Shashwat vs State of Bihar - 2022 Supreme(Pat) 330

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Pat) 330

IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, CJ and S. KUMAR, J.
(20.7.2022)
CWJC No.15884 of 2021
Shashwat : Petitioner
Vs.
State of Bihar & Ors. : Respondents

Advocates:
For the Petitioner: Mr. Akash Keshav.
For the Respondents: Dr. K.N. Singh, Shivendra Kishore, Sr. Adv., Sarvesh Kumar Singh, Manoj Kumar Singh, Tuhin Shankar, Parijat Saurave, Rabindra Kumar Priyadarshi

Headnote:
Environment (Protection) Act, 1986 – Sections 3, 4 and 5 – Constitution of India – Articles 48A and 51A – Felling of trees for construction of National Highways – – Environmental protection is a responsibility cast upon each and every citizen, organization or wing of Government, by Constitution with equal force – It is not to be taken lightly – Integration of ecosystem and biodiversity values in planning also necessitate proper consideration of efforts made not only to set-off number of trees lost but also to examine and consider overall effect of such an exercise – In case of doubt, precedence must be given to environment – Environment is to be given an equal, if not prime, consideration as opposed to any other need to which it may be juxtaposed. (Paras 13, 21, 27, 28 and 29)
Constitution of India – Articles 48A and 51A – Environment (Protection) Act, 1986 – Sections 3, 4 and 5 – Compensatory Afforestation Fund Act, 2016 – Sections 10 and 16 – Felling of trees for construction of National Highways – Impact on surrounding ecology – Economic development is essential for growth of a country and State is consistently engaged in finding balance – There can be no strait-jacket formula or preferences to one over other when making such a decision – Each situation must be weighed on its own merits – In certain situations, economic development may take precedence, whereas in others need to protect environment is stronger – Felling and translocation of trees being undertaken is for the purposes of construction of highway and number of trees to be planted to compensate for loss also stands decided with outer limit prescribed to concessionaire by when to complete the same – Chief Secretary, Government of Bihar to ensure formation of committee stipulated under Section 10 of Compensatory Afforestation Fund Act, 2016 and effective implementation of its provision – Directions issued. (Paras 30, 31, 32 and 34)
Karnataka Industrial Areas Development Board Vs. C. Kenchappa, (2006) 6 SCC 371; Essar Oil Ltd. Vs. Halar Utkarsh Samiti, (2004) 2 SCC 392; Association for Protection of Democratic rights & Anr. The State of West Bengal & Ors. (Order dated 25.03.2021 in Special Leave Petition (Civil) No. 25047 OF 2018); Vikram Trivedi Vs Union of India, 2013 SCC OnLine Guj 5792; T.N. Godavarman Thirumulpad Vs Union of India & Ors. [Writ Petition (civil) 202 of 1995, Date of Judgment: 26/09/2005]; T.N. Godavarman Thrirumulpad vs. Union of India & Ors. 2022 SCC OnLine SC 583; A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.), (1999) 2 SCC 718 ; M.C. Mehta v. Union of India, (2004) 12 SCC 118 – Relied.

JUDGMENT

SANJAY KAROL, CJ.:–

The following question arises for consideration:—

(i) What is the nature of consideration to be weighed by the State when a project of public importance is to have an impact on the surrounding ecology?

2. The scope of the petition is confined in respect to translocation of the trees necessarily required to be felled for construction of National Highways -131A Km. 34.600 (design ch: 6.000) near Narenpur to KM 79.970 (design ch:53.000) to km 82.000 (design ch:55.000) near Purnea to 2 lanes with paved shoulders standard in the State of Bihar on Hybrid Annuity Mode. The length of the project is 49 km.

3. While appreciating the issues highlighted by the petitioner, we find the respondents-authorities to have placed on record sufficient material indicating the approval and sanction in accordance with the environmental laws as also the National Highways Act, 1956.

4. The project was sanctioned in the year 2018 and all permissions, including environmental clearance were obtained immediately thereafter.

5. As is evident from the affidavit filed by the respondents, such permissions came vide communication dated 26th July, 2019 and 19th February, 2020.

6. The respondents have filed an affidavit indicating the status of the trees felled/translocated requires to be felled/translocated. The information can be best glanced in a tabular form which we may reproduced as under:—

Sl. No.	Description	Chainage from	Chainage to	Total trees (Nos.)	Tree felled (Nos.)	Tree translocated (Nos.)	Remaining trees to be felled	Trees to be translocated
1	Tree Works	06+000	18+800	4784	3370	1072	93	249
2	Tree works	33+000	43+300	3246	2566	647	25	8
3	Tree Works	43+300	55+000	2899	2404	326	126	43
	Total Quantity in (nos.)			10929	8340	2045	244	300

7. Evidently, more than 2045 trees already stand translocated and 300 (approx.) number of trees would be translocated in the near future. From the affidavit it is evidently clear that the concessionaire has been undertaking the work for forestation on the allocated site which is in close proximity to the inhabited area from where the road is to pass.

8. Concessionaire has undertaken to complete the plantation work on or before the scheduled date of completion of the project, i.e. 17th March, 2023. More than 31117 trees (14033 number of avenue and 17084 number of median plantation) would be planted. Such plantation is to take place within the zone termed as Median plantation and Avenue plantation.

9. Before us, there is no material refuting the averments made by the respondents with regard to concessionaire having commenced the work in terms of the agreement. As such, we are inclined to close the proceedings reserving liberty to the petitioner, or any other public spirited person, to highlight the surviving grievances, if any, as also any infraction of the terms entered into between the State/its instrumentality and the concessionaire.

10. Sri Akash Keshav, learned counsel for the petitioner, emphasizes the need for constitution of the State Compensatory Afforestation Fund Management and Planning Authority envisaged under Section 10 of the Compensatory Afforestation Fund Act, 2016. From the affidavit filed, thus far, it is not clear as to whether the provisions of the said Act stand complied with or not.

11. Be that as it may, we direct the respondent no.1, namely the State of Bihar through its Chief Secretary, Patna to immediately take steps for complying with the provisions of the said Act and more specifically, Sections 10 and 16 thereof which are reproduced for emphasis as follows.—

“10. Constitution of State Authority.— (1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, there shall be constituted a State Authority to be called t