WPPIL/68/2022
2022 Latest Caselaw 2988 UK

                                                           RESERVED ORDER


      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                              AND
                HON'BLE SRI JUSTICE R.C. KHULBE


            WRIT PETITION (PIL) No. 68 OF 2022

                   ORDER RESERVED : 24th AUGUST, 2022
                ORDER DELIVERED :     16th SEPTEMBER, 2022



Between:

Ashish Kumar Garg.
                                                               ...Petitioner
and

State of Uttarakhand and another.

                                                           ...Respondents

Counsel for the petitioner. : Mr. Abhijay Negi and Ms. Snigdha Tiwari, the learned counsel.

Counsel for the respondents. : Mr. S.N. Babulkar, the learned Advocate General assisted by Mr. C.S. Rawat, the learned Chief Standing Counsel for the State of Uttarakhand.

ORDER : (per Hon'ble The Chief Justice Sri Vipin Sanghi)

STAY APPLICATION (IA No. 06 OF 2022)

The petitioner has preferred the present Writ

Petition, in public interest, to seek the intervention of this

Court against the proposed felling of 2057 trees for the

purpose of widening of the road from Jogiwala/ Ladpur/

Sahastradhara Crossing/ Krishali Square/ Pacific Golf

Estate in Dehradun. The petitioner also seeks a direction to the respondents to frame guidelines for any road

widening exercise that may lead to consequent felling of

trees.

2. The petitioner is a Civil Engineer, M.B.A., and

also a fellow of Institution of Engineers. He is the

President of the EcoGroup society of Dehradun, which is

an environment conservation group working for the

awareness of climate change, and to deal with the aspects

of waste management, water conservation, solar, forest

conservation and tree plantation.

3. The petitioner states that the planned felling of

2057 trees, for expansion of Jogiwala/ Ladpur/

Sahastradhara Crossing/ Krishali Square/ Pacific Golf

Estate road, so as to facilitate traffic movement between

Mussoorie and Sahastradhara, would adversely impact the

ecological and heritage value of the said trees, which are

critical to the watershed of the Doon Valley. The

petitioner states that the said proposed felling of trees falls

foul of the accepted canons of sustainable development.

According to the petitioner, alternatives are available to

mitigate the traffic congestion, as well as to propagate

environment conservation. The petitioner states that most

of the said 2057 trees are fully grown varieties of the

Peepal (7 peepal trees), Pilkhan, Amaltas, Mango (122

trees in all), Eucalyptus (1006) and other exquisite

varieties of trees, which play a vital role in maintaining the

ecology of the place, and in keeping the entire area cool in

summer, and retaining water in their roots, which helps in

maintaining the water table and lowering the air pollution.

4. The petitioner states that Dehradun city is now

witnessing reduced rainfall, hotter summers and many

heat islands have developed in and around the city, as

witnessed in many barren/ desert like areas across North

India. The petitioner states that greenery mitigates the

effect of climate change naturally, since fully grown trees

are natural absorbers of carbon. The petitioner further

states that the Sahastradhara Road, which was once

totally lush green, has already seen a great reduction in its

green cover due to the coming up of various housing

projects, and the cutting of further trees would imperil the

entire watershed area of Sahastradhara road. The

petitioner states that, rather than removing

encroachments, stalls, electric poles, transformers,

haphazard parking of tankers & vehicles, squatters/

hawkers and encroachment of walking places, the

respondents are bent upon cutting the fully grown trees.

5. According to the petitioner, the respondents

should lay the electrical and internet lines underground,

and if such steps are taken, it would not be necessary for

the respondents to expand the width of the motorable

road to 12 meters from the existing 9.1 meters. The

petitioner states that in July/ August, 2018, he had

addressed a communication to the Chief Engineer of the

Public Works Department (PWD) to adopt the concept of

smart roads while undertaking road widening, and to

protect existing fully grown trees for greener Doon and

protection from pollution. Neither footpaths are available

for pedestrians, nor are cycle tracks available for people to

take up cycling. This leads to risk of accidents for the

pedestrians, children, old aged citizens and cyclists. The

petitioner has placed on record the communication dated

07.08.2018 received from the Office of the Superintending

Engineer, P.W.D., Dehradun, Uttarakhand, wherein it was

stated that encroachment was being removed along the

road in question. The communication further stated that

the suggestions made by the petitioner would be taken

into consideration while preparing the DPR in the light of

the existing width of the road, and the availability of

monetary resources. A copy of this communication was

also marked to the petitioner.

6. The petitioner states that the aforesaid

assurance given by the respondents has been belied, and

the respondents have suddenly started the work of cutting

of trees. The petitioner states that the trees in question

are also the abode of many species of birds, bees and

other winged members, which form part of the biodiversity

of the area.

7. The petitioner places reliance on the order dated

06.04.2022, passed in Writ Petition (PIL) No. 36 of 2022,

to submit that this Court has intervened against

construction, which would obstruct water retention in the

Doon Valley. The petitioner states that he made a detailed

representation to the Chief Secretary, as well as to the

P.W.D. on the aforesaid subject, but to no avail. The

petitioner has placed on record the photographs to show

the existing green cover on the road in question, on either

side of the road. According to the petitioner, an

alternative route exists from Ladpur Junction to Krishali

Chowk via Tapovan Danda Gujrara Mansingh Wala, instead

of the existing route from Sahastradhara Crossing to

Krishali Chowk, which passes through the main residential

areas. With these averments, the petitioner seeks the

following reliefs in the Writ Petition :-

"1. Issue a writ, order or direction in the nature of certiorari to quash the proposed widening of the road from Jogiwala / Ladpur/ Sahastradhara Crossing / Krishali square/ Pacific golf estate, vide which 2057 trees have been earmarked as obstruction.

2. Issue a writ, order or direction in the nature of mandamus, commanding the respondents to frame guidelines for any road widening exercise that may lead to consequent felling of trees."

8. The Writ Petition was first taken up by the

Division Bench of this Court on 11.05.2022. On that date,

this Court directed that, in pursuance of the proposed road

widening from Jogiwala/ Ladpur/ Sahastradhara Crossing/

Krishali Square/ Pacific Golf Estate, no trees shall be felled

by the respondents. The matter was adjourned to

08.06.2022. On 08.06.2022, the matter was further

adjourned to 20.06.2022, and the interim order dated

11.05.2022 was continued. The matter was further

adjourned to 22.06.2022, and the interim order was

continued.

9. The respondent no. 1-State of Uttarakhand filed

its counter affidavit, and also moved an application, being

IA No. 03 of 2022, for vacation of the stay order dated

11.05.2022. The respondent no. 2 has also filed its

counter affidavit. The petitioner has filed its rejoinder

affidavits to the counter affidavit of the respondent no. 1,

as well as to the counter affidavit of the respondent no.2.

10. On 22.06.2022, the Division Bench heard the

matter. The Division bench noticed the stand of the

respondents in their counter affidavit, that the widening of

the road is very much necessary for the proper

development of communication and tourism in the State of

Uttarakhand and that they proposed to transplant the

precious trees and fruit bearing trees. However, they

want to remove/ fell certain trees, which are not very

ecologically friendly i.e. Eucalyptus trees.

11. The Court rejected the submission of the

petitioner, premised on the report filed alongwith the

rejoinder to the counter affidavit of the respondent no. 1,

that even the Eucalyptus trees are good for the ecology

and have cooling effect on the environment. The Court

observed that it is well known that Eucalyptus trees have

adverse effect on soil conservation and soil texture, as well

as on the water table of the area where they are planted.

The Division Bench then proceeded to pass the following

directions :-

"3. So we, after having given anxious thought to this serious issue of conflict between man and nature, the requirement of development and protecting ecology and environment, have come to the conclusion that we should accept the proposal submitted by the State of Uttarakhand through Executive Engineer, PWD, Rishikesh with certain modifications.

4. In that view of the matter, we modify the earlier order dated 06.04.2022 with the following directions:-

a) That widening of the road shall continue but, out of 2057 trees that is proposed to be felled, only 1006 eucalyptus trees are allowed to be felled by the authorities in the widening of road. As far as 79 trees are concerned, as per the counter affidavit they shall remain, as is where is basis and they shall not be cut or harmed in any way. Regarding the rest 972 trees, which include valuable fruit bearing trees belonging to the precious flora of SubHimalayan region shall be transplanted to a suitable place as undertaken by Mr. C.S. Rawat, learned Chief Standing Counsel for the State as well as by Mr. Dhirendra Kumar, Executive Engineer, PWD, Rishikesh Division.

b) We further direct that the respondents shall also plant appropriate trees, in addition to construction of the road and transplantation of trees existing thereon, as per the recommendations of DFO, Mussoorie on both sides of the proposed road. Not only such trees shall be planted but appropriate steps shall be taken in the next five years for their protection, watering and manure/ fertilizer etc. and then in every six months State Government will submit a report regarding it.

5. With such observations, the matter be listed after six months awaiting the report of the concerned authorities. The first report will be submitted in the second week of December, 2022."

12. Aggrieved by the aforesaid order, the petitioner

preferred Special Leave to Appeal (C) No(s). 12591/2022

before the Supreme Court. On 01.08.2022, the Supreme

Court, after taking notice of the order dated 22.06.2022,

directed that, since the matter is pending before this

Court, it would be appropriate if the Bench hearing PIL

matters in this Court takes up the matter on an

expeditious basis, so that the submissions of the petitioner

can be duly considered by this Court. The petitioner was

permitted to mention the proceedings on 02.08.2022, so

that the matter could be listed expeditiously, preferably

within a period of one week.

13. As a consequence of the aforesaid order passed

by the Supreme Court, the matter was mentioned before

this Court on 02.08.2022. In deference to the said order,

we directed listing of the matter on 04.08.2022. The

State was directed to file the status report indicating the

current status with regard to the 2057 trees, in respect

whereof this Court had earlier passed an order on

22.06.2022.

14. On 04.08.2022, the Court took up the fresh Stay

Application, being IA No. 06 of 2022, filed by the petitioner

seeking stay of further felling of trees for the project in

question. Since, we intended to hear the parties early, we

directed the respondents not to cut any further trees, or

re-transplant any trees, for the project in question till the

next date. The matter was kept on 17.08.2022 i.e. soon

after a week long break between 08.08.2022 to

15.08.2022. We heard submissions of learned counsels

from 17.08.2022, and reserved orders on 24.08.2022.

15. Mr. Abhijay Negi, the learned counsel for the

petitioner, submits that the Doon Valley is an eco-sensitive

zone. In this regard, he has drawn the attention of the

Court to the notification issued by the Ministry of

Environment and Forests dated 01.02.1989, under Section

3(2)(v) of the Environment (Protection) Act, 1986 and

Rule 5(3)(d) of the Environment (Protection) Rules, 1986,

for the purpose of restricting location of industries, mining

operations and other development activities in the Doon

Valley.

16. Under the said notification, the Central

Government imposed restrictions on the enlisted activities

in the Doon Valley, except those, which are permitted by

the Central Government, after examining the

environmental impacts. The said notification, inter alia,

prohibits taking up of tourism activities, and provides that

the tourism activities could be undertaken as per the

Tourism Development Plan to be prepared by the State

Department of Tourism, and duly approved by the Union

Ministry of Environment and Forests. Similarly, Land Use

Plan is required to be prepared by the State Government

and approved by the Union Ministry of Environment and

Forests.

17. Mr. Negi submits that the proposed expansion of

the road in question is being undertaken for the purpose of

encouraging tourism in the State, and it also tantamounts

to change of land use, as the width of the road is sought

to be increased.

18. Mr. Negi has also sought to place reliance on

various reports on climate change.

19. Mr. Negi has advanced his submissions in

relation to the removal/ proposed removal of the

Eucalyptus trees. Mr. Negi has sought to place reliance on

an order passed by the National Green Tribunal (NGT) in

Original Application No. 09 of 2014 "Safal Bharat Guru

Parampara v. State of Punjab and others" on

20.07.2015, to submit that the Tribunal has recognised

the fact that Eucalyptus is not a harmful tree, and the

myths about Eucalyptus tree consuming too much water,

and causing dryness in the soil, have been shattered.

20. Mr. Negi submits that the cutting down of over

1000 Eucalyptus Trees, which are very efficient in carbon

sequestering, would only increase the impact of the

vehicular traffic. He also relies on the National Urban

Transport Policy, 2014, which prescribes various activities

like cycling and walking, with restricted usage of personal

vehicles.

21. Mr. Negi further submits that, while claiming

that the road in question is congested, the respondents

have actually not undertaken any traffic assessment study

before sanctioning, or starting the work under the project.

Mr. Negi further submits that the respondents should

construct elevated footpath, which should be 10-12 feet

wide, on either side of the road. If this were to be done,

about 70-80% of the trees proposed to be cut could be

saved. He further submits that the respondents are

exceeding the norm of 3.5 metre width for each lane, by

proposing the width of the lanes as 4.5 metre, just to axe

the trees on either side of the road. He further submits

that the respondents are unnecessarily proposing to create

a median of 02 metre, which is not required, and, if its

width is reduced, many of the trees proposed to be cut

could be saved. He relies on the order of the Supreme

Court in Association For Protection of Democratic

Rights and another v. State of West Bengal and

others, (2021) 5 SCC 466, to submit that it is essential

to strike a balance between environmental conservation

with right to development.

22. The next submission of Mr. Negi is in relation to

the transplantation of 478 other varieties of trees. Mr.

Negi has argued that the manner in which the respondents

are undertaking the process of transplantation, is

completely unscientific. The petitioner has placed on

record photographs of the trees, which the respondents

have uprooted for the purpose of transplantation. Mr.

Negi submits that all the branches and leaves of such

trees have been cut, and only the trunk of the tree has

been transported for translocation.

23. Mr. Negi submits that the Forest Research

Institute (FRI) has opined that the best time for

translocation of trees are the months of November and

December, and the same should not be undertaken during

the rainy season. This is for the reason that the ground is

soft. Mr. Negi submits that the translocation being

undertaken presently is likely to result in failure.

24. Mr. Negi submits that the Government of NCT of

Delhi has prescribed standard norms, and evolved a

Standard Operating Procedure for the purpose of

transplantation of trees. He submits that the respondent-

State, however, has no such policy, or Standard Operating

Procedure, and the trees are being cut mercilessly for the

purpose of transplantation, and they are likely to perish

due to the manner in which they are being handled. He

submits that the respondents are only interested in

completing a paper and formal exercise of claiming that

they have relocated the trees, and are not concerned

about their survival post translocation.

25. He has also referred to an article titled "Tree

Transplanting: Success Stories of Trees Transplanting at

Karnataka, India" published in the International Journal of

Current Microbiology and Applied Sciences in Volume 7

Number 10 (2018). The said Article states that

translocation technique cannot be applied for all species of

all ages at all place. It cannot be done on a large scale

basis. This technique can be employed for a small scale,

exigent situation and site specific reasons, where few trees

of immense importance can be tried for transplanting. The

Article states that a well-structured 'Standard Operative

Procedure' (SOP) can be developed on Tree Transplanting

based on the past experience and the on-going

experiments at various forest divisions in the State of

Karnataka. Under the heading "Methodology Adopted",

the Article recommends that various teams should be

formed like, Tree Treatment Team, Transport Team,

Machine/ Material Procurement Team, Logistics Team,

Liaison Team etc., with designated work chart and

responsibilities. Overall works have to be planned,

executed and monitored by the Steering Team comprising

of senior level officers of all the departments involved, and

they should own responsibility for the outcome of the

process.

26. Mr. Negi has drawn the attention of the Court to

the way tree transplanting has been done in the State of

Karnataka. The entire tree, with its roots is removed and

transplanted to the new location and replanted. However,

in the present case, the trees, which are sought to be

transplanted, have been denuded of all their branches and

leaves, and in the process of their uprooting and of being

cut down, they have been badly injured. Mr. Negi submits

that there are equipment and machinery available for the

uprooting and transportation of trees, without causing any

damage to them. The respondents are, however,

undertaking the exercise manually and in a most

insensitive manner. Mr. Negi further submits that trees

are being transplanted in flood zone and, therefore, they

are not likely to survive in the eventuality of the area

being inundated.

27. Mr. Babulkar submits that the State of

Uttarakhand has forest land to the extent of 64% and

forest cover to the extent of 45.74%. 86% of the land of

the State is in hilly areas. Significant area is consumed by

rivers, streams and lakes. Therefore, very limited plain

areas are available with the State for the purpose of

development. He submits that sustainable development

requires the balancing of the rights of the people to neat

and clean environment, with the right of the people to

reap the fruits of development. Neither of these two rights

can be overlooked, and it is necessary to balance the two

rights.

28. Mr. Babulkar submits that the Sahastradhara

road is one of the important roads (amongst all other

roads) of Dehradun city. This road is also one of the

bypass routes for Mussoorie. All other accesses to

Mussoorie road have already exhausted their capacity and,

thus, there is no option except to widen the Sahastradhara

Road. Sahastradhara Road is one of the main roads, and

a State Highway as well. Mr. Babulkar points out that

urbanisation has started on this route, and I.T. Park of

Uttarakhand has also been constructed on this road.

There are many offices, including the Office of the D.G

Medical Health, NABARD, State Human Rights

Commission, URRDA, Panchayati Raj Bhawan, Election

Commission, Agriculture Department and many other

important offices on this road. The traffic to and fro from

these institutions is leading to traffic congestion on the

road. Moreover, a large number of Group Housing

Societies have also come up on the said road. The total

number of flats on this road will increase to about 7000,

adding to traffic congestion. The State has disclosed in its

affidavit, that over the past four to five years, the area

adjoining the road has also become a hub for students/

aspirants of defence forces, and students from all over

India come to Dehradun to prepare for entrance

examinations conducted by the defence forces. Many

hostels are also located in the vicinity of the

Sahastradhara Road.

29. Since Sahastradhara road is also a common

tourist destination, in every tourist season, there is a spike

in the Passenger Car Unit (PCU). Thousands of tourists

visit Sahastradhara on daily basis. The affidavit discloses

that, keeping in view the aforesaid aspect, land on both

sides of the Sahastradhara Road was procured/ bought by

the P.W.D. as far as back in the year 1948, and part of the

land consumed in the widening of the Ring Road was

procured between 2001-2009. The State has disclosed

that another alternate route, by the name of

Sahastradhara-Chamasari-Barlowganj Road, for reaching

Mussoorie, connecting many villages is already under

construction, and that the Sahastradhara Road/ Ring Road

would feed and connect to the said Sahastradhara-

Chamasari-Barlowganj road. This would reduce the

pressure of traffic within the State, especially in the peak

season.

30. The respondents submit that it is necessary to

upgrade the road from the present two lanes to four lanes.

The respondents state that in any four lane project, as per

the guidelines of the Indian Road Congress, the Central

Verge (Divider) is necessary to be constructed for safer

traffic movement. The respondents state that, as per the

Indian Road Congress - 73, 1980, the maximum traffic

carrying capacity of a two lane road is 10,000 PCU per

day. The traffic census conducted on the Sahastradhara

Road in the year 2019 shows that the total traffic count on

the said road was 11,359 PCU per day, which is already

higher than the traffic carrying capacity of the two lane

road. Assuming a 6% annual growth of traffic count over

three years, the estimated PCU per day would be 13,500

PCU per day. Thus, the upgradation of four lanes from

two lanes is needed. The guidelines of the Central Road

Research Institute (CRRI-CSIR) also states that, where

there is movement of more than 10,000 PCU per day, then

the two lane road must be upgraded to four lane.

31. The respondents state that, since the opening of

the COVID-19 lockdown, travelling a distance of around

four kilometres on the Sahastradhara Road can take more

than one hour in peak rush hours. Failure to upgrade the

existing two lanes to four lanes would result in traffic

congestion on the already busy road, which, in turn, would

lead to higher consumption of petrol and diesel by

vehicles, leading to emissions of highly polluting Green

House Gases. He has relied upon an academic study/

report of learned Academicians titled "Analysis of Traffic

Congestion Impacts of Urban Road Network under Indian

Condition". According to the said report, traffic congestion

causes significant noise and air pollution. Thus, road

widening on the said road would reduce consumption of

fuel and time, and bring down the emission of harmful

gases.

32. Mr. Babulkar submits that it is absolutely

essential for the betterment of the people of the State,

that the State creates new infrastructure, including

transportation, to promote welfare of the people by

securing standard of living and economic justice. In

support of this submission, he has placed reliance on the

observations made by the Supreme Court in Jindal

Stainless Limited and another v. State of Haryana

and others, (2017) 12 SCC 1, and, in particular, on

paragraph no. 415 of the said judgment, which reads as

follows :-

"415. Reorganisation of the States is yet another factor which has to be borne in mind. Creation of the State of Uttarakhand from the undeveloped hilly area of Uttar Pradesh; the State of Jharkhand from the predominantly tribal areas of the State of Bihar, the State of Chhattisgarh from the State of Madhya Pradesh and the recent bifurcation of the State of Telangana from the State of Andhra Pradesh comes to mind. The newly bifurcated States have to develop their new capitals, create new State infrastructure including High Courts in due course. They have to develop their own industrial bases for manufacture and production and for creating job opportunities. To attract capital investment, they have to provide infrastructure like transport, communication, power and technology. Reorganisation of the States apart, as a welfare State, a State is under an obligation to create job opportunities and promote welfare of the people by securing standard of living and economic justice. Having regard to the multifarious activities of a welfare State, it is necessary that the States must have leverage/flexibility in exercise of their power to levy taxes and, therefore, steps taken by the States that result in differentiation cannot amount to discrimination that impedes the free flow of trade, commerce and intercourse."

33. He also places reliance on the judgment of the

Supreme Court, in N.D. Jayal and another v. Union of

India and others, (2004) 9 SCC 362, in support of his

submission that the balance between environmental

protection and developmental activities should be

maintained by strictly following the principle of sustainable

development. The Supreme Court, in its judgment, inter

alia, observed as follows :-

"22. Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens' Welfare Forum v.

Union of India, (1996) 5 SCC 647, and in M.C. Mehta v. Union

of India, (2002) 4 SCC 356, it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of "sustainable development". This is a development strategy that caters the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environment related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by the strict adherence of sustainable development without which life of the coming generations will be in jeopardy.

23. In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right. Maybe, in different context, the right to development is also declared as a component of Article 21 in cases like Samantha v. State of A.P., (1997) 8 SCC 191 and in Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125.

24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. The right to development encompasses much more than economic well- being, and includes within its definition the guarantee of fundamental human rights. The "development" is not related only to the growth of GNP. In the classic work, Development As Freedom, the Nobel prize winner Amartya Sen pointed out that "the issue of development cannot be separated from the conceptual framework of human right". This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples' well-being and realization of their full potential. It is an integral part of human rights. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development.

25. Therefore, the adherence to sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to "sustainable development" cannot be singled out. Therefore, the concept of "sustainable development" is to be treated an integral part of "life" under Article 21. Weighty concepts like intergenerational equity (State of H.P. v. Ganesh Wood Products, (1995) 6 SCC 363), public trust doctrine (M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development."

34. Mr. Babulkar also places reliance on the order

passed by the Gujarat High Court in Vikram Trivedi v.

Union of India, 2013 SCC OnLine Guj 5792, wherein

the High Court observed as follows :-

"19. No development is possible without some adverse effect on the ecology and the environment but the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. The balance has to be struck between the two interests and this exercise must be left best to the persons who are familiar and who have specialized in the field.

20. The expansion of highway is a project of wide public importance. It is not open to frustrate the project of such public importance only with a view to safeguard few trees standing on the land of the petitioners which has vested with the Government. While examining the grievance about adverse impact of cutting the trees and thereby disturbing the birds, the benefit which will be derived by the large number of people by expansion of the highway should also not be brushed aside. The Courts are bound to take into consideration the comparative hardship which the people at large would suffer by stalling the project of great public utility. Trees are to be cut for a public purpose to facilitate expansion of the national highway. Once the Government has taken all precautions to ensure that the impact on the environment is transient and minimal, the Court will not substitute its own assessment in place of the opinion of persons who are specialists and who may have decided the question with objectivity and ability. The Courts should not be asked to assess the environmental impact of expansion of highway but at the most could ensure that the recommendations of the experts have been abided by the government or the authority concerned."

35. Mr. S.N. Babulkar, the learned Advocate General

for the State of Uttarakhand, has submitted that up till

02.08.2022, 326 trees have already been transplanted in

three different locations and the type of trees, which have

been transplanted, are :- (i) Bottle Brush (ii) Ashok (iii)

Kenji and (iv) Ghaitoon. The transplanted trees have a

diameter ranging from 40 to 60 centimetres. The affidavit

categorically states that all the 326 transplanted trees

have been found to be alive and surviving as on

10.08.2022, as new branches and buds have sprouted on

the transplanted trees. The respondent no. 1 has also

placed on record photographs of the transplanted trees,

which show that new shrubs have sprouted on the

transplanted trees.

36. Mr. Babulkar further submits that the relocated

and replanted trees are at a distance of 300 to 400 meters

from their original location, which ensures that the natural

soil texture as well as the soil behaviour, to which the

trees were accustomed to, has remained unchanged. Mr.

Babulkar submits that a survey regarding the

transplantation was conducted by the Forest Research

Institute (F.R.I.), which submitted its report to the

Ministry of Environment, Forest & Climate Change,

Government of India, laying down the guidelines. The

respondents state that they have transplanted the trees as

per the said guidelines.

37. Mr. Babulkar further states that for

establishment of IIM, Kashipur in the year 2017-18, 128

trees were transplanted, whose survival rate till date is

100%. Another example cited by Mr. Babulkar is that of

the transplantation of 457 trees in Gadag Forest Division,

Dharwad, where 457 trees were transplanted and the

survival rate of the said trees was again very high; and

trees with diameter more than 90 centimetres had 100%

survival rate.

38. In response to our query, whether the State was

willing to undertake the process of transplantation of the

remaining trees under the supervision of the Forest

Research Institute, Mr. Babulkar, on instructions, states

that the State Government has no objection to that.

39. In his rejoinder, Mr. Negi has argued that,

rather than resorting to widen the road in question, the

respondents should focus on removing the existing

encroachments on the existing road itself, which is broad

enough. He has referred to the photographs placed by

him on record to show that on either side of the road,

there are encroachments by shop owners, apart from

unauthorised parking of vehicles. Several vendors have

placed their products/ wares on roadside, which too is

preventing easy flow of traffic. He submits that the report

relied upon by the respondents, as aforesaid, does not

suggest cutting down of trees, for the purpose of road

widening, as an option. Other mitigating steps should be

taken by the respondents in terms of the said report.

40. Mr. Negi has also urged that the respondents

have also not explored the feasibility of widening the

alternative route suggested by the petitioner. According

to the petitioner, there is an alternate route from Ladpur

Junction to Krishali Chowk via Tapovan Danda Gujrara

Mansingh Wala, rather than the proposed route via

Sahastradhara. According to the petitioner, if this route

were to be developed, it would lead to cutting of fewer

trees. He has also placed reliance on Google Maps to

show that the alternate route, between Tapovan Chowk to

I.T. Park via Tapovan, saves 3-5 minutes.

41. Mr. Negi has also placed reliance on the order

passed by the Supreme Court in T.N. Godavarman

Thirumulpad v. Union of India and others, Writ

Petition (Civil) No. 202 of 1995 dated 09.05.2022, to

submit that if there is a doubt, protection of environment

would have to take precedence over the economic

interest. He submits that the petitioner has pointed out

serious issues, which create enough doubt with regard to

the prudence of the decision taken by the respondents to

undertake expansion of the road in question by felling

thousands of trees.

42. We have given due consideration to the rival

submissions advanced before us, as also the materials

placed before us and relied upon by the learned counsels.

43. We may first deal with the submission of Mr.

Negi premised on the Notification dated 01.02.1989. The

project to expand the road in question is being undertaken

to facilitate smooth movement of traffic on the road in

question, which is experiencing high volume of vehicular

traffic. It also caters to the traffic from Dehradun to

Mussoorie, via Sahastradhara, and back. The removal of

congestion on the road is not intended only for tourism

purposes. The said project cannot be classified as a

tourism project. It is a developmental project for the

development and upgradation of the existing transport

infrastructure which is essential for the people of

Dehradun, in as much, as, it is essential for those living

and working in Dehradun, as it is for people going to

Mussoorie for tourism, or otherwise. There is no change of

land use, since it is the stand of the respondents that the

land already stands acquired by the Government, on either

side of the road in question. Mr. Negi has not even

ventured to elaborate on either of the aforesaid two

aspects, apart from making a faint argument. Therefore,

in our view, reliance placed on the notification dated

01.02.1989, issued by the Ministry of Environment and

Forests, is of no avail for the present purpose.

44. Reliance placed by Mr. Negi on the order dated

06.04.2022, passed in Writ Petition (PIL) No. 36 of 2022,

which refers to, and relies upon the aforesaid notification

dated 01.02.1989, appears to be misplaced. From the

said order, it appears that the Court was dealing with the

specific case of raising of construction on land bearing

Khasra No. 277, which had been converted by the

Revenue Authorities, from water logged area to barren/

banjar land, to enable construction thereon.

45. There is no denying the fact that the entire

world is facing the threat of environmental and climatic

change due to Global warming. This is happening due to

rapid industrialization, cutting of forests, burning of fossil

fuel, which is leading to carbon emissions in the

environment. However, that cannot be cited as a general

reason to stop all developmental activities. Certain

developmental activities may, in fact, contribute to

reduction of carbon emissions. Widening of a busy and

congested road would, in fact, help the environment, as it

would lead to smooth running of traffic and lesser carbon

emissions. It is well known that busy roads, with slow

moving traffic, contribute greatly to air pollution, as a

result of unproductive and inefficient burning of fuel.

46. We have perused the detailed order passed by

the National Green Tribunal dated 20.07.2015. The

Tribunal has dealt with the said aspect in paragraph nos.

27 to 32 of its said order. The Tribunal also referred to its

earlier order of 16.04.2015, which, unfortunately, the

petitioner has not placed before us. The Tribunal noted its

earlier observations that the Eucalyptus trees consume

more water, but are water efficient plants, and that the

Government was encouraging growing of the said plants in

water logged areas, and where the ground water levels are

safe.

47. On 16.04.2015, the Tribunal held that the

plantation of Eucalyptus trees should not be totally banned

in interest of either the environment, or the ecology, or

the public at large. The Tribunal, however, held that the

State may encourage farmers to plant Eucalyptus trees

preferably in the water logged areas, or the areas, which

are declared as safe by the Central Ground Water

Authority. The Tribunal found that the plantation of

Eucalyptus trees would better serve environmental causes,

and it cannot be disputed that these trees yield more

biomass and, therefore, are more carbon sequestering

trees, as compared to other species of trees. The Tribunal

recognised the fact that Eucalyptus serves as timber. In

paragraph no. 32 of the said order, the Tribunal observed

as follows :-

"32. In view of the same while reiterating the findings of the Tribunal dated 16-04-2015 in respect of eucalyptus plants, we record the above said studies and hold that there cannot be a complete ban on eucalyptus plantation in the State of Punjab. However it is for the Forest department to evolve appropriate policy by regulating and restricting the growth of the said plantation in the water logged and safe areas by way of proper regulations and continuously monitoring of the same. Issue No. 2 is answered accordingly."

(emphasis supplied)

48. Thus, while it may be true that Eucalyptus trees

can achieve high biomass production on a low nutrient

uptake, and thus are more carbon sequestering trees as

compared to other species of trees, at the same time,

there is no denying the fact that they consume more

water, and they do cause the area to dry up, wherever

they are planted. Therefore, their plantation in water

logged areas, or areas where the Central Ground Water

Authority finds their plantation as not objectionable, may

be undertaken. Their growth has to be regulated and

restricted in water logged and safe areas by the Forest

Department.

49. Even if we were to accept the submission of Mr.

Abhijay Negi that Eucalyptus trees do not have any

adverse effect either on the soil, or on the environment

generally, and that they serve the environmental cause, it

is also a fact that Eucalyptus trees consume large amounts

of water - that is why they should be planted in water

logged areas and areas having high water table, and; they

are fast growing and they are harvested as a crop to

produce timber, which is used for several purposes. It is

not the petitioner's case that the area where the

Eucalyptus Trees in question are planted/ standing is a

water logged area. The photographs placed on record also

do not show any water logging in the area, or the

existence of trenches, wherein water gets logged.

50. Though, there is no denying the fact that the

cutting of the 1006 Eucalyptus trees would, at least for

some time, adversely impact the environment, and also

affect the birds and insects which nest in such trees,

looking to the extent of forest cover in the Doon Valley

itself, and the State of Uttarakhand as a whole, we cannot

accept the submission that the species of birds and

insects, which nest on trees, including Eucalyptus trees,

would be rendered vulnerable. This is so, because the

Doon Valley specifically, and the State of Uttarakhand

generally, have a large forest cover, and it is not that all

the trees, or all Eucalyptus trees, are being destroyed.

51. The respondent no. 1 has disclosed, in its

affidavit dated 16.08.2022, that out of the 1006

Eucalyptus trees, which are required to be cut for the

project of road widening, 528 Eucalyptus trees have

already been cut down up to 04.08.2022, when this Court

passed an order restraining the cutting down of further

trees. The respondents further state that the DFO

(Divisional Forest Officer), Mussoorie has, vide his letter

dated 04.04.2022, stated that the Eucalyptus trees, which

are within the Right of Way (ROW), had been planted in

the year 1976, and the said trees are oversized and have

already completed their rotation period (optimum age).

52. In the light of the aforesaid, we are of the view

that the cutting down of the 1006 Eucalyptus trees, which

have already lived their full lifecycle, and which have the

potential of causing accident in case they fall on their own,

does not call for interference by us in these proceedings.

The petitioner has himself placed on record literature to

show that Eucalyptus trees have very shallow roots and,

therefore, such trees are prone to getting uprooted due to

strong winds and storms. We, therefore, reject the

submission of Mr. Abhijay Negi that the respondents

should not be permitted to cut the 1006, or the remaining

478 Eucalyptus trees.

53. So far as the aspect of transplantation of 972

trees is concerned, though, it appears that the trees,

which have been transplanted, have been substantially cut

down before transplantation - leaving only the bare trunk,

at the same time, the respondents have stated, on

affidavit, that the success rate of the transplanted trees is

nearly 100%. The photographs of the transplanted trees

have been placed on record, which show that new

branches have germinated, which would be possible only if

they have taken roots at the relocated place. Moreover,

the respondents have stated that they are undertaking the

transplantation process by following the guidelines laid

down by the Forest Research Institute, Dehradun.

54. Mr. Babulkar, on instructions, also states that

the State has no objection if this Court were to direct the

F.R.I., Dehradun to supervise the process of relocation of

the trees, which are yet to be relocated.

55. It appears that the State does not have, and is

not deploying the equipment, such as cranes devised for

transporting the uprooted trees with their roots, from one

place to another, as is shown to be done in the NCT of

Delhi. The State would do better by procuring the

necessary equipment without any delay, so that the

transplantation of the trees in the State can be undertaken

in a more scientific way. The trees, which have been

transplanted, would take a long time to develop branches.

However, if the tree could be transplanted without cutting

down the branches, or, at least, while retaining some of

them, it would certainly increase their chances of survival,

and would also enable the tree to serve the environmental

needs faster.

56. We are, therefore, inclined to direct the State to

buy the necessary equipment, for transplantation of the

fully grown trees, positively within the next four months.

However, since the work of expansion of the road in

question has already commenced, and appears to be

necessary to meet the urgent needs of smooth flow of

traffic, we are inclined to permit the transplantation of the

trees, though under the supervision of the experts of the

F.R.I., Dehradun. The F.R.I., Dehradun shall nominate at

least two experts, who shall be involved at every stage of

transplantation of the fully grown trees, i.e. from the

uprooting of the trees; to its transportation; thereafter, to

their re-transplantation, and; their upkeep till they

stabilize at their new location. The transplanted trees

should be given necessary treatment for the injury caused

to them in the process of relocation, to prevent them

getting infected. The respondents shall ensure compliance

with the instructions and advice rendered by the experts

from F.R.I. in all such matters of transplantation/

treatment of trees. The suitability of the area, where the

transplantation of the trees is being undertaken, shall also

be examined and certified by the experts of the F.R.I,

Dehradun.

57. The last submission of Mr. Negi, with regard to

the alternate route suggested by the petitioner, does not

impress us. While the petitioner claims that the

development of the alternate route would involve the

cutting down of lesser number of trees, there is no basis

for the said claim made by the petitioner. We have no

reason to assume that the respondents have not

conducted a survey, and have not examined all the pros

and cons of developing/ expanding one, or the other road.

The process of development/ expansion of road places

huge financial burden on the State. The respondent-State

has disclosed in its affidavit, that it acquired the lands,

falling on either side of the Sahastradhara Road, between

1948 to 2009. To widen the alternate route suggested by

the petitioner, the State may have to pay huge amounts of

compensation for acquiring the lands falling on either side

of the road.

58. The State has disclosed in its affidavit that, on

the road in question, large scale development of Public

Offices and private residences/ Group Housing Societies,

have taken place leading to increased traffic.

59. As to which road should be developed or

expanded, is a matter of policy decision. Neither the

petitioner has a vested right to claim that the respondent

should formulate a policy which he thinks proper, nor is it

for this Court to lay down the policy for the State

Government. We are only concerned with the examination

of the issue, whether the impugned actions of the State

are illegal or unconstitutional, and, on that ground,

whether they call for interference.

60. We are, therefore, not inclined to interfere with

the decision taken by the respondent-State to develop and

widen the road in question, in preference over the

alternate route suggested by the petitioner, as we are not

satisfied that the petitioner has made out a case of

irrationality, arbitrariness or malafides in the decision

making process.

61. We also find merit in the submission of Mr.

Babulkar that, while environmental concerns have to be

kept in mind, the State of Uttarakhand - which is

relatively a new and upcoming State, also needs

development and infrastructure to meet the aspirations of

the people, and to achieve the economic upliftment and

developments.

62. The State needs sustainable development, which

means that a balance has to be struck between the

environmental needs and the need of development. So far

as the removal of 1006 Eucalyptus Trees is concerned, it

appears, that the said trees have practically lived their life,

and considering the fact that Eucalyptus Trees are fast

growing species, the State can, and should replenish the

said loss by planting many more trees, than the numbers

being cut down, in appropriate areas, where there is water

logging, or the water table is high, after approval of the

Ground Water Authority.

63. Other trees, which would compensate for the

loss of carbon sequestering due to the removal of the

1006 Eucalyptus Trees, should be planted in appropriate

areas, under the supervision of the F.R.I., Dehradun.

64. Since, we have directed the involvement of

F.R.I., Dehradun in the matter of transplantation of the

remaining trees, out of the 972 trees, we are hopeful that

the transplanted trees would do well, and continue to

serve the environmental needs after relocation.

65. Mr. Negi has also sought to raise issues with

regard to the width of the proposed four lane road/

highway, and its design.

66. We do not find any merit in the said submission.

There is nothing to show that there is any prohibition in

law to the State developing the highway in the manner

proposed. The respondents have been able to show that

the current Passenger Car Unit (PCU) is high, and there is

urgent need to develop the State Highway/ road in

question.

67. For the aforesaid reasons, we dismiss the Stay

Application (IA No. 06 of 2022) moved by the petitioner.

The State shall, however, continue to comply with the

conditions imposed upon it vide order dated 22.06.2022,

as well as the directions issued by us in this order.

________________ VIPIN SANGHI, C.J.

_____________ R.C. KHULBE, J.

Dt: 16th September, 2022 Rahul