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 BIRD

SANCTUARY

ANAND ARYA & ANR.

APPLICANTS/

T.N. GODAVARMAN THIRUMULPAD PETITIONER

Versus

UNION OF INDIA & ORS. RESPONDENTS

WITH

I.A. NOS.2896/10 & 2900/10 IN I.A. NOS.2609-2610 OF 2009

AND

I.A. NO.2928/10 IN I.A. NOS.2609-2610/09 IN W.P. (C) NO.202 OF

1995

JUDGMENT

AFTAB ALAM, J.

1. At the centre of the controversy is a very large project of the

Uttar Pradesh government at NOIDA. Objecting to the project are the

two applicants who are residents of Sector 15A, NOIDA, U.P. They

claim to be public spirited people, committed to the cause of

environment. According to them, the project, undertaken at the

instance of Uttar Pradesh Government is a “huge unauthorized

construction”. The applicants state that a very large number of trees

were cut down for clearing the ground for the project. The trees that

were felled down for the project formed a “forest” as the term was

construed by this Court in its order dated December 12, 1996 in Writ

Petition (C) No.202 of 1995; T.N. Godavarman Thirumulkpad v. Union

2

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

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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

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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 nearly

threatened. About 50 species are migratory in nature and

come here mainly during the winter months. The annual

population/visit is estimated as under:

2006- 2007 - 24166

2007-2008 - 17111

2008-2009 - 21272

This haven for birds was declared a bird sanctuary (“the

Okhla Bird Sanctuary”) vide notification dated May 8, 1990

issued by the State of Uttar Pradesh under section 18 of the

Wildlife (Protection) Act, 1972. The project, subject of the

present controversy, is sited in very close proximity to the

Okhla Bird Sanctuary on its eastern side. The applicants refer

to it as adjoining the left afflux bund of the Okhla Bird

5

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.

6

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:

1Total Area within boundary

Wall

3,34,334.00 sq.m.

2Total built up covered area for

activities

Memorial Building & toilet

blocks

Utilities & facilities

3,499.50 sq.m.

3,500.00 sq.m.

1.05%

1.05%

3Area Under Hard Landscape

(including platforms, plinth,

sculptures & surrounding

paved

areas, paths)

1,29,140.80sq.m. 38.62%

4Total area under Soft

Landscape

Area under grass &

plantation

Area under planters built

within paved areas

1,57,161.79 sq.m.

6,181.91 sq.m.

47.01%

1.85%

5Total area for vehicular 34,850.00 sq.m. 10.42%

7

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:

8

S. No. DESCRIPTION EXISTING

(in sq. metres +

%)

MODIFIED

(in sq. metres +

%)

1. Green Area 157161.79

(47%)

218246.51

(65.28%)

2. Hard Landscape 129140.80

(38.6%)

98544.99

(29.48%)

aBoundary Wall 2700.79

(0.81%)

2700.79

(0.81%)

bPlatforms, Plinths,

Sculpture & Surrounding

Paved Areas

126440.00

(37.79%)

95844.99

(29.48%)

3. Area for vehicular

movement

34850.00

(10.42%)

0.00 (NIL)

4. Area under ornamental

water feature (may be

considered part of the Eco

Friendly Area)

0.00 (NIL) 6302.00

(1.88%)

5. Area under parking with

grass pavers (may be

considered part of the Eco

Friendly Area)

0.00 (NIL) 4241.00

(1.27%)

6. Utilities and Facilities 3500.00

(1.05%)

3500.00

(1.05%)

7. Memorial Building and

Toilets

3499.50

(1.05%)

3499.50

(1.05%)

8. Total Area 334334.00

(100%)

334334.00

(100%)

Under the amended plan, around 7300 trees, more than 4

years of age and measuring 8-12 feet in height, belonging to

the native species such as Neem, Peepal, Pilkhan, Maulsari,

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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.

10

Section 2 of the FC Act, in so far as relevant for the present, provides as

follows:

“2. Restriction on the de-reservation of forests or use of

forest land for non-forest purpose.- Notwithstanding

anything contained in any other law for the time being in

force in a State, no State Government or other authority

shall make, except with the prior approval of the Central

Government, any order directing.-

(i)xxxxxxx

(ii)that any forest land or any portion thereof may be

used for any non-forest purpose.

(iii)xxxxxxx

(iv)xxxxxxx

Explanation.- For the purpose of this section “non-forest

purpose” means the breaking up or clearing of any forest

land or portion thereof for-

(a) the cultivation of tea, coffee, spices, rubber, palms, oil

bearing plants, horticulture crops or medicinal plants;

(b) any purpose other than re-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.

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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

12

of forest-like areas according to which, in the plains, any stretch of land

over 2 hectares in area with the minimum density of 50 trees per

hectare would be considered as “forest”. On January 11, 2008 (as taken

note of in the order of that date) it was reported to this Court that the

guidelines were issued for identification of forest-like areas and steps

would be taken to identify “forest-like areas” in all the districts in the

State of Uttar Pradesh within four months and such areas would be

handed over to the forest department, excepting the private areas, if

any. As the process of search and identification of forest like areas in

the districts of Uttar Pradesh proceeded, the District Level Committee

headed by the District Collector, Gautam Budh Nagar, by its letter

dated February 26, 2008 addressed to Conservator Forests & Regional

Director intimated that there was no forest-like area in the district and

consequently the project site was not identified as a forest or forest-like

area by the State Level Expert Committee constituted in pursuance of

this Court’s order dated December 12, 2006.

8. It was in this background that the project started, according to

the State Government, in January 2008. When the work on the project

became noticeable from the outside the applicants filed their complaint

before the CEC on March 5, 2009. As the controversy erupted with

13

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

14

onwards (vide letter dated July 17, 2009 from the Dy. Conservator of

Forest (C) to the Director, Forest Survey of India). The FSI gave its

report on August 7, 2009 which we shall examine presently. In light of

the report of the CCF and the report from the FSI, the MoEF in its first

response to applicants’ complaint before the CEC (under covering

letter that is undated, received at the CEC on August 12, 2009) stated

that at the project site “there was good patch of forests and which could

be treated as deemed forest”. It further said that the report of the FSI

showed that the forest cover existed there up to 2006 and the felling of

trees might have taken place after that only.

9. In the meeting convened by the CEC on the applicants’ complaint

on August 12, 2009, the Chief Conservator of Forests (CCF) MoEF,

Lucknow stated that the plantation done in the project area was

naturalized and having regard to the number of trees that existed in the

area, the project area should be seen as “deemed forest” and, therefore,

it attracted the provisions of the FC Act, and any non-forest use of the

land required prior approval of the Central Government. In view of the

stand taken by the CCF, the CEC by its letter of August 13, 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

15

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 by

the FSI and the reports submitted by the CCF but in the end, “given the

16

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

17

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.

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13. The other reasons given by the CEC for holding that the project

area was not a forest was that it was neither notified as “forest” nor

recorded as “forest” in the Government record and even in the exercise

carried out by the State of Uttar Pradesh, after detailed guidelines for

identification of deemed forest were laid down, the project area was not

identified to be deemed forest. Mr. Bhushan contended that these

reasons were as misconceived as the previous one. The area was not

notified or recorded as forest meant nothing since this Court had

passed a series of orders with the object to bring such areas within the

protection of the FC Act that were not notified or recorded as forest. In

the same way the failure of the State Level Expert Committee to

identify the project area as forest even though it fully satisfied the

criterion set by the Committee itself for the purpose will not alter the

true nature and character of the area as forest land.

14. Mr. K.K. Venugopal, learned senior counsel appearing for the

State of U.P. strongly supported the view taken by the CEC. Learned

counsel submitted that the omission to identify the trees at the project

site as forest or deemed forest was not due to any mistake or by chance.

He pointed out that in the parameters set out by the State Level Expert

Committee for identification of forests or forest-like areas it was

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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

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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.

Assessment

Date of

Satellite Data

(sic)

Very

Dense

Forest

Moderately

Dense Forest

Open

Forest

Total

Forest

Cover

Non

Forest

Total

Area

(State of

Forest

Report)

8

th

(2001)October-20000 3.74 10.4214.1632.2746.43

9

th

(2003)November-

2002

0 6.05 10.7118.7629.6746.43

10

th

(2005)November-

2004

0 7.54 14.2321.7724.6646.43

11

th

(2007)October-20060 9.04 12.7321.7724.6646.43

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

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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

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project site he relies upon the report of the CCF based on site

inspection and the Google image and most heavily on the FSI report

based on satellite imagery and analysed by GSI application. A satellite

image may not always reveal the complete story. Let us for a moment

come down from the satellite to the earth and see what picture emerges

from the government records and how things appear on the ground.

20. 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

23

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 12-14

years when they were cut down to make the area clear for the project.

23. The satellite images tell us how things stand at the time the

images were taken. We are not aware whether or not the satellite

images can ascertain the different species of trees, their age and the

24

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:

25

“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 to

clarify 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,

protected or otherwise for the purpose of Section 2(i) of the

Forest Conservation Act. The term "forest land", occurring

in Section 2, will not only include "forest" as understood in

the dictionary sense, but also any area recorded as forest in

the Government record irrespective of the ownership. This

is how it has to be understood for the purpose of Section 2

of the Act. The provisions enacted in the Forest

Conservation Act, 1980 for the conservation of forests and

the matters connected therewith must apply clearly to all

forests so understood irrespective of the ownership or

classification thereof. This aspect has been made

abundantly clear in the decisions of this Court in Ambica

Quarry Works v. State of Gujarat, Rural Litigation and

Entitlement Kendra v. State of U.P. and recently in the order

dated 29.11.1996 (Supreme Court Monitoring Committee v.

Mussorie Dehradun Development Authority). The earlier

decision of this Court in State of Bihar v. Banshi Ram Modi

has, therefore, to be understood in the light of these

subsequent decisions. We consider it necessary to reiterate

26

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

27

‘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 of

the forest on any such land can be permitted by any State

Government or any authority without the prior approval of

the Central Government. But if such permission has been

accorded before the coming into force of the Act and the

forest land is broken up or cleared then obviously the

section cannot apply…..”

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

28

scheduled area under the Andhra Pradesh Scheduled Areas Land

Transfer Regulation, 1959. It was contended on behalf of the lease

holders 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

29

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,

30

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

31

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

32

notification was not applicable to construction projects. It went on to say

that the project did not require any prior environmental clearance

under the EIA notification 2006 even though “being within the

prescribed distance from a wildlife sanctuary/national park or inter-

state boundary”. It needs to be stated here that the first response of the

MoEF before he CEC was evidently based on the inputs received from

the UP Government about the nature of the project and the extent of

constructions involved in it.

35. In the second response before the CEC dated September 2, 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-à-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

33

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 been

calculated by the State of Uttar Pradesh on the basis of its

building bye-laws. The CEC is of the view that for the

purpose of environmental clearance, the building bye-laws

of the State Government have no relevance at all. As per the

details provided by the State Government itself, out of 33.43

ha of the project area, 3499.50 sq. meter is being used for

memorial building & toilet blocks, 3500 sq. meter is being

used for utilities and facilities, 129140.80 sq. meter area is

being used for hard landscape including for platforms,

plinth, sculptures & surrounded paved area, path etc.

Another 34850 sq. meter area is to be used for vehicular

movement. The above comes to more than 50% of the

project area which in CEC’s view qualify to be included in

the activity area. The project cost is about Rs. 685 crores.

As per the MoEF notification dated 14.9.2006, for

building/construction project, in the case of facilities open

to the sky, the activity area is to be included in the built up

area. In the present case, after including the activity area

the total built up area, for the purpose of environmental

34

clearance, far exceeds the threshold limit of 20,000 sq.

meter of built up area provided in the Notification. The

MoEF, on its own admission, has merely relied on the

details of the built up area as provided by the State

Government without independently verifying it and has not

included the area falling in the category of activity area. In

any case, even if there was any doubt in the MoEF

regarding the applicability of the environmental clearance

in the present case, in view of precautionary principle it

should have erred on the side of the caution and should

have insisted for the environmental clearance.”

37. When the matter finally came up before the Court the MoEF was

once again asked to take a clear stand on the issue whether the project

was covered by the EIA notification 2006. The MoEF filed a brief

affidavit on October 21, 2009 in which it acknowledged that the CEC in

its report dated September 4, 2006 had stated that the State of UP

should be directed to seek environmental clearance for the project from

the MoEF in terms of the notification. The MoEF, however, reiterated

its stand in very definite and unequivocal terms that the project in

question did not fall within the ambit of the EIA notification 2006 and

no environmental clearance was required for such kind of projects. The

stand of the MoEF was based on the premise that the area of the project

(33.43 hectares) was less than 50 hectares and its built up area (9,542

square metres) was less than 20,000 square metres. Having thus made

35

its stand clear, the MoEF went on to say that in case the Court desired

the project to be appraised from the environmental angle it would do so

and submit its recommendations. It, however, put in a caveat that such

appraisals were made before the commencement of the construction

activity at the site and in the present case the project was already in the

advanced stage of construction.

38. On April 22, 2010, this Court passed an order in which after

extracting the relevant passage from the affidavit it directed the MoEF,

to make a study of the environmental impact of the project. The MoEF

was further directed to suggest measures for undoing the

environmental degradation, if any, caused by the project and the

amelioration measures to safeguard the environment, with particular

reference to the adjacent bird sanctuary.

39. As directed by the Court, the MoEF asked the project proponents

to submit the details concerning the project in the format prescribed

under the EIA notification. It also asked the project proponents to have

the environmental impact assessment of the project done by some

expert agencies. As required by the MoEF, NOIDA submitted the

requisite details concerning the project and the reports on the

environmental impact assessment of the project based on studies made

36

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 88

th

meeting held on June 28-29, 2010 and gave its report which is brought

on record along with an affidavit filed by the State Government on July

22, 2010. In this report the EAC made as many as 15 recommendations

to check any environmental degradation or any harm to the Okhla Bird

Sanctuary by the project.

40. The MoEF filed yet another affidavit before the Court on August

19, 2010 in which it tried to explain the distinction between clauses 8(a)

and 8(b) in the schedule to the EIA notification, 2006 without changing

its stand that the project in question did not come within the ambit of

the notification.

41. In course of the oral hearing as well, Mr. Raval, learned ASG,

firmly maintained that the project did not come under the notification

and no prior environmental clearance was required for it under the

notification.

42. Mr. Harish Salve, learned amicus curiae and Mr. Jayant

Bhushan, Counsel appearing for the applicants, both staunchly

37

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

38

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 14

th

September, 2006

S.O. 1533(E).- whereas xxxxxx

And whereas xxxxxx

And whereas xxxxxx

2. Requirements of prior Environmental Clearance (EC):- The following projects

or activities shall require prior environmental clearance from the concerned regulatory

authority, which shall hereinafter referred to be as the Central Government in the

39

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:

iAll 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

40

6. xxxxxx

7. Stages in the Prior Environmental Clearance (EC) Process for New Projects:-

7(i) xxxxxx

I. Stage (1) - Screening: In case of Category ‘B’ projects or activities, this stage will

entail the scrutiny of an application seeking prior environmental clearance made in Form

1 by the concerned State level Expert Appraisal Committee (SEAC) for determining

whether or not the project or activity requires further environmental studies for

preparation of an Environmental Impact Assessment (EIA) for its appraisal prior to the

grant of environmental clearance depending up on the nature and location specificity of

the project . The projects requiring an Environmental Impact Assessment report shall be

termed Category ‘B1’ and remaining projects shall be termed Category ‘B2’ and will not

require an Environment Impact Assessment report. For categorization of projects into B1

or B2 except item 8 (b), the Ministry of Environment and Forests shall issue appropriate

guidelines from time to time.

8. xxxxxx

9. xxxxxx

10. xxxxxx

11. xxxxxx

12. xxxxxx

SCHEDULE

(See paragraph 2 and 7)

LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL

CLEARANCE

Project or Activity

Category with threshold limit Conditions if any

A B

8 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

41

Construction

projects

<1,50,000 sq.mtrs. of

built-up area#

construction; in the case of

facilities open to the sky, it

will be the activity area )

8(b)Townships and Area

Development

projects.

Covering an area ? 50

ha and or built up area ?

1,50,000 sq .mtrs ++

++

All projects under Item

8(b) shall be appraised as

Category B1

Note:-



General Condition (GC):

Any project or activity specified in Category ‘B’ will be treated as Category A, if

located in whole or in part within 10 km from the boundary of: (i) Protected Areas

notified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as

notified by the Central Pollution Control Board from time to time, (iii) Notified Eco-

sensitive areas, (iv) inter-State boundaries and international boundaries.”

Specific Condition (SC):

xxxxxx

(I)Basic Information

xxxxxx

(II)Activity

1.Construction, operation or decommissioning of the Project involving

actions, which will cause physical changes in the locality (topography,

land use, changes in water bodies, etc.)

S.No.Information/Checklist confirmation Yes/No

Details thereof (with

approximate quantities

/rates, wherever possible)

with source of information

data

1.1Permanent or temporary change in land use,

land cover or topography including increase in

intensity of land use (with respect to local land

use plan)

42

1.2Clearance of existing land, vegetation and

buildings?

1.3Creation of new land uses?

1.4Pre-construction investigations e.g. bore houses,

soil testing?

1.5Construction works?

1.6Xxxxxx

|

|

|

|

1.31Xxxxxx

”

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

43

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

44

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

45

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

46

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 to

projects involving forestland, wildlife habitat (core one of elephant/tiger

reserve, etc.) and or located within 10km of the National Park/ Wildlife

Sanctuary (at present the distance of 10km has been taken in conformity

with the order dated 4.12.2006 in writ petition no. 460 of 2004 in the

matter of Goa Foundation v. Union of India), a specific condition shall

be stipulated that the environmental clearance is subject to their

obtaining prior clearance from forestry and wildlife angle including

47

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 the

MoEF.

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

48

Wildlife was a precondition for the grant of the prior environmental

clearance by the MoEF.

50. Long and elaborate submissions were made from both sides in

regard to the application of the general condition to this project. Mr.

Venugopal, senior counsel appearing for the State of U.P. and Mr. Raju

Ramachandran, senior counsel appearing for NOIDA submitted that

the general condition would have no application to projects under 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

49

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.

50

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)

51

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

52

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 20000

square 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

53

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.

54

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 any

other view would be doing gross violence to the scheme of the

notification.

59. Since it is held that the project does not come within the ambit of

the notification, the other three arguments based on the activity area,

55

the application of general condition and the application of the office

memorandum dated December 2, 2009 become irrelevant and need not

be gone into in this case.

THE PROJECT AND THE OKHLA BIRD SANCTUARY:

60. Mr. Bhushan next raised the issue of the project being located

virtually adjoining the Okhla Bird Sanctuary. The very close proximity

of the project site to the bird sanctuary actually raises issues of serious

concern and poses a dilemma. On the one hand the project proponents

can not be said to have broken any law or violated a definite order or

direction of the court but on the other hand the project may possibly

cause serious and irreparable harm to the bird sanctuary.

61. Before the CEC the State Government took the plea that the

project area was situated well outside the boundaries of the bird

sanctuary and the construction of the project had caused no adverse

impact on the Sanctuary. It was further stated that NOIDA which was

the project proponent was equally conscious about its responsibility in

regard to the preservation and conservation of the habitat of the

Sanctuary. A management plan for the Sanctuary was being prepared

by the Wildlife Institute of Dehradun for which NOIDA had released

Rs.17,35,350.00 in favour of the Institute and the NOIDA was also

56

planning to set up a corpus for the Scientific and effective

implementation of the Management Plan.

62. On this issue the MoEF in its responses before the CEC put the

blame squarely on the State Government. It stated that despite its letter

of May 27, 2005 followed by a number of reminders the Government of

Uttar Pradesh did not submit its proposal for declaration of “Eco-

sensitive Zone” around the Sanctuaries and National Parks. It further

stated that the State Government failed to take any steps in this regard

even after the order of this Court passed on December 4, 2006 in Writ

Petition (Civil) No. 460/2004 by which the MoEF was directed to give all

the States final opportunity to send their proposals for declaration of

“Eco-sensitive Zones” to the MoEF within four weeks. The MoEF made

the accusation that in the case of the present project the State

Government of Uttar Pradesh was trying to take advantage of its own

omission. In its second response dated August 22-24, 2009, however, the

MoEF, though still blaming the UP Government for its failure to notify

the “Eco-sensitive Zones” conceded that “till Eco-sensitive zone is

declared the construction work did not seem to violate any law/Act”.

But it went on to say that having regard to its location the project was

better suited to be made part of extension of the bird sanctuary.

57

63. The State Government of Uttar Pradesh took the stand that no

proposals were sent from its side because the MoEF failed to issue the

necessary guidelines for the purpose. On behalf of the State of UP,

reference was made to a meeting called by the Director General of

Forests and Special Secretary, MoEF on May 13, 2010. In that meeting

it was decided that the Director General of Forests, MoEF would

constitute a committee of officers to finalize the guidelines for

declaration of eco-sensitive zones. A reference was also made to a

subsequent meeting held on July 4, 2010 at Lucknow in which the

attention of the Government of India was drawn to the decision taken

in the earlier meeting. Yet, no guidelines were issued by the

Government of India so far.

64. The CEC in its report to the Court dated September 4, 2009 put

the blame on the State Government of UP for its omission to identify the

Eco-sensitive zones but like the MoEF seemed to accept that in the

absence of a decision/notification there was no legal bar against the

construction of the project on the ground that it was sited adjacent to

the bird sanctuary. In its report to the Court, the CEC observed as

follows:

58

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. The

CEC had recommended that 500 meter around

National Park/Sanctuary should be declared as Eco-

Sensitive Zone. The recommendation of the CEC has

not so far been accepted by the Hon’ble Supreme

Court after the Learned Amicus Curiae took a view

that 500 meter may not be adequate. Pursuant to this

Hon’ble Supreme Court order dated 4.8.2006 in the

TWP matter, mining is presently prohibited up to a

distance of one kilometre from the boundary of

National Parks/Sanctuaries. For other projects, no

restriction has so far been imposed. The MoEF has

time and again requested the States/UT’s to identify

the eco-sensitive zone around the National

Parks/Sanctuaries. However, the State of Uttar

Pradesh has so far not prepared any proposal in this

regard. The CEC is of the view that in the absence of

a decision/notification, presently there is no legal

restriction against the implementation of the project

on the ground that the project is adjacent to the

Okhla Bird Sanctuary.

33. However, it has to be borne in mind that the

project area is hardly at a distance of 50 meter from

the Okhla Bird Sanctuary and that in all probability

the project site would have fallen in the Eco-Sensitive

Zone, had a timely decision in this regard been taken

by the State Government/ MoEF.

(emphasis added)

59

65. The report of the CEC succinctly sums up the situation. Though

everyone, excepting the project proponents, views the construction of

the project practically adjoining the bird sanctuary as a potential

hazard to the sensitive and fragile ecological balance of the Sanctuary

there is no law to stop it. This unhappy and anomalous situation has

arisen simply because despite directions by this Court the authorities in

the Central and the State Governments have so far not been able to

evolve a principle to notify the buffer zones around Sanctuaries and

National Parks to protect the sensitive and delicate ecological balance

required for the sanctuaries.

66. But the absence of a statute will not preclude this Court from

examining the project’s effects on the environment with particular

reference to the Okhla Bird Sanctuary. For, in the jurisprudence

developed by this Court Environment is not merely a statutory issue.

Environment is one of the facets of the right to life guaranteed under

article 21 of the Constitution

1

. Environment is, therefore, a matter

1

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

60

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, be

examined 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-Irrigation

Colony-Batla Road) running right next to the wire mesh fencing of the

Sanctuary. Next to the road is a long row of cheek by jowl concrete

structures/houses that seem to lean against one another. The road has

the bustling traffic of Delhi where all kinds of vehicles (and cattle!)

appear jostling for space. The situation on the western boundary of the

Sanctuary is indeed deplorable but that is no reason to strangulate the

Sanctuary from the NOIDA side as well.

68. Earlier in the judgment, it is noted that on April 22, 2010, the

Court had asked the MoEF to make a study of the environmental

T.N. Godavarman Thirumulkpad v. Union of India, (2002) 10 SCC 606

Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch, (2000) 3 SCC 29

State of M.P. v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389

61

impact of the project and to suggest measures for undoing the

environmental degradation, if any, caused by the project and the

amelioration measures to safeguard the adjacent bird sanctuary. In

pursuance of the Court’s directions the MoEF had asked the project

proponents to have the environmental impact assessment of the project

done by some expert agencies. NOIDA, the project proponent got three

studies made of the impact assessment of the project. 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:

62

·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.

·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.

·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 : 22,004

·The clearing of the project site for construction and landscaping

was started in the month of the January, 2008 and continued

till 9

th

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.

·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.

63

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….

64

“…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 88

th

meeting held on June 28-29,

2010, reviewed the project in question in light of the aforementioned

reports and made a number of recommendations (Paper book Volume

III, page 32) that would form part of this judgment.

75. It is significant to note that none of the expert bodies has taken the

view that the project is so calamitous or ruinous for the bird sanctuary

that it needs to be altogether scrapped in order to save the Sanctuary.

The expert bodies have given recommendations which allow the

65

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 three

expert 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

66

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 cover

of trees of the native variety, a list of which is given by the State of UP

(Annexure 4(b), Paper book Volume IV) The plantation of trees should

be especially dense towards the Okhla Bird Sanctuary on the western

side of the project area. Any construction work should commence only

on completion of the planting of the trees.

77. In order to ensure full compliance with the recommendations of

the expert bodies (which form part of the judgment) and the directions

of this Court, the construction of the project needs to be overseen by an

expert committee. One member of the committee, preferably an

ornithologist will be nominated by the MoEF, the other member will be

nominated by the CEC in consultation with the amicus and the

Chairman-cum-CEO of NOIDA will be the member-secretary of the

committee. The committee should be constituted within two weeks from

today.

67

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 the

notification need to be described with greater precision and clarity and

the definition of built-up area with facilities open to the sky needs to be

freed from its present ambiguity and vagueness. The question of

application of the general condition to the projects/activities listed in the

schedule also needs to be put beyond any debate or dispute. We would

also like to point out that the environmental impact studies in this case

were not conducted either by the MoEF or any organization under it or

even by any agencies appointed by it. All the three studies that were

finally placed before the Expert Appraisal Committee and which this

Court has also taken into consideration, were made at the behest of the

project proponents and by agencies of their choice. This Court would

have been more comfortable if the environment impact studies were

68

made by the MoEF or by any organization under it or at least by

agencies appointed and recommended by it.

80. The IAs stand disposed of with the above observations and

directions.

………… ………………………………CJI.

………… ………………………………..J.

(AFTAB ALAM)

………… ………………………………..J.

(K.S. PANICKER RADHAKRISHNAN)

New Delhi,

December 3, 2010

69

APPENDIX I (by SACON):

7.SUGGESTED PROACTIVE ENVIRONMENTA L MEASURES

Although there appears to be no perceptible impact, as a

precautionary approach, we suggest following measures for the overall

improvement of the OBS:

1.The periodical removal of water hyacinth should be ensured for

better quality of water.

1.Artificial nest boxes should be placed along the western boundary

of the sanctuary and adjoining parts to enhance breeding

potential of birds.

1.Periodical monitoring of water quality parameters should be

undertaken to enhance wetland dependent species and their

population.

1.Regular monitoring of population of avi fauna should be

undertaken. On the terrestrial habitat, also monitoring of small

mammals may be carried out.

1.Extensive planting of native species suitable for urban habitat

should be done more than 10 times in and around the project

area. This will in turn help in sustainability of key bird species. It

is noteworthy to mention that NOIDA Authority has already

planted 1,70,000 saplings.

1.For the scientific management of the OBS, the prescriptions of

the Management Plan under preparation by the Wildlife Institute

of India, Dehradun should be followed with necessary financial

support.

1.Inside the sanctuary, battery operated vehicles should be used for

visitors.

1.For the effective protection and management of the OBS, the

sanctuary should be suitably fenced.

70

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

71

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

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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 of

sewage.

v)No more than 20 per cent of rain water shall be discharged out of

the project site into the existing drain. The rain water harvesting

system should be designed based on the soil characteristics and highest

level of ground water table.

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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 be

prepared.

(xii)Provision of a parking area is proposed inside the park.

Allocation and configuration of spaces for other modes of transport like

mini buses, 2-3 wheelers, cycle-rickshaws and bicycles and even

pedestrians have to be considered for realistic assessment of traffic and

parking management.

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(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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