Green Doon vs Unknown
2022 Latest Caselaw 618 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

                  SHRI JUSTICE S.K. MISHRA, A.C.J.
                               AND
                SHRI JUSTICE ALOK KUMAR VERMA, J.

08TH MARCH, 2022

WRIT PETITION (PIL) No. 79 of 2021

Between:

Reenu Paul                                           ...Petitioner

and


State of Uttarakhand and others.                   ...Respondents


Counsel        for    the : Mr. Abhijay Negi, learned counsel.
petitioner.

Counsel for the Union      : Mr. Aazmeen Sheikh, learned Standing
of India                     Counsel.

Counsel for the State       : Mr. Pradeep Joshi, learned Additional
                              Chief Standing Counsel

Counsel for the respondent : Mr. A.S. Rawat, learned Senior No.2. Advocate assisted by Mr. Raunak Pant, learned counsel holding brief or Mr. Naresh Pant, learned counsel

Counsel for the respondent : Mr. Shiv Pandey, proxy counsel on no.5. behalf of Mr. Aman Rab, learned counsel.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT: (per Shri S.K. Mishra, A.C.J.)

By filing this WPPIL, the petitioner has made the

following prayer:-

"1. Issue a writ order or direction in the nature of certiorari quashing the administrative approval of the project vide Office Order NHAI/BM/EC/Delhi/ Saharanpur/Dehradun/2020/ 1101 dated 15.07.2020 (Annexure 1), which is proposed as a part of phase IV of a Bharatmala Yojana.

2. Issue an order or directive in the nature of mandamus commanding the respondents to prepare a comprehensive plan for regeneration of the fast degrading Sal forest and all the biodiversity related to it of the Doon valley."

2. At the outset, it is objected by the learned

counsel appearing for the respondents that the entire

matter has been considered by the National Green

Tribunal as per the judgment and order dated 13.12.2021

in Appeal no.29 of 2021 (IA No.218 of 2021), 'Citizens for

Green Doon vs. Union of India & Others'. The learned

counsel appearing for the petitioner Mr. Abhijay Negi, very

emphatically submitted that the issue, that the present

petitioner is raising, has not been considered by the

judgment of the learned National Green Tribunal. We have

examined the judgment very carefully. In internal page 6

of the judgment of the learned National Green Tribunal the

learned Tribunal has enumerated the substance of grounds

of challenge to the forest clearance, it is as follows:-

"Substance of grounds of challenge to the Forest Clearance is

. that the Forest Clearance has been granted on misleading information in Form A on the issue of details of the Wildlife in and around the forest land proposed to be diverted. It was wrongly stated that there was no endangered species. Even though in the application seeking approval for use of forest land for non-forest purpose, Form A, details of wildlife are specified, against column whether there was rare/ endangered/ unique species of wildlife, answer mentioned is none.

. There is no ecological impact study while granting the approval as required under the Forest (Conservation) Rules, 2003. The area is ecologically sensitive which requires careful scrutiny.

. The approval is against the National Forest Policy which requires that tree cover should not treated merely as a resource but as National asset to be safeguarded for the sustained benefit to the community. . The cost benefit analysis is erroneous by over valuing the benefit and under valuing the cost. The Reserved Forest is part of Shivalik Forest Division which falls in Eco Class V which means "Sub-tropical Broad- Leaved Hill Forests, Sub-Tropical Pine Forests and Sub-Tropical Dry Evergreen Forests" and calculation of value should have been on that basis.

.   Compensatory               Afforestation       Scheme
    proposed        in      the present case involves



              planting of trees in areas which                   are    not
              degraded.          There        is      no      idea        in

afforestation on dense forest land. . No carrying capacity of the Doon Valley was conducted to ascertain sustainability of the expansion of the Highway. The city is overburdened and its resources are already depleted. It is at no.31 out of 100 most polluted cities in the world.

         .    There       is     no       Environment               Impact
              Assessment          of    the         project    which      is
              required          when         the       project       covers

210 kms while exemption is upto 100 kms.

         .    There is no Biodiversity Impact Assessment
              as   required           under          Section       36(4) of
              the Biological Diversity              Act, 2002.
         .    Mitigation        proposals          do not consider the

guidelines on the subject of height of the underpass. In the present case, height is 6 mtrs. as against minimum 7 mtrs.

required.

. Efficacy of mitigation measures has not been duly verified.

3. The learned counsel appearing for the petitioner

submitted that the issue of Sal Forest has not been dealt

with by the learned National Green Tribunal. From point

no.4 of the aforesaid judgment, it is apparent from the

record that the cost benefit analysis was argued to be

erroneous by over valuing the benefit and under valuing

the cost. The learned National Green Tribunal also took

into consideration the contention that the Reserved Forest

is part of the Shivalik Forest Division which falls in Eco

Class V which means "Sub-tropical Broad-Leaved Hill

Forests, Sub-Tropical Pine Forests and Sub-Tropical Dry

Evergreen Forests" and calculation of the value should

have been on that basis.

4. Having considered the material on record, the

learned National Green Tribunal has held as follows. We

find it appropriate to quote the conclusions arrived at by

the learned Tribunal:-

"In view of above, we find it difficult to hold that there is no application of mind in appraisal by the MoEF&CC in granting FC. Once the project is held to be duly appraised, stage II/tree felling clearance are consequential. We may, however, observe that for the sake of transparency, stage II clearance/tree cutting permission must be prompt after stage I and it must be uploaded on the website forthwith. Even while upholding FC clearance, we find it necessary that mitigation measures are effectively implemented upholding and monitored on the ground by the NHAI and the same are overseen by an independent mechanism. Accordingly, we appoint an independent twelve-

member Expert Committee to be headed by Chief Secretary, Uttarakhand with nominees of WII, CPCB, Uttarakhand State PCB, Chief Wild Life Wardens, Uttarakhand and UP, SEIAA Uttarakhand, FRI, Dehradun, Divisional Commissioners, Saharanpur and Dehradun and Conservators of Forest, Dehradun and Saharanpur

as members. Chief Wild Life Wardens, Uttarakhand and UP will be the nodal agency in the respective States. The Committee may meet within two weeks to take stock of the situation and plan further course of action. The Committee may thereafter meet atleast once in a month or at such earlier intervals as found necessary. Except physical inspection, the Committee is free to hold virtual/hybrid meetings. Any stakeholder will be free to represent to the Committee to consider remedial measures and if any grievance survives, to take remedies in accordance with law. We further direct that additional compensatory afforestation may be undertaken by NHAI through concerned Forest Departments on 10 ha of land each in Uttarakhand and UP, adjoining the stretch in question, preferably in more degraded area. NHAI may also deposit a sum of Rs. 1 crore over and above the EMP with FRI, Dehradun in a separate account for research of Sal regeneration, in collaboration with Forest Departments of Uttarakhand and UP and any other institution, as maybe found necessary. Adequate provision may be made for mitigation measures for protection of wildlife in case funds allocated for the purpose are found inadequate by the Committee. Steps to be monitored will also include cordoning of elevated roads and other ecological sensitive stretches with proper barriers to absorb light and noise, fitting of cameras at strategic locations to monitor protection of wildlife movement and their habitats, mechanism for rescuing animals in case of any

accidents, awareness for care and protection of wildlife.

The Appeal and the Application stand disposed of accordingly.

All pending I.A.s also stand disposed of. A copy of this order be forwarded to the Chief Secretary, Uttarakhand, WII, CPCB, Uttarakhand State PCB, Chief Wild Life Wardens, Uttarakhand and UP, SEIAA Uttarakhand, FRI, Dehradun, Divisional Commissioners, Saharanpur and Dehradun and Conservators of Forest, Dehradun and Saharanpur by e-mail compliance."

5. Thus, it is apparent that the learned National

Green Tribunal having taken into consideration all the

relevant objections that were raised to the project has

come to conclusion that the project should go on.

6. The learned counsel appearing for the petitioner

argued that the question of biodiversity has not been

considered by the learned National Green Tribunal. At

paragraph 30 of the judgment, the learned National Green

Tribunal has observed that biodiversity impact assessment

is not applicable to development of a highway in view of

Section 23 of the Act as there is no commercial utilization

of bio-resources. Mitigation measures are as per guidelines

for Conservation of Wildlife which have been duly verified

by the REC, as already mentioned by the learned Tribunal.

There are wider underpasses with light and sound barrier,

fencing, increased span and heights of minor, major

bridges and including culverts.

7. Thus, the learned Tribunal has also taken into

consideration that the environmental impact assessment is

exempted in this case from EIA Notification dated

14.09.2006 vide Notification dated 28.08.2013.

8. Next submission of Mr. Abhijay Negi, the learned

counsel appearing for the petitioner is that there is

depletion of Sal Forest and the biodiversity of the Doon

Valley shall be adversely affected. However, the learned

National Green Tribunal has taken into consideration all

the forest growth that are present in the Doon Valley and

that will be affected by the construction of the road. It is

also directed by the learned National Green Tribunal that

Twelve Member Committee shall be formed which shall

oversee the construction of the project and has also been

authorized to take up issues which remain unanswered. It

is observed by the learned National Green Tribunal that

any stakeholder will be free to represent to the Committee

to consider remedial measures and if any grievance

survives to take remedies in accordance with law. So the

petitioner is at liberty to approach the said Committee. If

he is aggrieved by the judgment of the learned National

Green Tribunal, he may prefer an appeal before the

Hon'ble Supreme Court. Since, the matter has already

been decided by the learned National Green Tribunal, we

find it in expedient to further pass any order. Hence, this

Public Interest Litigation is dismissed.

9. As far as the grievance of the petitioner is

concerned, he can raise the same before the Twelve

Members High Level Committee already constituted by the

order of the learned National Green Tribunal. In case, any

issue is raised by the petitioner, then the Committee shall

consider the same and after affording reasonable

opportunity of hearing to all parties concerned shall take a

decision by speaking and reasoned order.

________________ S.K. MISHRA, A.C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 08th March, 2022 JKJ/Pant