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(2011) 1 Supreme Court Cases 744
BEFORE S.H. KAPADIA, CJI., AFTAB ALAM AND K.S.P. RADHAKRISHNAN, JJ.
IN RE: CONSTRUCTION OF PARK AT NOIDA NEAR OKHLA BIRD SANCTUARY
ANAND ARYA AND ANOTHER
Versus
UNION OF INDIA AND OTHERS
T.N. GODAVARMAN THIRUMULPAD
Versus
UNION OF INDIA AND OTHERS
IAs Nos. 2609-10 of 2009 in WP (C) No. 202 of 1995 with IAs Nos. 2896, 2900 of 2010 in IAs Nos. 2609-10 of 2009 and IA No. 2928 of 2010 in IAs Nos. 2609-10 of 2009 in WP (C) No. 202 of 1995
Decided on : December 3, 2010
T.N. Godavarman Thirumulpad(1) – Referred
(b) Forest (Conservation) Act, 1980 – Section 2 – A man-made forest may equally be a forest as a naturally grown one – Non-forest land may also, with the passage of time, change its character and become forest land – However this cannot be a rule of universal application. (Para 35)
(c) Forest (Conservation) Act, 1980 – Section 2 – Revenue records showing the area as agricultural land, banjar (uncultivable) or parti (uncultivated) – Developed as urban tree park over 10-12 years – Expert Committee constituted under directions of Supreme Court not finding the areas as forest or deemed forest – Held, project area is not forest land – Construction does not contravene the Act. (Para 37)
Banshi Ram Modi8 – Relied upon
T.N. Godavarman Thirumulpad1; T.N. Godavarman Thirumulpad (98); Samatha; M.C. Mehta – Distinguished
(d) EIA Notification, 2006 – Schedule – Item 8(a) and (b) – A building and construction project (item 8(a) is nothing but addition of structures over the land – A township project (item 8(b) 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 – Applying the test of "dominant purpose or dominant nature" of the project or the "common parlance" test, the project can only be categorised under item 8(b) – Environment clearance not required. (Para 65, 67, 68)
(e) Project area and Okhla Bird Sanctuary – No expert body opining 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 – Completion of project allowed subject to directions issued. (Para 80)
Facts of the case:
In this case construction of a park near Okhla Bird Sanctuary has been challenged.
Finding of the Court:
Project area is not forest area. It falls in item 8(b) of Schedule to EIA Notification 2006.
Result:
Matter disposed of.
Key Points: - Project site near Okhla Bird Sanctuary; controversy over forest area status and FC Act applicability (!) (!) (!) - Government asserts park development; applicants claim large-scale unauthorised construction and deforestation (!) (!) (!) - MOEF initially suggested no FC Act clearance; later MOEF acknowledged need for environmental appraisal and EIA in certain communications (!) (!) (!) (!) - Central Expert Committees and Forest Survey of India evaluated whether area is forest, deemed forest, or forest-like; conflicting findings exist (!) (!) (!) (!) (!) - Court held project site is not forest land; not required to obtain prior Central Government permission under FC Act, but mandated careful consideration of environmental impact and sanctuary protection (!) (!) (!) (!) (!) - EIA Notification, 2006 applicability: CEC concluded project falls under EIA Notification and requires prior clearance; MOEF initially disagreed; Court examined categorisation under Items 8(a)/8(b) and general conditions; ultimately found project not falling within the notification despite initial recommendations (!) (!) (!) (!) (!) - Final directions emphasize environmental safeguards, expert monitoring, and ecological balance near OBS; project completion allowed with conditions rather than demolition (!) (!) (!) (!) (!) - Observations highlight need for clearer definitions in EIA notification and transparency in environmental impact studies (!) (!)
JUDGMENT :
AFTAB ALAM, J.- 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 15-A, 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 the Uttar Pradesh Government is a "huge unauthorised construction".
2. 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 12-12-1996 in T.N. Godavarman Thirumulpad v. Union of India 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".
3. 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.
4. 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 l4-A, l5-A and 16-A, 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 ha in area) in the district of Gautam Buddha 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, II are vulnerable and 7 are nearly threatened. About 50 species are migratory in nature and come here mainly during the winter months. The annual population/visit is estimated as under:
2006-2007 24,166
2007-2008 17,111
2008-2009 21,272
This haven for birds was declared a bird sanctuary (the Okhla Bird Sanctuary) vide Notification dated 8-5-1990 issued by the State of Uttar Pradesh under Section 18 of the Wildlife (Protect
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