Forests, Land Use, Protected Areas, Wildlife, Environmental Impact Assessments, Standing, Wetlands, Inspections
At the centre of the controversy is a very large project of the Uttar Pradesh government at NOIDA. According to the petitioners, the project 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. These trees formed a "forest" as the term was construed by this Court in its order dated December 12, 1996 in T.N. Godavarman Thirumulkpad v. Union of India & Ors.,(1997) 2 SCC 267 and the action of the Uttar Pradesh Government in cutting down a veritable forest without the prior permission of the Central Government and this Court, was in gross violation of section 2(ii) of the Forest (Conservation) Act, 1980. The Central Empowered Committee CEC on a consideration of all the materials made available to it, including the report of the FSI held that the project site was not a forest or a deemed forest or a forest-like area in terms of the order of SC, 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, and because the area was neither notified as "forest" nor recorded as "forest" in the Government record. The Court 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. It was also contended that the construction of the project was started by the U.P. Government without obtaining the prior environmental clearance from the Central Government or the State Level Environment Impact Assessment Authority in complete violation of the notification issued by the Central Government on September 14, 2006 u/s. 3 (3) of the Act, 1986 - 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 Court held, for the project under consideration, the relevant entries in the schedule are 8(a) and 8(b). In the facts and circumstances, 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. Hence, project does not fall within the ambit of the EIA notification dated September 14, 2006. Project being located virtually adjoining the Okhla Bird Sanctuary, it was contended that very close proximity of the project site to the bird sanctuary raises issues of serious concern as it is causing great harm, and is bound to further devastate the delicate and sensitive ecological balance. Environment is one of the facets of the right to life guaranteed under article 21 of the Constitution1. Environment is, therefore, a matter 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. But none of the expert bodies has taken the view that the project is so calamitous or ruinous for the bird sanctuary that it needs to be altogether scrapped in order to save the Sanctuary. The expert bodies have given recommendations which allow the completion of the project subject to certain conditions. On behalf of the State of U.P. it is unequivocally stated that all the conditions laid in the reports of the Expert Bodies are acceptable to the State Government/ NOIDA in their entirety. In light of the reports there is 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. In order to ensure full compliance with the recommendations of the expert bodies and the directions of the 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.