valuing public sector projects, like forestry, has become contentious as public sector undertakings agrees for lower discount rate on account of long gestation period. However, the flaw with this argument is that the low rate of return is computed without including the intangible or environmental impacts/benefits emanating from forest.
How does one value the intangibles? There are several methods, viz, opportunity cost, replacement cost, travel cost, contingent value method (CVM) and social benefit cost analysis (SBCA).
SBCA can be applied to the evaluation of environmental impacts of forestry projects. Here, one must appreciate that the environmental outputs from forests appear as public goods for which there is no market. Various environmental outputs can be classified into this category, namely, Flood Control BenefitsWater ProductionSoil ConservationOutdoor RecreationBiodiversity & ConservationHabitatAir Purification
The problem in valuation of the above outputs is: allocation of fixed costs according to the contribution of each product in total revenue. This is because except contribution of timber product, contribution of the other above-noted outputs is not known, especially
intangible outputs. However, under SBCA, benefits from each of the above environmental outputs are identifiable. For example, flood control benefits arise because of the role of forests as stream regulator. Similarly, valuation method for each of the above outputs differs. In valuing biodiversity, CVM is useful. SBCA is helpful in placing monetary value on carbon storage on air purification.
The point is that for each of the above functions of the forests, different methods of valuation have to be applied. Various methods have been used to estimate the value of environment like CVM, Opportunity Cost Method, Travel Cost Method, SBCA etc. It would be appropriate if body of experts examine the aspect and report to this Court suggesting the best method depending on factors like gestation period, rate of discount (interest), density of the forest, social benefits of the project undertaken by PSU etc. They will take into account economic values associated with forests, viz., direct use values, indirect use values such as value of environmental benefits from the forest, option values and existence value.
The above discussion shows that NPV helps levelising the costs of public projects like forestry. It is an important tool of SBCA. Under SBCA, benefits from each of the above environmental outputs are identifiable. Hence, applying NPV, one can allocate levelised costs according to the contribution of each product in the total revenue. It is important to bear in mind that a benefit or cost received or incurred now is worth more than that received or incurred later. Therefore, using the appropriate discount rate helps to aggregate marginal benefits and costs. The choice of interest rate depends upon time preference. For public project, such as forestry, a social discount rate, which indicates time preference of the society, should be used.
Forest sustainability is an integral part of forest management and policy that also has a unique dominating feature and calls for forest owners and society to make a long-term (50 years or longer) commitment to manage the forest for future generation. One of the viewpoints for sustaining forest is a naturally functioning forest ecosystem. This view point takes a man and nature relationship to the point of endorsing to, the extent possible, the notion of letting forest develop and process without significant human intervention. A strong adoption of the naturalistic value system that whatever nature does is better than what humans do, this is almost the "nature dominates man" perspective. Parks and natural reserve creations; non-intervention in insect, disease and fire process; and reduction of human activities are typical policy situation. This viewpoint has been endorsed by 1988 Forest Policy of Government of India. Yet another viewpoint recognizes the pragmatic reality faced by the governments and the administrative, namely, trees don't vote while people do. Some of the criteria reflecting key elements of ecological, economic and social sustainability are:1. Conservation of biological diversity.2. Maintenance of productive capacity of forest ecosystems.3. Maintenance of forest ecosystem health and vitality.4. Conservation and maintenance of soil and water resources.5. Maintenance of forest contribution to global carbon cycles.6. Maintenance and enhancement of long-term multiple socioeconomic benefits to meet the needs of societies.7. Legal, institutional and economic framework for forest conservation and sustainable management.
An expert dealing with principles and applications of forest valuation, on the aspect of value of inputs and outcomes and conditions, says :"Decision making in forest management requires that we understand the relative values of inputs, outcomes, and conditions. Cost values for inputs such as labour, capital, interest, supplies, legal advice, trades, and other management activities as well as the market value of existing timber stands are relatively easy to obtain. Outcomes or resulting condition values are more difficult, but we need measures of the values of timberland, recreation, water, wildlife, visual amenities, biodiversity, environmental services, and ecological process to help guide management decisions. By understanding market, social and other values of forests, we can better allocate our scarce and valuable resources to attain the desired mix of outcomes and conditions."
The emphasis is on ecosystem, management philosophy that has greater emphasis on integration, biological diversity and ecological processes.
In respect of working economic values of the outcome, it is said:"In real world forest management situations, decision makers are faced with several alternatives and potentially large sets of criteria related to the ecological, economic and social impacts of these alternatives. It would be very easy to generate a nearly incomprehensible table that documented every physical, biological, economic, and social outcome and condition resulting from each management alternative. Such information could include outcome levels for water yield, sediment production, and timber growth; population trends for important wildlife species; and recreation use for backcountry and developed recreation sites. Similarly, information on the economic value of these outcomes can be estimated by means of the methods discussed in chapter 8 and added to our impact table. To this avalanche of information, we could add the impacts on the social well-being of local and regional communities. The forest management analyst can easily overwhelm the decision makers and stakeholders with information."
Dealing with fundamental of decision analyses to achieve ecological, economic and social goals, it is said that what is to be broadly kept in view is:"Ecological and environmental goals are important to forest managers, landowners, and their stakeholders, we need information about how decision alternatives affect such goals. These goals can be broadly stated as 1. Maintaining and enhancing forest productivity2. Conservation of biological diversity3. Protecting and enhancing environmental conditions."
The aforesaid also shows that NPV as a tool of SBCA is required to be based on Total Economic Value (TEV). It indicates the components of TEV. It further shows what are the type of agency or experts which are required to examine these issues.
Dealing with co-relation between economics and environmental management, in 'Environmental Economics in practice' edited by Mr. Gopal K. Kadekodi in his write up through case studies, answers the question as to what has economics got to do with environmental management. The author says that economics is the science of explaining the behaviour of different agents who take part in production, consumption and distribution activities in the economy and make decisions regarding the use of resources. That, environmental economics focuses on market and non-market behaviour of different agents in the society regarding natural and environmental resources, viewed from intergenerational,
inter-temporal and different institutional frameworks. (Emphasis supplied by us) It is further stated that one of the major branches of economic theory is the 'theory of value'. Economic theory always makes a distinction between value and price. Answering the question as to why value natural resources specifically, it is stated that one reason is that there is no market for ecosystem services such as nutritional cycle, carbon sequestration, watershed functions, temperature control, soil conservation etc. It is also stated that assuming there are markets, they do not do their job well. This market may be regulated one. There may be restrictions on entry as a result of licensing or rationing introduced by the Government. For the above reasons, it is concluded that valuation beyond the present is necessary and for natural resource Accounting NPV method is a must.
Mr. Salve advocates for Total Economic Value (TEV) on the ground that TEV expresses the full range of value or benefits both tangible and intangible. Basically, it is understood that natural and environmental resources provide several 'use values' and 'non-use values' to enhance human welfare and provide sustainability to all lives (often termed as anthropogenic values). Conceptually, it is the sum of use values (UV) and non-use value (NUV) which constitutes the TEV. Further elaborations UV, option value (OV) non-use value (NUV) etc. have been given. The UV, it is stated, can be further broadly classified into three groups direct, indirect and option values. Direct Use Values (DUV) refer to the current use (consumption) of the resources and services provided directly by natural and environmental resources. Examples are the use of timber and non-timber forest products. Recreation (tourism to wildlife sanctuaries or Himalayan Glaciers, mountains), education, research etc., are examples of direct non-consumptive use values. Indirect Use Values (IUV) generally are referred to the ecological functions that natural resource environments provide. It can be broadly classified into three groups watershed values, ecosystem services and evolutionary processes. The Optional Value (OV) is associated with the benefits received by retaining the option of using a resource (say a river basin) in the future by protecting or preserving it today, when its future demand and supply is uncertain. Take the example of the Narmada river basin.
It is not necessary to delve further in this matter since ultimately it would be for the experts to examine and assist this Court as to the Model to be adopted for valuation, namely, TEV, CVM, SBCA etc. It is for the experts to tell us as to what NPV should be applied in case of mines and different types of forests. We may only note that basis of these valuations is the theory of sustainable development, i.e., development that meets the needs of the present without compromising with the ability of future generations to meet their own needs. Despite various elaborations, definition of sustainable development, though very old, still is widely accepted world over and has been reiterated by this Court in catena of cases.
Regarding the parameters for valuation of loss of forest, we may only note as to what is stated by Ministry of Environment and Forests, Government in its handbook laying down guidelines and clarifications upto June 2004 while considering the grant of approval under Section 2 of the FC Act. Dealing with environmental losses (soil erosion, effect on hydrological cycle, wildlife habitat, microclimate upsetting of ecological balance), the guidelines provide that though technical judgment would be primarily applied in determining the losses, as a thumb rule, the environmental value of one hectare of fully stocked forest (density 1.0) would be taken as Rs.126.74 lakhs to accrue over a period of 50 years. The value will reduce with density, for example, if density is 0.4, the value will work out at Rs.50.696 lakhs. So, if a project which requires deforestation of 1 hectare of forest of density 0.4 gives monetary returns worth over Rs.50.696 lakhs over a period of 50 years, may be
considered to give a positive cost benefit ratio. The figure of assumed environmental value will change if there is an increase in bank rate; the change will be proportional to percentage increase in the bank rate. Ms. Kanchan Chopra, while conducting the case study of Keoladeo National Park in respect of economic valuation of biodiversity at the institute of economic growth, Delhi as a part of the Capacity 21 project sponsored by the UNDP and MOEF, Government of India examined the question as to what kind of values are to be taken into consideration. As per the study, different components of biodiversity system possess different kinds of value (1) a commodity value (as for instance the value of grass in a park), (2) an amenity value (the recreation value of the park) and/or (3) a moral value (the right of the flora and fauna of the park to exist). It is recognized that it is difficult to value ecosystem, since it possesses a large number of characteristic, more than just market oriented ones. It also leads to the need to carry out bio-diversity valuation both in terms of its market linkage and the existence value outside the market as considered relevant by a set of pre-identified stakeholders. It is, however, evident that while working out bio-diversity valuation, it is not trees and the leaves but is much more.
Various techniques for valuing biodiversity that have been developed to assess the value of living resources and habitats rich in such resources have been considered by the author for her case study while considering the aspect of value, their nature and stakeholders interest. In so far as the value of ecology function in which the stakeholders or scientists, tourists, village residents, non-users, the nature of value is regulation of water, nutrient cycle, flood control. These instances have been noted to highlight the importance of the biodiversity valuation to protect the environments.
The conclusions and the policy recommendations of the author are:"Biodiversity valuation has important implications for decision making with respect to alternative uses of land, water and biological resources. Since all value does not get reflected in markets, its valuation also raises methodological problems regarding the kinds of value that are being captured by the particular technique being used. Simultaneously, in the context of a developing country, it is important to evolve methods of management that enable self-financing mechanisms of conservation. This implies that biodiversity value for which a market exists must be taken note of, while simultaneously making sure that the natural capital inherent in biodiversity rich areas is preserved and values which are crucial for some stakeholders but cannot be expressed in the market are reflected in societal decision making.
A focus on both the above aspects is necessary. It is important to take note of the nature of market demand for aspects of biodiversity that stakeholders, such as tourists, express a revealed preference for by way of paying a price for it. Simultaneously, it is important to examine the extent to which a convergence or divergence exists between value perceptions of this and other categories of stakeholders. It is in this spirit that two alternative methodologies are used here to arrive at an economic valuation of biodiversity in Keoladeo National Park. The travel-cost methodology captures the market-linked values of tourism and recreation. It throws up the following policy implications :1. Keeping in mind the location of the park and the consequent joint product nature of its services, cost incurred locally is a better index of the price paid by tourists. It is found that demand for tourism services is fairly insensitive to price. A redistribution of the benefits and costs of the park through an increase in entry fee would not affect the demand for its services.2. Cross-substitution between different categories of stakeholders can improve the financial management of the wetland. A part of the proceeds can go to the local management. Also, high-income tourists, scientists and even non-users with a stake in
preservation can pay for or compensate low-income stakeholders for possible loss in welfare due to limits on extraction and use.3. However, the limit to such a policy is determined by the number of visitors and their possible impact on the health of the wetland. Such a constraint did not appear to be operational in the context of the present park.Identification and ranking of values of different aspects of biodiversity resources as perceived and expressed by different categories of stakeholders namely scientists, tourists, local villagers and non-users is an important object in the process of valuation. In the KNP study, a fair degree of congruence with respect of ecological function value and livelihood value is discovered to exist in the perceptions of diverse groups. Stakeholders as diverse as scientists, tourists, local villagers and non-users give high rankings to these uses."
Next question is to which expert reference shall be made. Counsel for parties agree that Institute of Medical Economic Growth is an institute of eminence having been set up about half a century earlier. It has also been pointed out that this Institute is getting regular maintenance and development grant from Indian Council of Social Sciences research (ICSSR). Further, it appears that the Institute is also receiving research and training grants from Ministry of Finance, Ministry of Health and Family Welfare and Ministry of Agriculture, besides National Bank for Agriculture and Rural Development. We have been informed that eminent faculty members in the institute are engaged in the field of research and Ms.Kanchan Chopra, (Ph.D. Economics, University of Delhi) is one such faculty member and her field of specialization is resources and environmental economics, agriculture and rural development and project evaluation. The matter deserves to be referred to a committee of experts in respect whereof we will in latter part of the judgment issue appropriate directions.
Next, we will deal with the contention of Mr. Venugopal who, appearing for State of Kerala, submitted that the State has no objection to the levy of NPV but the amount so received should come to the State.
Referring to Notification dated 23rd April, 2004 constituting CAMPA, learned counsel contended that clause 6.4 of the said Notification, which deals with disbursement of the funds, does not envisage the amount being disbursed to the State Government. Learned senior counsel also challenged the constitutional validity of the Notification. The contention put forth is that the Notification does not have any Parliamentary or Legislative control. Referring to various clauses of the notification, it was contended that fund sought to be created under CAMPA lacks accountability and puts aside financial control. There is a total lack of financial discipline which, learned counsel contends, is against the constitutional framework. It was further contended that the forests vest in the Government; the same are State properties and, therefore, all amounts received shall go to Consolidated Fund of India or Consolidated Fund of the State or to Public Funds, as the case may be. Reference has also been made to the provisions of the Comptroller and Auditor-General (Duties, Powers and Conditions of Service) Act, 1971 (for short, the 'CAG Act') and the submission is that no provision under the Notification shows that the account can be subjected to audit under the CAG Act. The contention, in short, is that constitutionally it is not permissible to any person or authority to hold funds collect on behalf of the Government. This is basis for urging that the Notification dated 23rd April, 2004 is unconstitutional.
For examining the nature of the fund sought to be regulated by CAMPA, brief reference is necessary to be made to some of constitutional provisions.
Article 110 in so far as the Parliament is concerned and Article 199 in so far as the State is concerned, while defining Money Bills make a deeming provision for certain contingencies. Article 110(1)(f) and Article 199(1)(f) read as under:"110. Definition of "Money Bills".(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely :--
(a) to (d) .
(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or
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199. definition of "Money Bills".(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely :(a) to (d) (f) the receipt of money on account of the Consolidated Fund of the State or the public account of the State or the custody or issue of such money; or"
The contention is that Notification constituting CAMPA shall be deemed to be a Money Bill.
Articles 294 and 295 deal with succession to property, assets, rights, liabilities and obligations in certain cases as from the commencement of the Constitution of India, providing for vesting of the properties and assets in the Union and in the States. These articles were referred to contend that forest is the property and asset of the State.
Article 266 deals with Consolidated Fund of India and of the States. Article 283 deals with custody of the consolidated funds, contingency funds and the moneys credited to the public accounts. Article 284 deals with other monies received by public servants in courts and postulates the same shall be paid into the public account of India or the public account of the State, as the case may be.
Article 266(1) deals with all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled "the Consolidated Fund of India", and likewise the sum received by Government of State shall form one consolidated fund to be entitled "the Consolidated Fund of the State". Article 266(2) stipulates that all other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be.
Third category of receipt is in terms of Article 284 which is required to be paid into the public account of India or the public account of the State, as the case may be.Chapter III of CAG Act deals with duties and powers of the Comptroller and Auditor-General. Section 10 thereof deals with compilation of accounts of Union and the States by CAG. Under Section 11, the CAG is required to prepare and submit accounts to the
President, Governors of State and Administrators of Union Territories having Legislative Assemblies. Under Section 12, CAG is required to give information and render assistance to the Union Government and the State Governments. Section 13 sets out general provisions relating to audit. Under this provision, it shall be the duty of the CAG to audit all expenditure from the Consolidated Fund of India and of each State and of each Union Territory having a Legislative Assembly and to ascertain whether the moneys shown in the accounts as having been disbursed were legally available for and applicable to the service or purpose to which they have been applied or charged and whether the expenditure conforms to the authority which governs it; to audit all transactions of the Union and of the State relating to contingency funds and public account; to audit all trading, manufacturing, profit and loss accounts and balance sheet and other subsidiary accounts kept in any department of the union or of a State; and in each case to report on the expenditure, transactions or accounts so audited by him. Section 14 of CAG Act deals with audit of receipts and expenditure of bodies and authorities substantially financed from Union or State revenues. Section 15 provides for the functions of CAG in the case of the grants or loans given to other authorities or bodies. Section 16 deals with audit of receipts of Union or of States and Section 17 with audit of accounts of stores and stock. Section 18 provides for the powers of CAG in connection with audit and accounts. The audit of Government companies and corporations by CAG is dealt with under Section 19.
Section 20 is in the nature of a residuary provision providing that CAG, if requested by the President of India or the Governor of the State or the Administrator of Union of Territory having a Legislative Assembly to undertake the audit of the accounts of such other body or authority of which audit has been entrusted to CAG, the CAG shall undertake such audit. Chapter III shows the responsibility of CAG to conduct audit in the manner provided in the law or on request made for the audit in the manner provided under Section 20. Relying on aforesaid constitutional provisions and also of CAG Act, it was contended that the notification constituting CAMPA is unconstitutional as it does not stipulate that the amounts collected on behalf of Government shall go to the relevant consolidation fund or to public fund. Further, no provision has been made for audit under the CAT Act. To examine this contention, it is necessary to determine the nature of Fund dealt with by CAMPA.
The background under which the fund came to be created has already been noted. Noticing fast depletion of forests, the fund was ordered to be utilized for protection of forests and environments. The environments are not the State property and are national asset. It is the obligation of all to conserve the environments and for its utilization, it is necessary to have regard to the principles of sustainable development and inter-generational equity. Reverting now specifically to forests, if it becomes necessary for economic development to use the same for non-forest purpose, then before grant of permission for diversion of forest land, there should be some scheme whereunder loss occurring due to such diversion can be made up by adopting both short term measures as well as long term measures one of it being a regeneration programme. Natural regeneration is a long process. It requires huge amounts. It requires a policy and direction. It requires proper use of funds for regeneration of depleted forest and ecology. The natural resources like forests are in trust with the present generation. In this light, various statutes noted above have been enacted by the Parliament. Keeping in view the letter and spirit of those statutes and constitutional provisions, the legality of CAMPA and the power to issue directions for natural regeneration and utilization of funds is required to be appreciated. The body set up or fund generated to protect ecology and provide for regeneration cannot in constitutional scheme of things be considered and treated as a fund under Article 266 or Article 283 or Article 284 of the Constitution of India. When seen in this
light, neither Article 110 nor Article 199 and/or Article 294 or 195 would have any application.
There is an additional reason for the view that NPV will not fall under Article 110 or 199 or 195 of the Constitution. Our constitution draws a distinct line between a "TAX" and a "FEE". In case of Ratilal Panachand Gandhi v. State of Bombay & Ors. [1954 SCR 1055], one of the questions which arose for determination was regarding constitutional validity of Section 58 of Bombay Public Trust Act, 1950. That section makes it obligatory on every Public Trust to pay to the Administration Fund a contribution at such time and in such manner as may be prescribed.
Under the rules, the contribution was fixed at the rate of 2% per annum upon the gross annual income of every Public Trust. Failure to pay such contribution was made liable to penalty under Section 66 of the Act. It was contended on behalf of the Trustees that the levy of contribution under Section 58 was in substance the levy of a tax, it was beyond the competence of the State legislature to enact such a provision. This argument was rejected by this Court by holding that the Administration Fund constituted under Section 57 of Bombay Public Trust Act was a Special Fund which was to be applied exclusively for payment of charges for expenses incidental to the regulation of Public Trusts and in carrying into effect the provisions of the Act. Under Section 57 Special Fund vested in the Charity Commissioner. That Fund was set up from the charges levied on various Trusts in the State. The Fund was to be managed by the Charity Commissioner. All investments were to be made by the Charity Commissioner. All disbursements were to be made by him in the manner prescribed by the rules. The collections of these charges, deployed in the Special Fund, were not merged in the general revenue, but these collections were earmarked and set apart for the purposes of the Act. This Court further noticed that the Charity Commissioner and the servants appointed under the Act drew their salary from the Consolidated Fund of the State. However, this Court observed that Section 57 was enacted to facilitate the Administration and not with a view to mix up the Fund with the general revenue collected for government purposes. Therefore, this Court held that Public Trusts Administration Fund was set up to meet all expenses of the administration of Trust property within the scheme of the Act and it is to meet such expenses that they levy was made and collections were effected. Therefore, this Court held that such payments were levied for rendering service which the State considers beneficial in public interest. In the circumstances, it was held that Section 57 and Section 58 of the 1950 Act were not ultra vires the State legislature because they did not levy a tax but they levied a fee which came within Entry 47 of List III of Seventh Schedule to the Constitution, which reads as under:"47. Fees in respect of any of the matters in this List, but not including fees taken in any court."
Thus reading Entry 47 with Entry 20 of the same List, the imposition of NPV is a charge or a fee which falls within Entry 47 read with Entry 20 of List III of Seventh Schedule to the Constitution. The Fund set up is a part "of economic and social planning" which comes within Entry 20 of List III and the charge which is levied for that purpose would come under Entry 47 of List III and, therefore, Article 110 is not attracted.
To sustain ecological, economic and social values, in so far as forests are concerned, primarily, it is a question of Forest Management. In the introduction chapter of Forest Management, Fourth Edition, co-authored by Lawrence S. Davis, Professor Emeritus, University of California-Brakeley, K. Norman Johnson, Orgeon State University, Peter S.
Bettinger, Orgeon State University and Theodore E. Howard, University of New Hampshire, authors have said that "forest management remains the attempt to guide forests toward a society's goals. A forest manager is the catalyst of this effort. As such, the manager needs an earthy understanding of biological process; a knowledge of animals and their habitats; an appreciation of streams and their environments; the long-range viewpoint of a planner; the patience of a labour negotiator, the skills of an administrator; and the alertness, flexibility and all-round resourcefulness of a successful business executive. Above all, the forest manager requires a genuine sense and feeling for the forest as an entity."
This objective is to be borne in mind while considering the question of ecology as opposed to mere compensatory afforestation. Compensatory afforestation is only a small portion in the long range efforts in the field of regeneration. It has been said that recognizing the aforesaid uniqueness while applying the principles of management is the heart of forest management.Forest Management planning involves a blend of ecological, economic and social systems with the economic and social sides of planning often just as complex as the ecological sides. Table 1.1 gives examples of decisions needed in the management of forest as under :"Table 1.1Examples of decisions needed in the management of forestsType of decisionExampleExtent and distribution of reservesWilderness Management emphases for areas where active management will occur Big game emphasis, high-intensity timber production, scenic areas Types of activities allowed Timber harvest, prescribed fire Aggregate harvest level over time Evenflow, nondeclining yield Silvicultural system Even-aged, uneven-aged Age structure of forest Areas by 10-year age classes Size and shape of treatment units Small units versus large Units Spatial pattern of treatment units Concentrated or dispersed cutting blocks Protection strategy Wildfire suppression policy Vertical and horizontal diversity/stand density
Approach to partial cutting and prescribed burning Regeneration harvest timing Rotation age (even-aged), cutting cycle (uneven-aged) Regeneration method Clearcutting, clearcutting with leave trees, shelterwood, selection, prescribed fire, natural disturbance."
When permission is granted by the Government of India to use the forest land for non-forest purposes, it is not unconditional. Conditions are attached mainly with a view to protect the environments and to make good the loss likely to occur by grant of such permission. The payment into such a fund or imposition of conditions are for the protection of natural resources. The Notification dated 23rd April, 2004 sets up a body to which payment is made so that the said body can carry out the statutory and constitutional obligations. Since the amount does not go to the accounts postulated by Article 283, the said provision shall have no application.
Similarly, the provisions of the CAG Act would also have no application. At the same time, it may be noted that clause 6.3 stipulates the audit through Chartered Accountants on the panel of CAG. In order to provide for financial discipline, transparency and accountability, it would be appropriate to provide for corporate accounting on the principles of double entry system. We are further of the view that the accounts of the Fund shall be subjected to internal Statutory Audit, the Statutory Auditors to be taken from the panel of CAG. The internal audit shall be conducted every six months. The duty to preserve natural resources in
pristine purity has been highlighted in M.C. Mehta v. Kamal Nath & Ors. [(1997) 1 SCC 388].
After considering the opinion of various renowned authors and decisions rendered by other countries as well on environment and ecology, this Court held that the notion that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the law of the land. The Court accepted the applicability of public trust doctrine and held that it was founded on the ideas that certain common properties such as rivers, sea-shore, forests and the air were held by the Government in trusteeship for the free and unimpeded use of the general public. These natural resources have a great importance to the people as a whole that it would wholly unjustified to make them subject to private ownership. These resources being a gift of nature, should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It was held that our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of these resources. The State as a trustee is under a legal duty to protect these natural resources. Summing up the Court said : "We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."
In view of above, we hold that the natural resources are not ownership of any one State or individual, public at large is its beneficiary and, therefore, the contention of Mr. Venugopal that the amount of NPV shall be made over to the State Government cannot be accepted.The Indian Forest Act was enacted to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce. The focus of this Act is on the proprietary rights. Section 3 empowers the State Government to constitute any forest land or waste land which is the property of the Government or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled in a reserved forest in the manner provided in the Act. As provided in Section 5, no right can be acquired over the land in respect whereof notification has been issued under Section 4. In the manner provided in Section 11, the Forest Settlement Officer is empowered to acquire the land. Section 20 provides for declaration of reserved forest. No right in or over a reserved forest can be acquired, as provided in Section 23. Acts prohibited in respect of forests have been incorporated in Section 25. Section 29 deals with
declaration of protect forest and Section 30 empowers the State Government to issue notification reserving trees etc. in a protected forest. The power of the State Government for protection of forest has been provided in Section 35. The power to impose duty on timber and other forest produce is contained in Section 39 of the Act.
From the above, it can be seen that scheme of 1927 Act is a State management and regulation of the forest. On the assumption that local communities were incapable of scientific management of forest, the British Government introduced Forest Policy and Management by setting up a forest department and enacting the Indian Forest Act, 1878 which was amended from time to time. By passage of time, it was found that the provisions of the said Act were not adequate and, thus, in order to consolidate the law relating to forest, the transit of forest produce and the duty leviable for timber and other forest produce, the Indian Forest Act, 1927 was enacted. To further tighten the management and regulation, the FC Act of 1980 was enacted. It became necessary for conservation of forest on realizing that there has been large scale of deforestation which is causing ecological imbalance leading to environmental deterioration. This led to enactment of the FC Act providing for prohibition for use of forest land for non-forest purpose by anyone including the State Government or other authorities except with the prior approval of the Central Government. This legislature was enacted, as already noted, after Forest and Wildlife were taken out from the State list and placed in the Concurrent list. At the same time, Article 48A was inserted in the Constitution of India for protection and improvement of environments and safeguarding forest and wildlife in the year 1977.
The basis objectives leading to the laying down of the National Forest Policy, 1988 may also be noted and also the need and requirement for its enforcement. This policy was framed on realizing that 1952 Forest Policy for the management of State forest in the country had not halted the depletion of forests. It was, therefore, considered necessary to evolve a fresh policy for future to lay down new strategies of forest conservation which had become imperative. Conservation includes preservation, maintenance, sustainable utilization, restoration and enhancement of the natural environment. The principal aim of the forest policy is to ensure environmental stability and maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms, human, animal and plant. The derivation of direct economic benefit must be subordinated to this principal aim.The forest policy has a statutory flavour. The non-fulfillment of aforesaid principle aim would be violative of Articles 14 and 21 of the Constitution.
The basic objectives of the Forest Policy, 1988 are:"2.1 The basic objectives that should govern the National Forest Policy are the following:-- Maintenance of environmental stability through preservation and, where necessary, restoration of the ecological balance that has been adversely disturbed by serious depletion of the forests of the country.-- Conserving the natural heritage of the country by preserving the remaining natural forests with the vast variety of flora and fauna, which represent the remarkable biological diversity and genetic resources of the country.-- Checking soil erosion and denudation in the catchment areas of rivers, lakes reservoirs in the interest of soil and water conservation, for mitigating floods and droughts and for the retardation of silation of reservoirs.-- Checking the extension of sand-dunes in the desert areas of Rajasthan and along the coastal tracts.
-- Increasing substantially the forest/tree cover in the country through massive afforestation and social forestry programmes, especially on all denuded, degraded and unproductive lands.-- Meeting the requirements of fuelwood, fodder, minor forest produce and small timber of the rural and tribal populations.-- Increasing the productivity of forests to meet essential national needs.-- Encouraging efficient utilization of forest produce and maximum substitution of wood.-- Creating a massive people's movement with the involvement of women, for achieving these objectives and to minimize pressure on existing forests.2.2 The principal aim of Forest Policy must be to ensure environmental stability and maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms, human, animal and plant. The derivation of direct economic benefit must be subordinated to this principal aim."
It has been recognized that one of the essentials for forest management is the conservation of total biological diversity, the network of national parks, sanctuaries, biosphere reserves and other protected areas to be strengthened and extended adequately.
The strategy under the Forest Policy is to have a minimum of one-third of the total land area of the country under forest or tree-cover. In the hills and in mountainous regions, the aim should be to maintain two-third of the area under such cover in order to prevent erosion and land degradation and to ensure the stability of the fragile ecosystem. Clause 4.3 lays down the aspects of management of State forests. It would be instructive to reproduce hereunder certain parts of the Policy with a view to have clarity of the aim to be achieved.
"4.3.1. Schemes and projects which interfere with forest that clothe steep slopes, catchments of rivers, lakes, and reservoirs, geologically unstable terrain an d such other ecologically sensitive areas should be severely restricted. Tropical rain/moist forest, particularly in areas like Arunachal Pradesh, Kerala, Andaman and Nicobar Islands should be totally safeguarded.4.3.2. No forest should be permitted to be worked without the Government having approved the management plan, which should be in a prescribed format and in keeping with the National Forest Policy. The Central Government should issue necessary guidelines to the State Government in this regard and monitor compliance.
XXX XXX XXX4.4.1. forest land or land with tree cover should not be treated merely as a resource readily available to be utilized for various projects and programmes, but as a national asset which requires to be properly safeguarded for providing sustained benefits to the entire community. Diversion of forest land for any non-forest purpose should be subject to the most careful examinations by specialists from the standpoint of social and environmental costs and benefits.
Construction of dams and reservoirs, mining and industrial development and expansion of agriculture should be consistent with the needs for conservation of trees and forests. Projects which involve such diversion should be least provide in their investment budget, funds for regeneration/ compensatory afforestation.4.4.2. Beneficiaries who are allowed mining and quarrying in forest land and in land covered by trees should be required to repair and re-vegetate the area in accordance with established forestry practice. No mining lease should be granted to any party, private or
public, without a proper mine management plan appraised from the environmental angle and enforced by adequate machinery.
XXX XXX XXX4.6 Having regard to the symbiotic relationship between the tribal people and forests, a primary task of all agencies responsible for forest management, including the forest development corporations should be to associate the tribal people closely in the protection, regeneration and development of forests as well as to provide gainful employment to people living in and around the forest. While safeguarding the customary rights and interests of such people, forestry programmes should pay special attention to the following -- One of the major cause for degradation of forest is illegal cutting and removal by contractors and their labour. In order to put an end to this practice, contractors should be replaced by institutions such as tribal cooperatives, labour cooperatives, government corporations, etc. as early as possible;-- Protection, regeneration and optimum collection of minor forest produce along with institutional arrangements for the marketing of such produce;-- Development of forest villages on par with revenue villages;-- Family-oriented schemes for improving the status of the tribal beneficiaries; and,-- Undertaking integrated area development programmes to meet the needs of the tribal economy in the around the forest areas, including the provision of alternative sources of domestic energy on a subsidized basis, to reduce pressure on the existing forest areas.
XXX XXX XXX4.8.1. Encroachment on forest lands has been on the increase. This trend has to be arrested and effective action taken to prevent its continuance. There should be no regularization of existing encroachments.
XXX XXX XXX4.9. The main considerations governing the establishment of forest-based industries and supply of raw material to them should be as follows :-- As far as possible, a forest-based industry should raise the raw material needed for meeting its own requirements, preferably by establishment of direct relationship between the factory and the individuals who can grow the raw material by support the individuals with inputs including credit, constant technical advice and finally harvesting and transport services.-- No forest-based enterprise, except that at the village or cottage level, should be permitted in the future unless it has been first cleared after a careful scrutiny with regard to assured availability of raw material. In any case, the fuel, fodder and timber requirements of local population should not be sacrificed for this purpose.-- Forest-based industries must not only provide employment to local people on priority but also involve them fully in raising trees and raw-material.-- Natural forests serve as a gene pool resources and help to maintain ecological balance. Such forests will not, therefore, be made available to industries for undertaking plantation and for any other activities.-- Framers, particularly small and marginal farmers would be encouraged to grow, on marginal/degraded lands available with them, wood species required for industries. These may also be grown along with fuel and fodder species on community lands not required for pasture purposes, and by forest department/corporations on degraded forests, not earmarked for natural regeneration.-- The practice of supply of forest produce to industry at concessional prices should cease. Industry should be encouraged to use alternative law materials. Import of wood and wood products should be liberalized.
-- The above considerations will, however, be subject to the current policy relating to land ceiling and land-laws.
XXX XXX XXX4.16. The objective of this revised Policy cannot be achieved without the investment of financial and other resources on a substantial scale. Such investment is indeed fully justified considering the contribution of forests in maintaining essential ecological processes and life-support systems and in preserving genetic diversity. Forest should not be looked upon as a source of revenue. Forests are a renewable natural resource. They are a national asset to be protected and enhanced for the well being of the people and the Nation."
It is clearly a constitutional imperative to preserve and enhance forest cover as a natural gene pool reserve. As opposed to the above, the ground reality has been depletion of forest. The shift in the approach of the legislation is evident from the FC Act of 1980 when compared with the scheme underlying the Indian Forest Act, 1927 which was State oriented for conserving the Forest Policy of 1952. Further, in 1977, Forest and Wildlife were taken out from the State list and incorporated in Concurrent list. Considering compulsions of States and large depletion of forest, these legislative measures have shifted the responsibility from States to Centre. Moreover, any threat to the ecology can lead to violation of right of enjoyment of healthy life guaranteed under Article 21 which is required to be protected. The Constitution of India enjoins upon this Court a duty to protect environments.
The aforesaid background has been given to demonstrate that the object of amount of NPV is to utilize the fund to conserve the ecology without in any manner affecting proprietary rights of the State Government over the land, timber or the minerals. The Notification dated 23rd April, 2004 does not deprive any State of any land timber or mineral and, therefore, there is no question of disbursement of any amount to the State. The damage to environment is a damage to the country's assets as a whole. Ecology knows no boundaries. It can have impact on the climate. The principles and parameters for valuation of the damage have to be evolved also keeping in view the likely impact of activities on future generation.
We have already noted that this matter came to be examined on Central Government filing statement showing the dismal state of affairs of the forest in the country. It is evident that despite the FC Act and the forest policy the forests have been rapidly depleting. The forest policy recognizes this fact and, in fact, was involved to check the menace of fast eroding of forest in the country. Despite constitutional amendments made effective from the beginning of 1977 and despite various environmental laws enacted between 1974-1986 depletion of forest has not halted.
The State of Forest Report 1995 published by Forest Survey of India when compared with the State of Forest Report 1997 also shows that there has been considerable depletion of forest cover. It also shows the limited regeneration. A comparison of the two reveals that total forest cover of the country decreased from 638,879 sq.km. to 633,397 sq.km., thus showing a net loss of 5,482 sq.km. Further it reveals that there has been a net decrease of 17,777 sq.km. of dense forest cover of the country while open forests and mangroves have increased by 12,001 sq.km. and 294 sq.km respectively. The redeeming feature, however, is an improvement which can be seen from the State of Forest Report 2001. Learned Amicus Curiae submits that improvement is a result of strict vigil on account of various orders passed by this Court from time to time. It cannot be doubted that it is necessary to continue the efforts for regeneration of forest.
It would also be useful to make a mention of the order dated 22nd September, 2000 passed by this Court which led to grant of sanction of rupees 1,000 crores for maintenance of forest under the 12th Finance Commission (2005-2010). The said order took note of the fact that felling of the trees is far in excess of what would be justified with reference to regeneration, and the main cause is non-availability of sufficient funds. It also notices that even with regard to the felling of trees as per working plans in the last three years, the corresponding prescription for regeneration has not been implemented. It further notices that there cannot be any felling without regeneration because that will, over a period of time, only result in forest vanishing. Further, the order says that the shortfall of regeneration which has resulted in depletion of forest cover has to be made up. The court took note of the suggestion that for regeneration there should be a joint venture between State of Madhya Pradesh a State having a large forest area, and the Central Government whereby the working capital, in whole or substantially the whole, can be provided by the Central Government and the regeneration of degraded forests carried out.
Taking an overall view, it is important for the nation that in certain areas where natural forest exists, the same should be preserved and at the same time the Central Government should consider whether the deficient States should not be asked to contribute towards the preservation of the existing forest cover and the compensation/incentive given to the forest rich States to preserve and regenerate forests. In a sense, there should be a partnership of all the States to ensure the maintenance and improvement of forest cover. It was observed that this suggestion should be considered by a Committee of Secretary (MOF) and the Secretary (MOEF) in consultation with the Chief Secretaries of all the States.
Para 14.25 of the 12th Finance Commission Report deals with maintenance of forest. Noticing that several States have represented that subsequent to the restrictions placed by this Court on exploitation of forest wealth, the forests have become a net liability for the States rather than a source of revenue and maintenance of forest has become a problem due to financial constraints, these States pleaded that separate grant should be provided for maintenance of forest. Recognising that forest are a national wealth and the country as a whole has the responsibility in preserving the said national wealth, the Commission decided to recommend a grant of rupees 1000 crores spread over the award period 2005-2010 for maintenance of forest. This would be over and above what the States have been spending through their forest departments. The amount was distributed among the States based on their forest area, to be spent for preservation of forest wealth. In this light, it is not open to the State Government to contend that the amount of NPV paid by the user agency shall be handed over to them.
Reference may also be made to report of the Planning Commission (Chapter IX) relating to forest environments in Tenth Five Year Plan (2002-2007) which has taken note of the fact that sustainability is not an option but imperative since without it environmental deterioration and economic decline will be feeding each other leading to poverty, pollution, poor health, political upheaval and unrest. Environment cuts across all sectors of development. The rapid increase in green house gases in the atmosphere, land degradation, deteriorating conditions of fragile eco systems, deforestation, loss of biodiversity and environmental pollution have become subjects of serious global concern. The overall impact of these phenomena is likely to result in depletion of ozone layer, change of climate, rise in sea-level loss of natural resources, reduction in their productivity ultimately leading to an ecological crisis affecting livelihood options for development and over all deterioration in quality of life.
From the above report, it follows that the deterioration and consequently preservation of eco-systems cannot be area or state specific and that utmost attention is required to be accorded to conservation of natural resources and for improvement of the status of our environments.
The report notices the need to tackle the environmental degradation in a holistic manner in order to ensure both economic and environmental sustainability. Forests play an important role in environmental and economic sustainability. It takes note of the forests being consistently and seriously undervalued in economic and social terms. It recognizes that the economic value of the eco-system services of the forests is vast though it is extremely difficult to quantify. It takes note of the fact that generally much of the land-use decision that presently drives forest change takes relatively little account of these values. The country's forest resource is under tremendous pressure. Note has been taken of the fact that India's biological diversity is reflected in the heterogeneity of its forest cover. It is one of the 12 'mega-diversity' countries of the world. India is also at the meeting zone of three major zone of three major bio-geographic realms, namely, the Indo-Malayan (the richest in the world), the Eurasian and Afro-tropical. India also has the two richest bio-diversity areas, one in the northeast and the other in the Western Ghats. The biological diversity is being conserved through a network of biosphere reserves, national parks and sanctuaries, however, the challenges for conservation emanate from population pressures, adverse impacts of industrialization and intensifying threat from illegal trade.
The importance of conserving and managing existing natural forest and forest soils, which are very large stores of carbon, has been emphasized as it will significantly reduce greenhouse gas emissions. To develop and protect forest, a scientific management is necessary so as to enhance productivity, density and health. Forestry projects have to lay emphasis on management and rejuvenation of natural forests. The fragile eco-systems should be properly managed in order to safeguard the livelihood of millions of people.
The national development agenda must recognize the necessity of protecting the long-term ecological security. The problem area is the growing population, high degree of mechanism and steep rise in energy use which has led to activities that directly or indirectly affect the sustainability of the environment.
It is recognized that the sustainable use of bio-diversity is fundamental to ecological sustainable. The loss of bio-diversity stems from destruction of the habitat, extension of agriculture, filling up of wet lands, conversion of rich bio-diversity sites for human settlement and industrial development, destruction of coastal areas and uncontrolled commercial exploitation. It is thus evident that the preservation of eco-systems, bio-diversity and environment whether examined on common law principle or statutory principle or constitutional principle eying from any angle it is clearly a national issue to be tackled at the national level. All initiatives are required to seriously pursue.
Dealing with inter-generational justice, it has been rightly observed that posterity shall not be treated like dirt. In an article published in 2003 Columbia Journal of Environmental Law (28 Colum.J.Envtl.L.185), the author says that the way in which a society cares or does not care for its dirt its land reflects the degree to which it cares or does not care for its own long-term future.
We may also briefly refer to Public Trust doctrine and its applicability to the matters under consideration. The Public Trust Doctrine looks beyond the need of the present generation and also suggests that certain resources are invested with a special nature. It would be instructive to make a note of a story given in by Timothy Patrick Brady in Boston College Environmental Affairs Law Review, Spring 1990 under the title 'But most of it belongs to those yet to be born'. The story relates to digging of well at the time of drought. When a Frenchman told villagers of a prudent African solution of digging well, many villagers agreed but others argued that it will bring people from other villages and they would bring their cattle and that would increase the pressure on the already precious water. The Frenchman told the villagers that why not explain to them that the well is only for your own village and they can dig their own. It was then said that 'water is not only ours, but is gift of nature from God and must be shared.'
Ultimately, they concluded that it was wiser not to dig the well at all. The moral of the story is that we are trustees of natural resources which belong to all including future generation as well. The public trust doctrine has to be used to protect the right of this as also future generation.
Having regard to the above, amounts under CAMPA have to be used for regeneration of eco-system and the same cannot be handed over to any State Government on the premise that ecology is not property of any State but belongs to all being a gift of nature for entire nation. The object of the FC Act and EP Act is protection of environments. These Acts do not deal with any propriety rights of anyone. As already stated the question as to what amount of NPV is required to be paid to achieve these object is a matter to be gone into by the experts. However, the amounts shall have to be updated from time to time after every three years. For grant of approval under Section 2 of the FC Act besides payment of NPV as being presently calculated by MOEF, the user agencies shall have to give undertakings to pay the remaining amount, if any, pending finalization of determination by the experts.
Turning now to the grant of exemption to certain projects, learned Solicitor General submitted that Government hospitals, dispensaries, non-commercial government ventures like schools, rain water harvesting tanks, sever lines, village roads etc. are the projects meant for public welfare and have no adverse impact on environment as such and, therefore, these cases deserve to be granted exemption. Learned Amicus Curiae has no objection to non-commercial and non-revenue earning Government public welfare projects being treated differently and granted exemption from the purview of the payment of NPV. Submission was also made by learned counsel appearing for some of the parties that other projects like irrigation, hydro electricity or other similar projects engaged in public welfare and public utility activities too deserve to be similarly treated and granted exemption. On behalf of the National Hydro Project Corporation Ltd. (NHPC), it was submitted that dams/hydro electric projects and other similar projects are undertaken in public interest and these will also not create environmental pollution and mere fact of these are revenue earning projects should not be taken as a ground to treat them differently.
Reliance has been placed on observations made in Hindustan Motors Ltd. & Anr. v. N.Siva Kumar & Anr. [(2000) 10 SCC 664] to contend that such a project is not a pollution industry. This decision is not relevant for determining the question about levy and payment of NPV. The question is not only about these and projects referred by the Solicitor General not
creating pollution but is about diversion of forest land for non-forest purpose, thereby depleting forest so as to utilize land area in setting up these projects. A distinction has to be maintained between a project set up for providing public utility but which is revenue earning, the category to which the project of NHPC falls and the government projects of the nature above referred like hospitals, schools etc., non-revenue earning projects. A balance is required to be maintained in the development and protection of environments. As already noted, the development has to be based on sustainability. If NHPC uses the forest land for non forest purposes, the payment of NPV is to protect the ecological and bio-diversity having regard to the doctrines above referred. Generally speaking, projects like NHPC are commercial ventures.
What we have stated above is also applicable to submissions made on behalf of Grid Corporation of Orissa (GRIDCO), State of Uttranchal and State of Madhya Pradesh. We are unable to accept the submission that wherever the government is the user agency in notified forest area, protected forest/reserved forest etc., NPV should not be charged. Such a submission cannot be accepted in the teeth of Section 2 of the FC Act and other environmental laws noticed hereinbefore.
The submission made on behalf of the Federation of Indian Mineral Industries about calculation of NPV at the rate of 10 per cent for major mineral and 5 per cent for minor mineral as already noted cannot be accepted. The question is not of the value of the mineral or it being high value and low volume and mineral of high volume and low value, the question is about use of the forest areas and need to protect the environments in the manner above stated. A larger public interest has to be the guiding principle and not the present interest of user agency only.
We are of the view that the question as to which class of projects deserve to be exempted can first be examined by experts having regard to principles laid in this judgment and in receipt of the report from them, this Court would further examine the matter and issue appropriate directions. However, prima facie we feel that revenue earning projects do not deserve similar treatment as non-revenue earning public welfare projects.
We are clear that if let loose, the benefits achieved as indicated in the State Forest Report of 2001 would be lost and we may be again where we were in 1990's or 1980's and earlier period during which there was immense depletion of forest and insignificant regeneration.The work of regeneration and also of compulsory afforestation requires special, specific and expert attention and we see no illegality in establishment of Special Purpose Vehicle (SPV) in terms of clause 6.6 above quoted except that for present till further orders it would be necessary to monitor the establishment of SPV. Thus, in respect of clause 6.6 in relation to establishment of SPV, we hold that before establishing SPV, its format shall be filed in Court and SPV shall not be established without permission of the Court. Further in our view the constitution of authority (CAMPA) is necessary to fully and effectively implement recommendation dated 9th August, 2002 made by CEC for protection of environment. In view of the aforesaid discussion, our conclusions are:
1. Except for government projects like hospitals, dispensaries and schools referred to in the body of the judgment, all other projects shall be required to pay NPV though final decision on this matter will be taken after receipt of Expert Committee Report.2. The payment to CAMPA under notification dated 23rd April, 2004 is constitutional and valid.
3. The amounts are required to be used for achieving ecological plans and for protecting the environment and for the regeneration of forest and maintenance of ecological balance and eco-systems. The payment of NPV is for protection of environment and not in relation to any propriety rights.4. Fund has been created having regard to the principles of intergenerational justice and to undertake short term and long-term measures.5. The NPV has to be worked out on economic principles. In view of the above, we issue following directions:A. An expert committee comprising of three experts including Ms.Kanchan to be appointed within a period of one month by the Institution of Economic Growth (North Campus).B. The committee of experts would examine the following issues:(i) To identify and define parameters (scientific, bio-metric and social) on the basis of which each of the categories of values of forest land should be estimated.(ii) To formulate a practical methodology applicable to different bio-geographical zones of India for estimation of the values in monetary terms in respect of each of the above categories of forest values. (iii) To illustratively apply this methodology to obtain actual numerical values for different forest types for each bio-geographical zone in the country.(iv) To determine on the basis of established principles of public finance, who shouldpay the costs of restoration and/or compensation with respect to each category of values of forests.(v) Which projects deserve to be exempted from Payment of NPV.
C. The user agencies shall give undertakings for the further payment, if any, as may be determined on receipt of report from the expert body.D. The Special Purpose Vehicle shall be established with the permission of the Court. E. The Institute shall send report of Committee of Experts within a period of four months.F. The various clauses of CAMPA shall be suitably modified in terms of this judgment within a period of one month. List after four months.
Case no 5CASE NO.:Writ Petition (civil) 202 of 1995
IA NO.989, 1221 & 1311 IN IA NOS.857-858 INWRIT PETITION (C) NO.202 OF 1995
[WITH IA NOS.997-998, 1128, 1187, 1282-1284, 1295, 1296, 1305, 1320-1321, 1335, 1376-1377, 1388 IN WP (C) NO. 202 OF 1995 & SLP (C) NO.22531OF 2003]
Y.K. Sabharwal, CJI.
The question for consideration in these matters is whether the land measuring about 15 hectares leased by State of Chhattisgarh to M/s. Maruti Clean Coal and Power Limited (for short 'Maruti') for setting up of coal washery is a part of forest land or not. This question has been raised by one Deepak Agarwal by filing I.A. 858 of 2003 claiming to be a public spirited person and journalist by profession and concerned about the adverse affect on environment of the area as a result of the grant of lease of forest land for non forest activities in violation of law. The applicant claims that undue favour and patronage has been extended to Maruti for establishment of coal washery plant in respect of land which is a forest land by wrongly showing in various revenue records that the land is part of the village Nawagaon Khurd whereas actually the land forms part of village Ratija.
The Parliament enacted Forest (Conservation) Act, 1980 (for short the 'FC Act') with a view to prevent large scale forest depletion and to protect the forest resources. The object was to check further deforestation which ultimately results in ecological imbalance. The Act has made provisions for the conservation of forests and for matters connected therewith. In T.N. Godavarman Thirumulkpad v. Union of India & Ors. [ (1997) 2 SCC 267], this Court held that the FC Act must apply to all forests irrespective of the nature of ownership or classification thereof. Noticing earlier decisions in cases of Ambica Quarry Works v. State of Gujarat & Ors. [(1987) 1 SCC 213] and Rural Litigation and Entitlement Kendra v. State of U.P. [1989 Supp (1) SCC 504] and dispelling doubts, if any, it was held in Godavarman that 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 FC Act. The term 'forest land' would also include any area recorded as forest in the Government record irrespective of the ownership. The court issued wide ranging directions. Each State Government was directed to constitute an Expert Committee to 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 forests; identify areas which were earlier forests but stand degraded, denuded or cleared; and identify areas covered by plantation trees belonging to the Government and those belonging to private persons.
The Government of Madhya Pradesh, of which Chhattisgarh was a part at the relevant time, issued a circular dated 13th January, 1997 in compliance with the directions issued in T.N. Godavarman's case for the purpose of identification of the forest. The circular stated
that according to the dictionary meaning, the term 'forest' means such large areas where agriculture is not done and which is covered by trees and shrubs. It further stated that, taking a practical approach, in view of the judgment as well as the dictionary meaning of the term 'forest', area measuring 10 hectares or more having an average number of 200 trees per hectare ought to be treated as forest.
According to the applicant, on application of aforesaid circular, the land in question would be forest land and it is also so under the Government record and as per the dictionary meaning of the term 'forest' as well. To examine the question whether land is part of forest or not, this Court by order dated 7th May, 2003 referred the application to Central Empowered Committee (CEC) for its report.
The CEC submitted its report dated 6th October, 2003 (registered as IA 989 and hereinafter referred to as 'first report'). In this report, CEC concluded that the land allotted to Maruti is a forest land and, therefore, prior approval of the Central Government under the FC Act was necessary before allowing setting up of coal washery plant by Maruti. Admittedly, such approval had not been obtained.
The State of Chhattisgarh and Maruti vehemently disputed that the land is part of forest. Their stand is that the land was allotted after it was clearly established that it was not a forest land. The first report shows that hearing before CEC took place on four different dates i.e. 3rd June, 2003, 9th July, 2003, 25th July, 2003 and 14th August, 2003. On first two dates, one K.K.Srivastava appeared for the applicant Deepak Agarwal. This fact has relevance on the issue of bonafides of Deepak Agarwal in approaching this court in public interest, an aspect to which we would advert to little later. Detailed objections were filed to the first report of CEC. On directions of this Court, an affidavit dated 13th August, 2004 was filed by T.S.Chatwal, Secretary (Forest) Government of Chhattisgarh, inter alia, stating that land is not recorded in the forest land records at Katghora Division either as protected or as reserved forest; has not been subject matter of any blanket notification covering 'protected forest' for the then Central Provinces and Barar issued under Section 29 of the Indian Forest Act, 1927; does not form part of the un-demarcated protected forest in village Ratija etc. It was further stated that as per available traversing records for the year 1893-1894, the land in question was traversed by the Survey of India and was named as Nawagaon Khurd surrounded by village Ratija, Chainpur and Sirkikhurd and its area was measured to be 50.25 acre. The settlement operation carried in 1929-1930 did not cover the land in question and as such no survey number was assigned to this piece of land, which remained unsurveyed till June 2002.
The State Government was directed to trace the relevant notifications and other notifications issued by the forest department in the month of October 1949 and place the same before the CEC. Maruti claimed that notification of October 1949 had considerable bearing on the question of the land being forest or not. Maruti was also permitted to place the same before CEC. Other parties were also permitted to file before CEC additional documents. CEC was directed to further examine the matter, hear the parties and file a report with its recommendations.
In compliance of the aforenoted directions, a report dated 4th November, 2004 (Registered as I.A. 1221 and hereinafter referred to as the 'second report') has been filed by CEC. The CEC, in the second report has noted detailed facts, submissions of SECL, State Government,
meetings with the officers of State of Madhya Pradesh and Chhattisgarh. On detailed examination of voluminous record including notifications and maps, the old settlement records of the concerned villages, the CEC observed that there was no authentic record available to show that the area of Nawagaon Khurd merged with that of village Ratija during the settlement of 1928-1929. CEC further observed that no revenue records are reported to have been maintained/available or filed before it regarding the settlement of the area of Nawagaon Khurd or its merger with village Ratija. In the draft notification prepared by the Orange Unit, Bilaspur, this area has not been shown as part of Ratija village but as Nawapara (Masahati village) and that in the consolidated map the allocation of land allotted to Maruti falls within Nawagaon Khurd and outside the boundary of village Ratija. The CEC accordingly expressed the view that:
(a) the area of village Nawagaon Khurd was not merged and made a part of village Ratija or any other adjoining villages during the settlement of 1928-29;(b) no settlement records for the area of Nawagaon Khurd were prepared during 1928-29;(c) since new settlement has not taken place after 1928-29, the settlement maps prepared during 1928-29 are the relevant and the correct maps which have to be relied upon; and (d)
the location of the land allotted to M/s Maruti falls within the area of Nawagaon Khurd and not within the village Ratija.
In respect of Notifications of 1949, CEC said that:
(a) none of the notifications particularly the notification dated 17.10.1949 pertain to Bilaspur district; and
(b) the notification No.3228-2845 dated 17.10.1949 or 3228-3283/2845 dated 17.10.1949 referred to in the draft orange area proposal of 2002 either do not exist or pertain to other districts.
The CEC in the second report concluded that the land allotted to Maruti is not a forest land. The second report has also noticed the submission of Maruti that application of Deepak Agarwal is not in public interest and that he has been set up to serve the business interest of M/s Aryan Coal Private Limited (for short, 'Aryan') who will be adversely affected financially after the establishment of coal washeries by Maruti due to increased competition and consequent reduction in prices. It was also pointed out that during hearing before CEC, Deepak Agarwal was represented by K.K.Srivastava who had represented Aryan in revenue proceedings before Tehsildar and also that he was a witness in a large number of sale deeds executed by shareholders of Aryan for purchase of land in Rajgarh.
The second report led to filing of various applications and also a letter dated 27th March, 2005 by Secretary, Bilaspur Environment Society filing therewith a report of Regional Remote Sensing Services Centre, Nagpur dated 28th February, 2005 with a view to challenge the conclusion contained in the second report about land being not forest land and seeking to rely upon settlement record. By an order dated 1st April, 2005, CEC was directed to again examine the entire matter and report in the light of the documents brought to the notice of the Court and placed on record. The Forest Survey of India, Regional Remote Sensing Agency and the South-East Coal Field Limited were directed to render such assistance as may be required for the purpose of preparation of report by CEC. After further examination, report dated 14th April, 2005 has been filed by CEC (hereinafter referred to as 'third report').
The third report, inter alia, shows that a request was made by CEC to Forest Survey of India to carry out photo interpretation of the satellite imagery of the area by comparing imageries of different period and to give views about vegetation, forest cover, number of trees etc. Simultaneously, the National Remote Sensing Agency was also requested to give their comments on the satellite imagery of the area in and around the land area allotted to Maruti along with significant changes in the forest cover during different periods, reliability and accuracy of the interpretation and methodology for identifying the areas allotted etc. The site was also visited between 12-13th April, 2005 during which the coordinates of the area allotted to Maruti were verified by a technical expert of FSI using the Differential Global Positioning System (GPS) and the ground truth verification of the area was carried out along with Regional Director, Forest Survey of India, Nagpur. The report also notices that during the visit, inspection of other areas was also carried out and discussions were held with the Principal Chief Conservator of Forests, Chhattishgarh Forest Department, Conservator of Forests, Bilaspur Circle, District Collector Korba, Divisional Forest Officer, Officers of SECL, members of the Bilaspur Environment Society, K.K.Srivastava, representative of the applicant, representatives of the forest trade unions of the area, public representatives, representatives of Maruti and other interested parties. Detailed reference has been made in the third report to the interpretations of experts including that of the Forest Survey of India. It also doubts the bonafides of the applicant. The report further notes number of cases that were filed in respect of allotment of land to Maruti as under:
i) Mr.B.L.Wadera Hon'ble High Court of Chhattisgarh at Bilaspur; (ii) Mr.Sanjay Srivastava (relation of Mr.K.K.Srivastava) Hon'ble High Court of Chattisgarh at Bilaspur; (iii) Mr.Deepak Agarwal present application before the Hon'ble Supreme Court(iv) Mr.Surendra Sahu petition before the Hon'ble High Court of Chhattisgarh at Bilaspur;(v) SECL present application for intervention before this Hon'ble Court;(vi) SECL suit in Katghora Civil Court;(vii) SECL Writ Petition against CEC's report before this Hon'ble Court (dismissed as withdrawn);(viii) Samyuki Kendriya Shramik Sangathan application for intervention before this Hon'ble Court;(ix) Koyla Mazdoor Sabha application for intervention before this Hon'ble Court;(x) Rashtriya Colliery Mazdoor intervention before this Hon'ble Court;(xi) Koyla Shramik Sangh application for intervention before this Hon'ble Court;(xii) Bhartiya Koyla Khadan Mazdoor Sangh application for intervention before this Hon'ble Court; and(xiii) Mr.B.L.Wadera SLP against the Hon'ble High Court's order.
Regarding nexus between K.K.Srivastava and Aryan and what type of society the Bilaspur Environmental Society is, the report states that:"After considering the number of cases, filed on this issue, the documents filed by M/s Maruti regarding alleged nexus between Mr.K.K.Srivastava with M/s Aryan, reduction in the washed coal prices agreed to by M/s Aryan after an offer at a cheaper rate was made by M/s Maruti to Gujarat Electricity Board, annual account of Bilaspur Environment Society. SECL's own use of revenue forest land on a large scale, prima-facie there appears to be some merit in the contention of M/s Maruti that the plethora of cases in various Courts have been filed on behalf of its competitor M/s Aryan with a view to prevent him from establishing the coal washery, and not in public interest.
The claim made by Mr.K.K.Srivastava that he is a public spirited person involved in protection of environment and forests and that he is not getting financial support from anybody but is spending from his own resources and contribution from his friends and relations, is difficult to accept on its face value; The accounts of Bilaspur Environment Society show that it does not have a bank account and all receipts and expenditure are in cash."
The third report reiterates the conclusions and the recommendations made in the second report that the land allotment of Maruti is not of forest land. At this stage, we may note that some dispute as to the title of the land in question between State Government and Maruti on one hand and M/s South East Collieries Limited (SECL) on the other is pending in a civil court. In these proceedings, we are not concerned about the title of the land that may have to be examined and decided by the civil court. All pleas, factual and legal, as permissible in law, would be open to the parties to be agitated before the civil court. The only question for our consideration in these proceedings is as to the nature of the land, namely, it is forest land or not. However, before we consider the aforesaid question, first the bonafides of the applicant need to be determined. In opposition to the application filed by Deepak Agarwal, it has been urged that the label of public interest given by the applicant in the present litigation, is clearly and demonstrably a camouflage since the real person behind this application allegedly filed in public interest is a competitor of Maruti operating in the area and having a monopoly. Some unions have also tried to jump into the fray by filing applications seeking impleadment in these proceedings so as to contend that the allotment is of a forest land. We see no reason to allow the impleadment of parties in these proceedings. Be that as it may, we have to decide in the light of facts aforenoted, whether the land leased to Maruti is forest land or not. But before we examine the question of the nature of the land being forest or not, it is necessary to consider the bonafides of Deepak Agarwal who has approached this Court in public interest. Howsoever genuine a cause brought before a court by a public interest litigant may be, the court has to decline its examination at the behest of a person who, in fact, is not a public interest litigant and whose bonafides and credentials are in doubt. In a given exceptional case where bonafides of a public interest litigant are in doubt, the court may still examine the issue having regard to the serious nature of the public cause and likely public injury by appointing an Amicus Curiae to assist the court but under no circumstances with the assistance of a doubtful public interest litigant.
No trust can be placed by court on a mala fide applicant in public interest litigation. These are basic issues which are required to be satisfied by every public interest litigation. It was sought to be contended on behalf of Deepak Agarwal that the CEC had no authority to examine his bonafides and, thus, exceeded its jurisdiction by stating in its report that his bonafides are in doubt. Some insinuations were sought to be made against CEC and learned Amicus Curiae. We strongly deprecate this approach of the applicant. The CEC has been appointed and so also learned Amicus Curiae to assist this Court in determining issues relating to depletion of forests and preservation and conservation of forests in the country. Many forest survey reports recognise that various orders by this Court have helped in arresting fast depletion of forests. Assuming in a given case an error is committed by the Committee in its report, while pointing it out, it is necessary for the applicant to use temperate language in the pleadings and not the one used by the applicant.
Since, during hearing, neither the insinuations nor the language was supported and rather regret was expressed, we would say no more on this aspect. It, however, deserves to be clarified that it is incorrect to assume that CEC exceeded its jurisdiction in pointing out facts which are relevant to determine the bonafides of the applicant. In fact, having regard to nature of duties assigned and responsibility placed upon CEC, it is the duty of CEC to point out facts relevant to determine bonafides of any applicant. It is always necessary to determine real motive behind a public interest litigation.It has been repeatedly held by this Court that none has a right to approach the Court as a public interest litigant and that Court must be careful to see that member of the public, who approaches the Court in public interest, is acting bona fide and not for any personal gain or private profit or political motivation or other oblique considerations. {See S.P.Gupta v. Union of India & Anr. [1981 Supp. SCC 87]}.
For the last few years, inflow of public interest litigation has increased manifold. A considerable judicial time is spent in dealing with such cases. A person acting bona fide alone can approach the court in public interest. Such a remedy is not open to an unscrupulous person who acts, in fact, for someone else. The liberal rule of locus standi exercised in favour of bona fide public interest litigants has immensely helped the cause of justice. Such litigants have been instrumental in drawing attention of this Court and High Courts in matters of utmost importance and in securing orders and directions for many under-privileged such as, pavement dwellers, bonded labour, prisoners' conditions, children, sexual harassment of girls and women, cases of communal riots, innocent killings, torture, long custody in prison without trial or in the matters of environment, illegal stone quarries, illegal mining, pollution of air and water, clean fuel, hazardous and polluting industries or preservation of forest as in the Godavarman case.
While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration {See Janata Dal v. H.S. Chowdhary & Ors. [1992) 4 SCC 305]} It seems that this caution has not had the desired effect on the applicant like the present one.In a recent decision in Dattaraj Nathuji Thaware v. State of Maharashtra & Ors. [(2005) 1 SCC 590] (Arijit Pasayat and S.H. Kapadia, JJ) taking note of earlier decisions, it was said that:"It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing the gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts
are locked up, detenus expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity-oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs."
It was further said :
"Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao v. Mr. K. Parasaran. Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public."
Now, reverting to the present case, it seems that lakhs of rupees have been spent by the applicant and/or on his behalf to prosecute the present litigation. On our direction, the applicant filed his income tax return which shows that he has hardly any means to incur huge amounts which have been spent to pursue this litigation. Further, when the matter was referred by this court to CEC for a report on first date of hearing, K.K. Srivastava represented the applicant. Learned senior counsel for the applicant fairly and candidly admitted that
sometimes along with the advocate-on-record, K.K.Srivastava has been coming to instruct him. There is ample material on record that on numerous occasions, K.K.Srivastava represented Aryan before number of authorities. There is also ample material to show that K.K. Srivastava has been collecting material to prove that the land in question is forest land. He is a person in contact with Aryan. Regarding his financial status, Deepak Agarwal has filed an affidavit dated 24th August, 2005 along with which certain documents have also been filed. In the affidavit, it has been claimed by him that he is fighting the case with the help of like-minded people, well-wishers and friends. As to his own financial resources, it is stated that in the income tax return, financial help taken from friends, social workers and like-minded people has not been shown as it does not fall in the category of income. He has filed affidavits of some people from whom it is claimed that donation collectively of the sum of Rs.86,500/- was taken. As per the affidavit of Deepak Agarwal, a sum of Rs.55,000/- has been incurred by Bilaspur Environment Society for obtaining satellite imagery report. Further, a sum of Rs.60,000/- has been spent by him on traveling and lodging expenses in connection with litigation and Rs.50,000/- in connection with documentation and other court expenses. A revised income tax return filed on 31st March, 2005 has been placed on record. According to it, the total income from business is shown as Rs.51,560/- and from other sources at Rs.1,02,947/- total being Rs.1,54,507/-. It has not been disclosed as to when the original Income Tax return was filed. The amount of tax shown to have been deducted at source is Rs.5,147/-. The date of birth of Deepak Agarwal as per income tax return is 22nd February, 1973. However, in the affidavit dated 24th August, 2005, the age mentioned is 32 years whereas in the affidavit dated 19th July, 2005, it is stated as 35 years. Further, a perusal of the affidavits of the persons from whom donation is said to have been taken shows that alleged donors of cash amounts are mainly employees of SECL and contractors working for Aryan. It has not been explained as to what was the reason for filing a revised income tax return. A submission was sought to be made at hearing, without any plea having been raised in the application or the affidavit, that Deepak Agarwal came to this Court as a lone crusader bona fide but later on some help was rendered by others who donated the amount as claimed and also by Bilaspur Environment Society. It may be noted that Maruti has been pleading since beginning that Deepak Agarwal has been set up by their competitor and there was, in fact, a link between the competitors of Maruti and Deepak Agarwal in the form of K.K. Srivastava. Deepak Agarwal, in fact, denied that there was any link between him and K.K. Srivastava who appeared on his behalf before CEC and Aryan and took the stand that nothing has been submitted to prove that it was the same K.K. Srivastava who appeared on behalf of the Aryan. Regarding K.K. Srivastava being attesting witness to the sale deeds, it was pleaded that K.K. Srivastava was in a business of sale and purchase of land and in course of his business dealing, he might have come across such sale deeds. The same plea was taken in respect of proceedings before Tehsildar. Regarding the Bilaspur Environment Society, which purportedly assisted Deepak Agarwal, as admitted by him and allegedly paid Rs.55,000/- for obtaining satellite images, it may be noted that firstly, one fails to understand as to what prevented the said society from approaching this court. Secondly, a close perusal of the record throws open many questions about the credibility of the society which spent Rs.55,000/- in cash for obtaining satellite images and also obtained donations. On perusal of record, we have no doubt that the application filed by Deepak Agarwal is far from bona fide. He has been set up by others. We strongly deprecate the filing of an entirely misconceived and mala fide application in the garb of public interest litigation by Deepak Agarwal. He is nothing but a name lender.
Despite our conclusion as aforesaid, we have depth examined the three reports of CEC. The CEC in its second report has explained in detail the grounds and the reasons for reversal of its findings as contained in the first report. The first report had only considered the letter dated 17th October, 2002 of DFO, Khatghora including no objection from grampanchayat, orange area proposals of 1997-98, joint inspection report of 18th October, 2002 with enumeration lists, report of Deepak Srivastava & Mr.Negi of MoEF, Members and SECL maps. The second report, however, considers in detail several notifications of the order of October 1999, old settlement maps and the guidelines of State Government in respect of orange area proposals. It shows that non-forest land can also be included in the said proposals and various other documents and for reaching the conclusion that the land in question is not a forest land, in fact, the said land was of Nawagaon Khurd and not village Ratija and that this area was not formally merged and made part of village Ratija in the settlement (Bandobast) carried out during 1928-29. We have examined various old record from 1893-94 onwards including the old maps and find no reason to take a view different than the one taken by CEC in its second report. The conclusions reached and the recommendations made in the second report deserve to be accepted.
The third report is based on the satellite imageries and supports the conclusions reached by CEC in its second report. In respect of the third report, one of the submissions made on behalf of Deepak Agarwal was that reliance by CEC on LISS III (23.5 metre resolution) is not warranted because the satellite images provided by RRSSC has satellite data of LISS III with Panchromatic Data Technology and LISS IV (5.8 metre resolution). It was argued that State Forest Report, 2003 of Forest Survey of India noticed that 5.8 metre resolution recorded various images as small as 0.1 hectare (within given area, in this case, the area of interest of 18.12 hectares) whereas 23.5 meter resolution is not capable of recording anything less than 1 hectare forest cover within that area. In nutshell, the contention is that LISS III has limited technology and, therefore, the report based on LISS III is not reliable. The submission is that LISS IV should have been used for arriving at the correct position.
In short, Deepak Agarwal has submitted that the report of NRSA was not accurate because it has opted for a technology with 23.5 metre spatial resolution and output generation in the scale of 1:50000 considered to be inferior with respect to smaller portion of land. According to Deepak Agarwal, NRSA should have opted for a better technology available today under which the spatial resolution is available at 5.8 meter and also output generation in the scale of 1:15000. According to Deepak Agarwal, CEC should not have accepted the report of NRSA based on the above parameters of 23.5 metre (spatial resolution) and of output generation in the scale of 1: 50000.
In order to decide the above contentions, it is necessary to understand the following concepts:i) GIS (GEOGRAPHICAL INFORMATIOIN SYSTEM)
GIS is an organized collection of computer hardware, software, geographic data designed to capture all forms of geographically referenced information (See Volusia.org). In short, it is a computer system capable of holding and using data describing places on the earth's surface. ERDAS IMAGINE 8.6 is a computer tool under GIS. It is referred to in the report of Forest Survey of India (FSI) dated 14.4.2005 annexed to the third report of CEC. ERDAS IMAGINE 8.6 is an advanced software product used for image processing, to uncover
features like boundary and area of a given plot of land (face). Once uncovered, the geographical information is integrated with attributes (spatial and non-spatial) and stored in an information system to be used for analysis.
Images can be taken from satellites or from planes flying over an area of interest (AOI). Under ERDAS IMAGINE 8.6, the images are comprised of pixels (picture elements) which are contained in the image. These pixels are scanned by the computer which gives the boundary and the area. It also scans the colours. Different surfaces reflect light differently. Colour images are used to identify various ground objects like forests, man-made surfaces, roads etc. For example, healthy crops contain infra-red light whereas forests reflect different colours of the spectrum, making the spectrum information an important component of geographical information analysis. This advancement of technology is due to combination of telecommunication and computer engineering (See: webopedia.com).
The above discussion is important because Deepak Agarwal has relied upon photo printing analysis done by him with the help of CAD (Computer Aided Designing). The issue which is required to be considered is whether ERDAS IMAGINE 8.6 used by NRSA is better than CAD which is a programme used by Deepak Agarwal. We have indicated broadly the advanced features of the software, viz., ERDAS IMAGINE 8.6. On the other hand, CAD, is also a software used by engineers to view a design from an angle with the push of a button and to zoom in and zoom out for close-ups and long distance views. It helps the computer to tract designs. CAD software generally examines the boundaries and that too in a design. In the present case, we are concerned with the area covered by the forests. Therefore, the technology adopted by NRSA based on ERDAS IMAGINE 8.6 is more reliable than CAD.Therefore, GIS links spatial data with geographical information about a particular feature on the map (See: volusia.org).
ii) GPS (Global Positioning System) GPS is a satellite based positioning system operated by USA. It consists of satellites. It is a data collection tool for GIS. Basically, the signals from the satellites in GPS are received by GPS receivers on the earth. Therefore, different stations are earmarked on the earth covering a particular area. It is the matching of the satellite with the receiver which plays an important role. Certain discrepancies in the matching are got over by differential GPS (See: esri.com).
iii) IRS LISS IIIIt stands for Linear Imaging Self Scanning Sensor which is a multi-spectral camera.
LISS-III products comprise of path/row products, georeferenced products etc. (See: earth.esa.int). It helps to track areas and boundaries. Combination of LISS III with ERDAS-imagine is more reliable than photo print analysis by CAD. It is better to depend on interpretation of IRS LISS III Digital Data by EDRAS Imagine than by CAD. As stated above, the main challenge to the NRSA report is that proper parameters have not been taken into account and although better technology was available the same was not deliberately resorted to. The contention is that CEC should have opted for the latest technology.
We do not find merit in this argument. The technology of 2001, 2002 and 2003 is not to be discarded. The later technology gives more spatial information but that does not mean that the information given by the earlier technology is inaccurate. The latest technology under GIS can locate even a pin on the earth.
However, we are not concerned with such a tiny object in this case. Be that as it may, we may also point out that even in the State of Forest Report 2003, FSI has based its figures of
forest cover by using Digital Image Processing (DIP) by using the scale of interpretation of 1:50000.
Further, in that report, FSI has relied upon the introduction of a new methodology based on remote sensing to estimate the trees covered below 1 hectare which cannot be discerned by using LISS-III data. Under the new method, a canopy of all forests that can be delineated from satellite data (Sensor LISS-III) was termed as forest cover. Even under this new technology adopted by FSI the spatial resolution of 23.5 mtr. of LISS-III has been taken into account and by using DIP technique, forest cover was mapped even in 2003 at a scale of 1: 50000. Therefore, consistently, FSI has taken the above parameters into account. Hence, there is no merit in the contentions raised by Deepak Agarwal saying that CEC has been randomly selecting queries and data.
In short, NRSA's report submitted through FSI is reliable and we see no reason to reject it. On the basis of the said report, it can be said that AOI (area of interest) does not qualify so as to be included in the category of Deemed Forest i.e. a compact block of 10 hectares having 200 trees per hectare.
Before concluding, it may also be noted that except Deepak Agarwal, other parties before us have not questioned the conclusions in the second and the third report of CEC that the land in question is not a forest land. Besides, Maruti being the allottee, the State of Chhattisgarh, the Ministry of Environment and Forest, Forest Survey of India and even SECL have not questioned the conclusion of CEC that the land in question is not a forest land.
In view of the aforesaid discussion, even on facts we find no substance in the plea that the land allotted to Maruti is forest land. Accordingly, we accept the recommendations of CEC as contained in the second and third report. As already noted, the dispute in respect of the title is not a matter in issue before us. Thus, we have not examined this issue.
In conclusion, we dismiss the applications filed by Deepak Agarwal with costs. The applicant has abused the process of law and deserves to be sternly dealt with. The enormous judicial time has been wasted which could have been used for deciding other cases. It has also resulted in CEC and others incurring huge expenses and their wastage of time as well. In this view, we quantify costs at Rs.1,00,000/- payable by the applicant Deepak Agarwal to CEC. The cost, if not deposited with CEC within four weeks, shall be executable as a decree. The amount of cost shall be utilized for preservation of forests in State of Chhattisgarh. The Special Leave Petition and other applications are also disposed of in terms of this judgment.
CASE 6.CASE NO.:Writ Petition (civil) 202 of 1995PETITIONER:T.N. Godavarman ThirumulpadRESPONDENT:Union of India & OrsDATE OF JUDGMENT: 10/04/2006BENCH:CJI Y.K. Sabharwal, Arijit Pasayat & S.H. KapadiaJUDGMENT:J U D G M E N T
IA NO.989, 1221 & 1311 IN IA NOS.857-858 IN WRIT PETITION (C) NO.202 OF 1995
[WITH IA NOS.997-998, 1128, 1187, 1282-1284, 1295, 1296, 1305, 1320-1321, 1335, 1376-1377, 1388 IN WP (C) NO. 202 OF 1995 & SLP (C) NO.22531 OF 2003]Y.K. Sabharwal, CJI.
The question for consideration in these matters is whether the land measuring about 15 hectares leased by State of Chhattisgarh to M/s. Maruti Clean Coal and Power Limited (for short 'Maruti') for setting up of coal washery is a part of forest land or not. This question has been raised by one Deepak Agarwal by filing I.A. 858 of 2003 claiming to be a public spirited person and journalist by profession and concerned about the adverse affect on environment of the area as a result of the grant of lease of forest land for non forest activities in violation of law. The applicant claims that undue favour and patronage has been extended to Maruti for establishment of coal washery plant in respect of land which is a forest land by wrongly showing in various revenue records that the land is part of the village Nawagaon Khurd whereas actually the land forms part of village Ratija.
The Parliament enacted Forest (Conservation) Act, 1980 (for short the 'FC Act') with a view to prevent large scale forest depletion and to protect the forest resources. The object was to check further deforestation which ultimately results in ecological imbalance. The Act has made provisions for the conservation of forests and for matters connected therewith. In T.N. Godavarman Thirumulkpad v. Union of India & Ors. [ (1997) 2 SCC 267], this Court held that the FC Act must apply to all forests irrespective of the nature of ownership or classification thereof. Noticing earlier decisions in cases of Ambica Quarry Works v. State of Gujarat & Ors. [(1987) 1 SCC 213] and Rural Litigation and Entitlement Kendra v. State of U.P. [1989 Supp (1) SCC 504] and dispelling doubts, if any, it was held in Godavarman that 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 FC Act. The term 'forest land' would also include any area recorded as forest in the Government record irrespective of the ownership. The court issued wide ranging directions. Each State Government was directed to constitute an Expert Committee to 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 forests; identify areas which were earlier forests but stand degraded, denuded or cleared; and identify areas covered by plantation trees belonging to the Government and those belonging to private persons.
The Government of Madhya Pradesh, of which Chhattisgarh was a part at the relevant time, issued a circular dated 13th January, 1997 in compliance with the directions issued in T.N. Godavarman's case for the purpose of identification of the forest. The circular stated that according to the dictionary meaning, the term 'forest' means such large areas where agriculture is not done and which is covered by trees and shrubs. It further stated that, taking a practical approach, in view of the judgment as well as the dictionary meaning of the term 'forest', area measuring 10 hectares or more having an average number of 200 trees per hectare ought to be treated as forest.
According to the applicant, on application of aforesaid circular, the land in question would be forest land and it is also so under the Government record and as per the dictionary meaning of the term 'forest' as well.
To examine the question whether land is part of forest or not, this Court by order dated 7th May, 2003 referred the application to Central Empowered Committee (CEC) for its report. The CEC submitted its report dated 6th October, 2003 (registered as IA 989 and hereinafter referred to as 'first report'). In this report, CEC concluded that the land allotted to Maruti is a forest land and, therefore, prior approval of the Central Government under the FC Act was necessary before allowing setting up of coal washery plant by Maruti. Admittedly, such approval had not been obtained. The State of Chhattisgarh and Maruti vehemently disputed that the land is part of forest. Their stand is that the land was allotted after it was clearly established that it was not a forest land. The first report shows that hearing before CEC took place on four different dates i.e. 3rd June, 2003, 9th July, 2003, 25th July, 2003 and 14th August, 2003. On first two dates, one K.K.Srivastava appeared for the applicant Deepak Agarwal. This fact has relevance on the issue of bonafides of Deepak Agarwal in approaching this court in public interest, an aspect to which we would advert to little later. Detailed objections were filed to the first report of CEC. On directions of this Court, an affidavit dated 13th August, 2004 was filed by T.S.Chatwal, Secretary (Forest) Government of Chhattisgarh, inter alia, stating that land is not recorded in the forest land records at Katghora Division either as protected or as reserved forest; has not been subject matter of any blanket notification covering 'protected forest' for the then Central Provinces and Barar issued under Section 29 of the Indian Forest Act, 1927; does not form part of the un-demarcated protected forest in village Ratija etc. It was further stated that as per available traversing records for the year 1893-1894, the land in question was traversed by the Survey of India and was named as Nawagaon Khurd surrounded by village Ratija, Chainpur and Sirkikhurd and its area was measured to be 50.25 acre. The settlement operation carried in 1929-1930 did not cover the land in question and as such no survey number was assigned to this piece of land, which remained unsurveyed till June 2002. The State Government was directed to trace the relevant notifications and other notifications issued by the forest department in the month of October 1949 and place the same before the CEC. Maruti claimed that notification of October 1949 had considerable bearing on the question of the land being forest or not. Maruti was also permitted to place the same before CEC. Other parties were also permitted to file before CEC additional documents. CEC was directed to further examine the matter, hear the parties and file a report with its recommendations.
In compliance of the aforenoted directions, a report dated 4th November, 2004 (Registered as I.A. 1221 and hereinafter referred to as the 'second report') has been filed by CEC. The CEC, in the second report has noted detailed facts, submissions of SECL, State Government, meetings with the officers of State of Madhya Pradesh and Chhattisgarh. On detailed examination of voluminous record including notifications and maps, the old settlement records of the concerned villages, the CEC observed that there was no authentic record available to show that the area of Nawagaon Khurd merged with that of village Ratija during the settlement of 1928-1929.
CEC further observed that no revenue records are reported to have been maintained/available or filed before it regarding the settlement of the area of Nawagaon Khurd or its merger with
village Ratija. In the draft notification prepared by the Orange Unit, Bilaspur, this area has not been shown as part of Ratija village but as Nawapara (Masahati village) and that in the consolidated map the allocation of land allotted to Maruti falls within Nawagaon Khurd and outside the boundary of village Ratija. The CEC accordingly expressed the view that:
(a) the area of village Nawagaon Khurd was not merged and made a part of village Ratija or any other adjoining villages during the settlement of 1928-29; (b) no ttlement records for the area of Nawagaon Khurd were prepared during 1928-29;(c) since new settlement has not taken place after 1928-29, the settlement maps prepared during 1928-29 are the relevant and the correct maps which have to be relied upon; and (d) the location of the land allotted to M/s Maruti falls within the area of Nawagaon Khurd and not within the village Ratija.
In respect of Notifications of 1949, CEC said that:
(a) none of the notifications particularly the notification dated 17.10.1949 pertain to Bilaspur district; and
(b) the notification No.3228-2845 dated 17.10.1949 or 3228-3283/2845 dated 17.10.1949 referred to in the draft orange area proposal of 2002 either do not exist or pertain to other districts.
The CEC in the second report concluded that the land allotted to Maruti is not a forest land. The second report has also noticed the submission of Maruti that application of Deepak Agarwal is not in public interest and that he has been set up to serve the business interest of M/s Aryan Coal Private Limited (for short, 'Aryan') who will be adversely affected financially after the establishment of coal washeries by Maruti due to increased competition and consequent reduction in prices. It was also pointed out that during hearing before CEC, Deepak Agarwal was represented by K.K.Srivastava who had represented Aryan in revenue proceedings before Tehsildar and also that he was a witness in a large number of sale deeds executed by shareholders of Aryan for purchase of land in Rajgarh.
The second report led to filing of various applications and also a letter dated 27th March, 2005 by Secretary, Bilaspur Environment Society filing therewith a report of Regional Remote Sensing Services Centre, Nagpur dated 28th February, 2005 with a view to challenge the conclusion contained in the second report about land being not forest land and seeking to rely upon settlement record.
By an order dated 1st April, 2005, CEC was directed to again examine the entire matter and report in the light of the documents brought to the notice of the Court and placed on record. The Forest Survey of India, Regional Remote Sensing Agency and the South-East Coal Field Limited were directed to render such assistance as may be required for the purpose of preparation of report by CEC. After further examination, report dated 14th April, 2005 has been filed by CEC (hereinafter referred to as 'third report').
The third report, inter alia, shows that a request was made by CEC to Forest Survey of India to carry out photo interpretation of the satellite imagery of the area by comparing imageries of different period and to give views about vegetation, forest cover, number of trees etc. Simultaneously, the National Remote Sensing Agency was also requested to give their comments on the satellite imagery of the area in and around the land area allotted to Maruti along with significant changes in the forest cover during different periods, reliability and
accuracy of the interpretation and methodology for identifying the areas allotted etc. The site was also visited between 12-13th April, 2005 during which the coordinates of the area allotted to Maruti were verified by a technical expert of FSI using the Differential Global Positioning System (GPS) and the ground truth verification of the area was carried out along with Regional Director, Forest Survey of India, Nagpur. The report also notices that during the visit, inspection of other areas was also carried out and discussions were held with the Principal Chief, Conservator of Forests, Chhattisgarh Forest Department, Conservator of Forests, Bilaspur Circle, District Collector Korba, Divisional Forest Officer, Officers of SECL, members of the Bilaspur Environment Society, K.K.Srivastava, representative of the applicant, representatives of the forest trade unions of the area, public representatives, representatives of Maruti and other interested parties. Detailed reference has been made in the third report to the interpretations of experts including that of the Forest Survey of India. It also doubts the bonafides of the applicant. The report further notes number of cases that were filed in respect of allotment of land to Maruti as under:
i) Mr.B.L.Wadera Hon'ble High Court of Chhattisgarh at Bilaspur; (ii) Mr.Sanjay Srivastava (relation of Mr.K.K.Srivastava) Hon'ble High Court of Chattisgarh at Bilaspur; (iii) Mr.Deepak Agarwal present application before the Hon'ble Supreme Court (iv) Mr.Surendra Sahu petition before the Hon'ble High Court of Chhattisgarh at Bilaspur;(v) SECL present application for intervention before this Hon'ble Court;(vi) SECL suit in Katghora Civil Court;(vii) SECL Writ Petition against CEC's report before this Hon'ble Court (dismissed as withdrawn);(viii) Samyuki Kendriya Shramik Sangathan application for intervention before this Hon'ble Court;(ix) Koyla Mazdoor Sabha application for intervention before this Hon'ble Court;(x) Rashtriya Colliery Mazdoor Congress application for intervention before this Hon'ble Court;(xi) Koyla Shramik Sangh application for intervention before this Hon'ble Court;(xii) Bhartiya Koyla Khadan Mazdoor Sangh application for intervention before this Hon'ble Court; and(xiii) Mr.B.L.Wadera SLP against the Hon'ble High Court's order.
Regarding nexus between K.K.Srivastava and Aryan and what type of society the Bilaspur Environmental Society is, the report states that:"After considering the number of cases, filed on this issue, the documents filed by M/s Maruti regarding alleged nexus between Mr.K.K.Srivastava with M/s Aryan, reduction in the washed coal prices agreed to by M/s Aryan after an offer at a cheaper rate was made by M/s Maruti to Gujarat Electricity Board,annual account of Bilaspur Environment Society. SECL's own use of revenue forest land on a large scale, prima-facie there appears to be some merit in the contention of M/s Maruti that the plethora of cases in various Courts have been filed on behalf of its competitor M/s Aryan with a view to prevent him from establishing the coal washery, and not in public interest.
The claim made by Mr.K.K.Srivastava that he is a public spirited person involved in protection of environment and forests and that he is not getting financial support from anybody but is spending from his own resources and contribution from his friends and relations, is difficult to accept on its face value; The accounts of Bilaspur Environment
Society show that it does not have a bank account and all receipts and expenditure are in cash."
The third report reiterates the conclusions and the recommendations made in the second report that the land allotment of Maruti is not of forest land. At this stage, we may note that some dispute as to the title of the land in question between State Government and Maruti on one hand and M/s South East Collieries Limited (SECL) on the other is pending in a civil court. In these proceedings, we are not concerned about the title of the land that may have to be examined and decided by the civil court. All pleas, factual and legal, as permissible in law, would be open to the parties to be agitated before the civil court. The only question for our consideration in these proceedings is as to the nature of the land, namely, it is forest land or not. However, before we consider the aforesaid question, first the bonafides of the applicant need to be determined.
In opposition to the application filed by Deepak Agarwal, it has been urged that the label of public interest given by the applicant in the present litigation, is clearly and demonstrably a camouflage since the real person behind this application allegedly filed in public interest is a competitor of Maruti operating in the area and having a monopoly.
Some unions have also tried to jump into the fray by filing applications seeking impleadment in these proceedings so as to contend that the allotment is of a forest land. We see no reason to allow the impleadment of parties in these proceedings. Be that as it may, we have to decide in the light of facts aforenoted, whether the land leased to Maruti is forest land or not. But before we examine the question of the nature of the land being forest or not, it is necessary to consider the bonafides of Deepak Agarwal who has approached this Court in public interest. Howsoever genuine a cause brought before a court by a public interest litigant may be, the court has to decline its examination at the behest of a person who, in fact, is not a public interest litigant and whose bonafides and credentials are in doubt. In a given exceptional case where bonafides of a public interest litigant are in doubt, the court may still examine the issue having regard to the serious nature of the public cause and likely public injury by appointing an Amicus Curiae to assist the court but under no circumstances with the assistance of a doubtful public interest litigant.
No trust can be placed by court on a mala fide applicant in public interest litigation. These are basic issues which are required to be satisfied by every public interest litigation. It was sought to be contended on behalf of Deepak Agarwal that the CEC had no authority to examine his bonafides and, thus, exceeded its jurisdiction by stating in its report that his bonafides are in doubt. Some insinuations were sought to be made against CEC and learned Amicus Curiae. We strongly deprecate this approach of the applicant. The CEC has been appointed and so also learned Amicus Curiae to assist this Court in determining issues relating to depletion of forests and preservation and conservation of forests in the country. Many forest survey reports recognise that various orders by this Court have helped in arresting fast depletion of forests.
Assuming in a given case an error is committed by the Committee in its report, while pointing it out, it is necessary for the applicant to use temperate language in the pleadings and not the one used by the applicant.
Since, during hearing, neither the insinuations nor the language was supported and rather regret was expressed, we would say no more on this aspect. It, however, deserves to be
clarified that it is incorrect to assume that CEC exceeded its jurisdiction in pointing out facts which are relevant to determine the bonafides of the applicant.
In fact, having regard to nature of duties assigned and responsibility placed upon CEC, it is the duty of CEC to point out facts relevant to determine bonafides of any applicant. It is always necessary to determine real motive behind a public interest litigation.It has been repeatedly held by this Court that none has a right to approach the Court as a public interest litigant and that Court must be careful to see that member of the public, who approaches the Court in public interest, is acting bona fide and not for any personal gain or private profit or political motivation or other oblique considerations. {See S.P.Gupta v. Union of India & Anr. [1981 Supp. SCC 87]}.
For the last few years, inflow of public interest litigation has increased manifold. A considerable judicial time is spent in dealing with such cases. A person acting bona fide alone can approach the court in public interest.
Such a remedy is not open to an unscrupulous person who acts, in fact, for someone else. The liberal rule of locus standi exercised in favour of bona fide public interest litigants has immensely helped the cause of justice. Such litigants have been instrumental in drawing attention of this Court and High Courts in matters of utmost importance and in securing orders and directions for many under-privileged such as, pavement dwellers, bonded labour, prisoners' conditions, children, sexual harassment of girls and women, cases of communal riots, innocent killings, torture, long custody in prison without trial or in the matters of environment, illegal stone quarries, illegal mining, pollution of air and water, clean fuel, hazardous and polluting industries or preservation of forest as in the Godavarman's case. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration {See Janata Dal v. H.S. Chowdhary & Ors. [1992) 4 SCC 305]}
It seems that this caution has not had the desired effect on the applicant like the present one.In a recent decision in Dattaraj Nathuji Thaware v. State of Maharashtra & Ors. [(2005) 1 SCC 590] (Arijit Pasayat and S.H. Kapadia, JJ) taking note of earlier decisions, it was said that:"It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing the gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts
are locked up, detenus expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity-oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs."
It was further said :
"Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao v. Mr. K. Parasaran. Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public."
Now, reverting to the present case, it seems that lakhs of rupees have been spent by the applicant and/or on his behalf to prosecute the present litigation. On our direction, the applicant filed his income tax return which shows that he has hardly any means to incur huge amounts which have been spent to pursue this litigation. Further, when the matter was referred by this court to CEC for a report on first date of hearing, K.K. Srivastava represented the applicant. Learned senior counsel for the applicant fairly and candidly admitted that sometimes along with the advocate-on-record, K.K.Srivastava has been coming to instruct him. There is ample material on record that on
numerous occasions, K.K.Srivastava represented Aryan before number of authorities. There is also ample material to show that K.K. Srivastava has been collecting material to prove that the land in question is forest land. He is a person in contact with Aryan. Regarding his financial status, Deepak Agarwal has filed an affidavit dated 24th August, 2005 along with which certain documents have also been filed.
In the affidavit, it has been claimed by him that he is fighting the case with the help of like-minded people, well-wishers and friends. As to his own financial resources, it is stated that in the income tax return, financial help taken from friends, social workers and like-minded people has not been shown as it does not fall in the category of income. He has filed affidavits of some people from whom it is claimed that donation collectively of the sum of Rs.86,500/- was taken. As per the affidavit of Deepak Agarwal, a sum of Rs.55,000/- has been incurred by Bilaspur Environment Society for obtaining satellite imagery report. Further, a sum of Rs.60,000/- has been spent by him on traveling and lodging expenses in connection with litigation and Rs.50,000/- in connection with documentation and other court expenses. A revised income tax return filed on 31st March, 2005 has been placed on record. According to it, the total income from business is shown as Rs.51,560/- and from other sources at Rs.1,02,947/- total being Rs.1,54,507/-. It has not been disclosed as to when the original Income Tax return was filed. The amount of tax shown to have been deducted at source is Rs.5,147/-.
The date of birth of Deepak Agarwal as per income tax return is 22nd February, 1973. However, in the affidavit dated 24th August, 2005, the age mentioned is 32 years whereas in the affidavit dated 19th July, 2005, it is stated as 35 years. Further, a perusal of the affidavits of the persons from whom donation is said to have been taken shows that alleged donors of cash amounts are mainly employees of SECL and contractors working for Aryan. It has not been explained as to what was the reason for filing a revised income tax return. A submission was sought to be made at hearing, without any plea having been raised in the application or the affidavit, that Deepak Agarwal came to this Court as a lone crusader bona fide but later on some help was rendered by others who donated the amount as claimed and also by Bilaspur Environment Society. It may be noted that Maruti has been pleading since beginning that Deepak Agarwal has been set up by their competitor and there was, in fact, a link between the competitors of Maruti and Deepak Agarwal in the form of K.K. Srivastava. Deepak Agarwal, in fact, denied that there was any link between him and K.K. Srivastava who appeared on his behalf before CEC and Aryan and took the stand that nothing has been submitted to prove that it was the same K.K. Srivastava who appeared on behalf of the Aryan. Regarding K.K. Srivastava being attesting witness to the sale deeds, it was pleaded that K.K. Srivastava was in a business of sale and purchase of land and in course of his business dealing, he might have come across such sale deeds. The same plea was taken in respect of proceedings before Tehsildar. Regarding the Bilaspur Environment Society, which purportedly assisted Deepak Agarwal, as admitted by him and allegedly paid Rs.55,000/- for obtaining satellite images, it may be noted that firstly, one fails to understand as to what prevented the said society from approaching this court. Secondly, a close perusal of the record throws open many questions about the credibility of the society which spent Rs.55,000/- in cash for obtaining satellite images and also obtained donations. On perusal of record, we have no doubt that the application filed by Deepak Agarwal is far from bona fide. He has been set up by others. We strongly deprecate the filing of an entirely misconceived and mala fide application in the garb of public interest litigation by Deepak Agarwal. He is nothing but a name lender. Despite our conclusion as aforesaid, we have
in-depth examined the three reports of CEC. The CEC in its second report has explained in detail the grounds and the reasons for reversal of its findings as contained in the first report. The first report had only considered the letter dated 17th October, 2002 of DFO, Khatghora including no objection from grampanchayat, orange area proposals of 1997-98, joint inspection report of 18th October, 2002 with enumeration lists, report of Deepak Srivastava & Mr.Negi of MoEF, Members and SECL maps.
The second report, however, considers in detail several notifications of the order of October 1999, old settlement maps and the guidelines of State Government in respect of orange area proposals. It shows that non-forest land can also be included in the said proposals and various other documents and for reaching the conclusion that the land in question is not a forest land, in fact, the said land was of Nawagaon Khurd and not village Ratija and that this area was not formally merged and made part of village Ratija in the settlement (Bandobast) carried out during 1928-29. We have examined various old record from 1893-94 onwards including the old maps and find no reason to take a view different than the one taken by CEC in its second report. The conclusions reached and the recommendations made in the second report deserve to be accepted.
The third report is based on the satellite imageries and supports the conclusions reached by CEC in its second report. In respect of the third report, one of the submissions made on behalf of Deepak Agarwal was that reliance by CEC on LISS III (23.5 metre resolution) is not warranted because the satellite images provided by RRSSC has satellite data of LISS III with Panchromatic Data Technology and LISS IV (5.8 metre resolution). It was argued that State Forest Report, 2003 of Forest Survey of India noticed that 5.8 metre resolution recorded various images as small as 0.1 hectare (within given area, in this case, the area of interest of 18.12 hectares) whereas 23.5 meter resolution is not capable of recording anything less than 1 hectare forest cover within that area. In nutshell, the contention is that LISS III has limited technology and, therefore, the report based on LISS III is not reliable. The submission is that LISS IV should have been used for arriving at the correct position.
In short, Deepak Agarwal has submitted that the report of NRSA was not accurate because it has opted for a technology with 23.5 metre spatial resolution and output generation in the scale of 1:50000 considered to be inferior with respect to smaller portion of land. According to Deepak Agarwal, NRSA should have opted for a better technology available today under which the spatial resolution is available at 5.8 meter and also output generation in the scale of 1:15000. According to Deepak Agarwal, CEC should not have accepted the report of NRSA based on the above parameters of 23.5 metre (spatial resolution) and of output generation in the scale of 1: 50000.
In order to decide the above contentions, it is necessary to understand the following concepts:i) GIS (GEOGRAPHICAL INFORMATIOIN SYSTEM)GIS is an organized collection of computer hardware, software, geographic data designed to capture all forms of geographically referenced information (See Volusia.org). In short, it is a computer system capable of holding and using data describing places on the earth's surface. ERDAS IMAGINE 8.6 is a computer tool under GIS. It is referred to in the report of Forest Survey of India (FSI) dated 14.4.2005 annexed to the third report of CEC.ERDAS IMAGINE 8.6 is an advanced software product used for image processing, to uncover features like boundary and area of a given plot of land (face). Once uncovered, the geographical information is integrated with attributes (spatial and non-spatial) and stored in an information system to be used for analysis. Images can be taken from satellites or from
planes flying over an area of interest (AOI). Under ERDAS IMAGINE 8.6, the images are comprised of pixels (picture elements) which are contained in the image. These pixels are scanned by the computer which gives the boundary and the area. It also scans the colours. Different surfaces reflect light differently. Colour images are used to identify various ground objects like forests, man-made surfaces, roads etc. For example, healthy crops contain infra-red light whereas forests reflect different colours of the spectrum, making the spectrum information an important component of geographical information analysis. This advancement of technology is due to combination of telecommunication and computer engineering (See: webopedia.com). The above discussion is important because Deepak Agarwal has relied upon photo printing analysis done by him with the help of CAD (Computer Aided Designing). The issue which is required to be considered is whether ERDAS IMAGINE 8.6 used by NRSA is better than CAD which is a programme used by Deepak Agarwal. We have indicated broadly the advanced features of the software, viz., ERDAS IMAGINE 8.6. On the other hand, CAD, is also a software used by engineers to view a design from an angle with the push of a button and to zoom in and zoom out for close-ups and long distance views. It helps the computer to tract designs. CAD software generally examines the boundaries and that too in a design. In the present case, we are concerned with the area covered by the forests. Therefore, the technology adopted by NRSA based on ERDAS IMAGINE 8.6 is more reliable than CAD. Therefore, GIS links spatial data with geographical information about a particular feature on the map (See: volusia.org).
ii) GPS (Global Positioning System) GPS is a satellite based positioning system operated by USA. It consists of satellites. It is a data collection tool for GIS. Basically, the signals from the satellites in GPS are received by GPS receivers on the earth. Therefore, different stations are earmarked on the earth covering a particular area. It is the matching of the satellite with the receiver which plays an important role. Certain discrepancies in the matching are got over by differential GPS (See: esri.com).
iii) IRS LISS IIIIt stands for Linear Imaging Self Scanning Sensor which is a multi-spectral camera.
LISS-III products comprise of path/row products, georeferenced products etc. (See: earth.esa.int). It helps to track areas and boundaries. Combination of LISS III with ERDAS-imagine is more reliable than photo print analysis by CAD. It is better to depend on interpretation of IRS LISS III Digital Data by EDRAS Imagine than by CAD.As stated above, the main challenge to the NRSA report is that proper parameters have not been taken into account and although better technology was available the same was not deliberately resorted to. The contention is that CEC should have opted for the latest technology. We do not find merit in this argument. The technology of 2001, 2002 and 2003 is not to be discarded. The later technology gives more spatial information but that does not mean that the information given by the earlier technology is inaccurate. The latest technology under GIS can locate even a pin on the earth. However, we are not concerned with such a tiny object in this case. Be that as it may, we may also point out that even in the State of Forest Report 2003, FSI has based its figures of forest cover by using Digital Image Processing (DIP) by using the scale of interpretation of 1:50000.
Further, in that report, FSI has relied upon the introduction of a new methodology based on remote sensing to estimate the trees covered below 1 hectare which cannot be discerned by using LISS-III data. Under the new method, a canopy of all forests that can be delineated from satellite data (Sensor LISS-III) was termed as forest cover. Even under this new technology adopted by FSI the spatial resolution of 23.5 mtr. of LISS-III has been taken into
account and by using DIP technique, forest cover was mapped even in 2003 at a scale of 1: 50000. Therefore, consistently, FSI has taken the above parameters into account. Hence, there is no merit in the contentions raised by Deepak Agarwal saying that CEC has been randomly selecting queries and data.
In short, NRSA's report submitted through FSI is reliable and we see no reason to reject it. On the basis of the said report, it can be said that AOI (area of interest) does not qualify so as to be included in the category of Deemed Forest i.e. a compact block of 10 hectares having 200 trees per hectare.
Before concluding, it may also be noted that except Deepak Agarwal, other parties before us have not questioned the conclusions in the second and the third report of CEC that the land in question is not a forest land. Besides, Maruti being the allottee, the State of Chhattisgarh, the Ministry of Environment and Forest, Forest Survey of India and even SECL have not questioned the conclusion of CEC that the land in question is not a forest land.
In view of the aforesaid discussion, even on facts we find no substance in the plea that the land allotted to Maruti is forest land. Accordingly, we accept the recommendations of CEC as contained in the second and third report. As already noted, the dispute in respect of the title is not a matter in issue before us. Thus, we have not examined this issue.
In conclusion, we dismiss the applications filed by Deepak Agarwal with costs. The applicant has abused the process of law and deserves to be sternly dealt with. The enormous judicial time has been wasted which could have been used for deciding other cases. It has also resulted in CEC and others incurring huge expenses and their wastage of time as well. In this view, we quantify costs at Rs.1,00,000/- payable by the applicant Deepak Agarwal to CEC. The cost, if not deposited with CEC within four weeks, shall be executable as a decree. The amount of cost shall be utilized for preservation of forests in State of Chhattisgarh. The Special Leave Petition and other applications are also disposed of in terms of this judgment.
CASE 7 CASE NO.:Writ Petition (civil) 202 of 1995PETITIONER:T.N. Godavarman ThirumulpadRESPONDENT:Union of India and OrsDATE OF JUDGMENT: 17/10/2006BENCH:ARIJIT PASAYAT & S.H. KAPADIAJUDGMENT:J U D G M E N TI.A.NO. 1156 IN WP (C) NO. 202 OF 1995 [With I.A.Nos.1192, 756, 1463, 1501 and 1532in WP (C) 202 OF 1995]
ARIJIT PASAYAT, J
The present IAs relate to acceptability of the report given by the Expert Committee relating to alleged violation of the environmental norms by the respondents. Background facts in a nutshell are as follows:
The Delhi Development Authority (in short the 'DDA') proposed the development of International Hotel Complex on 315 hectares of land situated in the Vasant Kunj area after the same area was identified in the Master Plan for Delhi 2001 for urban use. According to the applicants, the said area under the earlier Master Plan 1962 was identified as green area but there was a change of user to urban area under the latter Master Plan i.e. Master Plan 2001. DDA planned to develop the said area for construction of Hotels, Convention Centres etc. Initially, by an order dated 13.9.1996 this Court directed inter alia as follows:
"The proposal of the Delhi Development Authority (DDA) called International Hotels Complex (Complex on 315 hectares of prime land situated in South Delhi is before us for consideration. In the affidavit filed by Mr. Arun Khaisalkar, Commissioner (Planning), (DDA), the details of the development in respect of the said 315 hectares has been given. It is not disputed that the Master Plan of Delhi 2001 was amended on June 17, 1995 where under out of the total area of the complex the area assigned for residential purposes was reduced from 100 hectares to 49 hectares and for commercial purposes increased from 8 hectares to 65 hectares. Apart from that 39 hectares have been earmarked for public and semi-public, 15 hectares for transportation and remaining 147 hectares for recreational purposes.
It is stated in the affidavit that there is an acute shortage of tourist accommodation in Delhi and as such it is necessary to provide sites for 4/5 Star Hotels, Institutions, Hospital, Shopping Mall etc. It is further stated that the Complex area is not a part of the Ridge. It is about 2 Km. away from Southern & South Central Ridge.
We have heard Mr. V.B. Saharya, learned counsel for DDA and also Mr. P.C. Jain, Consultant, Planner, DDA. We have heard Mr.Mehta, Dr. Rajiv Dhawan and other learned counsel assisting us in this matter.
Mr. Sunder Subramanian, Member of Citizens for the South Western Lake Wilderness & Others and of PILSARC, has filed an affidavit pursuant to this Court's order dated September 4, 1996. It is stated in the affidavit that the area is topographically a part of the South Ridge which is to South Delhi what the Central Ridge is to Central Delhi. It is further stated in the affidavit that the area is lake studded covering over 1000 acre. The affidavit indicates that the area was kept green under the 1962 Master Plan in the Draft Zonal Plan of 1993 (ZDP Zone 121993-Z-P/F/93-52) of the DDA 2001 Master Plan. It is further stated that this area is the natural extension of Sanjay Van a notified reserve forest and a part of Ridge. Along with the affidavit, various photographs have been attached to depict the ecology of the area.
This Court in Vellore Citizens Welfare Forum v. Union of India and Ors. (JT 1996 (7) SC 375) has observed that the development and environment protection must go together. There should be balance between development and environment protection. It is, therefore, necessary that before the proposed Complex of the DDA is brought into execution, it should have environment clearance from the authorities concerned. The whole of the area has to be surveyed from the point of view of environment protection. In other words, the environment impact assessment of the area has to be done by the experts. We are of the view that the authority contemplated by Section 3(3) of the Environment (Protection) Act, 1986 ('the Act') can be the only appropriate Authority to look into the environment protection side of the present project or any other project which the DDA or any other Authority may initiate in future.
Needless to say that the City of Delhi is already highly congested and has been rated by the World Heath Organization as the 4th most polluted city so far as the air pollution is concerned. It is, therefore, necessary that the development in the city should have environmental clearance.
We, therefore, direct the Central Government to constitute an Authority under Section 3(3) of the Act and confer on the said authority all the powers necessary to deal with the environmental protection issue arising out of the project in hand or any other project which may in future come under its consideration. The authority shall he headed by a retired Judge of a High Court and it may have other members preferably experts in the field of pollution control and environment protection to be appointed by the Central Government. The Central Government shall confer on the said Authority the powers to issue directions under Section 5 of the Act and for taking measures with respect to the matters referred to in clauses (i), (iii), (iv), (vi), (viii), (ix), (x) and (xii) of sub-section (2) of Section 3 of the Act. The Central Government shall constitute the Authority before October 10, 1996. This Authority shall have the jurisdiction over the National Capital Region as defined under the National Capital Region Planning Act, 1985.
Needless to say that the authority so constituted shall keep in view the 'Precautionary Principle" and other principles laid down by this Court in Vellore Citizens Welfare Forum's case (supra). The Authority shall lay down its own procedure.
We further direct that till the time the Complex is cleared by the Authority so constituted by the Central Government, there shall be no construction and no development of any kind in the area by the DDA or by any other authority. The DDA can, however, clean the area and plant trees if they so wish.
The proceedings initiated on Kuldip Nayar's letter are disposed of." Subsequently, on an application filed, this Court by an order dated 19.8.1997 held
that 92 hectares of land out of the aforesaid 315 hectares of land was a constraint area and only in respect of the balance 223 hectares of land the constructions have to abide by the conditions of clearance. Subsequently, a Writ Petition was filed (W.P.No. 564/2003) which was dismissed by an order dated 8.3.2004. Pursuant to the directions of this Court the Committee constituted has given its report. The recommendations made by the Committee are as follows:
1. The project site has topographical features similar to that of the ridge. Various studies, including EIA documents submitted now for obtaining environmental clearance, establish the environmental value of this area, particularly as a zone of groundwater recharge. Therefore, DDA should have exercised adequate environmental precaution based on a sustainable environmental management approach. There is no evidence that the environmental impact of the construction of malls was assessed beforehand and that the development of this area for commercial activities is in accordance with the Master Plan.2. DDA's advertisement (Hindu Dec 12, 2003 ) states: "purchaser would be required to obtain necessary clearance for the project from the EPCA and/or DPCC before submitting the plans for sanction to the Building Dept of DDA". There is no confirmation that this requirement was fulfilled by the allottees.
3. DDA has mentioned that FAR for the projects under reference is pegged at 1.0. However, it is seen that for all the buildings proposed in Plot no. 1 to 5, DDA has permitted a higher FAR which works out to 1.25 to 1.29.4. In hindsight it is evident that the location of large commercial complexes in this area was environmentally unsound. Now many proponents have constructed very substantially and really speaking awarding clearances even with conditions is largely a compromise with de-facto situation. The Expert Committee is of the opinion that at this stage only damage control is possible by strict implementation of effective EMP and resource conservation measures in the project construction and operational stages.5. As stated earlier in the interim report, the Committee suggests that the Ministry of Environment & Forests and the Supreme Court may consider imposing a penalty on the project proponents who commenced construction works without obtaining environmental clearance in contravention to the Notification in July 2004.6. Existing vacant plots (no. 6 and 7) of the shopping mall complex should not be auctioned by DDA for more malls or commercial activities. They may be kept open as a fringe of the bio-diversity park or earmarked for development of any common facilities that may be needed in the area.7. Treated sewage from Vasant Kunj Sewage Treatment Plant must be utilized as much as possible for such purposes as water cooled chillers, toilet flushing, gardening and horticulture and floor washing. This will reduce the requirement of fresh water.8. The aforesaid purposes will need tertiary treatment of sewage. Since the allottees of offices and malls have proposed to carry out entire treatment up to tertiary level on their own, it should be possible for them to treat the treated sewage received from Vasant Kunj sewage treatment plant to the required level.
9. While rainwater harvesting should be done, the withdrawal of ground water should not he permitted in the shopping mall area.10. For construction, use of ready-mix concrete (RMC) should be made compulsory so as to reduce movement and storage of materials and generation of dust.11. Utilization of solar energy must he maximized in all these proposals both for heating water and generating power to light up corridors and parking.12. A Monitoring Committee may be constituted for overseeing the project so as to ensure effective implementation and compliance to environmental safeguards".
In support of the applications, learned counsel has submitted that it has never been
held by this Court that 92 hectares of land are not a part of the ridge. On the contrary, the first order itself made the position clear. The clarification by order dated 19.8.1997 had really expressed no opinion on the question whether the land was a part of the ridge. A report was given by the Environmental Pollution (Prevention and Control) Authority (in short 'EPCA') chaired by Shri Bhure Lal wherein it has been clearly stated that environmental factors were not in favour of urban development use of land and the entire parcel of land should be developed as green. Therefore, it is submitted that there has been clear violation of the norms fixed on 7.7.2004.
Per contra, learned counsel for DDA and the allottees inter alia submitted that the applicants are trying to re-open an issue which had become final about a decade back. The order dated 19.8.1997 made the position absolutely clear that 92 hectares of land was constraint area and was not an integral part of Delhi Ridge. Out of the said 92 hectares of land, only 19 hectares of said land are sought to be utilized for the purpose of construction. Learned counsel for the DDA additionally submitted that long back the 92 hectares of land
have been declared constraint area and there has never been any challenge to the Notification. In a nutshell, DDA and allottees have prayed for dismissal of the applications.
The first order of this Court which was relied i.e. 13.9.1996 has been quoted above. It would be appropriate to quote the subsequent orders. They are as follows:
Order 19.8.1997
"Having heard learned counsel for the parties and the learned Additional Solicitor General, we are satisfied that this Court's Order dated 13.9.1996 on I.A.No.18 in WP ( C ) No.4677/85 is in effect to govern the constructions made under the proposal of the Delhi Development Authority (DDA) called 'The International Hotels Complex' in South Delhi and mention of the area of 315 hectares in relation to that complex is inadvertent since the DDA's proposal itself excluded the constraint area described at page 33 of the paper book (page 13 of the booklet) which is a total of 92 hectares including the shopping Mall and Hotel site of 25 hectares within which is located the site of the petitioner's proposed Hotel under construction in an area of 4 hectares. In other words, the proposal of the DDA called "The International Hotels Complex"
in South Delhi is to be understood as that for the area of 315-92 = 223 hectares as shown in the DDA's proposal itself. This clarification of this Court's order dated 13.9.1996 has become necessary on account of the fact that the concerned authorities are construing the order dated 13.9.1996 to operate also in respect of the aforesaid constraint area of 92 hectares in addition to some other areas which are even outside the area of 315 hectares. However, it is made clear that the petitioner and all other similarly situated outside the 223 hectares of the area of the proposal of the DDA are required to abide by all the conditions of clearance from the environmental authorities including taking the measure necessary for checking pollution and other requirements of law.
In view of the manner in which this Court's aforesaid order dated 13.9.1996 is to be construed, the order of the Authority of 31st January, 1997 and 7th March, 1997 do not survive.
The Special Leave Petition is disposed of in these terms". Order dated 8.3.2004
"We are satisfied that the proposed Mall is on the area measuring 92 hectares of land, which has already been excluded by the order of this Court on 19th August, 1997. In that view of the matter, we do not find any merit in this petition. It is accordingly dismissed. However, this order will not preclude the petitioner from availing any remedy, which may be available to him under law."
The order dated 19.8.1997 makes the position clear that 92 hectares of land were kept
out of consideration and in fact it was clearly declared to be a constraint area. The expression 'constraint area' has its own connotation. As has been pointed out by learned counsel for the DDA, a Notification in respect of the land in question has been issued. The said Notification has never been challenged. The EPCA's report dated 6.10.1999 nowhere indicates that the land in question was a part of the ridge. Both the EPCA and the Expert Committee's report under consideration refer to the land as "similar to ridge area".
Significantly, the EPCA in its report has taken note of the fact that there is no statutory definition of "ridge". That being so, at this juncture, it would be inappropriate to reopen the whole issue as to whether the land in question was a constraint area or ridge land. A bare
reading of the order dated 19.8.1997 makes the position clear that this Court had treated the land as constraint area. It has been emphasized by learned counsel for the petitioners that the Expert Committee's report is per se unacceptable because it has focused more on the aspects of regularizing the unauthorized areas rather than on the consequences flowing from the non observance of the procedure before undertaking any construction. It is stated that this Court has taken serious view of unauthorized construction and some times on the basis of permissions, wrongly granted. Various decisions in this regard are relied on.
In response, learned counsel for the respondents have stated that their lands were allotted by the DDA. As per Notification No.SO/60(E) dated 27.1.1994 for the first time a provision for obtaining environmental clearance by a Central Government (MoEF) before undertaking any new project listed in ScheduleI to the Notification was introduced. The Notification did not relate to new construction projects and as such did not apply to them is the stand of the respondents.
The auction was conducted by DDA. Having undertaken the project, huge investments have been made and with sanction of building plans they applied for. In some cases applications were filed before DPCC for obtaining clearance under the Air and Water Acts. According to them prior to 7.7.2004 no other environmental clearance was required except clearance as afore-stated. The auction Notice of DDA dated 12.12.2003 mentions about clearance from EPCA. According to the respondents, this referred to the draft Notification dated 7.10.2003 which proposed to include new construction projects within the ambit of the parent Notification dated 27.1.1994. According to them, the amendment by Notification dated 7.7.2004 postulates post facto clearance contemplated for new construction projects undertaken.
In some cases the Expert Committee after public hearing has made the recommendations with certain stipulations. It has been clearly stated that the project can be recommended for environmental clearance. The confusion arose because DDA all through gave an impression to the parties participating in auction that all requisite clearances had been obtained. Had such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money. The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the present cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise. Some of the allottees are the National Book Trust, School of Planning or Architecture, Shri Ram Vithala Sikha Seva Samiti, International Centre for Alternate Dispute Resolution and Institute for Studies and Industrial Development. In most of these cases the constructions are already complete and have become functional.
DDA had also made some constructions at the site in question. That being so, it is submitted that the recommendations made by the Expert Committee should be accepted.
Learned counsel for the DDA while adopting the submissions made by the other respondents submitted that the DDA proceeded on a bona fide impression that all requisite clearances had been obtained by it. There was no question of it acting in mala fide manner or irregular manner.
In view of what has been stated above, the MoEF has now to take a decision by taking the land as constraint area. It is needless to say that even if the land is held to be constraint
area the constructions thereon have to be made after having the requisite clearance. The MoEF shall take note of the stands projected by the respondents. We are prima facie satisfied about the bona fides of the respondents but at the same time it needs no emphasis that DDA should have been more transparent in ensuring that it was not putting a site for auction where there was scope for litigation. It had definitely created an impression that all necessary clearances had been obtained, though it does not appear to be so. What remains to be decided as to what remedial measures including imposition of such amounts as costs can be taken.
Let the MoEF take a decision within a period of 2 months from today to avoid unnecessary delay. The IAs. are accordingly disposed of.
Case no 7CASE NO.:Writ Petition (civil) 202 of 1995PETITIONER:T.N. Godavarman Thirumulpad .PetitionerRESPONDENT:Union of India & Ors. .RespondentsDATE OF JUDGMENT: 15/12/2006BENCH:Y.K. SABHARWAL , Dr. ARIJIT PASAYAT & S.H. KAPADIAJUDGMENT:J U D G M E N TI.A. No. 1150 IN I.A. No.1010WITHI.A. 1010WITHI.A. 1458 IN I.A. 1010 IN I.A. 670INWRIT PETITION ( C ) No. 202 OF 1995Dr. ARIJIT PASAYAT, J.
These I.As. are in essence oft shoot of a judgment of this Court in IA 670 of 2001 in Writ Petition (C) 202 of 1995 in K.M. Chinnappa (applicant in T.N. Godavarman Thirumulpad v. Union of India and Others (2002 (10) SCC 606). It related to the question whether functioning of Kudremukh Iron and Ore Company Ltd. (in short 'KIOCL') was having adverse effect on the environment and ecosystem. In paras 51 and 52 of the judgment it was inter alia directed as follows:
"51. Taking note of the factual background and the legal position highlighted above, we think it proper to accept the time period fixed by the Forest Advisory Committee constituted under Section 3 of the Conservation Act. That means mining should be allowed till the end of 2005 by which time the weathered secondary ore available in the already broken area should be exhausted. This is, however, subject to fulfilment of the recommendations made by the Committee on ecological and other aspects.
52. The modalities as to how these have to he worked out shall be done in the manner recommended by the Committee. It was submitted by the learned counsel for the State of Karnataka that the recommendation made about transfer of buildings and other infrastructure to the Forest Department of the State Government at book value is not acceptable to it. This is a matter which can be considered by the Committee on an appropriate motion being made by
the State before it. The modalities to be adopted to effectuate the order passed by this Court and recommendations of the Committee shall be worked out by the Ministry of Environment and Forests, the State Government and the Company under the supervision and guidance and monitoring of the Committee."
Unfortunately the Central Government for reasons best known to it notwithstanding the clear position indicated in the judgment construed that the expression "Committee" meant "Forest Advisory Committee" (in short 'FAC'). There was no scope for taking the stand in view of what has been stated in para 5 of the judgment. It has been stated that FAC is also a statutory committee. By order dated 20th January, 2006 it has been observed that the constitution of the Monitoring Committee is not in consonance with the directions of this court.
Learned counsel appearing for KIOCL submitted that in line with direction of this Court and keeping in view the Rule 23C of the Mineral Conservation and Development Rules, 1988 (in short the 'Rules') which became operative with effect from 10.4.2003, an approved final Mine Closure Plan was submitted. Views of expert bodies were taken. It has been stated that in line with the statutory prescriptions, which even though became operative after the judgment various steps have been taken. Indian Bureau of Mines (in short the 'IBM') has also given its report. It is, therefore, stated that though IIT Delhi was asked to give its view but that has no relevance. If there would have been non-compliance with the statutory requirement of Rule 23C of the Rules, it would have exposed it to penal consequences. In essence the stand is taken that IIT Delhi's report should not be accepted and the following modalities on the other hand should be adopted.
(a) It would utilize its machinery and workmen for the purpose of achieving slope stability by excavating the 33.81 hectares on the basis that out of the net profit generated by the mining operation, 50% of the net profit would be paid over to a fund to be established and operated by a committee constituted by the Government of Karnataka or in any other manner directed by this Court or a high powered statutory committee created for this purpose (in the nature of the Tennessee Valley Authority) for the purpose of utilizing this 50% net profit for rehabilitation and eco-restoration for the Kudremukh Forest Area. (b) On a rough estimate, the 50% of net profit is likely to be in the range of Rs.50 to 75 crores per annum, for the purpose of rehabilitation and eco-restoration of the Kudremukh National Park and also establishing and promoting sustainable environmental development and eco-tourism in the area. Towards this end, the existing buildings and infrastructure could also prove useful. (c) If this proposal is accepted, an amount in the range of (approximately) Rs.150 Crores to 225 Crores could be available to the fund during the period of about 3 years which would be necessary for excavating 33.81 hectares.
It is further submitted that in the judgment at paras 49 and 51 had permitted mining of the weathered secondary ore in the already broken up area till the end of 2005, as this Court expected that the weathered ore would be exhausted. But in reality, about 20 million tons of weathered ore are still available in already broken up area. This should be permitted to be used as it is likely to generate revenue of about rupees 25 crores per annum. If this is permitted nearly rupees 300 crores would be available to the Kudremukh Authority for Eco Restoration Fund which would be able to bring about dramatic change in the eco-system of the Kudremukh National Park.
Per contra, learned Amicus Curiae has submitted that this Court clearly directed closure of mining operation by the end of 2005. Time was not given for running the mines for profit,
but as a winding down period at the end of which mining should have been closed. The operations during the period had to be under the supervision of the Monitoring Committee which in turn function under the supervision of entral Empowered Committee (in short 'CEC'). What KIOCL wants now is to continue mining of 8 to 9 lakh tonnes of ore.
We have considered rival submissions. IIT, Delhi was appointed vide order dated 24th February, 2006. It has been found that KIOCL has used the concerned period for carrying on commercial operations without taking necessary steps for winding down operations. On 10th May, 2006 an affidavit was filed by KIOCL taking the stand that there was likelihood of serious pollution of Bhadra river if KIOCL was not allowed to do the operations for the purpose of avoiding pollution. IIT, Delhi did not consider the exercise necessary. It has been pointed out by learned Amicus Curiae that contrary to what KIOCL thought to be inevitable, there was no damage whatsoever despite heavy monsoon. It is to be noted that the IIT, Delhi in its report has observed that the solution has to be found by experts and the heart-beat of that solution is the stability of the slopes involving "no or minimal disturbance to the unbroken area". It is noted that at various times, petitions have been filed practically with a view to undo what had been definitely held to be imperative by this Court.
At this juncture, it would be appropriate to take note of what IIT, Delhi stated in its various reports.In their report dated 12th April, 2006 on the Stability of Slope and related issues during mine closure of KIOCL, it was inter alia observed as follows:"3.0 Observations on Stability of Slopes Based on the above methodology, the following observations are made concerning the stability of the slopes.(a) The excavated slopes of the mine exist at varying degrees of steepness with benches of variable widths.(b) Some slopes are stable with grass growing on them; others are observed to show signs of surficial erosion/debris flow/mud flow; yet others show signs of planar slippage or slides of limited depth.(c) The instability of slopes at specific locations is observed to be on account of (i) excessive steepness, (ii) inadequate strength of soil/rock mass under saturated condition and (iii) seepage pressure exerted by infiltrating rain water during monsoons.(d) Saturation of mine slopes and seepage pressure exerted on the slopes appear to be the two factors that have the greatest role in instability of slopes since these slopes are reported to be relatively stable during dry months and become unstable during monsoons. Saturation reduces the strength of the soil/rock mass and seepage pressure induces downward movement.
4.0 Observations on Instability of North West Part of the Mining Area One part of the mining area on the north western side is observed to be particularly susceptible to slope instability due to collection of water in a catch pit constructed at the base of the broken area, above the unbroken area. The catch pit was constructed by excavation during mining operations and is observed to cause the following effects:
(a) The unbroken area on the downstream side of the catch pit is being destabilized as the collected water seeps into the unbroken area;(b) When the catch pit overflows, uncontrolled flow of water cascades downhill in the form of surface water laden with silt which eventually reaches the Bhadra River at the base of the
unbroken area; this has also resulted in the formation of gullies and erosion channels in the unbroken area.
5.0 Observations on Slope Stability Aspects in the Closure Plan Slope stability aspects have been covered in the following reports in the Closure Plan:Report of NIRM: Slope Stability Investigations at Kudremukh Iron Ore MinesReport of CWPRS: Desk Studies on Stability of Hill Slopes in Mining Area at Kudremukh Iron Ore Mine, Karnataka
The Closure Plan proposes stabilization of the slopes by flattening them and also by additional excavation of slopes in the broken region as well as the unbroken portion in the northwestern part of the mine. This would be followed by revegetation of slopes for controlling erosion of fine material. Check dams have been proposed to prevent siltation of the Bhadra River during the initial stages till vegetative growth gets established and causes reduction in silt erosion.
The following are the observations on slope stability aspects in the closure plan:(a) The suggested methodology of stabilizing the north west part of the mine by deep excavation in the unbroken portion over an area of 33.81 hectares can be one alternative but not necessarily the only one. Other methods which would minimize disturbance to the unbroken area could have been examined.(b) In addition, the following aspects have not been covered in the Closure Plan:i) A surface water drainage plan for the entire mining area indicating location of surfacewater drains at the benches and along the perimeter of the base of the mining area;ii) Methodology for periodic removal and relocation of silt collected in check dams and catch pits;iii) Provision of bio-geotechnical engineering measures for assisting vegetative growth in problematic areas where regular debris flow or mud flow is observed;
iv) Stability measures for north west part of the mine such as elimination of collection of water and overflow of water from the existing catch pit as well as stabilization measures for the unbroken area destabilized by the catch pit;v) The measures listed at (i) to (iv) above could result in significant additional costs.6.0 Conclusions and Recommendations (a) The slopes are not stable in the present state and need stabilization.(b) If the mine is abandoned without stabilization of the slopes, as indicated earlier, it will result in excessive silt discharge due to erosion as well as in the sliding of the slopes at some locations in future (c) The north west part of the mine needs immediate attention and remedial measures to prevent the possible occurrence of large scale movement during the forthcoming monsoon.(d) A Closure Plan is necessary for stabilizing the slopes. The Closure Plan proposed at present is well conceptualized but falls short of adequacy in detailing (as indicated in 5.0 (a) and (b) above). This there is inadequate experience in the country regarding closure of mines of such size in a short time. The regulations relating to closure have been notified only in recent years in the country and it will take time for the expertise to develop fully.
(e) It is suggested that the task of mine closure be given, on a turnkey basis, to an Organization having requisite experience in similar works (on design-and-build basis). Such an Organization can be selected through a global competitive bid. It should reanalyze the
stability of slopes and then draw up a Closure Plan and execute it with minimum disturbance to unbroken area of the mine. KIOCL could assist such an Organization in executing the closure. Since the execution of closure would involve a large expenditure and a time frame of several years for vegetation to be established, such a task could be overseen by a special cell/nodal agency created for this purpose.(f) The award of work as listed in (e) above could take several months. Till then, KIOCL need to monitor and maintain the slopes (in the entire mine area in general and the northwestern portion in particular) as well as maintain/operate the silt control measures at the site.
Again on 12th June, 2006 the report of Expert Committee made certain observations on the basis of presentation made by KIOCL officers on various dates. The observations were to the following effects:
"Officers of KIOCL, headed by Mr. J.N. Kini, Director (Production & Projects), made a presentation at IIT Delhi on 8th June 2006 on the measures taken to for controlling silt and for stability of north western portion. A report was also submitted containing conceptual design and detailed design of water pollution control measures. The following were present:
Mr. J.N. Kini KIOCLMr. K.S. Kasinath. KIOCLMr. G. Pai, KIOCLMr. MK. Rajagopalan, KIOCLProf. G.V. Rao, Member, Expert CommitteeProf. K.G. Sharma, Member, Expert CommitteeProf. Manoj Datta, Member, Expert Committee
All the three members of the Expert Committee visited the mine site on 10th and The following are the observations of the Expert Committee members on the basis of the presentation by KIOCL officers, report submitted by them and the site visit.
"Silt Control Measures
1. It is observed that concerted efforts have been made by KIOCL for controlling the flow of silt from the mine site to the Bhadra river in the form of drainage channels, catchpits, berms and dykes, check bunds and check dams.2. From amongst the two main pollution control dams, one is observed to be nearly full (PCD 1) whereas significant storage capacity exists in the other (PCD2).3. Attempts have been made by KIOCL, to the extent feasible, to empty the reservoir behind PCD1 and these have been abandoned with the onset of monsoons. Further attempts can be tried during periods of extended lull in the monsoon, if any.4. Diversion of silt laden water has been made at select locations from drainage channel of PCD1 to the drainage channel of PCD2.5. It is stated by officers of KIOCL that the storage capacity of the main catchpit before PCD2 as well as the reservoir of PCD2 is sufficient to hold most of the silt for the present monsoon. However measures have to be taken for handling the silt of future years.6. The upsteam slope of PCD2 is observed to exhibit evidence of piping. Remedial measures such as provision of geotextile filter and plugging have been undertaken by KIOCL. Suitable long term measures may be taken up after the monsoons. Careful monitoring of both the monsoons.
7. It is observed that silt laden water from the north-west portion does not reach either PCDI or PCD2 but overflows from the low lying area in the north west portion into the Bhadra river through an erosion gully. A gabion structure has been constructed to control the silt but the possibility of silt overflow during heavy rains can not be ruled out. Additional measures are required to control the silt release from this area. KIOCL has proposed the re-profiling of the north west portion to enable the silt laden water to reach PCD2. This would take around 6 months and can be taken up only after the monsoons. Other alternatives with conceptual and detailed plans need to be considered for this problem. Stability of North-West portion1. The stability of the North-West region is observed to be slightly improved on account of non-accumulation of water in the low-lying area. 2. However, the stability could still be affected due to the presence of erosion gully because of overflowing water.3. Complete access to the periphery of the low-lying area is not available due to the absence of benches and access roads.4. It is important that a few alternate solutions be ccnceptualized with the following features for the north west region as long term measures:(a) Minimal accumulation of water,(b) Drainage channel to reach PCD2,(c) Benches to stabilize steep slopes,(d) Access load all around the low-lying area, and(e) Sealing of opening(s) to the erosion gully(ies).Final RemarksKIOCL may prepare revised conceptual designs and remedial measures on the basis of the observations made in this report."On 13.7.2006 the opinion of IIT, Delhi in the background of the affidavit filed by KIOCL on 10th May, 2006 was as follows:"The Expert Body of IIT Delhi has studied the affidavit filed by KIOCL. The following are the views of the Expert Body in respect of item 3 titled "Achieving Slope Stability in the Entire Mine Area".1. For stability of slopes of the mine area, the scope of work defined by KIOCL to NIRM for their study did not specify the condition of "no or minimal disturbance to unbroken area". As a consequence, the NIRM report presents only one solution, which disturbs the broken area. It does not give any other alternative solutions.2. Other reports by IIT Kharagpur, CMRI Dhanhad, Monitoring Committee, CWPRS Pune, use the report of NIRM as the bases of analysis, hence give recommendations similar to that of NIRM.3. As stated in the earlier Report submitted by the Expert Body on 10th April 2006, it is reiterated that a solution to the stability of slopes with no or minimal disturbance to unbroken area is feasible.4. Flattening of unstable slopes by excavation in broken area along with appropriate drainage and silt control measures can improve stability of the mined area. For this purpose the mechanism already suggested at item 6(e) of Expert Body Report dated 10th April 2006 submitted to Hon'ble Supreme Court may be adopted."The significant aspects in the aforesaid report are as follows:(a) The scope of work defined by KIOCL to NIRM for their study did not specify the condition of "no or minimal interference to unbroken area".
(b) Other reports (i.e. of IIT, Kharagpur, CMRI, Dhanbad, Monitoring Committee, CWPRS, Pune used NIRM's report as the foundation for analysis and, therefore, their recommendations were similar to those of NIRM.(c) Solution to the stability of slopes with no or minimal disturbances to unbroken area is feasible.(d) By adopting certain measures, stability of the mined area can be improved. In the background of what has been noted above, and keeping in view the suggestions and recommendations of IIT, which we find to be founded on rational basis, we direct as follows:(i) On the basis of the report dated 10.04.2006 of IIT Delhi through a Global Competitive Bid an Agency to be selected for:(a) re-analysing the stability of slopes (b)drawing up of mine closure plan and(c) implementation of the above plan.(ii) IIT Delhi shall draw up detailed terms for the work to be done, consistent with the basic paradigm of "no or minimal disturbance to unbroken area" and submit to this Court directions.(iii) The Ministry of Mines, Government of India, shall designate an officer to take over possession of the mines immediately. IIT Delhi shall depute a team of experts to go and do a survey of the mines and the surrounding area and submit a report to this Court regarding any immediate step(s) that need to be taken during the interregnum till the appointment of the expert agency. IIT Delhi can ask the designated officer to take any necessary steps on an emergent basis.(iv) The expenditure for the purpose of inviting global competitive bid and evaluation such as on advertisement etc. may initially be met out of Rs.19 crores deposited by the KIOCL, and which are presently lying with the Adhoc-CAMPA.(v) If any funds are required in excess of the aforesaid amount, the Agency, or the Designated Officer shall move this Court for necessary directions."I.A.s are accordingly disposed of.
Case no 8
CASE NO.:Writ Petition (civil) 202 of 1995
PETITIONER:T.N. Godavarman Thirumulpad
RESPONDENT:Union of India & Ors
DATE OF JUDGMENT: 21/02/2008
BENCH:CJI K G Balakrishnan, Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:JUDGMENT
O R D E R
I.A. NO. 2016 OF 2007
INWRIT PETITION (C) NO. 202 OF 1995
1. We have considered the suggestions given by learned Solicitor General and learned Amicus Curiae regarding the constitution of the Central Empowered Committee. The composition of CEC shall be as follows:(1) Shri P.B. Jayakrishnan, Chairman(2) Shri P.R. Mohanty, Director General of Forests, MoEF(3) Shri M.K. Jiwrajka, Member Secretary(4) Shri S.K. Patnaik(5) Dr. M.K. Mathew(6) Shri Mahendar Vyas(7) Shri Sanjeev Chaddha (Deputy Secretary)
2. Shri M.K. Jiwrajka is on deputation as of today as he belongs to the cadre of the Forest Officials in the State of Maharashtra which deputation is ordered to be continued till 31.3.2009.
3. Term of office of CEC would be three years or until further orders, whichever is earlier.
Case no 9
CASE NO.:Writ Petition (civil) 202 of 1995PETITIONER:T.N. Godavarman ThirumulpadRESPONDENT:Union of India & OrsDATE OF JUDGMENT: 28/03/2008
BENCH:CJI K.G. BALAKRISHNAN & DR. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:JUDGMENTO R D E RREPORTABLE
I.A. Nos. 826 IN 566 WITH 955 IN 566, 958, 985, 1001-1001A, 1013-14, 1016-1018, 1019, 1046, 1047, 1135-1136, 1164, 1180-1181, 1182-1183, 1196, 1208-1209, 1222-1223, 1224-1225, 1229, 1233 IN 1135-1136, 1248-1249, 1253, 1301-1302, 1303-1304, 1312, 1313, 1314, 1318, 1319 IN 1137, 1325, 1364, 1365-1366, 1370-1370A,1371, 1384, 1385-1386, 1387, 1434, 1435-1437, 1438, 1441 WITH 1634, 1475-1476, 1513, 1573, 1639 IN 1135-1136 IN IA 566, 1664, 1665, 1671, 1676, 1707, 1721, 1779 IN 1164 IN 566, 1785-1786 IN I.A. NO. 1441, 1980-1981, 1993, 2013, 2074-2076, 2077-2078 IN 1441 & 2098 IN 1233 IN
1135-1136, 2145-2146, 2147- 2148, 2149-2150 & 2153-2154 IN I.A. 566 IN W.P.(C) NO. 202/1995
It is an undisputed fact that the forest in this country is an important and vital component to sustain the life support system on this planet. For various reasons, our forest is being slowly depleted. At the same time, as part of our developmental activities, some areas of the forest have to be used for non-forest purposes. The economic development shall not be at the cost of complete degradation of the forest or the environment and eco-system provided by the green area of the forest. Therefore, it was considered whether the user agency of such land which is required for developmental activities to compensate for the diversion of the forest and on the recommendations of the Central Empowered Committee (hereinafter being referred to as "CEC"), it was decided by this Court that the user agency shall be required to make payment of net present value(NPV) of such diverted land so as to utilize this for getting back in the long run which are lost by such diversion. A scheme was submitted by Ministry of Environment and Forests(MOEF) alongwith an affidavit dated 22.3.2002. The CEC considered all relevant aspects including the scheme submitted by MOEF and filed a report on 9.8.2002. These reports were accepted by this Court. This Court in T.N. Godavarman Thirumulpad Vs. Union of India 2006(1) SCC 1 finally directed that the question as to what amount of NPV is required to be paid and to achieve these objectives, it was directed that the question is to be examined by experts. A Committee comprising of three experts including Mrs. Kanchan Chopra was appointed and this Court gave the following directions:-(i) to identify and define parameters (scientific, biometric and social) on the basis of which each of the categories of values of forest land should be estimated.(ii) To formulate a practical methodology applicable to different biogeographical zones of India for estimation of the values in monetary terms in respect of each of the above categories of forest values.(iii) To illustratively apply this methodology to obtain actual numerical values for different forest types for each biogeographical zone in the country.(iv) To determine on the basis of established principles of public finance, who should pay the costs of restoration and/or compensation with respect to each category of values of forests.(v) Which projects deserve to be exempted from payment of NPV.On the basis of the directions issued by this Court, a Committee consisting of Mrs. Kanchan Chopra gave a report and the same was examined by the CEC.
The report contains detailed study of the relevant factors. The Forest Survey of India, has since last two decades, been undertaking forest cover mapping of the country using satellite data obtained by the NRSA, Hyderabad. The methodology of mapping involves the geo-rectification of the satellite imagery using the Survey of India toposheets followed by the digital interpretation of the same and extensive ground truthing. It was found that the forest cover maps depicts mainly three tree canopy density classes, viz., very dense, moderately dense and open. There were other classifications in the Forest of India and "Champion and Seth" have classified the forests of India into 16 major groups. The major basis of classification included the climate, the soil and the past treatment as these factors determine the vegetation type of a given locality. CEC has classified the forest taking in view the ecological role and value of the forests and for the purpose of the report, 16 major forest types have been further grouped into 6 ecological classes depending upon their ecological functions.
Eco-Class I - Consisting of Tropical Wet Evergreen Forests, Tropical Semi Evergreen Forests and Tropical Moist Deciduous ForestsEco- Class II -Consisting of Littoral and Swamp ForestsEco-Class III -Consisting of Tropical Dry Deciduous ForestsEco-Class IV -Consisting of Tropical Thorn Forests and Tropical Dry Evergreen ForestsEco-Class V -Consisting of Sub-tropical Broad Leaved Hill Forests, Sub-Tropical Pine Forests and Sub Tropical Dry Evergreen ForestsEco-Class VI -Consisting of Montane Wet Temperate Forests, Himalayan Moist Temperate Forests, Himalayan Dry Temperate Forests, Sub Alpine Forest, Moist Alpine Scrub and Dry Alpine Scrub
Based on the ecological importance of forest falling in different eco-value and canopy density classes, relative weightage factors have also been taken into consideration. By using these relative weightage factors, the equalized forest area in eco-value Class I and very dense forest corresponding to forest falling in different eco-value and density classes have been compiled. For example, 17,997 sq. km. of open forest of Eco-Class IV has been calculated to be equivalent to 7,558 sq. km. of very dense forest of Eco-Value Class I. Accordingly, the entire forest area of the country has been calculated and found to be equivalent to 5.2 lakh sq. km. forest area having highest ecological significance as that of forest falling in eco-value Class I with density above 70%.
The net present value per hectare of forest has been fixed based on this data. For calculating the average net percent value per hectare of forest in India, the following monetary value of goods and services provided by the forest have been considered:-(i) Value of timber and fuel wood(ii) Value of Non Timber Forest Products (NTFP)(iii) Value of fodder(iv) Value of Eco-tourism(v) Value of bio-prospecting(vi) Value of Ecological services of forest(vii) Value of Flagship Species(viii) Carbon Sequestration ValueBased on this, the NPV was fixed and the following recommendations have been made:-
(i) for non-forestry use/diversion of forest land, the NPV may be directed to be deposited in the Compensatory Afforestation Fund as per the rates given below:- (in Rs.) Eco-Value class, Very Dense Forest, Dense Forest, Open Forest Class I Rs. 10,43,000 9,39,000, 7,30,000Class II – Rs.10,43,000, Rs. 9,39,000 and Rs. 7,30,000Class III – Rs. 8,87,000, Rs. 8,03,000, Rs. 6,26,000Class IV – Rs. 6,26,000, Rs. 5,63,000 and Rs. And Rs. 4,38,000Class V – Rs. 9,39,000, Rs. 8,45,000 and Rs. 6,57,000Class VI – Rs. 9,91,000, Rs. 8,97,000 and Rs. 6,99,000(ii) the use of forest land falling in National Parks / Wildlife Sanctuaries will be permissible only in totally unavoidable circumstances for public interest projects and after obtaining permission from the Hon'ble Court. Such permissions may be considered on payment of an amount equal to ten times in the case of National Parks and five times in the case of Sanctuaries respectively of the NPV payable for such areas.
The use of non-forest land falling within the National Parks and Wildlife Sanctuaries may be permitted on payment of an amount equal to the NPV payable for the adjoining forest area. In respect of non-forest land falling within marine National Parks / Wildlife Sanctuaries, the amount may be fixed at five times the NPV payable for the adjoining forest area;(iii) these NPV rates may be made applicable with prospective effect except in specific cases such as Lower Subhanshri Project, mining leases of SECL, Field Firing Ranges, wherein pursuant to the orders passed by this Hon'ble Court, the approvals have been accorded on lump-sum payment / no payment towards the NPV; and (iv) for preparation and supply of district level maps and GPS equipments to the oncerned State / UT Forest Departments and the regional offices of the MoEF, the Ad-hoc CAMPA may be asked to provide an amount of Rs.1.0 crore to the Forest Survey of India out of the interest received by it.
Ministry of Environment and Forests also has filed its response and has accepted the recommendations made by CEC. Various user agencies have filed its objections. We heard the learned senior Counsel Mr. Nariman and other learned senior Counsel who appeared before us. The main contention raised is that the NPV value was fixed on the basis of the net flow accruing over 20 years at a 5% social discount rate. This, according to the applicants, is too low. It has been contended that the Economic and Research Department of the Asian Development Bank is of the view that a survey of the social discount rate policies of individual countries show significant variations and the developing countries apply higher social discount rate. The paper published by Asian Development Bank shows that India should have a social discount rate of 12%. It may be noted that the Expert Committee under the leadership of Mrs. Kanchan Chopra recommended 5% social discount rate but the CEC has reduced further and accepted 4% social discount rate. It may be noted that the CEC had made consultation with eminent economists and it was of the view that the social discount rate should be around 2% in India. We do not find much force in the contention advanced by the learned Counsel who appeared for the user agents. The 10% suggested by them cannot be applied to the present case because 10% is the rate linked to assumptions about the opportunity cost of capital. One cannot apply that rate for social time preference in evaluating the benefits from an environmental resource such as forests. In project evaluation, the horizon is compatible with the life of the project whereas in forest matters, the horizon spans over several generations. Therefore, the rate of 10%, as suggested by the user agency cannot be accepted.
Another contention raised by the applicant(FIMI) is that the NPV is not fixed on site specific and, therefore, the fixation of the rate is based on surmises and conjectures and the same rate cannot be applied to the large extent of area covered by the forests. This question was elaborately considered by the CEC. Considering the large extent of this country and the forest being spread over in various parts of the State, it is difficult to fix the NPV based on the specific area. It is not feasible to fix NPV in each and every individual case. The entire forest area in each of the State/UT is calculated by considering the monetary value of the services provided by it. The average NPV per hectare of the forest area in the State has also been calculated. If NPV is to be calculated on the specific area, the process would be time consuming and in most of the cases, it may be beyond the capability of the Range Forest Officers or other officials posted at the grassroot level. Moreover, the NPV is linked with the type of the forest and no useful purpose would be served by carrying out NPV calculations in each case involving the diversion of forest areas.
We are of the view that the NPV now fixed is more scientific and is based on all available data. We accept the recommendations and we make it clear that the NPV rate now fixed would hold good for a period of three years and subject to variation after three years. The following exemptions have been recommended:-
(i) public works such as schools, hospitals, children play grounds of non-commercial nature and the public welfare projects such as community centres in rural areas which require forest land upto 2 ha;(ii) rural infrastructure and basic services such as the construction of the overhead tanks, village roads, etc.(iii) the minor irrigation projects upto 10 ha. of storage area, municipal water supply projects, drinking water supply pipelines;(iv) activities necessary for the ecological management, relocation of the villages from the sactruaries and the national parks, regularization of pre-1980 eligible encroachers;(v) housing for the rehabilitation of tribals; laying of the underground optical fibre cables;(vi) laying of the pipelines for the underground gas transportation;(vii) the district and rural roads;(viii) shifting cultivation;(ix) roads constructed by Defence in border areas;(x) construction of the transmission lines.The above recommendations for exemptions are accepted. If, in any case, exemption is required by nature of the peculiar circumstances of the case, the same would be decided as and when necessary on a case to case basis. Case no 10
[2008] 8 S.C.R. 152T.N. Godavaraman Thirumulpadv.Union of India and Ors.I.As. No. 826 etc.In(Writ Petition ) No. 202 of 1995)
May 9, 2008
[K.G. BALAKRISHNAN, CJI, Dr. ARIJIT PASAYAT AND S.H. KAPADIA, JJ]
The Order of the Court was delivered byOn 28th March, 2008, we had passed an order regarding payment of Net Present Value (NPV) accepting the recommendations made by CEC which were more or less acceptable to MoEF. In that order we had also indicated that exemptions from payment of NPV have to be granted in respect of certain categories. However, it is brought to our notice that certaintypographical mistakes had crept in that order as to categories to which such exemptions are to be granted. Therefore, we direct that as regards exemptions from payment of NPV, the last part of that order reading "We are of the view..... (x) construction of the transmission lines" on pages 10 to 11 shall stand substituted with the following :- Category
i) Schoolsii) Hospitalsiii) Children's play ground of non commercial natureiv) Community centres in rural areasv) Over-head tanksvi) Village tanks,vii) Laying of underground drinking water pipeline upto 4 diameter andviii) Electricity distribution line upto 22 KV in rural areas.
Relocation of villages from the National Parks/Sanctuary to alternate forest landCollection of boulders/silts from the river belts in the forest area Laying of underground optical fibre cable Pre-1980 regularisation of encroachments and conversion of forest villagesinto revenue villages Underground mining CEC.
Full exemption upto 1 ha. of forest land provided :(a) no felling of trees is involved;(b) alternate forest land is not available;(c) the project is of non-commercial nature and is part of thePlan/Non-Plan Scheme of Government; and(d) the area is outside National Park/Sanctuary
Full Exemption
Full exemption provided :(a) area is outside National Park/Sanctuary;(b) no mining lease is approved/signed in respect of this area;(c) the works including the sale of boulders/silt are carried outdepartmentally or through Government undertaking or through the Economic Development Committee or Joint Forest Management Committee;(d) the activity is necessary for conservation and protection of forests; and(e) the sale proceeds are used for protection/conservation of forests
Full exemption provided :(a) no felling of trees is involved; and(b) areas falls outside National Park/Sanctuary
Full exemption provided these are strictly in accordance with MoEF's Guidelines dated 18.9.1990.50% of the NPV of the entire area
The above recommendations for exemptions are accepted. If, in any case, exemption is required by nature of the peculiar circumstances of the case, the same would be decided as and when necessary on a case to case basis.
Case 11 IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
I.A. NO.2134 of 2007 IN WRIT PETITION (CIVIL) NO.202 OF 1995
T.N. Godavarman Thirumulpad ... Petitioner VersusUnion of India & others ... Respondent(s)AND IN THE MATTER OF:M/s. Sterlite Industries (India) Ltd. (SIIL) ... Applicant
ORDER This Interlocutory Application preferred by M/s. Sterlite Industries (India) Ltd. [SIIL] is a sequel to our Order dated 23.11.07 in I.A. Nos.1324 and 1474 in Writ Petition (C) No.202 of 1995 etc. in the case of T.N. Godavarman Thirumulpad v. Union of India & others And in the matter of : Vedanta Alumina Ltd. reported in (2008) 2 SCC 222. We need not repeat the contents of our Order dated 23.11.07 except to state that in our Order we suggested a Rehabilitation Package and modalities to subserve the principle of Sustainable Development.
2. For the sake of convenience we quote hereinbelow the suggestions made in our earlier order dated 23.11.07 which read as under: "(i) State of Orissa shall float a Special Purpose Vehicle (SPV) for scheduled area development of Lanjigarh Project in which the stake-holders shall be State of Orissa, OMC Ltd. and M/s. SIIL. Such SPV shall be incorporated under the Companies Act, 1956. The Accounts of SPV will be prepared by the statutory auditors of OMC Ltd. and they shall be audited by the Auditor General for State of Orissa every year. M/s. SIIL will deposit, every year commencing from 1.4.07, 5% of its annual profits before tax and interest from Lanjigarh Project or Rs.10 crores whichever is higher for Scheduled Area Development with the said SPV and it shall be the duty of the said SPV to account for the expenses each year. The annual report of SPV shall be submitted to CEC every year. If CEC finds non- utilisation or mis-utilisation of funds the same shall be brought to the notice of this Court. While calculating annual profits before tax and interest M/s. SIIL shall do so on the basis of the market value of the material which is sold by OMC Ltd. to M/s. SIIL or its nominee. (ii) In addition to what is stated above, M/s. SIIL shall pay NPV of Rs.55 crores and Rs.50.53 crores towards Wildlife Management Plan for Conservation and Management of Wildlife around Lanjigarh bauxite mine and Rs.12.20 crores towards tribal development. In addition, M/s. SIIL shall also bear expenses towards compensatory afforestation. (iii) A statement shall be filed by M/s. SIIL with CEC within eight weeks from today stating number of persons who shall be absorbed on permanent basis in M/s. SIIL
including land-losers. They shall give categories in which they would be permanently absorbed. The list would also show particulars of persons who would be employed by the contractors of M/s. SIIL and the period for which they would be employed.
(iv) The State Government has the following suggestions on this issue:-
1. The user agency shall undertake demarcation of the lease area on the ground using four feet high cement concrete pillars with serial number, forward and back bearings and distance from pillar to pillar.2. The user agency shall make arrangements for mutation and transfer of equivalent non-forest land identified for compensatory afforestation to the ownership of the State Forest Department.3. The State Forest Department will take up compensatory afforestation at project cost with suitable indigenous species and will declare the said area identified for compensatory afforstation as "protected forest" under the Orissa Forest Act 1972 for the purpose of management.4. The user agency shall undertake Rehabilitation of Project affected families, if any as per the Orissa Rehabilitation and Resettlement Policy 2006.5. The user agency shall undertake Phased reclamation of mined out area. All overburden should be used for back filling and reclamation of the mined out areas.6. The user agency shall undertake fencing of the safety zone area and endeavour for protection as well as regeneration of the said area. It shall deposit funds with the State Forest Deptt. for the protection and regeneration of the safety zone area.7. Adequate soil conservation measures shall be undertaken by the Lessee on the overburden dumps to prevent contamination of steam flow.8. The user agency should undertake comprehensive study on hydrogeology of the area and the impact of mining on the surrounding water quality and stream flow at regular intervaland take effective measures so as to maintain the pre mining water condition as far as possible. 49. The user agency should undertake a comprehensive study of the wild life available in the area in association with institutes of repute like Wild Life Institute of India, Dehradun, Forest Research Institute, Dehradun etc. and shall prepare a site specific comprehensive Wild Life Management plan for conservation and management of the wild life in the project impact area under the guidance of the Chief Wild Life Warden of the State.10. The user agency shall deposit the NPV of the forest land sought for diversion for undertaking mining operations.11. The user agency shall prepare a comprehensive plan for the development of tribals in the project impact area taking into consideration their requirements for health, education, communication, recreation, livelihood and cultural lifestyle.12. As per the policy of the State Government, the user agency shall earmark 5% of the net profit accrued in the project to be spent for the development of health, education, communication, irrigation and agriculture of the said schedule area within a radius of 50 Kms.13. Controlled Blasting may be used only in exigencies wherever needed to minimize the impact of noise on wild life of the area.14. The User Agency shall undertake development of greenery by way of plantation of suitable indigenous species in all vacant areas within the project. 15. Trees shall be felled from the diverted area only when it is necessary with the strict supervision of the State Forest Deptt. at the cost of the project.
16. The forest land diverted shall be non transferable. Whenever the forest land is not required, the same shall be surrendered to the State Forest Deptt. under intimation to Ministry of Environment and Forests, Government of India." (emphasis supplied by us)3. By our Order dated 23.11.07 we made it clear that if SIIL is agreeable to the suggested Rehabilitation Package they were at liberty to move this Court by way of interlocutoryapplication. Consequently, the present I.A. No.2134 of 2007 has been preferred by SIIL.4. In the present I.A. SIIL, State of Orissa and Orissa Mining Corporation Ltd. [OMCL] have unconditionally accepted the terms and conditions and modalities suggested by this Court under the caption "Rehabilitation Package" in its Order dated 23.11.07. However, CEC has filed its Report dated 24.4.08. The Report contains response/counter suggestions on certain aspects. In our Order dated 23.11.07 we inter alia suggested formation of SPV for Scheduled Area Development of Lanjigarh Project in which we suggested that the stake-holders shall be State of Orissa, OMCL and SIIL.We also inter alia suggested that the said SPV shall be incorporated under the Companies Act, 1956.
5. CEC in its response has suggested that SPV should work the Niyamgiri Bauxite Mine in a business-like manner and that the mining lease of Niyamgiri Bauxite Mine may be assigned to the SPV from OMCL. In other words, CEC wants that State of Orissa should participate in the mining operations and it has further suggested that the State of Orissa should transfer or assign the mining lease from OMCL to SPV.
6. There are serious problems in the above suggestion made by CEC. At the outset, it needs to be stated that under our Order dated 23.11.07 we suggested, as a part of Rehabilitation Package, formation of SPV for Scheduled Area Development of Lanjigarh Project. We wanted the State of Orissa to be associated with SPV in order to ensure implementation of proper schemes for the development of the tribal area and in our Order it has not been suggested for incorporation of SPV to take over the mines which have been leased out by State of Orissa to OMCL (lessee). The reason is obvious. We cannot change leases/MoUs/joint venture agreements signed between the parties at earlier point of time which have been approved by the Ministry of Mines, Government of India, and other Authorities. The object for passing the Order dated 23.11.07 was to strike a balance between development and environmental protection.The Lanjigarh Tehsil in District Kalahandi, as stated in our Order dated 23.11.07, faces abject poverty. At the same time the area is eco-sensitive area. We have tried to strike a balance in order to subserve the principle of Sustainable Development.
Under our Order we suggested Rehabilitation Package under which apart from NPV, SIIL is also required to deposit 5% of annual profits before tax and interest from Lanjigarh Projector Rs.10 crores per annum whichever is higher. The said Project covers both mining and refining. The amount is required to be deposited by SIIL with SPV every year commencing from 1.4.07. This condition has been accepted by SIIL. Moreover, by reasons of acceptance of suggested Rehabilitation Package, 2090 persons (including displaced persons) would get employment as indicated in the Charts annexed to the Report of CEC. In addition, 2400 more persons would earn income by support services. However, we cannot change the existing structure in its entirety. If we were to accept the said counter suggestion of CEC, namely, that the mines be taken over by SPV then we would be violating the terms and conditions of the joint venture Agreement dated 5.10.04 between OMCL and VAL (now substituted by SIIL). Moreover, it may be noted that the joint venture Agreement dated
5.10.04 was executed because the Government of Orissa wanted its Undertaking, namely, OMCL to earn revenue on its own account. Therefore, we cannot direct a complete changeover. Under the joint venture Agreement, OMCL was a lessee from Government of Orissa. We cannot modify that lease. We cannot direct the lease to be assigned by Government of Orissa to SPV as it would amount to substitution of lease earlier executed by Government of Orissa in favour of OMCL.
7. CEC has further suggested pre-determined mechanism for price fixation. Under the suggested new price-fixation mechanism CEC has suggested as follows: "The price of the Bauxite Ore in the market is not ascertainable since there is no market for this ore as such of significance, but its price can be ascertained by reducing the normative cost of conversion plus profit from the market price of Aluminium. The CEC also examined the feasibility of determining the price of the Ore by reducing the cost of conversion (plus profit) from the price of Alumina, but did not consider this an advisable option since the price of Alumina shows a great degree of variation from supplier to supplier (...). This method of calculating price is in effect a mirror image of the Cost plus Return basis adopted for determining tariff."
8. We may state that price discovery/mechanism is a complicated exercise. Moreover, on account of economic factors, price variation takes place throughout the year. We do not wish to rule out the formula suggested by CEC. Ultimately, as stated in our Order dated 23.11.07, SIIL is required to deposit 5% of its annual profits before tax and interest from Lanjigarh Project or Rs.10 crores whichever is higher as contribution for Scheduled Area Development. This contribution is to be made every year commencing from 1.4.07. Under clause (i) of Rehabilitation Package, SPV has to account for Scheduled Area Development. Further underthe said Package, SIIL is also required to contribute Rs.12.20 crores towards tribal development apart from payment of NPV and apart from contribution to the Management of Wildlife around Lanjigarh Bauxite Mine (See: clause (ii) of the Rehabilitation Package). While allocating CAMPA Funds the said amount of Rs.12.20 crores shall be earmarked specifically for tribal development. Therefore, we are of the view that, at the pre-operational stage, we need not apply the price mechanism suggested by CEC. If at the end of the Accounting Year of SIIL, CEC finds that the annual profits before tax and interest is depressed by the pricing mechanism mentioned in joint venture Agreement dated 5.10.04 vide clause 2.3.3(a) then it would be open to CEC to move this Court with the suggested price mechanism in its Report. Infact, in our Order dated 23.11.07 we have directed that theAccounts of SPV to be audited by Auditor General for State of Orissa after they are prepared by the statutory auditors of OMCL. It would be open even to the statutory auditors of OMCL as well as CEC to inform this Court at the end of the Accounting Year whether annual profits before tax and interest stands depressed for any reason and at that stage we will certainly consider the price mechanism suggested by CEC in its Report placed before us.
9. For the above reasons and in the light of the Affidavits filed by SIIL, OMCL and State of Orissa, accepting the Rehabilitation Package, suggested in our Order 23.11.07, we hereby grant clearance - to the forest diversion proposal for diversion of 660.749 ha of forest land to undertake bauxite mining on the Niyamgiri Hills in Lanjigarh. The next step would be for MoEF to grant its approval in accordance with law.10. I.A. No.2134 of 2007 is disposed of accordingly. ......................................CJI. (K.G. BALAKRISHNAN) .........................................J.
Case 11 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTIONMINOR MINERALS AND CONSTRUCTION MATTERS IN HARYANA MINING: I.A Nos.839, 840, 850, 853-854, 855-856, 866-868, 869-870, 871-872, 873-874, 875-876, 877-878, 879-880, 881-882, 891-892, 900, 905, 1276-1277, 1590, 1612-1613, 1700-1703, 2007-2008, 1488, 2138-2139 in 891-892, 2205, 2445, 2567, 2574 in 875-876, 2536,2636 in 879- 880,265802659 in 828, 2719 IN 1488 IN 891-92 in 828 and in WRIT PETITION (CIVIL) NO(s). 202 OF 1995
T.N. GODAVARMAN THIRUMULPAD Petitioner(s)
VERSUS
UNION OF INDIA & ORS Respondent(s)
AND I.A.No.2198 @ Conmt.Pet.No.125/2006 vide Court's order dt.25.10.2007 WITH I.A.No.2269 in W.P.(C)No.4677/1985 AND I.A.No.2393 IN I.A.NO.2269 in I.A.NO.1785 in W.P.(C)No.4677/1985AND I.A.No.2270 IN I.A.NO.1785 in W.P.(C)No.4677/1985AND C.P.(C)No.186/2003 in W.P.(C)NO.4677/1985AND I.A.No.1866 IN W.P.(C)No.4677/1985WITH I.A.Nos.1858-1859 IN W.P.(C)No.4677/1985WITH I.A.No.1886 IN W.P.(C)No.4677/1985WITH I.A.No.1888 IN W.P.(C)No.4677/1985WITH I.A.Nos.1891 to 1893 IN W.P.(C)No.4677/1985WITH I.A.No.1895 IN W.P.(C)No.4677/1985WITH I.A.No.1896 IN W.P.(C)No.4677/1985WITH I.A.NO.1906 in W.P.(C)NO.4677/1985WITH I.A.Nos.1907-1908 IN W.P.(C)No.4677/1985WITH I.A.Nos.1911-1912 IN W.P.(C)No.4677/1985WITH I.A.NO.1937 IN W.P.(C)No.4677/1985WITH I.A.NO.1938 in W.P.(C)No.4677/1985WITH I.A.Nos.2306-2307 IN W.P.(C)No.4677/1985WITH I.A.Nos.2308-2309 IN W.P.(C)No.4677/1985WITH I.A.Nos.2310 in I.A.2269 in 1785 IN W.P.(C)No.4677/1985WITH I.A.No.1968 IN W.P.(C)No.4677/1985WITH I.A.Nos.2334-2335 IN W.P.(C)No.4677/1985WITH I.A.No.2336 IN W.P.(C)No.4677/1985WITH I.A.No.D.58737 IN W.P.(C)No.4677/1985AND I.A.Nos.2374-2376 in IA 1785 IN W.P.(C)No.4677/1985
WITH I.A.Nos.2377-2380 in IA 1785 IN W.P.(C)No.4677/1985WITH I.A.Nos.2381, 2382, 2383, 2384 in IA 1785 IN W.P.(C)No.4677/1985WITH I.A.Nos.2386-2387 in IA 1785 IN W.P.(C)No.4677/1985WITH I.A.No.2390 in IA 1785 IN W.P.(C)No.4677/1985WITH I.A.No.2392 IN IA 1785 IN W.P.(C)No.4677/1985WITH I.A.No.2415 in I.A. 1785 IN W.P.(C)No.4677/1985WITH I.A.NO.2103 in W.P.(C)NO.4677/1985WITH W.P.(C)No.624/2002W.P.(C)No.661/2002W.P.(C)No.428/2002WITH CONMT.PET.(C)No.568/2002 in W.P.(C)NO.428/2002WITH CONMT.PET.(C)NO.542/2004 IN W.P.(C)NO.428/2002
O R D E R
Heard both sides.
The Aravalli Hill Range has been subjected to widespread mining activities in recent times. About 1500 ha. of land was given for mining operations in Gurgaon and Mewat areas. Most of the mines were for excavating major minerals but we are told that what the mine operators extracted from the leased area were mostly minor minerals. Vast areas were thus reduced to ditches, some of them going down to a depth below the water level. The C.E.C. has filed a report showing the extent of damage caused by the mining operations in this area. With the help of the National Remote Sensing Centre, Hyderabad, Department of Space, Govt. of India, maps of these areas are prepared by using satellite imagery system. Photocopies of the maps of these areas are produced before us from which it appears that as a result of the mining operations, the entire area has become highly devastated. The C.E.C. has also filed its report indicating the extent of damage caused to this area. There were discussions between the C.E.C. and the State of Haryana as to what steps need be taken in regard to the mining activities in these areas.
All mining operations in these hills were suspended by this Court vide order dated 8th May, 2009. Now it is stated on behalf of the State of Haryana that a complete ban on mining minerals there would cause scarcity of building materials and the construction ofroads and buildings and other developmental activities would be seriously affected. It was suggested that about 600 ha. of land be set apart for extraction of minor minerals in the district of Faridabad, including Palwal. The State Government is also facing a problem caused by mining operations carried on in the past over an area 1500 ha. of land in Gurgaon and Mewat. These mine operators did not carry out any reclamation or rehabilitation work though they were legally bound to do so under Rule 27 of the Mineral Concession Rules, 1960 read with Form-K of the Mineral Concession Rules. Most of these places have been simply abandoned. These areas have to bereclaimed and extensive afforestation work needs to be carried out in these areas.
Some of the mining operators, having existing licenses that have not so far expired, raised a contention that due to suspension of all mining
operations by this Court they were not able to conduct any mining even though they had not violated any rules or guidelines and hence, they should be allowed to do the mining operations in terms of the lease granted to them, more so as the State of Haryana is proposing a Scheme for setting aside about 600 ha. of land in Faridabad for excavation of minor minerals. We do not think it is feasible or in the larger interest to allow those mining operators to carry out any mining activities on the basis of the earlier licenses. Of course, they would be at liberty to participate in the auction in respect of the 600 ha. of land in Faridabad which would be made available for mining activities.
The C.E.C. and the State of Haryana held a meeting on 7.1.2009 and a report dated 15.1.2009 has been filed before this Court. On the basis of the report, any mining activity in the 600 ha. of land to be identified and earmarked in Faridabad shall be based on the following decisions taken in this meeting : i) The State shall issue a Notification laying down the guidelines and the procedure for giving licence/lease. The State shall also establish an Aravali Rehabilitation Fund and a Monitoring Committee. In issuing the Notification for allowing mining operations in an area upto 600 ha. in the District of Faridabad, including Palwal, the State must strictly adhere to all the conditions enumerated in the Minutes of the Meeting held on 7.1.2009 between the C.E.C., State of Haryana and the Forest Survey of India regarding mining, colonisation and related issues in Aravali hills. It is hoped and expected that the Notification will be issued by the State Government within a period of three months. ii) The State of Haryana will take immediate steps for preparation and implementation of Reclamation and Rehabilitation Plan for the area degraded as a result of the mining activities in that part. The rehabilitation of those areas shall be done by the respective leaseholders. The State would also be at liberty to hold the respective leaseholders who had not carried out the rehabilitation work as per Rule 27 of the Mineral Concession Rules read with Form-K of the said rules as liable for the rehabilitation of those areas. The State shall take all reparatory and compensatory steps in this regard.iii) The actual mining operation in the 600 ha. of land in Faridabad shall commence on submission of the rehabilitation and reclamation plan by the State and its approval by this Court. It shall be done at the earliest and preferably within a period of six months.iv) The C.E.C. shall submit quarterly reports to this Court in regard to the commencement of the mining activities and its effect on the surrounding areas as also in regard to the progress of the reclamation work in the areas of Aravali range degraded by the past mining operations.
Before any mining operations commence, the leaseholders shall obtain all statutory clearances including environmental clearance in terms of MoEF Notification dated 14.9.2006 and also the approval under the Forest Conservation Act.
The Principal Secretary, Department of Mines, State of Haryana will be responsible to ensure strict compliance of this order. The Chief Secretary of the State shall have supervisory control over the matter.
As regards the permission for mining activities in the 1500 ha. of land in Gurgaon and Mewat, the same will be taken up separately considering the progress made in the rehabilitation work to be carried out by the State in the 600 ha. of land.
In case of violation of any of these directions or failure of the rehabilitation and reclamation process to make satisfactory progress, this Court would consider closure of the mining activities which are hereby permitted by this Court.
In case of any such failure, the C.E.C. may file a report as and when required. The State would revoke all licenses in respect for major minerals both in Faridabad and Gurgaon districts. All I.A.s, writ petitions and contempt petitions relating to minor minerals are disposed of. Consequently, all applications for intervention and impleadment are also disposed of.
List the Construction matters on 11.12.2009.
..................CJI (K.G. BALAKRISHNAN)
...................J. (S.H. KAPADIA)
...................J. (AFTAB ALAM)
NEW DELHI;8TH OCTOBER, 2009
Case 12
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
I.A. NOS.2609-2610 OF 2009 IN
WRIT PETITION (CIVIL) NO.202 OF 1995
IN RE.: CONSTRUCTION OF PARK AT NOIDA NEAR OKHLA BIRDSANCTUARY
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 JUDGMENTAFTAB 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 Thirumulkpad 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 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 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 put at 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, 2 are critically endangered, 11 are vulnerable and 7 are nearlythreatened. About 50 species are migratory in nature and come here mainly during the winter months. The annual population/visit is estimated as under:
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 theWildlife (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 referto 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:1 Total Area within boundary3,34,334.00 sq.m. Wall2 Total built up covered area for activities Memorial Building & toilet3,499.50 sq.m. 1.05% blocks Utilities & facilities 3,500.00 sq.m. 1.05%3 Area Under Hard Landscape 1,29,140.80sq.m. 38.62% (including platforms, plinth, sculptures & surrounding paved areas, paths)4 Total area under Soft Landscape Area under grass &1,57,161.79 sq.m. 47.01% plantation Area under planters built6,181.91 sq.m. 1.85% with in paved areas5 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 MODIFIED (in sq. metres + (in sq. metres + %) %)1. Green Area 157161.79 218246.51 (47%) (65.28%)2. Hard Landscape 129140.80 98544.99 (38.6%) (29.48%) aBoundary Wall 2700.79 2700.79 (0.81%) (0.81%) bPlatforms, Plinths, 126440.00 95844.99 Sculpture & Surrounding (37.79%) (29.48%) Paved Areas3. Area for vehicular 34850.00 0.00 (NIL) movement (10.42%)4. Area under ornamental 0.00 (NIL) 6302.00 water feature (may be (1.88%) considered part of the Eco Friendly Area)5. Area under parking with 0.00 (NIL) 4241.00 grass pavers (may be (1.27%) considered part of the Eco Friendly Area)6. Utilities and Facilities 3500.00 3500.00
(1.05%) (1.05%)7. Memorial Building and 3499.50 3499.50 Toilets (1.05%) (1.05%)8. Total Area 334334.00 334334.00 (100%) (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 it was, thus, clearly a case of forest land being put to use for non-forest purpose 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) xxxxxxxExplanation.- 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-afforestation, 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 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) 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, ifany. 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 by the 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 of 32.5 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 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 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 thearea, 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, 2009 requested 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 shift in its stand the MoEF informed the CEC by its letter of August 22/24, 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 "...[C]onstruction work in this area does not attract the provisions of the Forest (Conservation) Act 1980'' in context. This letter referred to the satellite images provided bythe 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, 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 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. 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 Cassia siamia, Eucalyptus, Fishtail Palm, Rubber plant, Silver oke 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 foridentification 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 thecriterion 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 ForestForest Forest Forest AreaAssessment (sic) Forest Cover(State ofForestReport)8th (2001) October-2000 0 3.74 10.42 14.16 32.27 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 emergesfrom the government records and how things appear on the ground.
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 were acquired under the Land Acquisition Act mostly between the years 1980 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 9 to 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 no where 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, NOIDA 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). NOIDA 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 afforestation!). 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, 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 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 can not be branded as "forest".
25. In order dated December 12, 1996 in Godavarman Thirumulkpad this Court held and observed as under: "3. 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 toclarify that position.4. The 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,vprotected 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 ForestConservation 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 AmbicaQuarry 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 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' as understood 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) 3 SCC 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 ofthe 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....."
27. 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 tribals 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 and evident.
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 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 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 order dated 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, 2006 under 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, 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 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 fromthe 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, 2009 the 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 2006 and 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 beencalculated 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 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 inquestion 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 (9,542 square 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 theenvironmental 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 someexpert 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 88th meeting held on June 28-29, 2010 and gave its report which is broughton 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 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) of the EP Act provides as follows:
"3. 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 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, 2006S.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 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
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
Category with threshold limit Conditions if any Project or Activity
A B8 Building /Construction projects/Area Development projects and Townships (1) (2) (3) (4) (5)8(a) Building and ?20000 sq.mtrs and #(built up area for covered
Construction <1,50,000 sq.mtrs. of construction; in the case of projects built-up area# facilities open to the sky, it will be the activity area )8(b) Townships and Area Covering an area ? 50++All projects under Item Development ha and or built up area ?8(b) shall be appraised as projects. 1,50,000 sq .mtrs ++ Category B1
Note:-
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.)
Details thereof (with S.No. Information/Checklist confirmation Yes/No 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 |1.31 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 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 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 than 1,50,000 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 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 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 toprojects 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 thatthe 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 development projects in the hands of the State Government. It was further decided that for all projects involving more than 1,50,000 square 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 item 8(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 items 8(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) (1,50,000 square 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 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, 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; 1,50,000 square 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 structures over 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 area 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 8(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 square metres.
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 anyother 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 wasthe 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 released Rs.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 wasbetter 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 theGovernment 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:
32. 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. TheCEC 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 ofNational 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)
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 Sanctuarythere 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 matter1 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 any adverse effects on the Okhla Bird Sanctuary must, therefore, beexamined from this angle.
67. We may note here that Mr. Venugopal presented before us some photographs trying to show the situation on the western boundary of the Okhla Bird Sanctuary at its Delhi end. In the photographs there is a road, about forty to sixty feet wide, (The Kalindikunj-IrrigationColony-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 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 theamelioration 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. 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:7 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.7 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. In view of the above, we are of the opinion that felling of trees and construction have no perceptible impact on the OBS habitat."
70. The SACON suggested certain proactive environmental measures (see Paper book Volume IV, page 110) that would form part of this judgment.
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 WII report under the heading "Assessment of the Impact" it was observed as under:
"....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.... "...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 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 VolumeIII, 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 the completion 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 threeexpert bodies and further subject to the directions contained herein 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/green landscaping and the remaining, preferably 50% must have a thick coverof 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, 2006 urgently calls for a close second look by the concerned authorities. The projects/activities under items 8(a) and 8(b) of the schedule to thenotification 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.
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.1. 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 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, waterbird 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 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.
(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 ofsewage.
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 round about 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 beprepared.
(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 andparking management.
(xiii) All required sanitary and hygienic measures should be in place before the opening of the park and should be maintained through out 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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Case 14
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NOS. 1868, 2091, 2225-2227, 2380, 2568 and 2937
IN
WRIT PETITION (C) No. 202 OF 1995
Lafarge Umiam Mining Pvt. Ltd. ... Applicant
T.N. Godavarman Thirumulpad ... Petitioner(s)
versus
Union of India & Ors. ... Respondent(s)
J U D G M E N T
S. H. KAPADIA, CJI
Facts1. Lafarge Surma Cement Ltd. (`LSCL' for short) is a company incorporated under the laws of Bangladesh. It has set up a cross-border cement manufacturing project at Chhatak in Bangladesh, which inter-alia has a captive limestone mine of 100Ha located at Phlangkaruh, Nongtrai, East Khasi Hills District in the State of Meghalaya. The mine is leased out in favour of Lafarge Umium Mining Pvt. Ltd. (`LUMPL' for short), which is an incorporated company under
the Indian Companies Act, 1956 and which is a wholly owned subsidiary of LSCL. The entire produce of the said mine is used for production of cement at the manufacturing plant at Chhatak, Bangladesh under the agreement/arrangement between Government of India and Government of Bangladesh. There is no other source of limestone for LSCL except for the captive limestone mine situated at Nongtrai, East Khasi Hills District in the State of Meghalaya. The limestone as mined by LUMPL is conveyed from the mine situated at Nongtrai after crushing in a crusher plant. The limestone mined is conveyed by a conveyor belt to LSCL plant in Bangladesh.
2. The National Forest Policy, 1988 stood enunciated pursuant to Resolution No. 13/52-F, dated 12th May 1952 of GOI to be followed in the management of State Forests in India. The said Policy stood enunciated because over the years forests in India had suffered serious depletion due to relentless pressures arising from ever increasing demand for fuel wood, fodder and timber; inadequacy of protection measures; diversion of forest lands to non-forest uses without ensuring compensatory afforestation and essential environmental safeguards; and the tendency to look upon forests as revenue earning resource. Thus, there was a need to review the situation and to evolve, for the future, a strategy of forest conservation including preservation, maintenance, sustainable utilisation, restoration and enhancement of the natural environment. It is this need which led to the enunciation of National Forest Policy dated 7th December, 1988. The principal aim of the Policy was to ensure environmental stability and maintenance of ecological balance.
The derivation of direct economic benefit was to be subordinate to the principal aim of the Policy (See para 2.2). Under essentials of forest management it is stipulated that existing forests and forest lands should be fully protected and their productivity improved. It is further stipulated that forest cover should be increased rapidly on hill slopes, in catchment areas and ocean shores. It is further stipulated that diversion of good and productive agricultural lands to forestry should be discouraged in view of the need for increased food production (See para 3.2). Under the Policy a strategy was prescribed vide para 4. The goal is to have a minimum of one-third of the total land area under forest or tree cover. In the hills and in mountains the aim is to maintain two-third of the area under forest or tree cover in order to prevent erosion and land degradation and to ensure the stability of the fragile eco-system. Under para 4.2.3, village and community lands, which is the common feature in north-east regions, not required for other productive uses, should be taken up for development of tree crop and fodder resources and the revenue generated through such programmes should belong to the panchayats where lands are vested in them and in other cases such revenues should be shared with local communities to provide an incentive to them and accordingly land laws should be so modified wherever necessary so as to facilitate and motivate individuals and institutions to undertake tree farming. Vide para 4.3.1, the Policy lays down that schemes and projects which interfere with forests that cover steep slopes, catchment of rivers, lakes and reservoirs, geologically unstable terrain and such other ecologically sensitive areas should be severely restricted. Tropical rain/moist forests, particularly in areas like Arunachal Pradesh, Kerala, Andaman & Nicobar Islands should be totally safeguarded. No forest should be permitted to be worked without the government having approved the management plan in a prescribed form and in keeping with the National Forest Policy (See para 4.3.2).
Under para 4.3.4.2 the rights and concessions from forests should primarily be for the bonafide use of the communities living within and around forest areas, specially the tribals. The Policy recognizes the fact that the life of tribals and other poor people living within and near forests revolves around forests and therefore the Policy stipulates vide para 4.3.4.3 that the rights and concessions enjoyed by such persons should be fully protected and that their domestic requirements of fuel wood, fodder, minor forest produce and construction timber should be the first charge on the forest produce. Para 4.4 deals with diversion of forest lands for non-forest purposes. Under the said para it is stipulated that forest land or land with tree cover should not be treated merely as a resource readily available to be utilised for various projects, but as a national asset which requires to be properly safeguarded for providing sustained benefits to the community. Diversion of forest land for non-forest purpose therefore should be subject to most careful examination by experts from the stand point of social and environmental costs and benefits. Construction of dams and reservoirs, mining and industrial development should be consistent with the need for conservation of trees and forests. Projects which involve such diversion should at least provide in their investment budget, funds for regeneration/compensatory afforestation. Beneficiaries who are allowed mining and quarrying in forest lands and in lands covered by trees should be required to re-vegetate the area in accordance with forestry practices and, therefore, by para 4.4.2 it is stipulated that no mining lease shall be granted without a proper mine management plan. Under para 4.5 it is stipulated that forest management should take special care for wildlife conservation and consequently forest management plans should include prescriptions for that purpose. Under para 4.6 of the Policy it is stipulated that a primary task of all agencies responsible for forest management shall be to associate the tribals and communities living in such areas in the protection, regeneration and re-development of forests as wells as to provide gainful employment to people living in and around the forest.
3. On 27.1.1994, in exercise of the powers conferred by Section 3(1) read with clause (v) of sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986 (for short "the 1986 Act") read with Rule 5(3)(d) of Environment (Protection) Rules, 1986 the Central Government issued Environmental Impact Assessment Notification whereby it directs that on and from the date of publication of the said Notification in the official gazette expansion or modernization of any activity or a new project listed in Schedule-I shall not be undertaken in India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure specified in the Notification. Under clause (2)(I) any person who desires to undertake any new project listed in Schedule-I shall submit an application to MoEF, New Delhi in the proforma specified in Schedule-II to be accompanied by a project report which shall include EIA report/environment management plan prepared in accordance with the guidelines issued by MoEF. Under clause 2(II) in case of mining as a site specific project the project authority (project proponent) will intimate the location of the project site to the MoEF while initiating any investigation and survey. The MoEF will convey its decision regarding suitability of the proposed site within a specified period. Thus, site clearance will be granted for a sanctioned capacity and shall be valid for five years for commencing construction, operation or mining. The EIA Report submitted with the application by the project proponent shall be evaluated and assessed by the Impact Assessment Agency, and if deemed necessary, it may consult a Committee of
Experts having a composition as specified in Schedule-III. The Impact Assessment Agency (IAA) is MoEF.
The Committee of Experts shall have full right of entry and inspection of the site. The IAA shall prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities (project proponent), supplemented by data collected during visits to sites which would include interaction with the affected population and environmental groups, if necessary. The summary of the reports, the recommendations and the conditions, subject to which environmental clearance is given, shall be made available subject to public interest to the concerned parties or environmental groups on request.
Comments of the public may be solicited within the specified period by IAA in public hearings arranged for that purpose. The pubic shall be provided access, subject to public interest, to the summary of the EIA report/environment management plan. The clearance granted shall be valid for five years for commencement of the construction or operation of the plant.
The monitoring of the implementation of the recommendations and conditions of IAA is also provided for in the said notification vide clause IV.
4. The said notification dated 27.1.1994 stood slightly amended by notification dated 10.4.1997. By the said notification detailed procedure for public hearing has been prescribed. It also prescribes composition of public hearing panels.
5. On 1.9.1997 LMMPL made an application for granting environmental clearance for limestone mining project at Nongtrai, East Khasi Hills District, Meghalaya. The application was made under EIA Notification, 1994. It was made in the form prescribed by the Notification, 1994. 20 copies of Rapid EIA Report (NEHU Report) were also annexed therewith. However, the said proposal dated 1.9.1997 was returned by MoEF vide letter dated 24.10.1997. The reason being that on 10.4.1997, as stated hereinabove, the MoEF had amended the EIA Notification of 1994 making public hearing mandatory for the development projects listed in Schedule-I of the Notification. By reason of the said Notification dated 10.4.1997 the then project proponent (M/s. LMMPL) was asked to seek Site Clearance as well as Project Clearance separately. The Site Clearance proposal was called for through the State level agency dealing with the mines.
Accordingly, by application dated 23.9.1998 M/s. LMMPL applied for Site Clearance for Limestone Mining Project at Nongtrai village, East Khasi Hills District, Meghalaya. This application was made in the prescribed form. The application indicates that there exists an approach/access road to the site that is described as Shillong-Mawsynram-Nongtrai or Shillong-Cherrapunjee-Shella-Nongtrai. The application further states that all villages represent tribal population. The application further indicates that there exists many private limestone quarries in the area. It is further stated in the application that the topography of the area is hilly. Against the column `Forest Land Involved in the Project' the answer given by the project proponent was "Nil". According to the application the site is not a habitat/corridor for endangered/rare/endemic species.
The source of this information was the NEHU Report. According to the said Report, mining of limestone in Khasi Hills was a source of revenue right from 1858. The limestone deposit in Meghalaya is estimated to be 2165 million tonnes. Exploitation of Nongtrai limestone dates back to 1885. Even today, a number of private parties quarry limestone in this area. An area of 100 hectares stood acquired by LMMPL on lease basis for mining. For that an agreement was signed with Village Durbar. The limestone bearing area around Nongtrai and Shella falls under the Karst topography. This area falls on the southern fringe of the Meghalaya plateau. [See Land Use/ Land Cover Map (March 1997) submitted by Mr. F.S. Nariman, Source: IRS-1C LISS-3 MX DATA, Path & Row: 111-054, Date: March 1997] Karst topography is a landscape formed by the dissolution of a layer(s) of soluble bedrock, usually carbonate rock such as limestone. Karst topography is characterized by limestone caverns carved by groundwater. Karst landscapes are formed by the removal of bedrock (composed in most cases of limestone, gypsum or salt). [See Article from Encyclopedia Britannica by William B. White] Alongwith the application, a certificate dated 27.8.1997 was annexed. It was issued by Khasi Hills Autonomous District Council, Shillong which council is the constitutional authority under Sixth Schedule of the Constitution. By the said certificate the council specifically stated that it had no objection for mining operation in the area at Nongtrai village since the area does not fall within a forest land. This application for site clearance was allowed by MoEF vide letter dated 18.6.1999 addressed to the Project Proponent. Site clearance was, thus, granted under the 1994 Notification as amended on 4.5.1994 and 10.4.1997 subject to strict compliance of terms and conditions mentioned therein. One of the conditions was that the Project Proponent shall obtain environmental clearance for the proposed limestone mine as per the procedure laid down in the 1994 Notification before taking up developmental work at the site. The said clearance was not to be construed as grant of mining permission. No developmental activity relating to the project was to start prior to environmental clearance.
Accordingly, on 17.4.2000, LMMPL made an application for environmental clearance to MoEF in the prescribed form to excavate 2.0 million tonnes per annum of limestone and to transport the same to Chhatak in Bangladesh through belt conveyor (7.2 km long within Indian territory). The mining lease area was indicated to be 100 hectare. The description of land was shown as "barren". In the application, it was further stated that there is no notified forest land within 25 kms. from the proposed mine. Along with the application vide Annexure A, copy of No Objection Certificate (NOC) for mining operations at the proposed site dated 27.8.1997 stood annexed. That certificate was issued by Khasi Hills Autonomous District Council, Shillong, which, as stated above, inter alia states that the Council has no objection for mining operations at Nongtrai Village since the area of 100 hectare does not fall within forest land. Similarly, vide letter dated 6.7.1997 issued by Village Durbar, NOC was granted for withdrawal of water for the project. Vide Annexure G to the application, consent to establish the project stood issued by Meghalaya Pollution Control Board. By Annexure H to the application, minutes of Environmental Public Hearing of the project has been annexed. These minutes indicates the presence of Addl. Deputy Commissioner, East Khasi Hills District, various government officials including nominees of Forest Conservators and Member Secretary of the Pollution Control Board. According to the Headman of Nongtrai Village, limestone is abundantly available in the area; the same has not been utilized by
local villagers due to lack of infrastructure; for economic development, the Village Durbar had decided to lease the area; the environmental implications of the project stood discussed; complaint received from Meghalaya Adventures Association was read out which complaint mainly dealt with destruction of caves which stood rebutted by the Headman and, thus, the meeting stood concluded. All this indicates even public participation and grant of NOCs by various competent authorities. Vide Annexure J to the application for environmental clearance, we find approval being granted under Section 5(1) of the Mines and Minerals (Regulation and Development) Act, 1957. Along with the application for environmental clearance M/s. LMMPL also forwarded to MoEF Rapid EIA of Limestone Mine prepared by Environmental Resources Management India Pvt. Ltd. This report describes in detail the topography of the mining site.
According to the said report the leased area lies on the western side of Umium river valley. It is approachable from Shillong via Mawsynram and Nongtrai villages by motorable road. It is also accessible from Shillong by road via Cherrapunji. According to the report the site is at the Phalngkaruh which originates from the foot hills of the proposed mine site. According to the said report the site is on uneven terrain with a rugged topography. There are heaps of fractured rocks all over the place. It is a rocky region. The site rejects any possibility of natural growth of forest. It is an area of low botanical and floral diversity. It is an area covered with rocks. The area can be termed as a wasteland.
6. On receipt of the application for environmental clearance, certain queries were raised by MoEF with regard to the scope of the site clearance (the original site clearance was for 0.8 million tonnes whereas subsequently that capacity was revised to 2 million tonnes); that, as per this Court's order dated 12.12.1996, "forests" has to be understood in terms of the dictionary meaning and, accordingly, a certificate was asked for in that regard from local DFO; the effect due to disposal of waste water through soak pit and whether the existing road width was sufficient to carry on heavy equipments for mining purposes. These were some of the queries/ objections on the basis of which clarification was sought vide letter dated 1.5.2000 by MoEF with regard to environmental clearance under the 1994 notification. As requested by MoEF, the project proponent vide letter dated 11.5.2000 requested the local DFO to issue necessary certificate as called for by MoEF in terms of the order of this Court dated 12.12.1996.
Accordingly, on 13.6.2000, the DFO forwarded the certificate to the project proponent in respect of Limestone Mining Project at Nongtrai, East Khasi Hills District, Meghalaya by which it was certified that the mining site was not a forest area as per this Court's Order dated 12.12.1996 and nor did it fall under any of the notified reserved or protected forests. Moreover, the certificate once again reiterated that the site area stood covered with Karst topography which supported only a sporadic growth of a few tree shrubs. Despite such certificate of DFO, MoEF in continuation of their letter dated 1.5.2000 called for additional information inter alia including list of flora and fauna in compliance of Wildlife (Protection) Act, 1972, list of species under the 1972 Act, consent from the State Pollution Control Board for 3000 TPD of limestone, information on ground water potential, information regarding
water requirement, etc. Clarifications sought by MoEF vide letters dated 1.5.2000 and 16.6.2000 for environmental clearance were answered by LMMPL vide letter dated 17.8.2000. As per the said reply, the environmental public hearing notice was published in three newspapers; that, earlier the project proposal was for 0.8 million tonnes per annum but later on based on the increased cement plant production capacity in Bangladesh, it stood increased to 2.0 MTPA; that, earlier the lease period was proposed to be 35 years which stood reduced to 30 years; that, the mine site was on Karst topography which neither MoEF nor the Shella Action Committee ("SAC" for short) denies; that, the equipment to the mine site would be brought through Guwahati - Shillong - Mawsynram route which contains an established route whose width was 7.5 m wide; that, there was no proposal to cut any trees for the purpose; that, no sanctuary/ national park is located within 25 kms. radius from the proposed mine location; that, the mine site is situated in the southern slopes of the Central Plateau of Meghalaya; that, the core area comprising of the mining site consisted of uneven terrain with a rugged Karst topography (see page 484 of Volume III); the minutes of the environmental public hearing dated 3.6.1998 were also annexed; site clearance dated 18.6.1999 granted by MoEF was also annexed; that, a report regarding impact of limestone mining on Nongtrai, Meghalaya on Siltation Process prepared by Center for Study of Man and Environment dated April, 2000 also stood annexed to the clarifications given by LMMPL. We need to comment on that report. Firstly, it indicates that the mining site is located on the southern fringe of the Meghalaya Plateau adjoining the plains of Bangladesh having a rich endowment of high grade limestone. Secondly, it highlights that the site is approachable from Shillong (109 km.) by motorable road via Mawsynram and Nongtrai.
Thirdly, it states that on account of dissolution of the limestone, Karst topography has resulted which topography is characterized by caverns and caves which are so prominent that even in 1:50,000 toposheet, they could be plotted. In other words, the karst features are intimately tied up with hydrological situation. Certain recommendations have been made in the report with regard to possible impact of limestone mining on the Phalangkaruh river system. Despite clarification, MoEF once again examined the matter through Expert Committee which held its meeting on 19th and 20th October, 2000 in New Delhi under the aegis of MoEF. In the meeting, the project proponent made a presentation on their proposal for production of limestone at the rate of 30,000 tonnes per annum for five years. Certain queries were raised by the Expert Committee on the basis of which once again further clarification was sought by MoEF from LMMPL vide letter dated 6.11.2000. According to the query, the area in question supports diversity of plants and animals. It also represents the remnants of the rapidly vanishing humid rainforest. That, the area is a home of endemic insectivorous plants, butterflies; All this, according to MoEF, would require a detailed survey of plants and animals to be carried out with the help of BSI and ZSI offices located in Shillong.
Accordingly, the project proponent submitted report on Ecological Status Survey prepared by Centre for Environment and Development; report on Afforestation Reclamation Plan, report on Physiography and Hydrogeology of Fugro Milieu Consult B.V. and report on Catchment Area Treatment Plan, vide letter dated 9.2.2001 addressed to MoEF. One more aspect may be noted. These reports were placed before the Expert Committee once again on 7.3.2001. Even Wild
Life Division also gave its report on 1.6.2001. After placement of all these reports, at the end of the day, EIA Clearance was given by MoEF on 9.8.2001 which again contained further conditions which were to operate once the developmental work started. According to the environmental clearance dated 9.8.2001, the total lease area of the mine is 100 hectares; that no diversion of forest land was involved; that the targeted annual production capacity of the mine had to be 2.0 million tonnes and, lastly, certain general conditions were stipulated with regard to steps to be taken during the developmental work. On EIA Clearance being granted by MoEF, LMMPL became desirous of transferring and assigning the lease in favour of LUMPL having its registered office at Shillong on which the State Government granted permission to transfer the mining lease vide order dated 29.8.2001. Accordingly, a transfer deed stood executed on 28.2.2002 in the prescribed form under Rule 37-A of Mineral Concession Rules, 1960. Accordingly, on 30.7.2002, environmental clearance which was earlier granted to LMMPL stood transferred to LUMPL by MoEF.
7. However, vide letter dated 1.6.2006, from Chief Conservator of Forests (C), Shri Khazan Singh, addressed to MoEF it was pointed out that he had visited Limestone Mining Project of M/s. Lafarge when it was found that project had completed developmental works and opening of mine benches had also been accomplished for 7Ha of the mining lease land. According to the said letter the mining lease area around the developed mine benches stood surrounded by thick natural vegetation cover with sizeable number of tall trees. The said vegetation included trees being cleared for developing the mining benches. That the wood obtained from felling of trees was collected by the lessor who were from Nongtrai Village. According to the said letter, for such clearance no permission was taken under Forest (Conservation) Act, 1980 (for short the `1980 Act'). Further, even the Rapid EIA report submitted by the project proponent described the land as wasteland though the visit of the Chief Conservator found it to be otherwise.
Consequently, by the said letter the Chief Conservator of Forests (C) informed the MoEF that the project proponent may be directed to obtain forest clearance under the 1980 Act and not to proceed with the mining activities till such clearance. A copy of the said letter was also sent to the project proponent. By letter dated 11.8.2006, the project proponent replied to the Chief Conservator of Forests (C) stating that it had proceeded with the developmental work on the basis of the certificate given by DFO dated 13.6.2000 under which it was certified that the project area was not a forest area and it did not fall in any of the notified reserved or protected forests. It was further clarified that in the core area there were only a few trees, shrubs growing in some soil trapped in the crevices and only those shrubs and trees which are growing in the area demarcated on the excavation plan have been cut. According to the said letter the 1980 Act was not applicable as there was no diversion of forest land for non-forestry purposes. Accordingly, a letter was addressed by MoEF on 15.11.2006 to M/s. LMMPL. The complaint made by the Chief Conservator of Forests (C) was conveyed to the project proponent. In terms of the said complaint, MoEF directed M/s. LMMPL to obtain forest clearance under the 1980 Act before taking steps to clear vegetation including trees for developing mining benches. On 14.9.2006, MoEF issued EIA Notification 2006 whereunder concerns of local affected persons were required to be taken into account through public consultation. By
letter dated 29.1.2007, M/s. Lafarge took the stand that there is some natural growing vegetation; that only those shrubs which are growing in the excavation plan have been cleared and since there was no diversion of forest land for non-forestry purposes the 1980 Act was not applicable. Vide letter dated 9.4.2007 addressed by the Chief Conservator of Forests (C) to the Secretary, Department of Forest and Environment, Government of Meghalaya as well as to the Khasi Hills Autonomous District Council, it was pointed out that the mining project was undertaken in the virgin and natural forest; that the forest is standing all around the periphery of the broken area; that the mine was operating on forest land without clearance under the 1980 Act; that the area is a natural/virgin forest; that the land belonged to village Durbar of Nongtrai and in the circumstances forest clearance was required to be obtained under the provisions of 1980 Act in terms of the order of the Supreme Court dated 12.12.1996. According to the said letter, there was a clear violation of the 1980 Act. Accordingly, the Chief Conservator of Forests(C) Shri B.N. Jha requested the Government of Meghalaya to stop fresh clearance of vegetation, breaking of land, extension of mining area, removal of felled trees and stoppage of non- forestry activities with immediate effect. A copy of the said letter was also forwarded to MoEF. By letter dated 17.4.2007 addressed by MoEF to Government of Meghalaya a report was asked for indicating justification for continuance of mining by the project proponent within a week failing which MoEF had no option but to direct mine closure. Thereafter response was given by M/s. Lafarge vide letter dated 25.4.2007. However, MoEF, vide letter dated 30.4.2007, directed complete closure of all on going non-forestry activities by M/s. Lafarge in compliance of the directions of the Supreme Court dated 12.12.1996. Suffice it to state without going into further correspondence that M/s. Lafarge submitted its application for forest clearance under the 1980 Act vide application dated 3.5.2007. The application makes it clear that permission is sought for forest clearance without prejudice to the rights and contentions of the project proponent. After reciting the above facts, M/s. Lafarge submitted that the project was a cross-border project; that it had put in ten years of efforts for obtaining approvals; that had the reservation on the legal status of the land and the use of the mine site as forest land been made clear by Chief Conservator of Forests (C) and had such reservation been conveyed to M/s. Lafarge earlier or even at the time of consideration of the proposal for environmental clearance, they (project proponent) would have sought approval under the 1980 Act before implementing the mining project. It was pointed out that the mining lease area was 100 Ha. At the time of making the application for forest clearance the broken up area was 21.44 Ha. In the said application M/s. Lafarge undertook to bear the cost of raising and maintenance of compensatory afforestation. They also undertook to fulfill all other conditions leviable under the law.
By letter dated 11.5.2007 addressed by the Principal Chief Conservator of Forests, Meghalaya to the Government of Meghalaya, it was pointed out that the project proponent had broken up area of about 21.44Ha; that the topography in the leased mine around the broken up areas was Karst topography consisting of limestone surface having natural fissures and crevices; that a sizeable quantity of limestone was lying in and around the broken up area; that the non-broken up area in the leased mine was forest land falling within the purview of the 1980 Act. By
the said letter, the Principal Chief Conservator of Forests submitted that the project proponent be allowed to remove the already broken limestone from the site and that the project proponent may be directed to apply for forest clearance under the 1980 Act for the non-broken up part of the leased area. It is at this stage that M/s. Lafarge moved this Court by way of I.A. No. 1868 of 2007 inter alia seeking orders directing MoEF to expeditiously process its application under Section 2 of the 1980 Act within a time bound programme preferably within 60 days. By letter dated 3.7.2007 addressed by M/s. Lafarge to the MoEF (North-East Region), the regional office of the MoEF, was informed that the project proponent had already applied for forest clearance to the MoEF, New Delhi.
8. On 6.9.2007 CEC submitted its report to this Court saying that the project proponent should have taken permission under the 1980 Act before starting operations in the area. According to CEC this was a typical case where ex-post facto approval under the 1980 Act is sought after the mine has been allowed to operate illegally. Since fait accompli situation arose according to CEC there was no option but to recommend the case for grant of permission for the use of forest land for mining lease, conveyor belt system and associated activities subject to certain conditions mentioned therein. By interim order dated 5.2.2010 M/s. Lafarge was directed to stop all mining activities. On 5.4.2010 a report was submitted by Shri B.N. Jha, Regional Chief Conservator of Forests (C) [also known as High Powered Committee (HPC)].
The report was submitted pursuant to the site inspection carried out by a High Level Committee which also had interaction with local population and institutions in the first week of April, 2010. Briefly, it may be stated that the report indicates assessment of the impact of the mining done by the project proponent up to April 2010 on forest, wildlife and surroundings. The report indicates details of the area already broken up. On the impact aspect the report states that the total clearing involves felling of 9345 trees out of which 1200 trees have already been felled. That, although the area supports rich flora, the same can be re-forested as a part of reclamation plan. According to the report, the said impact can be minimized after a thorough study of Bio-Diversity Management Plan as well as Catchment Area Treatment Plan is prepared and executed in a time bound manner. At the same time the report states that the project is positive and beneficial to the residents of Nongtrai village due to huge amount of cash going to village Durbar and reaching the individual household improving the financial health of the population of two villages, i.e., Nongtrai and Shella. According to the report, interaction took place between the High Powered Committee constituted by MoEF and the locals. That villagers of Shella are not having any problems from M/s. Lafarge and that the people are very satisfied with the mining company which has provided health care facilities, drinking water facilities, employment, schools etc. According to the report, M/s. Lafarge has been contributing for the benefits of the village as well as for all the villagers by way of payment of rent for the use of the community land as well as towards the price of limestone exported to Bangladesh. The figures of such payments are also indicated in the report. Further, the report states that mining is not having any adverse effect on the human life. When the matter came before the Supreme Court on 12.4.2010, the learned Attorney General stated that MoEF will take a final decision under the 1980 Act for the revised environmental clearance for diversion of 116 Ha of forest land subject to certain conditions. Accordingly, on 19.4.2010 the MoEF
granted environmental clearance with certain additional conditions. The environmental clearance dated 19.4.2010 was followed by forest clearance dated 22.4.2010 (ex-post facto clearance) granted by MoEF. This letter refers to letter of the State Government dated 19.7.2007 forwarding its proposal for diversion of 116.589 Ha of forest land for Lime Stone Mining in favour of M/s. Lafarge wherein prior approval of Central Government was sought. The said proposal of the State Government was examined by FAC constituted by Central Government under Section 3 of the 1980 Act. Thus, forest clearance was granted by MoEF vide letter dated 22.4.2010 which again stipulated further conditions to be complied with by the project proponent. Accordingly on 26.4.2010 learned AGI submitted before this Court that M/s. Lafarge may be permitted to resume the mining operations subject to compliance of conditions enumerated in the order passed by MoEF on 22.4.2010. However, this Court ordered that before it grants permission to resume the mining operations it was imperative that plans should be drawn up and relevant reports be placed before this Court based on a comprehensive engineering and biological study including assessment of flora and fauna. A study report was submitted by NEHU on June, 2010 in which it has been stated that the forests in the said area can be categorized into tropical moist-deciduous forest, tropical semi-evergreen forest, savanna, subtropical broadleaved forest, forest gardens, orchards etc. Regarding the core area, the report states that the broken up area (already mined) was 38.089 Ha; that the said area was devoid of any vegetation and could be characterized by limestone floor and benches. However, the vegetation in the rest of the core area (i.e. proposed mining area) had tropical-moist deciduous type of vegetation with variable canopy cover and mostly sparse. It further states that the density of plants is very low due to rocky terrain and low soil content. It further states that only a few trees described in that paragraph are present in the undisturbed core zone. On compliance of various conditions imposed by MoEF including payment of compensatory afforestation, penal compensatory afforestation and NPV with interest as well as the reports submitted by various authorities were placed before the Expert Appraisal Committee on 29.6.2010 and 21.7.2010 pursuant to the directions of the Supreme Court vide order dated 26.4.2010. According to the minutes of Expert Appraisal Committee, the conditions and environmental safeguards stipulated by MoEF while according environmental clearance on 9.8.2001 and 19.4.2010 were comprehensive enough to mitigate any adverse impacts of the project and to protect the environment if implemented effectively. The minutes of the meeting of the Expert Appraisal Committee dated 21.7.2010 also recites that various reports were considered by the Committee. It also recites the fact that the Government of Meghalaya had addressed a letter to MoEF on 12.7.2010 conveying their recommendations for the grant of formal approval under Section 2 of the 1980 Act for diversion of 116.589 Ha of forest land for Lime Stone Mining.
On 21.10.2010 M/s. Lafarge submitted a compliance chart of 31 conditions.
Submissions
9. According to the learned Amicus Curiae, it is obvious from all the documents that have come on record including those filed by M/s. Lafarge that permissions under EIA Notification, 1994 (as amended) under Section 3 of the 1986 Act have been obtained without a candid disclosure of the facts. That,
even if it is held that in cases of bona fide mis-interpretation of statutory provisions and Rules the project stood commenced without obtaining prior permission as mandated under Section 2 of the 1980 Act, save and except in cases of absolute candor and where the want of such permission is solely and entirely on account of bona fide doubt as to the nature and character of the land and /or statutory regime applicable to such projects, no permission should be granted specially to private projects established only for profit where the project presents a `fait accompli'. The learned Amicus submitted that over the years we find commencement of projects without obtaining prior permission as mandated under Section 2 of the 1980 Act and, when detected, the project proponent(s) falls back on the plea of `fait accompli'.
According to the learned Amicus, time has, therefore, come for this Court not to regularize such projects which are commenced without obtaining prior permission under the 1980 Act except in cases of absolute candor and where the want of permission is solely and entirely based on account of bona fide doubt as to the nature and character of the land and/ or the statutory regime applicable to such projects.
According to the learned Amicus, barring the above exceptions, this Court should direct removal of the project and restoration of the environment wherever it is possible or to take over the project to ensure that all gains from such projects are allowed to be used only for those whose rights have been violated. In support of his above submissions, learned Amicus placed reliance on the report of Chief Conservator of Forests (C) dated 1.6.2006 addressed to the MoEF in which it was stated that the mining lease area around the developed benches has been found surrounded by thick natural vegetation cover with sizeable number of tall trees; that, the said vegetation including the trees was being cleared for developing the mine benches; that, the wood obtained from felling of trees was being collected by Nongtrai Village Durbar; and that, the said report of the Chief Conservator of Forests (C) dated 1.6.2006 contradicts the Rapid EIA report submitted by the project proponent which describes the land in question as waste land. The learned Amicus also relied upon the second report dated 9.4.2007 again by the Chief Conservator of Forests (C) based on his site visit on 7.4.2007 in which report it has been stated that the mining lease lies in the midst of virgin and natural forest.
According to the said report, the said mine in question is operating on forest land without clearance under the 1980 Act. According to the said report, calling the area / site by any other name than a forest would be travesty which could only be assigned to an ulterior motive of obtaining exemption or avoiding taking prior approval of Government of India under the 1980 Act. The learned Amicus also placed reliance on the report dated 11.5.2007 of the Principal Chief Conservator of Forests. In the said report dated 11.5.2007, the Principal Chief Conservator of Forests also agreed with the view of the Chief Conservator of Forests (C) stating that the project proponent should have taken permission under the 1980 Act to start the operation in the area. According to the learned Amicus, though the mine commenced commercial production w.e.f. October, 2006, the said commencement was based on approvals granted by statutory authorities on the
assumption that the mining lease area is a non-forest land. In this connection, learned Amicus pointed out that the entire case of the project proponent is based on only one certificate issued by DFO, Khasi Hills Division dated 13.6.2000 in which it has been certified that the mining site for limestone mining project at Nongtrai, East Khasi Hills District, Meghalaya is not a forest area in terms of the order of this Court dated 12.12.1996 and that it does not fall under any notified reserved or protected forests. In the said certificate, it has been further stated that the project site is on Karst topography which supports only a sporadic growth of a few trees shrubs and creepers. Besides the said certificate dated 13.6.2000, the project proponent also seeks to place reliance on letters dated 28.4.1997 and 27.8.1997 addressed by Khasi Hills Autonomous District Council which took the view that the area is a non-forest land.
According to the learned Amicus, it is not open to the project proponent to rely upon the certificate of DFO dated 13.6.2000 as the said certificate was given without any intimation to the higher authorities and that an inquiry has been instituted to determine the circumstances in which the certificate was issued by DFO. Learned Amicus further pointed out that the prospecting licence held by the project proponent was allowed to be converted into a mining licence in 1997 which was after the order of the Supreme Court dated 12.12.1996. That apart, there is a special law in the State of Meghalaya, i.e. The United Khasi-Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1985 under which forest has been defined to mean an area in which there are twenty five trees per acre. Thus, according to the learned Amicus by all these definitions the area in question is a forest. Thus, according to the learned Amicus even if the project proponent ultimately succeeded in getting forest clearance under Section 2 of the 1980 Act on 22.4.2010 since the said project stood established originally in the forest area in a brazen violation of the 1980 Act such a project cannot be allowed to be regularized by grant of permission ex-post facto dated 22.4.2010.
10. Shri Shyam Divan, learned senior counsel appearing on behalf of Shella Action Committee (SAC) while adopting the submissions of the learned Amicus Curiae with regard to the project being illegal, submitted that having regard to para 4.3.1 of the National Forest Policy, 1988, tropical rain/moist forest are required to be totally safeguarded. According to SAC the forest in the region is a tropical moist forest and no forest clearance ought to have been granted because of the ecological significance recognized by the 1988 Policy. According to SAC this fact was known to M/s. Lafarge at all material times as can be seen from the Rapid EIA Report prepared by NEHU which specifically states that the vegetation at the study site is a mixed moist deciduous forest. Reliance is also placed by the learned counsel on the assessment of floral diversity prepared by NEHU in June, 2010 which indicates that the forest in the study area can be categorized into tropical moist-deciduous forest, tropical semi evergreen forest, savanna, sub-tropical broad leaves forest, forest garden, orchards and riparian forest. According to the said assessment of 2010, the vegetation in the core area is tropical moist-deciduous types whereas the vegetation in the proper zone can be categorized into tropical and sub-tropical types. Thus, according to the learned counsel having regard to the undisputed position emerging from the record the subject area is covered by a tropical moist forest deserving highest degree of ecological protection and therefore this Court should set aside the environmental clearance dated 9.8.2001 given under Section 3 of the 1986 Act by MoEF.
In this connection it may be mentioned that SAC has also moved this Court by way of I.A. No. 2937 of 2010 seeking revocation of the environmental clearance dated 9.8.2001. They have also challenged the revised environmental clearance dated 19.04.2010 granted by MoEF as also Stage-I forest clearance dated 22.04.2010 issued by MoEF.
11. According to the learned counsel, M/s. Lafarge was duty bound to make an honest disclosure of all facts when seeking environmental and forest clearances as it is an express requirement under Clause 4 of the EIA notification 1994.
That, where a false information, false data, engineered reports are submitted or factual data is concealed, the application is liable to be rejected, and where granted, it is liable to be revoked. According to SAC, M/s. Lafarge had given an express undertaking in its application for environmental clearance dated 17.4.2000 that if any part of the information submitted was found to be false or misleading the project clearance could be revoked at M/s Lafarge's risk and cost. According to SAC, the region where the mining is taking place and with regard to which permissions were obtained is governed by a specific local Act and Rules framed thereunder, namely, United Khasi Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1958 which Act was enacted by the District Council of the United Khasi Jaintia Hills Autonomous District in exercise of its powers under the Sixth Schedule to the Constitution of India. According to the learned counsel, the 1958 Act classifies forests and regulates forest resource management and use and applying the definition of "forest" under Section 2(f), the region where the mining is taking place is a forest as the said area has not less than 25 trees per acre.
Thus, according to the learned counsel for SAC, it ought to be assumed that the officials of M/s. Lafarge had full knowledge of the local law as well as the forest cover and the lay out of the land. From every perspective, M/s. Lafarge could not have commenced the project without a detailed survey of the physical topography of the land and the forest cover. Thus, M/s. Lafarge had knowledge of the forest cover in the region and yet it falsely withheld this information from the concerned authorities including the MoEF. In this connection, learned counsel placed reliance on the NEHU Report of 1997, letter dated 1.6.2006 from the Chief Conservator of Forests (C) to the MoEF, letter dated 9.4.2007 from the Chief Conservator of Forests (C) to the Government of Meghalaya and assessment of floral diversity prepared by NEHU in June, 2010. According to the learned counsel, despite knowledge of the definition of "forest" and the provisions of the 1958 Act, the government officials issued letters containing incorrect information in relation to the forest cover. These letters are the letter dated 28.4.1997 from Khasi Hills Autonomous District Council, letter from the Deputy Commissioner, East Khasi Hills District dated 10.7.1997 enclosing a spot inquiry report which stated that there was no forest on the land proposed to be leased out, letter dated 27.8.1997 from Khasi Hills Autonomous District Council granting NOC on the basis that there was no forest and certificate dated 13.6.2000 issued by DFO, Khasi Hills Division stating that there was no forest on the land proposed to be leased out. According to the learned counsel, the environmental clearance dated 9.8.2001 issued by MoEF was premised on "No diversion of forest land or displacement of people is involved". According to the learned counsel, the said premise is per se incorrect as there is a tropical moist - deciduous forest in the area
being mined. According to the learned counsel, the environmental clearance dated 9.8.2001 was clearly granted on the basis of false representations made by M/s. Lafarge regarding absence of forests; engineered reports projecting the site as "a near wasteland"; and the concealment of factual data available with M/s. Lafarge including the 1997 NEHU Report which showed the subject land as forest land. Thus, according to the learned counsel, the MoEF ought to revoke the environmental clearance dated 9.8.2001 having regard to Para 4 of the EIA Notification 1994 and inasmuch as the MoEF has failed and neglected to revoke the clearance dated 9.8.2001, this Court may quash the said clearance.
According to the learned counsel, the environmental clearance dated 9.8.2001 is the parent clearance and, consequently, the revised environmental clearance dated 19.10.2010 (the correct date is 19.4.2010) must automatically fall if the parent clearance is quashed. In any event, the learned counsel submitted that the revised clearance is liable to be set aside since the mandatory procedure of conducting a public consultation had not taken place. According to the learned counsel, a public consultation is mandatory in terms of para 7 of the EIA Notification dated 14.9.2006. Such consultation has not taken place. The public hearing held on 3.6.1998 was without a disclosure of the forest and, hence, there has been no public consultation in accordance with para 7 of the EIA Notification dated 14.9.2006.
Thus, according to the learned counsel, the revised environmental clearance dated 19.4.2010 is liable to be quashed on the ground of non-compliance of the mandatory provisions of the EIA Notification of 2006.
According to the learned counsel, consequently, the stage-I forest clearance dated 22.4.2010 is also liable to be rejected.
It may be noted that the stage-I forest clearance dated 22.4.2010 has been granted by FAC of MoEF. The learned counsel submits that under National Forest Policy, 1988 tropical rain/ moist forest is required to be totally safeguarded. That, it is a no-go area. According to the learned counsel, since the region where mining is taking place falls within tropical rain/ moist forest, FAC ought not to have given the clearance on 22.4.2010. For the afore-stated reasons, it is the case of SAC that both on account of the nature of the land in question and the conduct of M/s. Lafarge, this Court should dismiss the IA No. 1868 of 2007 filed by M/s. Lafarge and that the IA No. 2937 of 2010 filed by SAC seeking revocation of the parent environmental clearance dated 9.8.2001 and revised environmental clearance dated 19.4.2010 and forest clearance dated 22.4.2010 be allowed.
12. On the nature of the land in question, learned Attorney General submitted that in the EIA Report (NEHU Report), annexed along with the application dated 1.9.1997 for grant of environmental clearance, a description of the vegetation area at the proposed mining site which is distributed in three distinct layers indicated that the third and the lower layer consisted of shrubs and herbs and their poor growth was due to lack of soil. It was also mentioned that the majority of valuable timber trees had already been extracted from the mining site in the past in Meghalaya by the tribals who lived on timber. In para 4.9 of the Report the site was described to be mostly covered with pole sized trees, shrubs and herbs.
This EIA Report did not make reference to the Certificate dated 28.4.1997 of the Khasi Hills Autonomous District Council, the Spot Inspection Report dated 10.7.1997 nor the Certificate dated 27.8.1997 issued by the Council all of which referred to absence of forest. According to the learned Attorney General at each stage MoEF had raised queries and requisitions and after a thorough probe MoEF gave ultimately Environment Clearance on 19.4.2010 and 22.4.2010 being the Forest Clearance. In this regard it was pointed out by MoEF vide letter dated 24.10.1997 that the EIA Notification 1994 was amended on 10.4.1997 making public hearing mandatory for the development projects listed in Schedule-I of the Notification. Consequently, the proposal required two stage clearance, namely, site as well as project clearance. This is the reason why the project proponent made Site Clearance application on 23.9.1998. Before that the project proponent approached the Meghalaya State Pollution Control Board for consent to establish limestone mining project.
Similarly, a public hearing notice was given on 27.4.1998. The public hearing was conducted on 3.6.1998. This was followed by Site Clearance Application dated 23.9.1998. All these steps were taken by M/s. LMMPL, the predecessor of M/s. Lafarge. Even before granting of the Site Clearance on 18.6.1999, a letter dated 8.4.1999 was received from M/s. LMMPL sending a certificate dated 20.3.1999 from DFO, Khasi Hills Division, Shillong indicating absence of forest. Thus, at the stage of Site Clearance MoEF had two certificates before it, one dated 27.8.1997 issued by the Executive Committee, Khasi Hills Autonomous District Council and the other being the certificate dated 20.3.1999 issued by DFO, both indicating absence of forest. To the same effect is the main application for Environmental Clearance dated 17.4.2000. One more fact needs to be mentioned. Along with the application for Environmental Clearance dated 17.4.2000, an EIA Report prepared by Environmental Resources Management India Pvt. Ltd. giving a detailed description of the topography of the area was forwarded to MoEF. It was called as Karst Topography.
In that Report it was categorically stated that the project area did not fall in the designated forest land; that the terrain at the site was described as Karst Topography which did not allow normal plant growth. Despite clarification, MoEF wrote a letter dated 1.5.2000 to the project proponent seeking further clarification as to whether there existed forest in terms of the Supreme Court order dated 12.12.1996 and if so a certificate to that extent should be obtained from the local DFO.
In reply, M/s. LMMPL forwarded a certificate of DFO dated 13.6.2000 which stated that the proposed mining site for limestone mining project at Phalangkaruh, Nongtrai, East Khasi Hills District, Meghalaya leased out by M/s. LMMPL is not a forest area as per Supreme Court judgment and it does not fall under any of the notified reserves or protected forests. The area is covered with Karst topography and supports only a sporadic growth of a few trees, shrubs and creepers. The proposal of M/s. LMMPL was once again discussed at the meeting of the Expert Committee (Mining) held on 19-20.10.2000. This Committee sought further information and clarification, one of the clarifications sought was a detailed survey of the plant and animals to be carried out with the help of BSI and ZSI officers situated in Shillong. It also sought a video film of the site and other areas. Accordingly, on
9.2.2001 M/s. LMMPL gave the requisite response as desired by MoEF as well as additional information was also provided in respect of a comprehensive survey and Flora and Fauna Report dated January, 2001 of Dr. A.K. Ghosh (Former Director ZSI). The said Report of January, 2001 extensively dealt with tropical semi-evergreen forest at different elevations.
This Report of Dr. Ghosh (Centre for Environment and Development) was placed before the Expert Committee on 7.3.2001. The minutes of the meeting indicate that a video film of the site was also shown. The Report indicates the Karst features, extensive flora and fauna survey carried out by the Centre for Environment and Development in conjunction with the Botanical Survey of India and Zoological Survey of India.
After elaborate discussion, the Expert Committee recommended Environmental Clearance of the project once again subject to certain conditions. Even after such recommendation, the MoEF once again wrote to the Chief Conservator of Forest, Meghalaya. This was on 19.4.2001 regarding Environmental Clearance. The Chief Conservator of Forest (Wildlife Division) vide letter dated 1.6.2001 gave his comments as per the annexures which was on the basis of Field Verification Report submitted by DFO, Khasi Hills Wildlife Division, Shillong. According to the Chief Conservator of Forest (Wildlife Division) the project area is sloppy, ending in the nearby plains of Bangladesh and covered wholly by degraded forests and grassland vegetation. Further, he stated that there is a motorable road used for traffic and the forest is farther away up the slope. It was concluded that there was no likelihood of any wildlife presence in the area. Thus, according to the learned Attorney General it is incorrect to say that the EIA clearance dated 9.8.2001 was granted without proper consideration. There has been a detailed consideration at every stage. That, at the time of the submission of the application for Site Clearance dated 23.9.1998 there existed an NOC of the Pollution Control Board, a certificate dated 27.8.1997 issued by East Khasi Hills Autonomous Council and thus it cannot be said that the EIA clearance indicated non-application of mind or that it was liable to be set aside on the ground that the EIA Division of the MoEF did not properly consider the matter. In the circumstances, according to the learned Attorney General, it cannot be said that the Environmental Clearance dated 9.8.2001 came to be issued by MoEF arbitrarily, capriciously or whimsically. At that stage of Environmental Clearance dated 9.8.2001 existence of the forest land was not established. If it had been so established then the project proponent had to obtain forest clearance under the 1980 Act also.
13. At the outset, Shri F.S. Nariman, learned senior counsel appearing on behalf of M/s. Lafarge adopted the submissions made on behalf of MoEF by the learned Attorney General. As regards the nature of the land, the learned counsel invited our attention to the approved mining plan which was submitted by LMMPL to the Regional Controller of Mines, IBM, Calcutta for limestone extraction which plan was duly approved in February, 1998. In this approved mining plan, the project area was described as having Karst topography with the presence of deep caverns, caves and cracks which permit surface water to percolate downwards and circulate underground only to reappear as hills side springs at certain outlets. According to the mining plan, the terrain over the entire area is rocky with very little soil and devoid of hard overburden
rocks. The vegetation of the area is seen to be mixed deciduous type. There is no agricultural activity in the area as thin soil cover is unable to sustain crops. That, even according to the NEHU Report of 1997, the site selected for mining has commercially viable limestone deposit. According to the said report, the land was left unused covered with degraded forests and this was the reason why the Durbar preferred to lease out the site to LMMPL for mining.
Other factors responsible for selecting the proposed site were availability of water resource, away from human habitation, closer to the cement plant at Chhatak, easy accessibility by road and minimum damage to the rich biodiversity (see page 19 of the NEHU Report). The learned counsel submitted that Section 2 of the 1980 Act stipulates "prior approval". Thus, prior determination of what constituted forest land is required to be done. This lacuna in the 1980 Act was supplied by the order of this Court dated 12.12.1996 which inter alia provided that every State Government shall first constitute an Expert Committee within one month and based on its recommendations the State Government will identify the land as forest land on the criteria mentioned in the said Order. The learned counsel also invited our attention to Rule 4 of the Forest (Conservation) Rules, 1981 in which it is stipulated that every State Government seeking prior approval under Section 2 of the 1980 Act shall send its proposal to the Central Government in the form appended to the Rules. Thus, according to the learned counsel, under the 1980 Act read with the Rules, the requirement of submission of the proposal for forest diversion under the 1980 Act is exclusively the obligation of the State Government. This was also spelt out in the guidelines issued on 25.10.1992. Later on the Government of India amended the said guidelines in respect of the diversion of forest lands for non-forest purpose under the 1980 Act by letter dated 25.11.1994 and in para 2.4 the concept of "User Agency" was introduced but that concept was made applicable only to cases of renewal of mining leases.
However, on 10.1.2003, Rule 4 of the 1981 Rules stood reframed (as Rule 6 of the 2003 Rules) which inter alia provided that every "User Agency" who wants to use any forest land for non-forest purpose shall make its proposal in the specified form appended to the Rules to the concerned Nodal Officer along with the requisite information before undertaking any non-forest activity on the forest land; after receiving the proposal and if the State Government is satisfied that the proposal required prior approval under Section 2, it had to send the said proposal to the Central Government in the appropriate form within 90 days of the receipt of the proposal from the "User Agency". The threshold limit was kept at 40 hectares. Where the proposal involved forest land of more than 40 hectares, it was to be sent by the State Government to the Government of India with the copy to the Regional Nodal Officer. According to the learned counsel, insofar as M/s. Lafarge was concerned, its predecessor LMMPL was already given environmental clearance on 9.8.2001 and while granting the clearance there was an express finding in the environmental clearance that "no diversion of forest land was involved". Thus, it was never stipulated at any time as a condition to the grant of environmental clearance dated 9.8.2001 that permission under the 1980 Act should be obtained.
The learned counsel further pointed out that pursuant to the Order of this Court dated 12.12.1996 an Expert Committee was formed by the State of Meghalaya vide
notification dated 8.1.1997 with the Principal Chief Conservator of Forests as its Chairman. On 10.2.1997, the State of Meghalaya, on the subject of "Order of the Supreme Court dated 12.12.1996" wrote to the Khasi Hills Autonomous District Council that the land in question was reckoned by the State as non-forest land. The Council was asked to inform/ clarify whether the area in question under the mining lease fell on forest land as per the records of the District Council. By letter dated 28.4.1997, the Council informed the State Government that the area in question did not fall on forest lands. Moreover, pursuant to the Order of this Court dated 12.12.1996, the Chairperson of the Expert Committee appointed by the State of Meghalaya also filed the report of the Expert Committee in which it was expressly stated that the mining lease granted by the State Government did not fall on the forest land. Thus, it was under the above circumstances, having regard to the order of this Court dated 12.12.1996, that the State Government was not required to and it did not submit any proposal to the Central Government under Section 2 of the 1980 Act read with Rule 4 of the 1981 Rules as it treated the site in question as a non-forest land. This position has not been disputed by MoEF. Thus, according to the learned counsel, there was no obligation on the project proponent or on the State of Meghalaya to move MoEF under Section 2 of the 1980 Act.
14. According to the learned counsel, what has happened in the present case is that almost after 9 years there was a change of view on the part of MoEF, i.e., between 1997 and 2007. Under this change of view of MoEF, the report of the Chairperson of the Expert Committee of the State of Meghalaya which report stood annexed to the affidavit dated 3.5.1997 in this Court to the effect that the mining lease did not fall on forest land was given a go-by and an entirely new stand was taken only on and from 2006-07. One more aspect has been highlighted by the learned counsel for M/s. Lafarge.
On 1.6.2006, the Chief Conservator of Forests (C), Shri Khazan Singh stated that he had visited the limestone mining project of M/s. Lafarge on 24.5.2006 when he found that the mining lease area is surrounded by thick natural vegetation cover with sizeable number of tall trees. According to the Chief Conservator of Forests (C), the Rapid EIA Report (ERM India Pvt. Ltd.) submitted by the project proponent describes the land as waste land which was not a fact. Thus, according to the Chief Conservator of Forests (C), the project proponent should be directed to obtain clearance under the 1980 Act and not to expand mining activities till such clearance is obtained.
After the said letter dated 1.6.2006, the then Principal Chief Conservator of Forests now stated vide letter dated 11.5.2007 that he too agreed with the opinion of the Chief Conservator of Forests (C), Shri Khazan Singh. However, according to the learned counsel, even the Principal Chief Conservator of Forests stated in his letter dated 11.5.2007 that though M/s. Lafarge had failed to take forest clearance, they were not at fault because of the certificate of the Council that the site fell in a non-forest area. The letter dated 11.5.2007 further goes on to state that the activities of the company will provide employment to large number of local tribals and rural people and that since the company had applied for forest clearance on 3.5.2007 forest clearance may be considered. Thus, according to the learned counsel, there was no collusion between M/s. Lafarge and the DFO as alleged to get the certificate dated 13.6.2000.
15. On the question of alleged suppression by M/s. Lafarge from MoEF of the NEHU Report 1997, learned counsel submitted that an application was prepared and submitted by M/s. LMMPL for Environmental Clearance to MoEF vide letter dated 1.9.1997; along with the said letter there were several enclosures. One of the enclosures was the NEHU Report, the other was NOC from Khasi Hills Autonomous Council for mining operation in the project area. This letter dated 1.9.1997 was duly acknowledged by MoEF vide its letter dated 24.10.1997. As stated above, in view of the amendment to the Notification of 1994, the project proponent was advised to make a new proposal in two different parts, namely, site clearance and project clearance. Pursuant to the said advice the project proponent preferred Site Clearance Application on 23.9.1998 made to MoEF in which once again the project proponent enclosed maps which were verbatim reproduction of the relevant pages (including maps) in the NEHU Report. MoEF granted Site Clearance on 18.6.1999. Further even the Mining Plan submitted by the project proponent contained a chapter on Environment Management Plan (EMP) which is a verbatim copy of Chapter 6 of NEHU Report. The said plan was approved by Bureau of Mines. Moreover, in the Sociological and Ecological Impact Assessment Report dated 16.2.1998 prepared by ERM it has been expressly stated that Environmental Impact Assessment was carried out in 1997 and it was submitted to MoEF in September, 1997. To the same effect one finds reference in the Executive Summary of the EIA of proposed Limestone Mining of 9.4.1998 by ERM.
According to the learned counsel the above documents indicate that there was no suppression by the project proponent from MoEF of NEHU Report of 1997 as alleged. One of the points which SAC has argued before us was absence of public hearing as required under EIA Notification of 1994. On this aspect Shri Nariman, learned counsel appearing on behalf of M/s. Lafarge invited our attention to the requisite correspondence. On 22.4.1998 a Notification was issued by Meghalaya State Pollution Control Board of constituting an Environmental Public Hearing Panel to evaluate and assess the documents submitted by the project proponent and to verify the comments, views and suggestions made by the public on the proposed project. This Notification was issued in terms of the EIA Notification of 1994, as amended on 10.4.1997. On 27.4.1998 a public notice was also issued by MPCB informing the general public about the limestone project of M/s. LMMPL. On 5.5.1998 MPCB informed two local newspapers in writing asking them to publish the Khasi translation of the public notice.
On 6.5.1998 MPCB wrote to Shella Confederacy asking its Headman to display two sets of executive summary each in Khasi and English. On 13.5.1998 the State PCB wrote to the Director of Information asking him to publish public notice in Shillong Times. On 25.5.1998 the State PCB wrote to the Secretary, Shella village informing him of date and time of public hearing. 31 members attended the public hearing on 3.6.1998. As stated above, the entire proceedings have been recorded in the minutes of the meeting. On 4.9.1998 the Deputy Director, Govt. of India, MoEF forwarded a letter to the State PCB enclosing proceedings of the public hearing conducted for proposed limestone mining project of M/s. LMMPL, Nongtrai. Thus, according to the learned counsel there is no merit in the submission advanced on behalf of SAC that public hearing as per EIA Notification of 1997 did not take place.
16. Shri Nariman, learned counsel appearing on behalf of M/s. Lafarge further submitted that on facts and circumstances of the present case it is clear that both the project proponent and the MoEF were at all relevant times under the bona fide impression that the project site was not forest land; in fact the consistent view of all authorities, ncluding MoEF, was that the project site (mining lease area) was not located on "forest land". In this connection our attention was invited to the application dated 23.9.1998 made by M/s. LMMPL to MoEF for Site Clearance, the NOC from KHADC dated 27.8.1997 stating that the project area does not fall within a forest land, grant of Site Clearance on 18.6.1999 by MoEF, application for Environmental Clearance dated 17.4.2000, grant of Environmental Clearance on 9.8.2001. All these documents and series of letters exchanged during the relevant time, according to the learned counsel, indicate that both the project proponent and MoEF were at all relevant times under the bona fide impression that the project site (mining lease area) was not located on forest land.
17. Learned counsel further submitted that after stop mining order dated 30.4.2007 and the direction of CCF(C) of even date to obtain Forest Clearance under Section 2 of the 1980 Act, an application was filed by M/s. Lafarge on 3.5.2010 to the State Government under Rule 6 of the Forest Conservation Rules, 2003, as amended in 2004. Accordingly, on 11.5.2007 the Principal Chief Conservator of Forest, Meghalaya wrote to the Government of Meghalaya agreeing with the views of the CCF (C) to the effect that M/s. Lafarge should obtain permission under the 1980 Act. At the same time, as stated above, the PCCF made it clear that no fault lay on the door step of M/s. Lafarge for not seeking Forest Clearance earlier. Accordingly, on 19.6.2007 a formal proposal was made by State Government on 19.6.2007 to MoEF for diversion of 116.589 Ha of forest land for limestone and other ancillary activities in favour of M/s. Lafarge in Khasi Hills Division under Section 2 of the 1980 Act. Thus, all necessary steps were taken, as indicated hereinabove, by M/s. Lafarge which ultimately culminated in the Environmental Clearance by MoEF dated 19.4.2010 and Forest Clearance dated 22.4.2010. In thecircumstances, learned counsel submitted that I.A. 1868/2007 preferred by M/s. Lafarge be allowed.
Issues
18(i) Nature of land;
(ii) Whether ex post facto environmental and forest clearances dated 19.4.2010 and 22.4.2010 respectively stood vitiated by alleged suppression by M/s. Lafarge regarding the nature of the land. In this connection it was contended by learned Amicus and by the learned counsel appearing on behalf of SAC that the EIA clearance under Section 3 of the 1986 Act dated 9.8.2001 (being a parent clearance) was obtained by M/s. Lafarge on the basis of "absence of forest" with full knowledge that the project site was located on forest land.
Findings
(a) Legal Position
19. Universal human dependence on the use of environmental resources for the most basic needs renders it impossible to refrain from altering environment. As a result, environmental conflicts are ineradicable and environmental protection is always a matter of degree, inescapably requiring choices as to the appropriate level of environmental protection and the risks which are to be regulated. This aspect is recognized by the concept of "sustainable development". It is equally well-settled by the decision of this Court in the case of Narmada Bachao Andolan v. Union of India and Others [(2000) 10 SCC 664] that environment has different facets and care of the environment is an on-going process. These concepts rule out the formulation of across-the-board principle as it would depend on the facts of each case whether diversion in a given case should be permitted or not, barring "No Go" areas (whose identification would again depend on undertaking of due diligence exercise). In such cases, the Margin of Appreciation Doctrine would apply.
20. Making these choices necessitates decisions, not only about how risks should be regulated, how much protection is enough, and whether ends served by environmental protection could be pursued more effectively by diverting resources to other uses. Since the nature and degree of environmental risk posed by different activities varies, the implementation of environmental rights and duties require proper decision making based on informed reasons about the ends which may ultimately be pursued, as much as about the means for attaining them. Setting the standards of environmental protection involves mediating conflicting visions of what is of value in human life.
(b) Nature of the land
21. In the NEHU Report of June, 1997 (Rapid EIA of Proposed Limestone Mining Project at Nongtrai, Meghalaya), a brief history of limestone mining in Khasi Hills of Meghalaya is spelt out. It indicates that mining of limestone in Khasi Hills dates back to July 10, 1763 when an agreement was signed between East India Company and the Nawab of Bengal for preparation of chunam. Regular trade of limestone from Khasi Hills of Bengal started on and from 1858. Substantial revenue was earned by the British Government from these limestone quarries as rentals, which was Rs. 23,000/- in 1858 and which subsequently stood increased to Rs. 67,000/- in 1878.
The first historical account of exploitation of Nongtrai limestone dates back to 1885 when Don Rai of Shella obtained permits from the Wahadars (Head of Confederacy) of Shella to quarry limestone in Nongtrai village. There are historical records about continuance of limestone trade between Khasi Hills and Bengal up to 1947. The business declined after partition. Limestone mining and trade slipped into the hands of unorganized sector. According to the NEHU Report of 1997, today a number of private parties quarry limestone using unscientific methods and export it to counterparts in Bangladesh, often illegally. These private parties sell the product at a very low price. This aspect is also being examined by CEC which has now filed its report in I.A. No. 3063 of 2011. One more aspect needs to be highlighted.
According to the State of Forest Report, 2001, the North Eastern Hill State of Meghalaya is predominantly tribal with 86% population being tribal. According to the NEHU Report of 1997, approximately 60 settlements consisting of 50-200 inhabitants
each with a total estimate population of 16500 persons exist within 10 km radius of the proposed mining site.
Under an agreement dated 29.9.1993 (lease agreement), the village Durbar represented by a Special Committee headed by the Headman as lessor granted lease of the limestone quarry in Nongtrai to M/s. LMMC (the predecessor-in-interest of M/s. LMMPL).
Thus, an area of 100 hectares stood acquired on lease basis for mining whose lessor was the village Durbar of Nongtrai. Coming to the topography of the area, one finds that the limestone bearing area around Nongtrai and Shella villages falls under Karst topography. This area falls on the southern fringe of the Meghalaya plateau. Karst topography is characterized by a limestone caverns/ caves. The factum of limestone bearing area around Nongtrai and Shella falling under Karst topography is also borne out by the certificate dated 27.8.1997 issued by KHADC, Shillong. This Council is a constitutional authority under Sixth Schedule of the Constitution. As stated above, the limestone bearing area around Nongtrai and Shella falls on the southern fringe of Meghalaya plateau. The site is approachable from Shillong via Mawsynram and Nongtrai villages by a motorable road. The site is also accessible from Shillong by road via Cherrapunji. This road is wide enough for crushers and heavy machines to be brought from Shillong. The site is on the uneven terrain with a rugged topography. (See Rapid EIA Report submitted by ERM India Pvt. Ltd. dated 6.4.2000). According to the said report, the Karst topography of the area supports sporadic growth of a few tree shrubs. According to the NEHU Report of 1997, the site selected for mining has commercially viable limestone deposit. The site was selected after thorough consultation with the concerned village Durbar who is the custodian of the land. The land was left unused covered with degraded forests and this was the reason for the Durbar to lease out the said land to the project proponent for mining.
The village Durbar also felt that in the area unscientific limestone quarrying was going on resulting in loss of revenue both to the State as well as the inhabitants of the village particularly because the said mining was undertaken by unorganized sectors and, thus, it was decided to enter into the lease with the project proponent so that mining could be done on scientific basis. The site was also selected because of easy accessibility by road and less vegetation clearance stood involved. According to the NEHU Report, the site is located in the area on the outskirts of the forest. (See page 19 of the said Report)
(c) Validity of ex post facto clearance
22. An important argument has been advanced on behalf of SAC that the site clearance dated 18.6.1999 and EIA clearance dated 9.8.2001 were based on misrepresentation by M/s. Lafarge. They proceeded on the basis that there was no forest.
That, both the said clearances stood vitiated by suppression of material fact of existence of forest by M/s. Lafarge and as a sequel the subsequent revised environmental clearance dated 19.4.2010 and forest clearance (Stage - I) dated 22.4.2010 stood vitiated. In this connection, it was submitted that having regard to Para 4.3.1 of the
National Forest Policy, 1988 tropical rain/ moist forest is required to be totally safeguarded; that, the project is located in a tropical moist forest and no forest clearance ought to have been granted by MoEF because of the special ecological significance recognized by the 1988 policy. According to SAC, the fact that tropical moist forest existed in the area and continues to exist was known to M/s. Lafarge at all material times as can be seen from the NEHU Report of 1997 in which it has been categorically stated that the vegetation at the study site is a mixed moist deciduous forest composed of deciduous and evergreen tree elements; that, in the same Report it has been further stated that the vegetation of the area is a tropical semi-evergreen forest composed of deciduous and evergreen elements which is further corroborated by the assessment of Floral Diversity prepared by NEHU dated June, 2010 in which it has been stated that the forest in the study area is tropical moist deciduous forest, tropical semi-evergreen forest, savanna, sub-tropical broad leaves forest, forest garden, orchards and riparian forest; that, the vegetation in the unbroken area is tropical moist deciduous type with variable canopy cover mostly sparse. Thus, according to SAC and CEC, the undisputed position emerging from the record that the subject area is covered by a tropical moist forest deserving highest degree of ecological protection ought to have been taken into account by MoEF which was not done at the time of initial clearances dated 18.6.1999 and 9.8.2001.
Shri Divan, learned senior counsel appearing for SAC submitted before us that the case in hand essentially deals with the decision making process in relation to the grant of environmental clearance and to test whether the decision making process stood up to judicial review. According to the learned counsel, the following basic points regarding the legal framework must be kept in view: - From the environmental perspective, in relation to a mining project, there are three main sets of permissions that are required to be obtained:
(i) The first set of permissions is at the State level. This set of permissions primarily has to do with pollution. In each State or a group of States, a Pollution Control Board issues consent/ permit. These consents or permits are granted from a pollution perspective. The scope of enquiry is limited to pollution impacts. Obtaining such consents and permits are essential but they are not a substitute for compliance with other environmental laws.
(ii) The second set of permissions, according to the learned counsel, is with regard to environmental clearance. The scope of environmental clearance is wider than a pollution control clearance. The authority granting environmental clearance will look at broader impacts beyond pollution and will examine the effect of the project on the community, forests, wild life, ground water, etc. which are beyond the scope of Pollution Control Board examination. The exercise of granting environmental clearance with regard to a limestone mining project of the present magnitude requires MoEF clearance.
(iii) A clearance for diversion of forest under the 1980 Act which is granted by MoEF on the recommendation of the FAC should logically precede the grant of environmental clearance as the environmental clearance is broader in scope and deals with all aspects, one of which may be forest diversion.
23. Applying the said legal framework to the facts of the present case, the learned counsel appearing for SAC submitted that the MoEF, as the authority which decides on diversion of forests and which grants environmental clearances, is duty bound to examine the diversion application in the context of the 1988 Policy, particularly, where tropical moist forests are sought to be cleared by the project proponent.
According to the learned counsel, where MoEF grants environmental clearance in ignorance of the existence of a forest due to mis-declaration, it is duty bound to take severest possible action against the party that made the false declaration for profit. According to the learned counsel, since impact assessment and EIA clearances are processes based on self declarations by the project proponent (s), the decision making by MoEF depends upon honest and cogent material supplied by the project proponent and since the said process is premised on a full and fair disclosure of relevant facts by the project proponent, in cases where material facts are not disclosed, the MoEF should withdraw both the site as well as the environmental clearances. According to the learned counsel, the most important input in this regard must be received by MoEF in the course of its decision making from the public which is an essential check for a failure to disclose correct facts or to have regard to environmental issues that may have escaped the attention of the project proponent.
According to the learned counsel, the requirement of public hearing is, thus, mandatory both under the 1994 Notification and the 2006 Notification. That, the requirement for payment of NPV does not automatically mean that environmental clearance is to be granted.
24. We are in full agreement with the legal framework suggested by the learned counsel for SAC. There is no dispute on that point. The question is confined to the application of the legal framework to the facts of the present case. Can it be said on the above facts that a mis-declaration was wilfully made by M/s. Lafarge or its predecessor (project proponent) while seeking site and environmental clearances? Was there non-application of mind by MoEF in granting such clearances? Was the decision of MoEF based solely on the declarations made by the project proponent(s)?
25. At the outset, one needs to take note of Section 2 of the 1980 Act which stipulates prior approval. That Section refers to restriction on the dereservation of forests or use of forest land for non-forest purpose. It begins with non-obstante clause. It states that "Notwithstanding anything contained in any other law for the time being in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing that any forest land or any portion thereof may be used for any non-forest purpose". This is how the concept of prior approval by the Central Government comes into picture.
Thus, prior determination of what constitutes "forest land" is required to be done. By an order dated 12.12.1996 by a Division Bench of this Court in Writ Petition (C) No. 202 of 1995 with another in case of T.N. Godavarman Thirumulpad v. Union of India, this Court directed each State Government to constitute within a specific period an Expert Committee to identify areas which are forests irrespective of
whether they are so notified, recognized or classified under any law and also identify areas which were earlier forests but stand degraded, denuded or cleared. The Committee was to be headed by the Principal Chief Conservator of Forests. This order dated 12.12.1996, thus, clarified that every State Government seeking prior approval under Section 2 of the 1980 Act shall first examine the question relating to existence of forests before sending its proposal to the Central Government in terms of the form prescribed under the Forest (Conservation) Rules, 1981 (see Rule 4). Thus, the requirement of submitting the proposal for forest diversion under the 1980 Act is exclusively the obligation of the State Government. This position was spelt out initially in the guidelines dated 25.10.1992. However, later on, the Government of India amended the guidelines in respect of diversion vide letter dated 25.11.1994 and by the said letter the concept of "User Agency" stood introduced. On 10.1.2003, Rule 4 of the 1981 Rules stood reframed which inter alia provided that every "User Agency" who wants to use any forest land for non-forest purpose shall make its proposal in the specified form appended to the Rules to the concerned Nodal Officer along with the requisite information before undertaking any non- forest activity on the forest land and after receiving the said proposal and if the State Government is satisfied that the proposal required prior approval under Section 2, the State Government had to send the said proposal to the Central Government in the appropriate form within the specified period of 90 days from the receipt of the proposal from the "User Agency". At this stage, it may be noted that the earlier project proponent in the present case was M/s. LMMPL. That project proponent had obtained EIA clearance given by MoEF dated 9.8.2001 which clearance stood transferred to M/s.Lafarge only on 30.7.2002.
While granting environmental clearance dated 9.8.2001 there was an express finding to the effect that "no diversion of forest land was involved". In terms of the order of this Court dated 12.12.1996, an Expert Committee was in fact formed by the State of Meghalaya vide notification dated 8.1.1997 with the Principal Chief Conservator of Forests as its Chairman. On 10.2.1997, the State of Meghalaya had addressed a specific letter to the Khasi Hills Autonomous District Council, which as stated above is a Constitutional Authority, stating that the land in question was reckoned as non-forest land and the Council was asked to clarify whether the area in question under the mining lease fell in the forest as per the records of the Council. The Council by its letter dated 28.4.1997 had informed the State Government that the area in question did not fall in the forest. Apart from the said letter, the Chairperson of the Expert Committee appointed by the State of Meghalaya being the Principal Chief Conservator of Forests also submitted his report in which it was expressly stated that the mining lease granted by the State Government did not fall in the forest. Since the mining lease granted by the State did not fall in the forest, the State Government did not submit any proposal to the Central Government under Section 2 of the 1980 Act as it treated the site in question as falling on the outskirts of the forests. It is almost after nine years that there was a change of view on the part of MoEF under which the report of the Expert Committee headed by the Principal Chief Conservator of Forests was given a go-by. Between 1997 and 2007, the view which prevailed was that the project site stood located on the outskirts of the forests. In this connection, it needs to be stated that on 1.6.2006 for the first time the Chief Conservator of Forests (C), Shri
Khazan Singh came out with the change of view which was ultimately accepted in 2007 by MoEF.
According to the Chief Conservator of Forests (C), he had visited the limestone mining project of M/s. Lafarge on 24.5.2006 when he found that the mining lease area stood surrounded by thick natural vegetation covered with sizeable number of tall trees and in the circumstances he recommended that the project proponent should be directed to obtain clearance under the 1980 Act and not to carry on the mining activities till such clearance is obtained. The most important fact is that subsequent to the letter dated 1.6.2006, addressed by the Chief Conservator of Forests (C), Shri Khazan Singh, the Principal Chief Conservator of Forests agreed with the opinion of the Chief Conservator of Forests (C). This was by letter dated 11.5.2007. However, even according to the Principal Chief Conservator of Forests, who was the Chairperson of the Expert Committee appointed by the State Government, M/s. Lafarge was not at fault because the certificate indicating absence of forests was given by Khasi Hills Autonomous District Council. In fact the letter dated 11.5.2007 further goes to state that the activities of M/s. Lafarge will provide employment to a large number of local tribals and rural people and consequently the application for forest clearance made by M/s. Lafarge without prejudice to their rights and contentions dated 3.5.2007 be considered by MoEF. Apart from the above circumstances, on 22.4.1998, a notification was issued by the State Pollution Control Board constituting an Environmental Public Hearing Panel to evaluate and assess the documents submitted by M/s. LMMPL. A public notice was also issued in local newspapers on 25.5.1998. The State Pollution Control Board also sent a letter to the Secretary, Shella Village informing him of the date and time of public hearing and accordingly on 3.6.1998, a public hearing did take place.
According to the minutes of the meeting, 31 citizens of Shella Nongtrai, Pyrkan attended the hearing. In the hearing, the purpose, objective, composition and procedure of environmental public hearing was discussed. The Headman of Nongtrai was also present. He gave reasons as to why the village Durbar had agreed to the proposed project. The main reason being that the limestone was abundantly available in the area but the same remained unutilized by local villagers themselves due to lack of infrastructure. That, for economic development of the local population, the village Durbar had decided to lease the area required for the project to M/s. Lafarge. In the meeting, the economic benefits of the local people from the project proponent were also discussed. The environmental implications were also discussed.
The mitigating measures to be adopted by the project proponent were also discussed to maintain the ecology and environmental balance of the area. The objections of certain persons were also noted and discussed. The Durbar came to the conclusion that there was no destruction of any caves.
The complainant was not even present during the hearing. Thus, a public hearing did take place on 3.6.1998. One more aspect at this stage needs to be mentioned. Public participation provides a valuable input in the process of identification of forest. Today, amongst the tribals of the North East, there is a growing awareness of the close relationship between poverty and environmental pollution.
According to Environmental Law and Policy in India by Shyam Divan and Armin Rosencranz, "many native and indigenous people are fully aware of what constitutes preservation and conservation of biodiversity. Many native and indigenous people have many a times opposed government policies that permit exploitation on traditional lands because such exploitation threatens to undermine the economic and spiritual fabric of their culture, and often results in forced migration and resettlement, the struggle to protect the environment is often a part of the struggle to protect the culture of the native and indigenous people" (see page 591). In our view, the natives and indigenous people are fully aware and they have knowledge as to what constitutes conservation of forests and development. They equally know the concept of forest degradation. They are equally aware of systematic scientific exploitation of limestone mining without causing of "environment degradation". However, they do not have the requisite wherewithal to exploit limestone mining in a scientific manner. These natives and indigenous people know how to keep the balance between economic and environment sustainability.
In the present case, the above is brought out by the Minutes of the meeting held on 3.6.1998. In fact the written submissions filed by the Nongtrai Village Durbar (respondent No. 5) in I.A. No. 1868 of 2007 preferred by M/s. Lafarge have specifically averred that the total area of the land that falls within the jurisdiction of Nongtrai Village is about 2200 hectares; that, the said lands fall in two categories, namely, individual ownership lands, and community lands.
The management and control of community lands is completely within the jurisdiction of the community. Such community lands in highlands of Khasi Hills are termed as Ri Raid whereas community lands in low-lying areas are termed as Ri Seng. Nongtrai village has about 1300 hectares of community land out of which 900 hectares are limestone bearing land. The manner and method of allocation, use and occupation of the community lands are decided by the Village Durbar. The Village Durbar has granted lease of 100 hectares of community land out of 900 hectares which as stated above is limestone bearing land. It is important to note that apart from the minutes of the meeting held on 3.6.1998 which was attended by the Headman of the Nongtrai Village, a detail written submission has been filed on 13.5.2011 by the Nongtrai Village Durbar fully supporting the impugned project.
Thus, this is a unique case from North East. We are fully satisfied that the natives and the indigenous people of Nongtrai Village are fully conscious of their rights and obligations towards clean environment and economic development. There is ample material on record which bears testimony to the fact of their awareness of ecological concerns which has been taken into account by MoEF. In the circumstances, it cannot be said that the impugned project should be discarded and that the decision of MoEF granting ex post facto clearances stands vitiated for non-application of mind as alleged by SAC. At this stage one more argument advanced on behalf of SAC needs to be addressed. According to SAC, in this case a decisive factor which clearly shows that there is "forest" on the core area is the statutory definition of forest contained in the United Khasi - Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1958. Section 2(f) defines the expression
"forest" and the tree count emerging from the High Powered Committee (HPC) Report which establishes that the area answers the statutory definition. According to SAC, in terms of the said definition of forest, if there exists more than 25 trees per acre then it is a forest. This argument has no merit. According to Shri Krishnan Venugopal, learned senior counsel appearing on behalf of the Village Durbar of Nongtrai Village (respondent No. 5), SAC has not stated the full facts in this regard. We find merit in this contention. Section 5 of the 1958 Act inter alia provides that no timber or forest produce shall be removed for the purpose of sale, trade and business without prior permission. Section 7 of the said Act deals with restrictions on felling of trees and further provides that no tree below 1.37 metre in girth at the breast level shall be felled. Thus, it is the trees of a particular girth and breast height and not every tree should be counted while computing whether a particular area is a forest area or not. In fact in the year 2007, a survey of the unbroken area was conducted by the Forest Department of the State of Meghalaya wherein an inventory of the existing trees was prepared based on their nature and girth. The said record confirms that the unbroken area has less than 25 trees per acre having girth of more than 120 cms per acre. It is in view of the existence of the 1958 Act, which is a local legislation, that the native people as also the State officials like the DFO understood the area in the light of the said Act. It is important to note once again that this understanding of the natives and tribals about the Local Act is an important input in the decision making process of granting environmental clearance. It is deeply engrained in the local customary law and usage. It is so understood by the Expert Committee headed by the then Principal Chief Conservator of Forests on the basis of which the State granted the mining lease saying that there was no forest. This certificate was granted by the State in terms of the order of this Court dated 12.12.1996.
This understanding also existed in the mind of KHADC when it gave certificates on 28.4.1997, 10.7.1997 and 27.8.1997. In fact this has been the understanding of the Council as is apparent even from its letter dated 18.1.2011 (see page 126 of the affidavit dated 9.3.2011 filed by the State of Meghalaya).
As stated above, this view prevailed with the MoEF between 1997 and 2007. The word "environment" has different facets [see para 127 of the judgment of this Court in Narmada Bachao Andolan (supra)]. On the above facts, it is not possible for us to hold that the decision to grant ex post facto clearances stood vitiated on account of non-application of mind or on account of suppression of material facts by M/s. Lafarge as alleged by SAC.
26. Similarly, it is not possible for us to hold on the above facts that ex post facto clearances have been granted by MoEF in ignorance of the existence of forests due to mis-declaration. Two points are required to be highlighted at the outset. Firstly, the ex post facto clearance is based on the revised EIA.
In the circumstances, EIA Notification of 2006 would not apply. Secondly, IA preferred by SAC being I.A. No. 2225-2227/08 was preferred only in March, 2008. Thus, during the relevant period of almost a decade, SAC did not object to the said project. In fact an IA is now pending in this Court being IA No. 3063 of 2011 preferred by CEC which indicates that there are 28 active mines out of which 8 are located along the Shella-Cherrapunjee Road which are operating without obtaining approval and in violation of the 1980 Act. Further, the said I.A. alleges that 6
registered quarry owners are under the Shella Wahadarship, East Khasi Hills and that there are 12 individuals involved in mining limestone in the Shella Area during 2008-09. All these aspects require in-depth examination. The locus of SAC is not being doubted. However, the I.A. No. 3063 of 2011 preferred by CEC which has acted only after receiving inputs from the respondent No. 5 prima facie throws doubt on the credibility of objections raised by SAC. However, we do not wish to express any conclusive finding on this aspect at this stage. On the ex post facto clearance, suffice it to state that after Shri Khazan Singh, Chief Conservator of Forests (C) submitted his report on 1.6.2006, MoEF directed the project proponent to apply for necessary clearances on the basis that there existed a forest in terms of the order of this Court dated 12.12.1996 and the ex post facto clearance has now been granted on that basis permitting diversion of forest by granting Stage-I forest clearance subject to compliance of certain conditions imposed by MoEF and by this Court. On the question of non- application of mind by the MoEF, we find that at various stages despite compliances by the project proponent and despite issuance of certificates by various authorities, MoEF sought further clarifications/ information by raising necessary requisitions. To give a few instances in terms of the 1994 EIA Notification, the then project proponent made an application to MoEF for grant of environmental clearance. With that application, the then project proponent submitted the NEHU Report of 1997. However, in the mean time there was an amendment to the EIA Notification of 1994. That amendment took place on 10.4.1997 by which two stage clearances were required to be obtained, namely, site clearance and project clearance.
Therefore, immediately MoEF returned the application to the project proponent asking it to submit applications for site clearance as well as for project clearance.
Similarly, although the then project proponent had made site clearance application which fulfilled the 1994 Notification (as amended), the MoEF gave site clearance on 18.6.1999 with additional conditions. Similarly, despite the project proponent making application for environmental clearance on 17.4.2000 enclosing Rapid EIA prepared by ERM India Pvt. Ltd. referring to absence of forest, the MoEF asked project proponent to obtain certificate of DFO in terms of the definition of the word "forest" as laid down in the order of this Court dated 12.12.1996. Similarly, despite the certificate given by DFO on 13.6.2000 stating that the proposed mining site is not a forest area, the MoEF sought further details in terms of the connotation of the word "forest" as laid down in the order of this Court dated 12.12.1996. Similarly, from time to time the Expert Committee of MoEF asked for details with regard to flora and fauna, list of species in that area, types of forests existing in that area, etc. Similarly, after receipt of letter from Shri Khazan Singh, the then Chief Conservator of Forests (C) on 1.6.2006, the MoEF called upon the project proponent to submit an application for forest clearance on the basis that the site was located in the forest. A number of queries have been raised from time to time by the MoEF as indicated from the facts enumerated hereinabove. Even a report from the High Powered Committee (HPC) was called for by MoEF which was submitted on 5.4.2010. There were four terms of references given to the HPC. According to the report, all conditions imposed with regard to environmental clearance had been substantially complied with by M/s. Lafarge. The report also refers to the steps taken by M/s. Lafarge with
regard to reforestation. The most important aspect of the HPC Report is regarding the topography of the area. It states that though the area can be treated as forest, still it is a hilly uneven undulating area largely covered by "Karstified" limestone.
The Report further states that the area can be reforested as a part of the reclamation plan. It further states that the indigenous and native people are satisfied with the credentials of M/s. Lafarge as the company is providing health care facilities, drinking water facilities, employment for local youth, construction of village roads, employment for school teachers, scholarship programme for children, etc. It also indicates that the issue of mining was thoroughly discussed with the Village Durbar by the members of the HPC who visited the site and that the community was in agreement to allow M/s. Lafarge to continue mining. The report further notes that most of the members of the SAC were not the residents of the locality (Shella Village) and were living in Shillong while occasionally visiting Shella. The report further states that 200 persons participated in a long interaction with the members of HPC. The report further states that in fact the villagers became very upset in the apprehension of M/s. Lafarge not being allowed to mine on their community land.
As stated above, even according to the letter dated 11.5.2007, the Principal Chief Conservator of Forests states that though the site falls in the forest as pointed out by Shri Khazan Singh, the Chief Conservator of Forests (C) vide letter dated 1.6.2006, still it is not the fault of M/s. Lafarge. Thus, under the above circumstances, we are satisfied that the parameters of intergenerational equity are satisfied and no reasonable person can say that the impugned decision to grant Stage - I forest clearance and revised environmental clearance stood vitiated on account of non-application of mind by MoEF. On the contrary, the facts indicate that the MoEF has been diligent. That, MoEF has taken requisite care and caution to protect the environment and in the circumstances, we uphold the stage-I forest clearance and the revised environmental clearance granted by MoEF.
27. Before concluding, we would like to refer to our order dated 12.4.2010 which recites agreed conditions between the parties which conditions are imposed by this Court in addition to the conditions laid down by MoEF. These agreed conditions incorporated in our order dated 12.4.2010 are in terms of our judgment in T.N. Godavarman Thirumulpad v. Union of India [(2006) 1 SCC 1] with regard to commercial exploitability which even according to SAC was not considered by MoEF at the time of granting revised environmental clearance on 19.4.2010 or at the time of granting forest clearance on 22.4.2010. We reproduce our order dated 12.4.2010, which reads as under: "Heard both sides. Learned Attorney General for India stated that the Ministry of Environment & Forests will take a decision under the Forest Conservation Act and shall consider granting permission subject to the following conditions :
1. The applicant shall deposit a sum of Rs.55 crores towards five times of the normal NPV (as recommended by the CEC) with interest @ 9% per annum from 1st April, 2007, till the date of payment. Such payment shall be made in totality in one instalment within 4 weeks from the date of the order.
2. An SPV shall be set up under the Chairmanship of the Chief Secretary, Meghalaya with the Principal Chief Conservator of Forests, Meghalaya, Tribal Secretary, Meghalaya, Regional Chief Conservator of Forests, MoEF at Shillong and one reputed NGO (to be nominated by the MoEF) as Members. The SPV will be set up within 4 weeks.
3. The User Agency will deposit with the SPV a sum of Rs.90/- per tonne of the limestone mined from the date on which mining commenced within 4 weeks of the SPV being constituted.
4. The SPV shall follow the principles and procedure presently applied for utilization of CAMPA money. The account will be audited by the Accountant General, Meghalaya. The money will be kept in interest bearing account with a Nationalized Bank. The Accountant General and the SPV shall file an Annual Report before this Hon'ble Court detailing all the work done by it in relation to the welfare projects mandated upon it including the development of health, education, economy, irrigation and agriculture in the project area of 50 kms. solely for the local community and welfare of Tribals.
5. The User Agency will comply with all the conditions imposed on it earlier as well as further recommendations made by the Committee constituted by the MoEF under the order dated 30th march, 2010, including, in particular, the following : (a) It shall prepare a detailed Catchment Area Treatment Plan.
(b) It shall explore the use of surface miner technology.
(c) It shall monitor ambient area quality as per New National Ambient Air Quality Standards.
(d) It shall take steps to construct a Sewage Treatment Plant and Effluent Treatment Plant.
(e) It shall discontinue any agreement for procuring limestone on the basis of disorganized and unscientific and ecologically unsustainable mining in the area.
(f) It shall prepare a comprehensive forest rehabilitation and conservation plan covering the project as well as the surrounding area.
(g) It shall prepare a comprehensive Biodiversity Management Plan to mitigate the possible impacts of mining on the surrounding forest and wildlife.
(h) It shall maintain a strip of at least 100 meter of forest area on the boundary of mining area as a green belt.
6. The MoEF shall take a final decision under the Forest Conservation Act, 1980 for the revised environmental clearance for diversion of 116 hectares of forest land, taking into consideration all the conditions stipulated hereinabove and it may impose such further conditions as it may deem proper.
List on 26.04.2010 at 2.00 p.m."
28. This order indicates the benefit which will accrue to the natives and residents of the Nongtrai Village. The site covers 100 hectare required for limestone mining. The Village Durbar seeks to exploit it on scientific lines. The minutes of the meeting of the Village Durbar and the submissions filed by the Durbar indicate the exercise of the rights by the tribals and the natives of Nongtrai Village seeking economic development within the parameters of the 1980 Act and the 1986 Act.
29. At the request of the learned counsel for SAC, we wish to state that none of the observations made hereinabove in the context of the nature of the land (the extent of the lands owned by the community and by private persons) shall be taken into account by the competent court in which title dispute is pending today.
(d) Summary
30. Time has come for us to apply the constitutional "doctrine of proportionality" to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well-recognized principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision?
Thus, the court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of "margin of appreciation" in favour of the decision-maker would come into play. Our above view is further strengthened by the decision of the Court of Appeal in the case of R v. Chester City Council reported in (2011) 1 All ER 476 (paras 14 to 16).
31. Accordingly, this matter stands disposed of keeping in mind various facets of the word "environment", the inputs provided by the Village Durbar of
Nongtrai (including their understanding of the word "forest" and the balance between environment and economic sustainability), their participation in the decision-making process, the topography and connectivity of the site to Shillong, the letter dated 11.5.2007 of the Principal Chief Conservator of Forests and the report of Shri B.N. Jha dated 5.4.2010 (HPC) (each one of which refers to economic welfare of the tribals of Village Nongtrai), the polluter pays principle and the intergenerational equity (including the history of limestone mining in the area from 1858 and the prevalent social and customary rights of the natives and tribals). The word "development" is a relative term. One cannot assume that the tribals are not aware of principles of conservation of forest. In the present case, we are satisfied that limestone mining has been going on for centuries in the area and that it is an activity which is intertwined with the culture and the unique land holding and tenure system of the Nongtrai Village. On the facts of this case, we are satisfied with due diligence exercise undertaken by MoEF in the matter of forest diversion. Thus, our order herein is confined to the facts of this case.
Conclusion 32. Accordingly, we see no reason to interfere with the decision of MoEF granting site clearance dated 18.6.1999, EIA clearance dated 9.8.2001 read with revised environmental clearance dated 19.4.2010 and Stage-I forest clearance dated 22.4.2010. Accordingly, I.A. No. 1868 of 2007 preferred by M/s. Lafarge stands allowed with no order as to costs. Consequently, I.A. No. 2937 of 2010 preferred by SAC is dismissed.
The interim order passed by this Court on 5.2.2010 shall also stand vacated. All other I.As. shall stand disposed of.
Part II
Guidelines to be followed in future cases
(i) As stated in our order hereinabove, the words "environment" and "sustainable development" have various facets. At times in respect of a few of these facets data is not available. Care for environment is an ongoing process. Time has come for this Court to declare and we hereby declare that the National Forest Policy, 1988 which lays down far-reaching principles must necessarily govern the grant of permissions under Section 2 of the Forest (Conservation) Act, 1980 as the same provides the road map to ecological protection and improvement under the Environment (Protection) Act, 1986. The principles/ guidelines mentioned in the National Forest Policy, 1988 should be read as part of the provisions of the Environment (Protection) Act, 1986 read together with the Forest (Conservation) Act, 1980. This direction is required to be given because there is no machinery even today established for implementation of the said National Forest Policy, 1988 read with the Forest (Conservation) Act, 1980. Section 3 of the Environment (Protection) Act, 1986 confers a power coupled with duty and, thus, it is incumbent on the Central Government, as hereinafter indicated, to appoint an Appropriate Authority, preferably in the form of Regulator, at the State and at the Centre level for ensuring implementation of the National Forest Policy, 1988. The difference between a regulator and a court must be kept in mind. The court /
tribunal is basically an authority which reacts to a given situation brought to its notice whereas a regulator is a pro-active body with the power conferred upon it to frame statutory Rules and Regulations. The Regulatory mechanism warrants open discussion, public participation, circulation of the Draft Paper inviting suggestions. The basic objectives of the National Forest Policy, 1988 include positive and pro-active steps to be taken. These include maintenance of environmental stability through preservation, restoration of ecological balance that has been adversely disturbed by serious depletion of forest, conservation of natural heritage of the country by preserving the remaining natural forests with the vast variety of flora and fauna, checking soil erosion and denudation in the catchment areas, checking the extension of sand-dunes, increasing the forest/ tree cover in the country and encouraging efficient utilization of forest produce and maximizing substitution of wood. Thus, we are of the view that under Section 3(3) of the Environment (Protection) Act, 1986, the Central Government should appoint a National Regulator for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters. There is one more reason for having a regulatory mechanism in place.
Identification of an area as forest area is solely based on the Declaration to be filed by the User Agency (project proponent). The project proponent under the existing dispensation is required to undertake EIA by an expert body/ institution. In many cases, the court is not made aware of the terms of reference. In several cases, the court is not made aware of the study area undertaken by the expert body. Consequently, the MoEF/ State Government acts on the report (Rapid EIA) undertaken by the Institutions who though accredited submit answers according to the Terms of Reference propounded by the project proponent. We do not wish to cast any doubt on the credibility of these Institutions. However, at times the court is faced with conflicting reports. Similarly, the government is also faced with a fait accompli kind situation which in the ultimate analysis leads to grant of ex facto clearance. To obviate these difficulties, we are of the view that a regulatory mechanism should be put in place and till the time such mechanism is put in place, the MoEF should prepare a Panel of Accredited Institutions from which alone the project proponent should obtain the Rapid EIA and that too on the Terms of Reference to be formulated by the MoEF.
(ii) In all future cases, the User Agency (project proponents) shall comply with the Office Memorandum dated 26.4.2011 issued by the MoEF which requires that all mining projects involving forests and for such non-mining projects which involve more than 40 hectares of forests, the project proponent shall submit the documents which have been enumerated in the said Memorandum.
(iii) If the project proponent makes a claim regarding status of the land being non-forest and if there is any doubt the site shall be inspected by the State Forest Department along with the Regional Office of MoEF to ascertain the status of forests, based on which the certificate in this regard be issued. In all such cases, it would be desirable for the representative of State Forest Department to assess the Expert Appraisal Committee.
(iv) At present, there are six regional offices in the country. This may be expanded to at least ten. At each regional office there may be a Standing Site Inspection
Committee which will take up the work of ascertaining the position of the land (namely whether it is forest land or not). In each Committee there may be one non-official member who is an expert in forestry. If it is found that forest land is involved, then forest clearance will have to be applied for first.
(v) Increase in the number of Regional Offices of the Ministry from six presently located at Shillong, Bhubaneswar, Lucknow, Chandigarh, Bhopal and Bangalore to at least ten by opening at least four new Regional Offices at the locations to be decided in consultation with the State/UT Governments to facilitate more frequent inspections and in-depth scrutiny and appraisal of the proposals.
(vi) Constitution of Regional Empowered Committee, under the Chairmanship of the concerned Chief Conservator of Forests (Central) and having Conservator of Forests (Central) and three non-official members to be selected from the eminent experts in forestry and allied disciplines as its members, at each of the Regional Offices of the MoEF, to facilitate detailed/in-depth scrutiny of the proposals involving diversion of forest area more than 5 hectares and up to 40 hectares and all proposals relating to mining and encroachments up to 40 hectares.
(vii) Creation and regular updating of a GIS based decision support database, tentatively containing inter-alia the district-wise details of the location and boundary of (i) each plot of land that may be defined as forest for the purpose of the Forest (Conservation) Act, 1980; (ii) the core, buffer and eco-sensitive zone of the protected areas constituted as per the provisions of the Wildlife (Protection) Act, 1972; (iii) the important migratory corridors for wildlife; and (iv) the forest land diverted for non-forest purpose in the past in the district. The Survey of India toposheets in digital format, the forest cover maps prepared by the Forest Survey of India in preparation of the successive State of Forest Reports and the conditions stipulated in the approvals accorded under the Forest (Conservations) Act, 1980 for each case of diversion of forest land in the district will also be part of the proposed decision support database.
(viii) Orders to implement these may, after getting necessary approvals, be issued expeditiously.
(ix) The Office Memorandum dated 26.4.2011 is in continuation of an earlier Office Memorandum dated 31.03.2011. This earlier O.M. clearly delineates the order of priority required to be followed while seeking Environmental Clearance under the Environment Impact Assessment Notification 2006. It provides that in cases where environmental clearance is required for a project on forest land, the forest clearance shall be obtained before the grant of the environment clearance.
(x) In addition to the above, an Office Memorandum dated 26.04.2011 on Corporate Environmental Responsibility has also been issued by the MoEF. This O.M. lays down the need for PSUs and other Corporate entities to evolve a Corporate Environment Policy of their own to ensure greater compliance with the environmental and forestry clearance granted to them.
(xi) All minutes of proceedings before the Forest Advisory Committee in respect of the Forest (Conservation) Act, 1980 as well as the minutes of proceedings of
the Expert Appraisal Committee in respect of the Environment (Protection) Act, 1986 are regularly uploaded on the Ministry's website even before the final approval/decision of the Ministry for Environment and Forests is obtained. This has been done to ensure public accountability. This also includes environmental clearances given under the EIA Notification of 2006 issued under the Environment (Protection) Act, 1986. Henceforth, in addition to the above, all forest clearances given under the Forest (Conservation) Act, 1980 may now be uploaded on the Ministry's website.
(xii) Completion of the exercise undertaken by each State/UT Govt. in compliance of this Court's order dated 12.12.1996 wherein inter-alia each State/UT Government was directed to constitute an Expert Committee to identify the areas which are "forests" irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the land of such "forest" and the areas which were earlier "forests" but stand degraded, denuded and cleared, culminating in preparation of Geo-referenced district forest-maps containing the details of the location and boundary of each plot of land that may be defined as "forest" for the purpose of the Forest (Conservation) Act, 1980.
(xiii) Incorporating appropriate safeguards in the Environment Clearance process to eliminate chance of the grant of Environment Clearance to projects involving diversion of forest land by considering such forest land as non-forest, a flow chart depicting, the tentative nature and manner of incorporating the proposed safeguards, to be finalized after consultation with the State/ UT Governments.
(xiv) The public consultation or public hearing as it is commonly known, is a mandatory requirement of the environment clearance process and provides an effective forum for any person aggrieved by any aspect of any project to register and seek redressal of his/her grievances;
(xv) The MoEF will prepare a comprehensive policy for inspection, verification and monitoring and the overall procedure relating to the grant of forest clearances and identification of forests in consultation with the States (given that forests fall under entry 17A of the Concurrent List).
33. Part II of our order gives guidelines to be followed by the Central Government, State Government and the various authorities under the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986. These guidelines are to be implemented in all future cases. These guidelines are required to be given so that fait accompli situations do not recur. We have issued these guidelines in the light of our experience in the last couple of years. These guidelines will operate in all future cases of environmental and forest clearances till a regulatory mechanism is put in place. On the implementation of these Guidelines, MoEF will file its compliance report within six months.
.......................................CJI
(S. H. Kapadia) ...........................................J. (Aftab Alam)
