T.N. Godavarman Thirumulpad Vs Union of India & Ors.
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 Thirumulk pad 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 per mission 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 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 putat 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 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, 2are critically endangered, 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, 1990issued 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 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.
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:
Total Area within boundary Wall
3,34,334.00 sq.m.
Total built up covered area for activities Memorial Building & toilet blocks
3,499.50 sq.m.
1.05%
Utilities & facilities
3,500.00 sq.m.
1.05%
Area Under Hard Landscape (including platforms, plinth, sculptures & surrounding paved areas, paths)
1,29,140.80sq.m.
38.62%
Total area under Soft Landscape Area under grass plantation
1,57,161.79 sq.m.
47.01%
Area under planters built within paved areas
6,181.91 sq.m.
1.85%
Total area for vehicular
34,850.00 sq.m.
10.42%
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:
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 95844.99
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, 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 itwas, thus, clearly a case of forest land being put to use for non-fores tpurpose in complete violation of section 2 (ii) of the FC Act.
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-a forestation, 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.
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 thecase of T.N Godavarman Thirumulkpad [Writ Petition (C) No.202 of1995), (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 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 regards to "large scale construction near the Okhla Bird Sanctuary bythe 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 of32.5 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 are port 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 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, 2009requested 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 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 haft in its stand the MoEF informed the CEC by its letter of August22/24, 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 "...[Construction work in this area does not attract the provisions of the Forest (Conservation) Act1980'' 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 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, 2009it 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 was 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 Cassiasiamia, Eucalyptus, Fishtail Palm, Rubber plant, Silver ok e etc which are not of 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.
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 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 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. Date of Very Moderately Open Total Non Total Satellite Data Dense Dense Forest Forest Forest Forest Area Assessment (sic) Forest Cover (State of Forest Report) 8th (2001) October-2000 0 3.74 10.42 14.16 32.27 46.439th (2003) November- 0 6.05 10.71 18.76 29.67 46.43 200210th (2005) November- 0 7.54 14.23 21.77 24.66 46.43 200411th (2007) October-2006 0 9.04 12.73 21.77 24.66 46.43
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 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 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. 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 we reacquired under the Land Acquisition Act mostly between the years1980 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 9to 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 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 nowhere 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, NOID A 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). NOID A 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 a forestation!).The trees, thus, planted were allowed to stand and grow for about 12-14years 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 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, 2006there 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 cannot be branded as "forest".
25. In order dated December 12, 1996 in Godavarman Thirumulkpadthis Court held and observed as under:
26. 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. 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
27. 27 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 `forest land occurring in section 2, will not only include `forest' asunder stood 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) 3SCC 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....."
28. 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 tribal’s in reserved forests and forests that were notified as scheduled area under the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959. It was contended on behalf of the leaseholders 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 andevident.
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 affore station was done by spending crores of rupees of foreign funding n an effort to repair the deep ravages caused to the Aravalli Hills range over the years by mostly illegal mining. The context is once againevident.
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, 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 or derdated 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 notification issued by the Central Government on September 14, 2006under 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, 2009approached 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 August22/24, 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 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, 2009the 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-`-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 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 2006and 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 35 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 (9,542square metres) was less than 20,000 square metres. Having thus made 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
