Supreme Court of India
IN RE.: CONSTRUCTION OF PARK AT NOIDA NEAR OKHLA BIRD SANCTUARY ANAND ARYA & ANR. T.N. B GODAVARMAN THIRUMULPADversusUNION OF INDIA & ORS.
- Citation
- 2010 INSC 844
- Decided
- 3 December 2010
- Disposal
- Disposed off
- Bench
- S H KAPADIA
Holding
The Noida park project is not forest land and does not fall within the ambit of the 2006 EIA Notification, so prior environmental clearance is not required.
Summary
The petitioners challenged the construction of a large memorial park in Noida, alleging that the 33.43‑hectare site was forest land and that the project proceeded without the required prior environmental clearance under the 2006 EIA Notification, thereby threatening the nearby Okhla Bird Sanctuary. The Court examined revenue records, land acquisition documents, and satellite imagery, finding that the land was historically agricultural and the trees present were planted for an urban park, not natural forest, and thus did not qualify as forest land under the Forest Conservation Act. Applying the schedule of the EIA Notification, the Court held that the project is a township/area‑development activity falling under item 8(b) but fails to meet the threshold of 50 hectares or 1.5 million square metres of built‑up area, and therefore is outside the ambit of the Notification. The Court also rejected the applicability of the general condition for projects within 10 km of a protected area, as it was not listed for items 8(a) or 8(b). Consequently, the project does not require prior environmental clearance, and the Court allowed its completion subject to specific environmental mitigation conditions. The interim injunction was lifted and the petition was disposed.
Issues considered
- Whether the project site constitutes forest land under Section 2(ii) of the Forest Conservation Act, 1980
- Whether the project requires prior environmental clearance under the EIA Notification S.O. 1533(E) dated 14 September 2006
- Whether the project falls under item 8(a) (building and construction) or item 8(b) (township/area development) of the Notification schedule
- Whether the general condition for projects within 10 km of a protected area applies to this project
- Whether the proximity to Okhla Bird Sanctuary violates any statutory or constitutional environmental protection provisions
Legislation cited
- Constitution of Indias. Article 21
- EIA Notification S.O. 1533(E) (2006)s. Item 8(a), s. Item 8(b)
- Environment (Protection) Act, 1986s. 3(3)
- Forest (Conservation) Act, 1980s. 2(ii)
Subjects
forest landenvironmental clearanceEIA notificationOkhla Bird Sanctuaryarticle 21 right to lifeeco‑sensitive zonebuffer zoneurban parkforest conservation actenvironment protection act
Judgment
[201 O] 15 (ADDL.) S.C:R. 783
I.A. NOS.2609-2610 OF 2009 A
IN
WRIT PETITION (CIVIL) N0.202 OF 1995
IN RE.:
'CONSTRUCtlON OF PARK AT NOIDA NEAR OKHLA
BIRD SANCTUARY ANAND ARYA & ANR. T.N. B
GODAVARMAN THIRUMULPAD
v.
UNION OF INDIA & ORS.
DECEMBER 3, 2010
c
[S.H. KAPADIA, CJI, AFTAB ALAM AND K.S.
PANICKER RADHAKRISHNAN, JJ.]
Forest Conservation Act, 1980: s. 2 - Forest land - Project
at NO/DA for building large scale memorial with extensive D
stone work - Spread over an area of 33.43 hectares of land
- Whether the project area, a forest land - Held: In the
revenue records, none of the khasras (plots) falling in the
pr..oject area were ever shown as jungle or forest - The project
are.a was treated as an urban park - Trees planted on it were E
allowed to stand and grow for about 12-14 years when they
were cut down to make the area clear for the project - Though
man made forest may equally be a forest as a naturally grown
one and non-forest land may also, with the passage of time,
change its character and become forest land, but this cannot F
be a rule of universal application and must be examined in
the overall-facts of the case - The trees planted with the intent
to set up an urban park cannot turn into forest within a span
of 10 :to 12 years and the land that was forever agricultural
would hot be converted into the forest land - The project site G
. is not forest land - Construction of the project without the prior
permission from the Central Government did not in any way
contravene s. 2 of the Act - Environment Protection Act, 1986.
Environment Protection Act, 1986: s. 3(3) - State
783 H
784 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Government's project for building large scale memorial with
extensive stone work - Project at NO/DA - Requirement of
prior environmental clearance under the EIA Notification S. 0.
1533(E) dated September 14, 2006 - Held: The project in
question cannot be termed as a "Building and Construction
s project" falling under item B(a) of the Schedule to the EIA
Notification - Applying the test of 'Dominant Purpose or
Dominant Nature' of the project or the "Common Parlance"
test, the project could only be categorized under item B(b) of
the schedule as a Township and Area Development project"
c - But under that category it does not come up to the threshold
marker inasmuch as the total area of the project (33. 43
hectares) is less than 50 hectares and its built-up area even
if the hard landscaped area and the covered areas are put
together comes to 1,05,544.49 square metres, i.e., much
below the threshold marker of 1,50,000 square metres -
D Therefore, the project does not fall within the ambit of the EIA
notification - EIA Notification S.O. 1533(E) dated September
14, 2006 - Items B(a) and B(b) - Wild life.
Circular/Government order/Notification:
E
EIA Notification S.O. 1533(E) dated September 14, 2006
- Items B(a) and B(b) - "Building and Construction project"
and "Township project" - Distinction between.
EIA Notification S.O. 1533(E) dated September 14, 2006
F - Ambiguity in - Held: The Notification calls for second look
by the concerned authorities - Project activities under Item
B(a) and B(b) of the schedule to the notification need
description with greater precision and clarity - Environmental
laws.
G
Constitution of India, 1950: Article 21 - Construction of
project adjoining the Okhla Bird Sanctuary - Continuation of
the project challenged on the ground that it was a potential
hazard to the sensitive and fragile ecological balance of the
H Sanctuary- Held: Environment is one of the facets of the right
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND 785
ARYA, TN. GODAVARMAN THIRUMULPAD v. U.0.1.
to life guaranteed under article 21 of the Constitution and if A
the Court perceives any project or activity as. harmful or
injurious to the environment it can step in - The question of
the likelihood of the project causing any adverse effects on
the Okhla Bird Sanctuary must, therefore, be examined from
this angle - Environmental impact assessment of the project B
was done by expert agencies - None of the expert bodies took
the view that the project was so calamitous or ruinous for the
bird sanctuary that it be altogether scrapped in order to save
the Sanctuary - The expert bodies gave recommendations
which allowed the completion of the project subject to certain
1
c
co nditions - Therefore, project allowed to be completed,
subject to conditions suggested by the expert bodies -
Environmental. laws - Wild life ..
The petitioners/ applicants were residents' of NOIDA,
U.P. According to them, the project, undertaken at the D
· instance of Uttar Pradesh -Government was a "huge
unauthorized construction". A very large number of trees
that were felled down for the project formed a "forest" as
the term was construed by the Supreme Court in its OJder
dated December 12, 1996 and the action of the Uttar E
Pradesh Government in cutting down a veritabie forest
without the prior permission of the Central Government
and then Supreme Court, was in gross violation of
section 2(ii) of the Forest (Conservation) Act, 1980 (FP
ACt). The project was spread over an area of 33.4J'. F
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 with the estimated
cost at Rs. 685 crores. At the site of the project, there
used to be a tree cover, thin to high- moderate in density G,
and for clearing the ground for the project- 6186 trees
were cut down and 179 were shifted during construction.
The project involved massive constructions that. wer~
made without any prior environmental clearance from the
Central Government or t~s state Level En.vironment
5 H
786 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Impact Assessment Authority in complete breach of the
provisions of the Environment Protection Act, 1986 (EP
Act) and the notification issued under the Act. The project
was causing great harm, and was bound to further
devastate the delicate and sensitive ecological balance
B of the Okhla Bird Sanctuary to which the site of the
project lay adjacent and, therefore, was in complete
disregard of the Supreme Court's directions concerning
'buffer ·zones'.
C The State of Uttar Pradesh denied all the allegations
ma·de by the applicants. According to the State
·Government, it was setting up a park to 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.
D 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, it was contended that the setting
up of the park caused no harm to the bird sanctuary and
E the objections raised by the applicants to the
construction of the park were fanciful and imaginary and
actuated by oblique motives. According to the State
Government, the work on the project commenced in
January 2008. The applicants filed IA before the Central
F Empowered Committee (CEC) constituted by the
Supreme Court on March 5, 2009. The instant IA was filed
by the applicants before the Supreme Court on April 22,
2009. The State Government contended that by that time
50% of the construction work of the project was
G completed. The report from the CEC was received in the
Supreme Court on September 4, 2009. On October 9,
2009, the Supreme Court by an interim order restrained
the State Government from carrying on any further
constructions till further orders. By that time, according
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND 787
ARYA, TN. GODAVARMAN THIRUMULPAD v. U.0.1.
to the government, 70-75% of the construction work of A
the project was completed.
It was contended for the applicants that over 6000
trees were cut down for clearing the area for construction
of the project and it was, thus, a case of forest land being
8
put to use for non-forest use in complete violation of
Section 2(ii) of the Forest Conservation Act; that the
construction of the project was started by the Uttar
Pradesh Government without obtaining the prior
environmental clearance in complete violation of the
notification issued on September 14, 2006 under Section C
3(3) of the EP Act; and that the project being located·
adjoining the Okhla Bird Sanctuary which was a serious
concern.
Disposing of the IA, the Court D
HELD: 1.1. 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 were recorded as E
agricultural land, Banjar (uncultivable) or Parti
(uncultivated). NOIDA was set up in 1976 and the lands
of the project area were acquired under the Land
Acquisition Act mostly between the years 1980 to 1983
(two or three plots were notified under sections 4/6 of the
Act in 1979 and one or two plots as late as in the year F
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, it would appear that though on
most of the plots there were properties of one kind or the G
other, there was not a single tree on any of the plots
under acquisition. The records of the land acquisition
proceedings, thus, complemented 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 H
788 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A credence to these records since they pertained to a time
when the impugned project was not even in anyone's
imagination and its proponents were no where on the
scene. According to the information from the Deputy
Horticulture Officer, NOIDA, plantations were taken up
B along with seed sowing of Subabul during the year 1994-
95 to 2007-08. A total of 9,480 saplings were planted
(including 314 saplings planted before 1994-95). NOIDA
had treated this area as ·an "Urban Park". It is, thus, to
be seen that on a large tract of land (33.45 hectares in
c area) that was forever agricultural in character, trees were
planted with the object of creating an urban park (and not
for afforestation!). The trees, thus, planted were allowed
to stand and grow for about 12-14 years when they were
cut down to make the area clear for the project. The
satellite images tell that in October, 2006 there was thin
0
to moderately dense tree cover over about half of the
project site. But this fact was all but admitted; the State
Government admitted felling of over 6000 trees in 2008.
The trees planted with the intent to set up an urban park
cannot turn into forest within a span of 10 to 12 years and
E the land that was forever agricultural, would not be
converted into forest land. [Paras 20 to 23] [813-F-H; 814-
A-H; 815-A]
T.N. Godavarman Thirumulkpad v. Union of India & Ors.
F (1997) 2 SCC 267 - relied on.
T.N. Godavarman v. Union of India, (2006) 5 SCC 28;
Samatha v. State of Andhra Pradesh & Ors., (1997) 8 SCC
191; M. C. Mehta v. Union of India & Ors., (2004) 12 SCC
G 118; State of Bihar v. Banshi Ram Modi, (1985) 3 SCC 643
- referred to.
1.2. No doubt, man made forest may equally be a
forest as a naturally grown one. Non-forest land may also,
with the passage of time, change its character and
H become forest land. But this cannot be a rule of universal
IN RE CONSTRUCTION OF PARK AT NOIDAANAND 789
ARYA, TN. GODAVARMAN THIRUMULPAD v. U.OJ
lapplication and must be examined in the overall facts of A
the case otherwise it would lead to highly anomalous
conclusions. The contention of the applicants was 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 B
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 bf the Court
and the project are'a should qualify as forest on· the basis
of the main parameter fixed by the Committee. If the said c
contention 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 0 .
other factors a greater part of Lutyens Delhi would
perhaps qualify as forest. This was obviously not the
intent of'the order dated December 12, 1996. Th~ project .
site is not forest land and the construction of the project
without the prior permission from the Central E
. Government does not in any way contravene section 2
of the FC Act. [Paras 30, 31] [818-H; 819-A-E]
1
2.1. Before the CE~ the MoEF in its first response
dated August 22/24, 2009 had taken the stand that the
project would not require any prior environmental F
clearance under the EIA notification 2006. It had further
stated that in the EIA notifica·tion 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 G
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 ,~ 1
sanctuary/national park or inter-state boundary". The firs~ HI
790 SUPREME COURT REPORTS [2010] 15 (ADDL) SC R
A response of the MoEF before the 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. In the second response
before the CEC dated September 2, 2009, the MoEF stated
B that after its earlier letter of August 22, 24, 2009, the MoEF
had received further information about tile prcject from
various sources and the fresh findrngs raised far-
reaching issues of public concern that extended beyond
the parameters set by the EIA notification of 2006. It
c further stated that the certificate issued by the SEIAA of
UP stated that the total built-up covlred area was only
9 ~!42 square metres and the report of the CCF wcs not
clear :JS to the extent of the covered area vis-a-vis
conc:rete landscaping, pil!ar(s), platform(s), lawn(s), tree
lJ planting, etc. 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. The CEC in its report to this Court dated September
4, 2009 held that the project was covered by the EIA
E notification 2006 and it requir-ed prior environmental
clearanc0 in terms of the notification. When the matter
finally cc1.ne 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 Octob£:r 21, 2009 in which
F it acknowledged that the CEC in its report dated
September 4, 2006 had stated that the State c.~ 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
G 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
H less than 50 hectares and its built up area (9,542 square
'
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND 791
ARYA, TN. GODAVARMAN THIRUMULPAD v. U.OJ
metres) was less than 20,000 square metres. Having thus A
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 that such
appraisals were made before the commencement of the B
construction activity at the site and in the instant case the
project was already in the advanced stage of
construction. [Paras 34 to 37] [820-C-H; 821-A-C; 822-D-
H]
2.2. The EIA notification provided that all projects and C
activities enumerated in its Schedule would require prior
environmental clearance before any construction work or
preparation of land for the project is started on the project
or activity. The projects and activities depending upon
. various factors such as the potential hazard to D
environment, location, the extent of area involved, etc. are
categorized in categories 'A' or 'B'. For projects or
activities fa!!ing in category 'A', the competent authority
to grant prior environmental clearance is the MoEF and
for projects or activities falling in category 'B', the State E
Environment Impact Assessment Authority (SEIAA). In ~.
certain cases a project or activity, though categorized in
category 'B' may be treated as category 'A' by application
of the general condition (on account of its location being
within a distance of ten km from a protected area notified F
under the Wildlife (Protection) Act etc.). Further, projects
- or activities categorized as category 'B' may or may not
require an environmental impact assessment before the
grant of environmental clearance depending on the
nature and location specificity of the project. The projects G
requiring an EIA report shall be termed as category '81'
and the remaining shall be termed as '82' and will not
require an EIA report. For categorization of projects into
81 and 82, the MoEF issue appropriate guidelines from
time to time. The schedule to the notification has a table H
792 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A that is divided into five columns. The first column
contains the se~ial numbers, and the second the
description of the project or activities; the third column
lists those projects or activities that fall in category 'A' and
the fourth, those falllng in category 'B'; the fifth column
B against each Item Indicates whether any general or
specific condition applies to the project or activity
described In that Item. In some cases where the project
or the activity Is shown In column 4 as category 'B', the
application of the general condition is expressly indicated
c in column 5 of the table. [Para 45] [830-A-H; 831-A]
2.3. For the project under consideration, the relevant
entries in the schedule are 8(a) and 8(b). Both items 8 (a)
and 8 (b) are listed in column 4, i.e., in category 'B'. In
column 5, against any of the two items, there is no
D mention of application of the general condition but it is
expressly said that all projects in item 8(b) would be
appraised as category '81', that is to say, for a project
under item 8(b) the prior environmental clearance must
be preceded by an environmental impact assessment.
E Item 8(a) deals with Building and Construction projects
and the threshold mark that would bring the project
within the ambit of the notification is equal to or more than
20,000 square metres and less than 1,50,000 square
metres of 'built-up area'. It is further clarified that these
F - figures relate to built-up area for covered construction;
in case of facilities open to the sky, the built up area
would be the activity area. Item 8(b) deals with Townships
and Area Development projects and the threshold mark
for the project to come within the ambit of the notification
G is an area equal to or more than 50 hectares or built-up
area of more than 1,50,000 square metres. [Paras 46, 47]
[831-B-E]
2.4. Since in the schedule to the notification "Building
and Construction projects'' and "Townships and Area
H
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND 793
ARYA, TN. GODAVARMAN THIRUMULPAD v. U.0.1.
Developments projects" are enumerated separately, the A
former in item 8(a) and the latter in item 8(b), this would
normally suggest that the notification treats those two
kinds of projects separately and differently. It would,
therefore, be reasonable to say thatl an "Area
Development project" though involving a good deal of B
construction w.ould yet not be a "Byilding and
Construction project". It is extremely difficult to accept the
- contention that the categorization under' items 8 (a) and
8 (b) has no bearing on the nature and cha~acter of the
project and is based purely on the built I up area. A c
building and construction project is nothing but addition
of structures over the land. A township p~oject is the
development of a new area for residential, cdmmercial or
industrial use. A township project is di*erent both
quantitatively and qualitatively from a mere building and
0
construction project. Further, an area d~velopment
project may be connected with the township
development project and may be its first stage when
grounds are cleared, roads and pathways are laid out and
provisions are made for drainage, sewage, electricity and
E
telephone lines and the whole range of other civic
infrastructure. Or an area development project may be
completely independent of any township development
project as in case of creating an artificial lake, or an urban
forest or setting up a zoological or botanical park or a
recreational, amusement or a theme park. The essential F
difference between items 8(a) and 8(b) lie.s not only in the
different magnitudes but in the difference in the nature
and character of the projects enumerated there under.
Therefore, the project in question cannot be termed as a
"Building and Construction project". Applying the test of G
'Dominant Purpose or Dominant Nature' of the project or
the "Common Parlance" test, i.e. how a common person
using it and enjoying its facilities would view it, the
project can only be categorized under item 8(b) of the
schedule as a Township and Area Development project". H
794 SUPREME COURT REPORTS [2010] 15 (ADDL.) SC R
A But under that category it does not come up to the
threshold marker inasmuch as the total area of the project
(33.43 hectares) is less than 50 hectares and its built-up
area even if the hard landscaped area and the covered
areas are put together comes to 1,05,544.49 square
B metn;is, i.e., much below the threshold marker of 1,50,000
square metres. The inescapable conclusion, therefore, is
that the project does not fall within the ambit of the EIA
·notification S.O. 1533(E) dated September 14, 2006. This
is not to say that this is the ideal or a very happy outcome .
c but that is how the notification is framed and taking any
other view would be doing gross violence to the scheme
9f the notification. [Paras 53, 55, 56, 57, 58] [834-G-H; 836-
D-F; 837-B-F]
3.1. The report of the CEC succinctly would sum up
[, the situation. Though everyone, excepting the pr~ject
proponents, viewed the construction of the project
practically adjoining the bird sanctuary as a potential
hazard to the sensitive and fragile ecological balance of
the Sanctuary, there is no law to stop it. This unhappy
E and anomalous situation arose simply because despite
directions by this Court, the authorities in the Central and
the State Governments had so far not been able to evolve
a principle to notify the buffer zones around Sanctuaries
and National Parks to protect the sensitive and delicate
F ecological balance required for the sanctuaries. But the
absence of a statute will not preclude this Court from
examining the project's effects on the environment with
particular reference to the Okhla Bird Sanctuary. For, in
the jurisprudence developed by this Court, Environment
G is not merely a statutory issue. Environment is one of the
facets of the right to life guaranteed under article 21 of
the Constitution. Environment is, therefore, a matter
directly under the Constitution and if the Cou.rt perceives
any project or activity as harmful or injurious to the
H environment it would feel obliged to step in. The question
IN RE: CONSTRUCTION OF PARK AT NOIDAANAND 795
ARYA, TN. GODAVARMAN THIRUMULPAD v. U.0.1.
of the likelihood of the project causing any adverse A
effects on the Okhla Bird Sanctuary must, therefore, be
examined from this angle. [Paras 65, 66] [840-F-H; 841-
A-C]
3.2. In pursuance of the Court's directions, the MOEF
B
had asked the project proponents to have the
environmental impact assessment of the project done by
some expert agencies. NOIDA, the project proponent got
three studies made of the impact assessment of the
project. One is a joint study prepared by the Salim Ali
Centre for Ornithology and Natural History (SACON), C
, Deccan Regional Station, Hyderabad and the All India
Network Project on Agricultural Ornithology, Aacharya
N.G. Ranga Agricultural University, Hyderabad; and the
third by a group of three individuals that was vetted by
the Indian Institute of Technology, New Delhi. None of the D
expert bodies has taken the view that the project is so
calamitous or ruinous for the bird sanctuary that it needs
to be altogether scrapped in order to save the Sanctuary.
The expert bodies gave recommendations which allowed
the completion of the project subject to certain E
conditions. On behalf of the State of U.P., it was
unequivocally stated that all the conditions laid in the
reports of the Expert Bodies were acceptable to the State
Government/ NOIDA in their entirety. In the light of the two
study reports and the report submitted by the EAC, there F
was no justification for directing the demolition of the
constructions made in the project, as prayed for on behalf
of the applicants. The project is allowed to be completed,
subject, of course to the conditions suggested by the
three expert bodies. The report of the Wll focused on the G
felling of trees resulting in the disappearance of the
woodland that acted as a protective buffer for the bird
sanctuary and its first recommendation is to compensate
the loss of vegetation. I
It secondly focused on the
increased artificial light at the project site, which is likely
H
796 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R
A to affect the migratory bird population in the long run.
Apart from this, the extent of stone and concrete
constructions in the name of "hard landscaping" is highly
out of proportion. In the modified layout plan, the project
proponents reduced the area under hard surface to
8 35.54% of the total project area. Even that is unacceptable
from the environmental point of view. The area under
hard surface, whether covered, uncovered (including
pathways and· boundary wall etc.) or of any kirid
whatsoever must not exceed 25% of the total project ·
C area; of the rest, 25% should be used for soft/green
landscaping and the remaining, preferably 50% must
have a thick cover of trees of the native variety. The
plantation of trees should be especially dense towards
the Okhla Bird Sanctuary on the western side of the
project area. Any construction work should commence
D only on completion of the planting of the trees. [Paras 68,
75, 76] [841-G-H; 842-A; 845-8-H; 846-A]
3.3. In order to ensure full compliance with the
recommendations of the expert bodies (which form part
E of the judgment) and the directions of this Court, the
construction of the project needs to be seen by an expert
committee. One member of the committee, preferably an
ornithologist will be nominated by the MoEF, the other
member will be nominated by the CEC in consultation
F with the amicus and the Chairman-cum-CEO of NOIDA will
be the member-secretary of the committee. The said
directions were given in the peculiar facts of this case and
nothing said in the judgment would form precedent when
the court hears the matter of the "buffer zones". The EIA
G · notification dated September 14, 2006 urgently calls for
a close second look by the concerned authorities. The
projects/activities under items 8(a) and 8(b) of the
schedule to the notification need to be described with
greater precision and clarity and the definition of built-up
H area with facilities open to the sky needs to be freed from
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND 797
ARYA, TN. GODAVARMAN THIRUMULPAD v. U.0.1.
its present ambiguity and vagueness. The question of A
application of the· general condition to the projects/
activities listed in the schedule also needs to be put
beyond any debate or dispute. The environmental impact
studies in this case were not conducted either by the
MoEF or any organization under it or even by any B
agencies appointed by it. All the three studies that were
finally placed before the Expert Appraisal Committee and
which this Court has also taken into consideration, were
made at the behest of the project proponents and by
agencies of their choice. This Court would ~ave been c
more comfortable if the environment impact st4dies were
made by the MoEF or by any organization under it or at
least by agencies appointed and re~ommended by it.
[Paras 77 to 79] (846-B-H; 847-A]
Case Law Reference: D
'
(1997) 2 sec 267 referred to . Paras 1, 6, 18,
25
(2006) 5 sec 28 referred to Paras 16
E
(1997) 8 sec 191 referred to Paras 18
(2004) 12 sec 118 referred to Paras 18, 29
(1985) 3 sec 643 referred to f)aras 26
.F
CIVIL ORIGINAL JURISDICTION: I.A. Nos.! 2609-2610 of
2009.
IN
I
Writ Petition (Civil) No, 202 of 199$. G
Under Article 32 of the Constitution of India.
I
With
I.A. Nos. 2896, 2900 & 2928 of 2010. H
798 SUPREME COURT REPORTS [201 OJ 15 (ADDL I S C R
A IN
I.A. Nos. 2609-2610 of 2009.
IN
B Writ Petition (C) No. 202 of 1995.
H.P. Raval, ASG, Harish N. Salve, U.U. Lalit, Jayant
Bhushan, K.K. Venugopal, Raju Ramachandra, S.C. Mishra,
S.K. Dwivedi, AAG, Siddhartha Chowdhury, A.D.N. Rao, P.K.
C Manohar, Mihir Chatterjee, Har;Jh Beeran, Manish Kumar
Bishnoi, Gautam Talukdar, R.K. Gupta, Rajiv Kumar Dubey,
Ankur Talwar, Kamlendra Mishra for the appearing parties.
The Judgment of the Court was delivered by
o 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 app1icants who are
residents of Sector 15A, NOIDA, U.P. They claim to be public
spirited people, committed to the cause of environment.
E 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
F the term was construed by this Court in its order dated
December 12, 1996 in Writ Petition (C) No.202 of 1995; T.N.
Godavarman Thirumulkpad v. Union of India & Ors., (1997)
2 SCC 267 and the action of the Uttar Pradesh Government in
cutting down a veritable forest without the prior permission of
the Central Government and this Court, was in gross violation
G of section 2(ii) of the Forest (Conservation) Act, 1980 (hereafter
"the FC Act"). The project involved massive constructions that
were m<ide without any prior environmental clearance from the
Central Government based on Environment Impact
Assessment. The constructions were, therefore, in complete
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 799
TN. GODAVA.RMAN THIRUMULPAD v. Li.OJ [AFTABALAM. J)
breach of the provisions of the Environment Protectio;i Act, A
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 curnplete B
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 c·
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 D
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: E
3. Before proceeding to examine the arguments of the two
sides in greater detail it would be useful to take a look at the
project and to put at one place the basic facts concerning it that
are admitted or at any rate undeniable.
F
i. The project is sited at sector 95, Naida. 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 G
14A, 15A and 16A, Naida.
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
H
800 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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. Accor.ding lo the
Bombay Natural History Society, out of the bird
c species found here, 2 are critically endangeted, 11
are vulnerable and 7 are nearly threatened. About
50 species are migratory in nature and come here
mainly during the winter months. The annual
population/visit is estimated as under:
D 2006- 2007 24166
2007-2008 17111
2008-2009 21272
This haven for birds was declared a bird sanctuary ("the
Okhla Bird Sanctuary") vide notification dated May 8, 1990
E issued by the State of Uttar Pradesh under section 18 of
· the Wildlife (Protection) Act, 1972. The project, subject of
the present controversy, is sited in very close proximity to
the Okhla Bird Sanctuary on its eastern side. The
applicants refer to it as adjoining the left afflux bund of the
F 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 ONO Toll Road
G South- Not clearly stated
East- Dadri Road
West- Okhla Bird Sanctuary, left afflux bund
iii. The project is spread over an area of 33.43
hectares, equal to 334334.00 square metres of land
H
I
IN RE: CONSTRUCTION OF PARK AT NOi DA ANAND ARYA, 8'0;1'1·.!:··,,
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTAB ALAM, J.] "
surrounded by a boundary wall made of stone., .~ A
· metres in height and 0.3 metres in thiqkness. TJ1'¢
estimated cost of the project is Rupees 685 crores.
iv. At the site of the project there used to be a tree
cover, thin to high- moderate in density and for B
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 Qi
plant, Silver oak, etc.
v. The project, though insisted upon by the Uttar
Pradesh Government is nothing but a 'recreational
park', involves the construction of dedicatory D
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. E.
As initially planned the breakup of the area under
different uses was as under:
802 SUPREME COURT REPORT t, [201 OJ 15 (ADDL ) S C R
A 4 Total area under Soft
Landscape
(a) Area under grass & · 1,57.161.79 sq.m 47.01%
plantation
(i)) Arce Jnder pl: r1ters 6, 181.91 sq.m.
B built within paved areas
5 Total area for vehicular 34,850.00 sq.m. 10.42%
movement with grass pavers
(maintenances, fire path etc.)
vi. According to the State Government, the work on the
c project commenced in January 2008. The
app1:..:;ants filed IA no.1179 before +.he Central
Empowered Committee (l1ereaftei "CEC")
constituted by this Court on March 5, 2009. They
filed IA nos. 2609-2610 of 2010 (presently in hand)
D 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
E Court by an interim order restrained the State
Government from carrying on any further
const1·uctions till further orders. By that time,
according to the government, 70-75% of the
construction w0rk of the project was completed.
F
vii. 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:
G
S. No. DESCRIPTION EXISTING MODIFIED
(in sq. (in sq.
metres + %) metres + %)
1. Green Area 157161. 79 218246.51
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 893
TN. GODAVARMAN THIRUMULPAD v. U.OJ [AFTABALAM, J]
(47%) (65.28%) A
2. Hard Landscape 129140.80 98544.99
(38.6%) (29.48%)
a Boundary Wall 2700.79 2700.79
(0.81%) (0.81 %) B
b Platforms, Plinths, 126440.00 95844.99
Sculpture & (37.79%) (29.48%)
Surrounding
Paved Areas
3. Area for vehicular 34850.00 0.00 (NIL)
c
movement (10.42~ 11)
4. Area under ornamental 0.00 (NIL) 6302.00
water feature (may be (1.88%)
considered part of the D
Eco Frien.dly Area)
5. Area under parking with 0.00 (NIL) 4241.00
grass pavers (may be (1.27%)
considered part of the
Eco Friendly Area) E
6. Utilities and Facilities 3500.00 3500.00
(1.05%) (1.05%)
7. Memorial Building and 3499.50 3499.50
Toilets (1.05%) (1.05%) 'F
8. Total Area 334334.00 334334.00
(100%) (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, G
lmli, 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 H
804 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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 vie'«; .its
s 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.
C 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
D of the project and it was, thus, clearly a case of forest land
being put to use for non-forest purpose in complete violation
of section 2 (ii) of the FC Act.
Section 2 of the FC Act, in so far as relevant for the present,
E 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
fo~ce in a State, no State Government or other authority
F shall make, except with the prior approval of the Central
Government, any order directing.-
(i) )()()()()()()(
(ii) that any forest land or any portion thereof may be
G used for any non-forest purpose.
(iii) )()()()()()()(
(iv) xxxxxxx
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 805
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J].
Explanation.- For the purpose of this section "non-forest A
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; 8
(b) any purpose other than re~afforestation,
but does not include any work relating or ancilfary to
conservation, development and management of forests
and wild-life, namely, the establishment of check-posts, ire C
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
0
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, E
the applicants rely heavily on the order passed by this court on
December 12, 1996 in the case of T. N Godavarman
Thirumulkpad [Writ Petition (C) No.202 of 1995), (1997) 2
sec 267], being the first in a series of landmark orders passed
by this Court in an effort to save the fast diminishing forest cover F
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 G
month an Expert Committee to: ·
(i) Identify areas which are "forests'', irrespective of whether
they are so notified, recognized or classified under any
H
806 SUPREME COURT REPORTS [2010] 15. (ADDL.) S.C.R
.
A 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
B (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
c 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
0 hectares in area with the minimum density of.SO 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-
,E --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
F 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
G 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
H applicants filed their complaint before the CEC on March 5,
IN.RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 807
TN. GODAV,A.RMAN THIRUMULPAD V. U.OJ [AFTABALAM, J.]
2009. As the controversy erupted with regards to "large scale A
. construction near the Okhla Bird Sanctuary by the State
Government" the Ministry of Environment and Forests (hereafter
"MoEF") asked the Chief Conservator of Forests (CCF), Central
Region, Lucknow, to make a site inspection of the project and
to give his report. The CCF in his report dated July 10, 2009 B
did not accept the stand of the State Government that there was
no forest on the project site. He stated that 6000 trees were .
"sacrificed" in an area of 32.5 h"ectares and that showed that
the area had sufficiently dense forest cover and would qualify
as "forest" according to the dictionary meaning of the word andc
as directed b~· the Supreme Court. He, however, suggested that
before taking a final view on the matter a report may be called
for from the Forest Survey of India (hereafter "FSI") in order to
verify the vegetation cover over the area before the construction
work started there. In light of the report by the CCF, the MoEF D
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 E
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 F
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 G
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'
compl~int on August 12, 2009, the Chief Conservator of Forests H
808 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C R.
A (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
s approval of the Central Government. In view of the stand taken
by the CCF, the CEC by its letter of August 13, 2009 requested
the MoEF to give its response on the issue. Here it may be
noted that till tre1t stage the stand of the MoEF, based on the
reports of the CGF and the FSI, though tentative seemed to be
c dHfinitely inclined towards holding that the trees that were felled
for r!earing the site comprised a forest/deemed forest and the
construction at the projAct site was hit by the provisions of the
FC Act. But now in a perceptible shift in its stand the MoEF
informed the CEC by its letter of August 22/24, 2009 that in its
vk='W, the project site did not attract the provisions of the FC
0
Act It referred to the order of this Court dated December 12,
1 i:l96 and pointed out that the . · ;ect site did not appear in the
list of deemed forest land ider' j by the State Level Expert
Committee in pursuance of the order of the Court. It concluded
E by saying as follows:
"In view of the above, it is informed that the area under
1iscussion 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
F Forest (Conservation) Act, 1980."
10. The letter dated August 22/24, 2009 from the MoEF
was followed by another letter of September 2, 2009. This was
purportedly to put the observation in the previous letter that
" ... [C)onstruction work in this area does not attract the
G provisions of the Forest (Conservation) Act 1980" in context.
This letter referred to the satellite images provided by the FSI
and the reports submitted by the CCF but in the end, "given
the sensitivity of the matter and the high degree of public
H
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND ARYA, 809
TN. GODAVARMAN THIRUty1ULPAD v. U.0.1. [AFTAB ALAM, J.]
interest" left .it to the CEC to draw appropriate conclusions from A ·
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 B
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 1 2009· it observed
in this regard as follows:
"28 ..... In the present case, even though as per the Report C
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 D
(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 · E
identification of deemed forest were laid down, the project
area was not identified to be deemed forest. The CEC
does not agree with the Regional Chief Conservator of
Forests, MoEF, Lucknow that the plantation done in the
area has naturalised because of natural regeneration and F
therefore now falls in the category of deemed forest. Most
of the trees are of species such as Subabul, Bottle Brush,
Bottle Palm, Morepankhi, Ficus benjamina Cassia siamia,
Eucalyptus, Fishtail Palm, Rubber plant, Silver oke etc
which are not of natural regeneration. As such hardly any G
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
H
810 SUPREME COURT REPORTS [2010] 15 (ADDL) S.C.R
A 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
B 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
C 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
D 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.
E 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
F 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
G 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.
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 811
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
14. Mr. K.K. Venugopal, learned senior counsel appearing A
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 B
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 c
were reported to this Court and accepted by it on December
12, 2007. The project site clearly did r;iot 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
0
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 E
there were no forest.
·1s. 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 F
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 G
forest cover status at the project site based on IRS 1D/P6 Ll88
Ill data is shown as follows:
H
812 SUPREME COU~T REPORTS [2010] 15 (ADDL.) S.C.R.
A Forest Cover Status in the Area of Interest (AOI)
of NOIDA from 2001 to 2007
Area in ha.
Date of Very Moder Open Total Noo Total
Satellite Dense ately Forest Forest Forest Area
B Data Forest Dense cover
(sic) Forest
Assessment
(State of
Forest
Report)
c
8~' (2001) October- 0 3.74 10.42 14.16 32.27 46.43
2002
--
9th (2003) Nr ,.· :ier- 0 6.05 10.71 18.76 29.67 46.43
2CCc
D
10th (2005) November- G 7.54 14.23 21.77 24.66 46.43
2004
11th (2007) October- 0 9.04 12.73 21.77 24.66 46.43
2006
E
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
F 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 sec 28 (paragraphs 16, 18, 33, 37, 38) to show that
this Court had accepted the reliability of the FSI report based
on satellite imagery.
G 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"
H and further that the report of the FSI showed that the forest cover
'\I RE: CONSTRUCTION OF PARK AT NOIDA ANAND ARYA, 813
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J]
existed there up to 2006 and the felling of trees might hcive A
1
taken place after that only. Mr. Bhushan lastly relied upon the
Google image which has a dark patch in approximately 1/3rd
1
of the area interpreted by hinli as a dense cover of trees.
1
' \ .
' 18. In support of the sub~issions learned counsel relied 8
. 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., C
(2004) 12 sec 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 D
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
t~ satellite to the earth and see what picture emerges from E
the government records and how ,things appear on the ground.
20. In the revenue records, none of the khasras (plots)
falling in the project area was ever shown as jungle or forest.
According to the settlement year 1359 Fasli (1952A.D.) all the
khasras are recorded as agricultural land, Banjar (uncultivable) F
or Parti (uncultivated).
21. NOIDA was set up in 1976 and the lands of the project
area were acquired under the Land Acquisition Act mostly
between the y~ars 1980 to 1983 (two or three plots were G
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
p~oject site) was taken over in the year 1983. From the details
of the acquisition proceedings furnished in a tabular form . H
814 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A (annexure 9 to the Counter Affidavit on behalf of respondents
no. 2 & 3) it would appear that though on most of the plots there
were properties of one kind or the other, there was not a single
tree on any of the plots under acquisition. The records of the
land acquisition proceedings, thus, complement the revenue
B record of 1952 in which the lands were shown as agricultural
and not as jungle or forest. There is no reason not to give due
credence to these records since they pertain to a time when
the impugned project was not even in anyone's imagination and
its proponents were no where on the scene. Further, in the
c second response of the MoEF, dated August 22/24, 2009 there
is a reference to the information furnished by the Deputy
Horticulture Officer, NOIDA according to which plantations were
taken up along with seed sowing of Subabul during the year
1994-95 to 2007-08. A total of 9,480 saplings were planted
(including 314 saplings planted before 1994-95). NOIDA had
0
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
E for afforestation!). The trees, thus.planted were allowed to stand
and grow for about 12-14 years when they were cut down to
make the area clear for the project.
23. The satellite images tell us how things stand at the time
F 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, 2006 there was thin to moderately
G 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
H
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND ARYA, 815
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
turn into forest within a span of 10 to 12 years and the land that A
was forever agricultural, would be converted into forest land.
One may feel strongly about cutting trees in such large numbers
and questidn 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 B
standing into (orest land.
, 24. The decisions relied upon by Mr. Bhushan are also of
no help in this case and on the basis of those decisions the
trees planted in the project area can not be branded as "forest". C
25. In order dated December 12, 1996 in Godavarman
Thirumulkpad thi,s Court held and observed as under:
"3. It has emerged at the hearing, that there is a
misconception in certain quarters about the true scope of 0
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 certa~n activities in the forest area which E
are more often of a commercial. nature. It is necessary to
clarify that position.
4. The Forest Conservation Act, 1980 was enacted with
a view to check further deforestation which ultimately
results in ecological imbalance; and therefore, the F
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 G
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 H
816 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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 UP.
c 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 this settled position
D
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
E 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
F 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
G 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
H owne,rship. The order dated December 12, 1996 indeed gives
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND ARYA, 817
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
a very wide definition of "forest". But any definition howsoever A
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 B
was rendered. In the order the Court said "The term 'forest land
occurring in section 2, will not only include 'forest' as
understood in the dictionary sense, but also an area recorded·
as forest in the Government record irrespective of the
ownership" (emphasis added). Now what is meant by that is c
made clear by referring to the earlier decision of the court in
State of Bihar v. Banshi Ram Modi, (1985) 3 SCC 643. In the
earlier decision in Banshi Ram Modi the Court had said: .
· "10 ...... Reading them together, these two parts of the
section inean that after the commencement of the Act no 0
.fresh breaking up of the forest land or no fresh clearing· of
the forest on any suqh land can be permitted by any State
Government or any authority without the prior approval of
the·Central Government. But if such permission tias been
accorded before the coming into force of the Act. and the E
forest land. is broken up or cleared then obviously the
section cannot apply ..... "
27. The observation in Banshi Ram Modi (which again
was made in the peculiar context of that case!) was sought to. F
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.
G
28. In Samatha, this Court was dealing with cases of grant
of mining leases to non tribals in reserved forests and forests
that were notified as scheduled area under the Andhra Pradesh
Scheduled Areas Land Transfer Regulation, 1959. It was
H
818 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A contended on behalf of the lease holders that the Regulation
and the Mining Act do not prohibit grant of mining leases of
government land in the scheduled area to non-tribals. The
Forest (Conservation) Act or the Andhra Pradesh Forest Act.
1967, does not apply to renewal of leases. The observations
B 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 lanCis are decl,·ed either as reserved forests or forests
1;nder 1ne Andhra F.adesh Forest Act, 1967, the FC Act had
c 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 fJrest is, thus,
manifest and evident.
29. In M.C. Mehta v. Union of India & Ors., (2004) 12
D SCC 118, in the paragraphs relied upon by Mr. Bhushan, this
Court was considering the question of permitting mining in
Aravalli Hills where large scale afforestation was done by ·
spending crores of rupees of foreign funding in an effort to
repair the deep ravages caused to the Aravalli Hills range over
E the years by mostly illegal mining. The context is once again
evident.
30. Almost all the orders and judgments of this Court
defining "forest" and "forest land" for the purpose of the FC Act
F 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
G 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
H
IN RE:-CONSTRUCTION OF PARK AT NOIDAANANDARYA, 819
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
overall facts of the case otherwise it would lead to highly A
anomalous conclusions. Like in this case, Mr. Bhushan argued
that the two conditions in the guidelines adopted by the State
Level Exp~rt 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 B
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 c
Committee that in the plains a stretch of land with an area of 2
hectares or above, with the mii1imum 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 D
the intent of the order dated December 12, 1996.
31. In light of the discussion made above, it must be held
that the project site is not forest land and the construction of
the project without the prior permission from the Central
Government does not in any way contravene section 2 of the E
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 F
(and was sought to be completed in great haste!) without
obtaining the prior environmental clearance from the Central
Government or the ;:>tate Level Environment Impact Assessment
Authority in complete violation of the notification issued by the
Central Government on September 14, 2006 under section 3 G
(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
authprities, agencies and the MoEF on the question whether H
820 SUPREME COURT REPORTS (2010J 15 (ADDL.) S.C.R.
A the law required prior environmental clearance for the project.
It appears that once the controversy was raised, the project
proponents, by letter dated April 24, 2009 approached the
State Level Environment Impact Assessment Authority, Uttar
Pradesh constituted under the E1A notification, 2006, seeking
B 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.0:1533 (E) dated September
14, 2006 issued by the Government of India.
c 34. Before the CEC, the MoEF in its first response dated
August 22/24, 2009 took the stand that the project would not
require any prior environmental clearance under the EIA
notification 2006. It further stated tti~t in the EIA notification
2006, all building/ construc~ion projects/ area development ·
D projects and townships, were categorized as category 'B'
projer;ts and the 'general condition' prescribed in the .
not tic;:- ::m was not applicat1e to construction projects. It went
on to tiay that the project did not require any prior environmPntal
clearance under the EIA notification 2006 even though "t.i•.:ing
E within the prescribed distance from a wildlife sanctuary/national
park or inter-state bo•Jndary". It needs to be stated nere that
the first response of the MoEF before he CEC was evidently
'l<'sed on the inputs received from the UP Government about
··.a na+•ire of the project and the extent of constructions involved
F in it.
35. In the second response before the CEC dated
September 2, 2009 the MoEF did not appear so sure of its
earlier stand. It stated that after its earlier letter of August 22,
24, 2009, the MoEF had received further information about the
G 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 SEIM of UP stated that the
total built-up covered area was only 9,542 square metres and
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 821
T.N. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTAB ALAM, J.]
the report of the CCF was not clear as to the extent of the A
covered area vis-a-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. B
36. The CEC in its report to this Court dated September
4, 2009 held and found that the project was covered by the EIA
notification 2006 and it required prior'environmental clearance
in terms of the notification. In its report, the CEC observed as C
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 D
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 E
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 F
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 G
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 H
822 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
clearance, far exceeds the threshold limit of 20,000 sq.
met~r of built up area provided in the Notification. The
B 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
c 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
D 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
E 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
F project~. The stand of the MoEF was based on the premise
that the area of the project (33.43 hectares) was less than 50
hectares and its built up area (9,542 square metres) was less
than 20,000 square metres. Having thus made its stand clear,
the MoEF went on to say that in case the Court desired the
G project to be appraised from the environmental angle it would
do so and submit its recommendations. It, however, put in a
caveat that such appraisals were made before the
commencement of the construction activity at the site and in the
present case.the project was already in the advanced stage of
.H construction.
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND ARYA, 823
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
38. On April 22, 2010, this Court passed an order in which A
after extracting the relevant passage from the affidavit it
directed the MoEF, to make a study of the environmental impact
of the project. The MoEF was further directed to suggest
measures for undoing the .environmental degradation, "if any,
caused by the project and the amelioration measures to B
safeguard the environment, with particular reference to the
<!djacent bird sanctuary.
39. As directed by the Court, the MoEF asked the project
proponents to submit the details concerning the project in the C
format prescribed under the EIA notification. It also asked the
project proponents to have the environmental impact
assessment of the project done by some expert agencies. As
required by the MoEF, NOIDA submitted the requisite details
concerning the project and the reports on the environmental
impact assessment of the project based on studies made by D
three different agencies (We shall have the occasion to
consider those reports in the latter part of the judgment).
Thereafter, the Expert Appraisal Committee (EAC) constituted
by the Central Government for the purpose of the EIA
notification examined the project in its 88th meeting held on E
June 28-29, 2010 and gave its report which is brought on
· record along with an affidavit filed by the State Government on
July 22, 2010. In this report the EAC made as many as 15
recommendations to check any environmental degradation or
any harm to the Okhla Bird Sanctuary by the project. F
40. The MoEF filed yet another affidavit before the Court
on August 19, 2010 in which it tried to explain the distinction
between clauses 8(a) and 8(b) in the schedule to the EIA
notification, 2006 without changing its stand that the project in G
question did not come within the ambit of the notification.
41. In course of the oral hearing as well, Mr. Raval, learned
ASG, firmly maintained that the project did not come under the
notification and no prior environmental clearance was required
for it under the notification. H
824 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 42. Mr. Harish Salve, learned amicus curiae and Mr.
Jayant Bhushan, Counsel appearing for the applicants, both
staunchly contended that the stand of the MoEF was patently
wrong and incorrect. The project clearly fell within the ambit of
the EIA notification 2006. The CEC had taken the correct view
B on the issue. And to start the construction of the project and
take it into an advanced staqe of construction without obtaining
prior environmental clearance from the Central Government was
in blatant violation of the provisions of the notification. Mr. Salve
also criticized the Central Government for taking a shifting and
~ inconsistent stand on the issue.
43. Now is the frne to take a closer look at the provisions
0f the EIA nolification no. S.0.1533(E). dated September 14,
2006 issued by the Central Government under section 3 (3) of
the ':P Act and to consider the submissions advanced by the
J two sides on that basis. Section 3 (3) of the EP Act provides
as follows:
"3. Power of Central Government to take measures
to protect and improve environment.
E
(1) XY.XXXX
(2) )()()()()()(
(3) The Central Government may, if it considers it
F necessary or expedient so to do f.Jr the purpose of this
Act, by order, published in the Official Gazette, constitute
an authority or authorities by such name or names as may
be specified in the order for the purpose of exercising and
performing such of the powers and functions (including the
G
power to issue directions under section 5) of the Central
Government under this Act and for taking measures with
respect to such of the matters referred to in sub-section
(2) as may be mentioned in the order and subject to the
supervision and control of the Central Government and the
provisions of such order, such authority or authorities may
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANAND ARYA, 825
T.N. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
exercise and powers or perform the functions or take the A
measures so mentioned in the order as if such authority
or authorities had been empowered by this Act to exercise
those powers or perform those functions or take such
measures."
B
44. In exercise of the powers conferred by the above
provision the Central Government in the Ministry of Environment
and Forests issued notification no. S. 0. 1533(E) on· September
14, 2006, which in so far as relevant for the present is
reproduced below:
c
"MINISTRY OF ENVIRONMENT AND FORESTS
Notification
New Delhi, the 14th September, 2006
.o
S.O. 1533(E).-whereas xxxxxx
And whereas xxxxxx
And whereas xxxxxx
E
2. Requirements of prior Environmental
Clearance (EC):- The following projects or activities shall
require prior environmental clearance from the concerned
regulatory authority, which shall hereinafter referred to be
as the Central Government in the Ministry of Environment F
and Forests for matters falling under Category 'A' in the
Schedule and at State level the State Environment Impact
. Assessment Authority (SEIM) for matter;s falling under
Category 'B' in the said Schedule, before any construction
work, or preparation of land by the project management G
except for securing the land, is started on the project or
activity:
(i) All new projects or activities listed in the Schedule to
this notification;
H
826 SUPREME COURT REPORTS [2010] 15 (ADDL) S.C.R.
A (ii) Expansion and modernization of existing projects or
activities listed in the Schedule to this notification with
addition of capacity beyond the limits specified for the
concerned sector, that is, projects or activities which cross
the threshold limits given in the Schedule, after expansion
B or modernization;
(iii) Any change in product - mix in an existing
manufacturing unit included in Schedule beyond the
specified range.
c 3. )()()()()()(
4. Categorization of projects and activities:-
(i) All projects and activities are broadly categorized in to
two categories - Category A and Category B, based on
D the spatial extent of potential impacts and potential impacts
on human health and natural and man made resources.
(ii) All projects or activities included as Category 'A' in the
Schedule, including expansion and modernization of
E existing projects or activities and change in product mix,
shall require prior environmental clearance from the Central
Government in the Ministry of Environment and Forests
(MoEF) on the recommendations of an Expert Appraisal
Committee (EAC) to be constituted by the Central
F Government for the purposes of this notification;
(iii) All projects or activities included as Category 'B' in the
Schedule, including expansion and modernization of
existing projects or activities as specified in sub paragraph
(ii) of paragraph 2, or change in product mix as specified
G in sub paragraph (iii) of paragraph 2, but excluding those
which fulfill the General Conditions (GC) stipulated in the
Schedule, will require prior environmental clearance from
the State/Union territory Environment Impact Assessment
Authority (SEIM). The SEIM shall base its decision on
H the recommendations of a State or Union territory level
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 827
. T.N. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
Expert Appraisal Committee (SEAC) as to be constituted A
for in this notification. In the absence of a duly constituted
SEIAA or SEAC, a Category 'B' project shall be treated
as a Category 'A' project;
5.xxxxxx B
6.xxxxxx
7. Stages in the PriOr Environmental Clearance (Ep)
Process for New Projects:-
7(i) xxxxxx
c
I. Stage (1) - Screening: In case of Category 'B' projects
or activities, this stage will entail the scrutiny of an
application seeking prior environmental clearance made
in Form 1 by the concerned State level Expert Appraisal D
Committee (SEAC) for determining whether or not the
project or activity requires further environmental studies for
preparation of an Environmental Impact Assessment (EIA)
for its appraisal prior to the grant of environmental
clearance depending up on the nature and location E
specificity of the project . The projects requiring an·
Environmental Impact Assessment report shall be termed
Category 'B 1' and remaining projects shall be termed
Category '82' and will not require an Environment Impact
Assessment report. For categorization of projects into 81 F
or 82 except item 8 (b), the Ministry of Environment and
Forests shall issue appropriate guidelines from time to
time.
8.xxxxxx
G
9.xxxxxx
10. )()()()()()(
11. )()()()()()(
12.xxxxxx H
828 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A SCHEDULE
(See paragraph 2 and 7)
LIST OF PROJECTS OR ACTIVITIES REQUIRING
PRIOR ENVIRONMENTAL CLEARANCE
8
Project or Category with Conditions if
Activity threshold limit any
A IB
8 Building/Construction projects/Area
c Development projects and Townships
(1) (2) (3) (4) (5)
8(a) Building and <:20000 sq. mtrs #(built up area for
Construction and <1,50,000 covered canst-
projects sq.mtrs.of built- ruction; in the
D up area# case of facilities
open to the sky, it
will be the activity
area)
8(b) Townships Covering an area ++All projects
E and Area ;:: 50 ha and or under Item 8(b)
Development built up area shall be appraised
projects. ;:: 1,50,000 sq as Category 81
mtrs ++
Note:-
---
F
General Condition (GC):
Any project or activity specified in Category 'B' will be
treated as Category A, if located in whole or in part within
10 km from the boundary of: (i) Protected Areas notified
G under the Wild Life (Protection) Act, 1972, (ii) Critically
Polluted areas as notified by the Central Pollution Control
Board from time to time, (iii) Notified Eco-sensitive areas,
(iv) inter-State boundaries and international boundaries."
Specifir. Condition (SC):
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 829
TN. GODAVARMANTHIRUMULPAD v. U.OJ [AFTABALAM, J]
xxxxxx A
(II) Basic Information
)()()()()()(
(Ill) Activity B
1. Construction, operation or decommissioning
of the Project involving actions, which will
cause physical changes in the locality
(topography, land use, changes in water c
bodies, etc.)
s. Information/Checklist Yes/ Details thereof
No. confirmation No (with approxi-
mate quantities I
rates, wherever D
possible) with
source of
information data
1.1 Permanent or temporary change
in land use, land cover or
topography including increase in E
intensity of land use (with respect
to local land use plan)
.2 Clearance of existing land,
. vegetation and buildings?
1.3 Creation of new land uses? F
1.4 Pre-construction investigations
e.g. bore houses, soil testing?
.5 Construction works?
1.6 Xxxxxx G
.
I
I
I
I
1.31 Xxxxxx"
H
,
..
,
830 SUPREME GOURT REPORTS [2010] 15 (ADDL.) S.C.R.
~
A 45. In substance the EIA notification provides that all
projects and activities enumerated in its Schedule would
require prior environmental clearance before any construction
work or preparation of land for the project is started on the -
project or activity. The projects and activities depending upon
8 various factors such .as the potential hazard to environment,
location, the extent of area involved, etc. (ire categorized in
categories 'A' or '8'. For projects or activities falling in category
'A', the competent authority to grant prior environmental
clearance is the MoEF and for projects or activities falling in
c category '8', the State Environment Impact Assessment
Authority (SEIAA). The constitution of the SEIAA is provided
for in clause 3 of the notification with which we are not
concerned in this case. In certain cases a project or activity,
though categorized in category '8' may be treated as category
'A' by application of the general condition (on account of its
0
location being within a distance of ten km from a protected area
notified under the Wildlife (Protection) Act etc.). In other words,
if a project or activity attracts the general condition, the
c:ompetent authority to grant prior environmental clearance in
that case would be the Central Government, even though, the
E project or activity may figure in the Schedule in category '8'.
Further, projects or activities categorized as category '8' may
or may not require an environmental impact assessment before
the grant of environmental clearance depending on the nature
and location specificity of the project. The projects requiring an
F EIA report shall be termed as category '81' and the remaining
shall be termed as '82' and will not require an EIA report. For
categorization of projects into 81 and 82, the MoEF would
issue appropriate guidelines from time to time. The schedule
to the notification has a table that is divided into five columns.
G The first column contains the serial numbers, and the second
the description of the project or activities; the third column lists
those projects or activities that fall in category 'A' and the fourth,
those falling in category '8'; the fifth column against each item
indicates whether any general or specific condition applies to
H the project or activity described in that item. In some cases
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 831
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
where the project or the activity is shown in column 4 as A
category 'B', tbe application of the general condition is
expressly indicated in column 5 of the table.
46. For the project under consideration, the relevant entries
in the schedule are 8(a) and 8(b). Both items 8 (a) and 8 (b)
B
are listed in column 4, i.e,, in category 'B'. In column 5, again!)!
any of the two items, there is no mention of application of the
general condition but it is·expressly said that all projects in item
· 8(b) would be appraised as category 'B1 ', that is to say, for a
project under item 8(b) the prior environmental clearance must C
be preceded by an environmental impact assessment.
47. Item 8(a) deals with Building and Construction projects
and the threshold mark that would bring the project within the
ambit of the notification is equal to or more than 20,000 square
metres and less than 1,50,000 square metres of 'built-up area'. D
It is further clarified that the aforementioned figures relate to
built-up area for covered construction; in ca~e of facilities open
to the sky, the built up area would be the activity area. Item 8(b)
deals with Townships and Area Development projects and the
threshold mark for the project to come within the ambit of the E
notification is an area equal to or more than 50 hectares or built-
up area of more than 1,50,000 square metres.
48. Mr. Jayant Bhushan, supported by the amicus curiae
forcibly argued that the project under consideration would clearly
F
fall under item 8 (a) of the Schedule. He submitted that though
the area of covered construction in the project was only 6999.50
square metres, the project by its very nature provided facilities
open to the sky and in that case, the whole of the activity area
would constitute the built-up area. He then referred to the
definition of activity [that includes (i) permanent or temporary G
change in land use, land cover or topography including increase
in intensity of land use (with respect to local land use plan), {ii)
clearance of existing land, vegetation and buildings? (iii)
creation of new land uses? and {iv) pre-construction
H
832 SUPREME COURT REPORTS (2010] 15 (AODL.) S.C R
A investigations e.g. bore houses, soil testing?]. He contended
that in view of the definition of activity, virtually the entire area
of 33.43 hectares from where over 6000 trees were removed
for clearing the project site would come within the 'activity area'
and would, thus, form the built-up area under item 8 (a) of the .
B schedule. Further, since the project was located adjacent to the
Okhla Bird Sanctuary, it would, without doubt, attract the general
condition which provided that any project or activity specified
in category 'B' will be lreated as category 'A', if located within
1Okm from the boundary of protected areas notified under the
C Wildlife (Protection) Act, 1972. Mr. Bhushan insisted that the
general condition would apply to the project by virtue of its very
close proximity to the Okhla Bird Sanctuary, regardless of the
fact that in column 5 of the table there is no mention of
application of the general condition against item 8(a). The
application of the general condition would take the project out
0
of category 'B' and put it in category 'A' for which the competent
authority to grant prior environmental clearance is the MoEF.
He then referred to the office memo dated December 2, 2009
issued by the MoEF which in course of hearing was, in all
fairness, produced by Mr. Raval, learned ASG, appearing for
E the MoEF. The office memorandum inter alia provides that
".....while granting environmental clearance to projects involving
fomstland, wildlife habitat (core one of elephant/tiger reserve,
etc.) and or located within 10km of the National Park/ Wildlife
Sanctuary (at present the distance of 10km has been taken in
F conformity with the order dated 4.12.2006 in writ petition no.
460 of 2004 in the matter of Goa Foundation v. Union of India),
a specific condition shall be stipulated that the environmental
clearance is subject to their obtaining prior clearance from
forestry and wildlife angle including clearance from the
G Standing Committee of the National Board for Wildlife as
applicable ..... ". Mr. Bhushan submitted that the project under
consideration thus does not only require a prior environmental I
clearance but also a clearance from forestry and wildlife angle
including clearance from the Standing Committee of the
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 833
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTAB ALAM, J.]
National Board for Wildlife as precondition for the grant of A
environmental clearance by the MoEF.
49. Mr. Bhushan's arguments proceed in four steps. He
first puts the project in item 8(a) of the Schedule as a Building
and Construction project. Then, in the second step, in order to 8
cross the threshold marker he refers to the definition of "activity"
to contend that since the project provides facilities open to sky
·its entire area of 33.43 hectares would c0nstitute the built-up
area. In the third step, he brings in the general condition (even
tb,o~gh in regard to item 8(a) its application is not mentioned C
in -column 5 of the table) that would make the Central
Gdvernment as the competent adhority for granting prior
environmental clearance for the project. And lastly, in the fourth
step he refers to the office memorandum dated December 2,
2009 to contend that a clearance from the Standing Committee
of the National Board for Wildlife was a precondition for the D
grant of the prior environmental clearance by the MoEF.
50. Long and elaborate submissions were made from both
sides in regard to the application of the general condition to
this project. Mr. Venugopal, senior counsel appearing for the E
State of U.P. and Mr. Raju Ramachandran, senior counsel
appearing for NOIDA submitted that the general condition would
have no application to projects under items 8(a) or 8(b) for the
simple reason that in regard to those items there was no
mention of the general condition in column 5 of the table. Mr. F
Venugopal submitted, and not entirely without substance that
if the general condition were to apply to items 8(a) and 8(b)
without being mentioned in column 5 of the table then it would
not make any sense to expressly mention it in column 5 in
respect of some other projects and activities classified in G
category '8' in the schedule.
51. Mr. Raval, learned ASG, produced before the Court,
the draft notification no. S.O. 1324E, published in the Gazette
of India: Extraordinary of September 15, 2005. In the draft
notification there were two general conditions, GC1 and GC2 H
834 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A and in regard to (a) "Construction of all projects (residential and
non residential)", and (b) "New Townships and Settlement
Colonies, the application of GC2 was expressly indicated in
column 5 of the table. Later on, in a meeting held on July 6,
2006, chaired by none else than the Prime Minister, it was
B decided to leave all construction and township projects, housing
and area development projects in the hands of the State
Government. It was further decided that for all projects involving
more than 1,50,000 SC1'lare metres of built up area and/or
covering more than GO t ectares, the EIS requirements should ·
c correspond to category 'A, even though the clearance would
be granted by the State Government. Mr. Raval submitted that
in light of the decision taken in that meeting, in the final
notification issued on September 14, 2006, the application of
general condition was removed in respect of items 8(a) and
D 8(b) in the schedule. In view of the changes made in the two
items in the final notification, Mr. Raval also contended that the
general condition has no application to items 8(a) and 8(b),
resiardless of the project's proximity to any sanctuary or
reserved area.
E 52. But before considering the latter three limbs of Mr.
Bhushan's arguments it is necessary to examine whether the
project in question can be legitimately categorized as a Building
and Construction project falling under item 8(a) of the schedule
which is the first premise of his arguments.
F
53. In the schedule to the notification "Building and
Construction projects" and "Townships and Area Developments
projects" are enumerated separately, the former in item 8(a)
and the latter in item 8(b). This would normally suggest that the
notification treats those two kinds of projects separately and
differently. It would, therefore, be reasonable to say that an
"Area Development project" though involving a good deal of
;' construction would yet not be a "Building and Construction
project". When it was pointed out to Mr. Bhushan that the project
H in question may be put more appropriately in category 8(b) as
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 835
T.N. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.)
an "Area Development project" rather than a "Building and A
Construction project" under category 8(a), in reply he took a line
that nullifies any distinction between the two. Mr. Bhushan
submitted that so far as construction projects are concerned
there is no qualitative difference between items 8(a) and 8(b)
and the difference between the two items was only quantitative. 8
Projects were categorized under items 8(a) or 8(b) as "Building
and Construction projects' or "Townships and Area
Development projects" not on the basis of their nature ·and
character but depending upon the extent of construction.
Learned counsel pointed out that the upper limit under item 8(a) c
(1,50,000 square metres of built-up area) was the threshold
mark under item 8(b) and contended that this was a clear
indication that projects with built up area up to 1,50,000 square
metres would be defined as "Building and Constru.ction
projects" and projects with built up area in excess of 1,50,000 D
square metres would be categorized as "Townships and Area
Development projects". In support of the contention, Mr.
Bhushan gave the example of a "Building and Construction
project'', consisting of a number of multi-storied buildings, the
aggregate of the built-up area of which exceeds 1,50,000 E
square metres. Mr. Bhushan submitted that since the total built-
up area of the project crosses the upper limit of item 8(a) the
project would not fall within that item. But at the same time since
the project is a "Building and Construction project" and not a
«"Township and Area Development project'', it would not come
under item 8(b) and this would be indeed a highly anomalous F
position where a project with a smaller built-up area would fall
within the ambit of the notification, whereas a project with a
larger built-up area would escape the rigours of the notification.
54. The amicus, also arguing in the same vein, submitted G
that as far as building and construction projects are concerned
there was no qualitative difference in items 8(a) and 8(b) of the
schedule to the notification. A combined reading of the two
clauses of item 8 of the schedule would show the continuity in
the two provisions; 1,50,000 square metres of built ~p area that H
836 SUPREME COURT REPORTS [2010] 15 (ADDL.) S C.R
A was the upper limit in item 8(a) was the threshold marker in
item 8(b). This clearly meant .that building and construction
projects with built-up area/activity area between 20000 square
metres to 1,50,000 square metres would fall in category 8 (a)
and projects with built up area of 1,50,000 square metres or
B more would fall in category 8 (b). The amicus further submitted
that though it was not expressly stated, the expression "Built Up
area" in item B(b) must get the same meaning as in item B(a),
that is to say,' if the construction had facilities open to sky the
whole of the "activity area" must be deemed to constitute the
c "built-up area".
55. It is extremely difficult to accept the contention that ~he
categorization under items 8 (a) and 8 (b) has no bearing on
the natur~ :ind r.hararter of the project and is based purely on
th13 built up area. A building and construction project is nothing
D but addition of structures over the land. A township project is
the development of a new area for residential, commercial or
industrial use. A township project is different both quantitatively
and qualitatively from a mere building and construction project.
Further, an area development project may be connected with
E the township development project and may be its first stage
• I
when grounds are cleared, roads and pathways are laid out and 1.
provisions are made for drainage, sewage, electricity and
telephone lines and the whole range of other civic infrastructure.
Or an area development project may be completely
F independent of any township development project as in case
of creating an artificial lake, or an urban forest or setting up a
zoological or botanical park or a recreational, amusement or
a theme park.
\
G 56. The illustration given by Mr. Bhushan may be correct
to an extent. Constructions with built up area in excess of
1,50,000 would be huge by any standard and in that case the
project by virtue of sheer magnitude would qualify as township
development project. To that limited extent there may be a
H quantitative correlation between items B(a) and B(b). But it m~t
be realized that the converse of the illustration given' by ·Mt.
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND ARYA, 83 7
T.N. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
Bhushan may_ no~ be true. For example, a project which is by A
its nature and cha.racter an "Area Development project" would
not becoml •.a "Building and Construction project" simply
because it f~is short of the threshold mark under item 8 (b) but
comes within ,the area specified in item 8 (a). The essential
difference between items 8(a) and 8(b) lies not only in the B
different magn~udes but in the difference in the nature and
character of the ·projects enumerated there under.
. .
57. In light of the above discussion it is difficult to see the
project in question as a "Building and Construction project". C
Applying the test of 'Dominant Purpose or Dominant Nature'
of the project or the "Common Parlance" test, i.e. how a
common person using it and enjoying its facilities would view
it, the project can only be categorized under item 8(b) of the
schedule as a Township and Area Development project". But
under that category it does not come up to the threshold marker D
inasmuch as the total area of the project (33.43 hectares) is
less than 50 hectares and its built-up area even if the hard
landscaped area and the covered areas are put together
comes to 1,05,544.49 square metres, i.e., mu1:;R be]Qw the
threshold marker of 1,50,000 square metres. E
58. The inescapable conclusion, therefore, is that the
project does not fall within the ambit of the EIA notification S.O.
1533(E) dated September 14, 2006. This is not to say that this
is the ideal or a very happy outcome but that is' how the F
notification is framed and taking any other view would be doing
gross violence to the scheme of the notification.
59. Sihce it is held that the project does not come within
the ambit of the notification, the other three arguments based
on the activity area, the application of general condition and the G
application of the office memorandum dated December 2,
2009 become irrelevant and need not be gone into in this case]
THE PROJECT/ AND THE bKHLA BIRD SANCTUARY:
838 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A, 60. Mr. Bhushan next raised the issue of the project being
located virtually adjoining the Okhla Bird Sanctuary. The very
close proximity of the project site to the bird sanctuary actually
raises issues of serious concern and poses a dilemma. On the
one hand the project proponents can not be said to have
B broken any law or violated a definite order or direction of the
court but on the other hand the project may possibly cause
serious and irreparable harm to the bird sanctuary.
61. Before the CEC the State Government took the plea
C that the project area was situated well outside the boundaries
of the bird sanctuary and the construction of the project had
caused no adverse impact on the Sanctuary. It was further
stated that NOlDA which was the prgject proponent was equally
conscious about its responsibility iri regard to the preservation
and conservation of the habitat of the Sanctuary. A management
D plan for the Sanctuary was being prepared by the Wildlife
Institute of Dehradun for which NOIDA had released
Rs.17,35,350.00 in favour of the Institute and the NOIDA was
also planning to set up a corpus for the Scientific and effective
implementation of the Management Plan.
E
62. On this issue the MoEF in its responses before the
CEC put the blame squarely on the State Government. It stated
that despite its letter of May 27, 2005 followed by a number of
reminders the Government of Uttar Pradesh did not submit its
F proposal for declaration of "Eco-sensitive Zone" around the
Sanctuaries and National Parks. It further stated that the State
Government failed to take any steps in this regard even after
the order of this Court passed on December 4, 2006 in Writ
Petition (Civil) No. 460/2004 by which the MoEF was directed
to give all the States final opportunity to send their proposals
G for declaration of "Eco-sensitive Zones" to the MoEF within four
weeks. The MoEF made the accusation that in the case of the
present project the State Government of Uttar Pradesh was
trying to take advantage of its own omission. In its second
H response dated August 22-24, 2009, however, the MoEF, -
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND ARYA. 839
T.N. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTAB ALAM, J.]
though still blaming the UP Government for its failure to notify A
the "Eco-sensitive Zones" conceded that "till Eco-sensitive zone
is declared the construction work did not seem to violate any
law/Act". But it went on to say that having regard to its location
the project was better suited to be made part of extension of
the bird sanctuary. B
63. The State Government of Uttar Pradesh took the stand
that no,proposals were sent from its side because the MoEF
failed to issue the necessary guidelines for the purpose. On
behalf of the State of UP, reference was made to a meeting
called by the Director General of Forests and Special Secretary, C
MoEF on May 13, 2010. In that meeting it was decided that
the Director General of Forests, MoEF would constitute a
committee of officers to finalize the guidelines for declaration
of eco-sensitive zones. A reference was also made to a
subsequent meeting held on July 4, 2010 at Lucknow in which D\
the attention of the Government of India was drawn to the
decision taken in the earlier meeting. Yet, no guidelines were
issued by the Government of India so far.
64. The CEC in its report to the Court dated September E
4, 2009 put the blame on the State Government of UP for its
omission to identify the Eco-sensitive zones but like the MoEF
; seemed to accept that in the absence of a decision/notification
· there was no legal bar against the construction of the project
on the ground that it was sited adjacent to the bird sanctuary. FI
In its report to the Court, the CEC observed as follows:
32. The issue regarding identification/notification of Eco-
Sensitive Zone around the National Park and Sanctuaries
is presently pending for consideration before this Hon'ble
Court. The National Board of Wild Life (NBWL) had earlier G
decided that area within 10 km around National Parks/
Sanctuaries should be the Eco-Sensitive Zone. Later on,
it was decided by the NBWL that Eco-Sensitive Zone
should be specific to each National Park/Sanctuary. The
CEC had recommended that 500 meter around National H
' '
840 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Park/Sanctuary should be declared as Eco-Sensitive
Zone. The recommendation of the CEC has not so far
been accepted by the Hon'ble Supreme Court after the
Learned Amicus Curiae took a view that 500 meter may
not be adequate. Pursuant to this Hon~ble Supreme Court
B order dated 4.8.2006 in the TWP matter, mining is
presently prohibited up to a distance of one kilometre from
the boundary of National Parks/Sanctuaries. For other
projects, no restriction has so far been 'imposed. The
MoEF has time and again requested the States/UT's to
identify the eco sensitive zone around the National Parks/
Sanctuaries. However, the State of Uttar Pradesh has so
for not prt·pared any proposal in this regard. The CEC is
of t:;e view that in the absence of a decision/notification,
presently there is no legal restriction against the
implementation of the project on the ground that the
D
project is adjacent to the Okhla Bird Sanctuary.
33. However, it has to be borne in mind that the project
area is hardly at a distance of 50 meter from the Okhla
Bird Sanctuary and that in all probability the project site
E would have fallen in the Eco-Sensitive Zone, had a timely
decision in this regard been taken by the State
Government/ MoEF.
(emphasis added)
F 65. The report of the CEC succinctly sums up the situation.
Though everyone, excepting the project proponents, views the
construction of the project practically adjoining the bird
sanctuary as a potential hazard to the sensitive and fragile
ecological balance of the Sanctuary there is no law to stop it.
G This unhappy and anomalous situation has arisen simply
because despite directions by this Court the authorities in the
Central and the State Governments have so far not been able
to evolve a principle to notify the buffer zones around
Sanctuaries and National Parks to protect the sensitive and I
H delicate ecological balance required for the sanctuaries.
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 841
T.N. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
66. But the absence of a statute will not preclude this Court A
from examining the project's effects on the environment with
particular reference to the Okhla Bird Sanctuary. For, in the
jurisprudence developed by this Court Environment is not
merely a statutory issue. Environment is one of the facets of
the right to life guaranteed under article 21 of the Constitution 1• B
Environment is-, therefore, a matter directly under the
Constitution and if the Court perceives any project or activity
as harmful or injurious to the environment it would feel obliged
to step in. The question of the likelihood of the project causing
any adverse effects on the Okhla Bird Sanctuary must, c
therefore, be examined from this angle.
67. We may note here that Mr. Venugopal presented
before us some photographs trying to show the situation on the
western boundary of the Okhla Bird Sanctuary at its Delhi end.
In the photographs there is a road, about forty to sixty feet wide, D
(The Kalindikunj-lrrigation Colony-Batla Road) running right next
to the wire mesh fencing of the Sanctuary. Next to the road is
a long row of cheek by jowl concrete structures/houses that
.seem to lean against one another. The road has the bustling
traffic of Delhi where all kinds of vehicles (and cattle!) appear E
jostling for space. The situation on the western boundary of the
Sanctuary is indeed deplorable but that is no reason to
strangulate the Sanctuary from the NOIDA side as well.
68. Earlier in the judgment, it is noted that on April 22, 2010, F
the Court had asked the MoEF to make a study of the
environmental impact of the project and to suggest measures
for undoing the environmental degradation, if any, caused by
the project and the amelioration measures to safeguard the
adjacent bird sanctuary. In pursuance of the Court's directions G
the MoEF had asked the project proponents to _have the
environmental impact assessment of the project done by some
'expert agencies. NOIDA, the project proponent got three
studies made of the impact assessment of the project. One is
1
. a joint study prepared by the Salim Ali Centre for Ornithology 1:::1
842 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A and Natural History (SAGON), Deccan Regional Station,
Hyderabad and the All India Network Project on Agricultural
Ornithology, Aacharya N.G. Ranga Agricultural University,
Hyderabad (Annexure II of Paper book Volume IV); the other
by the Wildlife Institute of India (Wll) (Annexure Ill of Paper book
:·:a Volume IV); and the third by a group of three individuals that
;•
was vetted by the Indian Institute of Technology, New Delhi
(Annexure IV of Paper book Volume IV).
69. The SAGON, in its report practically gave a clean chit
to the project and made the following observations in
C connection with the felling of trees and the impact of the project
construction on the Okhla Bird Sanctuary:
1 The Okhla Bird Sanctuary is primarily an urban
wetland and supports primarily water birds majority
D of them migrating and using in the winter season.
These are confined to the water bodies and
peripheral marshy vegetation and were not nesting
or roosting on the trees of the adjacent parks. The
extent of terrestrial habitat is the sanctuary is very
E small or insignificant.
2 The entire development works including removal of
trees and construction had taken place outside the
boundary of the sanctuary and the construction and
felling of trees in the project site has not altered or
F interfered with the wetland ecosystem of the OBS
and the area was undisturbed.
3 The birds in the wetland of Okhla Bird Sanctuary are
estimated during the month of January by the
G Wildlife Wing of U.P. Forest Department during
winter, which is the period for the migratory birds.
The estimation of birds are as under:
2007 -08 : 17, 111
H 2008-09 : 21,272
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 843
T.N. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
2009-10 : 22,004 A
1 The clearing of the project site for construction and
landscaping was started in the month of the
January, 2008 and continued till 9th October, 2009.
The bird estimates during migratory season clearly 'B
shows that there has been no reduction in the
number of birds in the sanctuary despite
' developmental activities in ·the park. This clearly
shows that the construction and felling of trees in
the project site has no impact on OBS.
c
I 2 It appears that the existence of High tension line
along the boundary wall of the project site before
the start of the project might have been a barrier
for movement of the birds from OBS as high electro
magnetic influence would restrict the movement of D
birds. Hence, the construction and the felling of
trees in the project site has minimal influence on the
OBS.
In view of the above, we are of the opinion that felling
E
of trees and construction have no perceptible impact on
the OBS habitat."
70. The SACON suggested certain proactive
environmental measures (see Paper book Volume IV, page
110) that would form part of this judgment. F
71. The other report by the Wildlife Institute of India (Wll)
is not so sanguine about the project's impact on the bird
sanctuary. In the Wll report under the heading "Assessment of
the Impact" it was observed as under: G
" .... From this, it is concluded that the erstwhile woodland
would have been used by 51-101 species of terrestrial
birds and was an extended habitat for the wildlife ofthe
Okhla Bird Sanctuary, primarily terrestrial birds. Some of
H
844 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A these birds may be using the erstwhile woodland for
breeding as well. ..
"..... The erstwhile woodland was acting as a buffer against
these disturbances. The project area which was in
continuation with the vegetation along the left afflux bund
B
was providing a green belt approximately 2 km long and
218 m wide on and average. Before the felling of trees this
patch might have acted as a protective green belt of
approximately 190 m width with a tree density of 203.5
trees/ ha (density of trees felled) which is now reduced to
c approximately 28 m (between the western wall of the
project and OBS boundary of left afflux dam). From this it
is concluded that the Sanctuary lost its buffer of around
33.43 ha that will have significant impact on the OBS and
its tranquility ....
D
" ... Such carbon sequestration value of the erstwhile
woodland was lost, though the NOIDA has already taken
up ameliorative steps in form of afforestation in and around
the project site ....
E
" ..... With the loss of buffer and increased artificial light at
the project site, it is likely that the migratory bird population
may get affected in long run. Bird friendly diffused light with
blue tinge may reduce the negative impacts, though much
research on this aspect is required."
F
72. The Wll also suggested certain mitigation measures
(see Paper book Volume IV, page 134) that would form part
of this judgment.
G 73. The llT, New Delhi in its review of the report prepared
by the group of three people does not record any serious
negative finding in regard to the effects that the project may
have on the Sanctuary.
74. Finally, the Expert Appraisal Committee (EAC)
H constituted by the Government of India, MoEF in its 88th
IN RE: CONSTRUCTION OF PARK AT NOIDAANANOARYA, 845
TN. GODAVARMAN THIRUMULPA9 v. U.0.1. [AFTABALAM, J.]
meeting held on June 28-29, 2010, reviewed the project in A
question in light of the aforementioned reports and made a
number of recommendations (Paper book Volume 111, page 32)
that would form part of this judgment.
75. It is significant to note that none of the ~xpert bodies
B
has taken the view that the project is so calamitous or ruinous
for the bird sanctuary that it needs to be altogether scrapped
in order to save the Sanctuary. The expert bodies have·given
recommendations which allow the completion of the project
subject to certain conditions. On behalf of the State of U.P. it
is unequivocally stated that all the conditions laid in the reports C
of the Expert Bodies are acceptable to the State Government/
NOIDA in their entirety. In light of the two study reports-and the
report submitted by the EAC, we see no justification for
directing the demolition of the constructions made in the project,
as prayed for on behalf of the applicants. We would rather allow D
the project to be completed, subject, of course to the conditions
suggested by the three expert bodies and further subject to the
directions contained herein below.
76. It may be noted that the report of the Wll has focused E
on the felling of trees resulting in the disappearance of the
woodland that acted as a protective,buffer for the bird sanctuary
and its first recommendation is- to compensate the loss of
vegetation. It has secondly focus~d on the increased artificial
light at the project site, which is likely to affect the migratory bird F
population in the long run. Apart from this, we feel that the extent
of stone and concrete constructions in the name of "hard
landscaping" is highly out of proportion. In the modified layout
plan, the project proponents have reduced the area under hard
surface to 35.54% of the total project area. In our opinion, even G
that is unacceptable from the environmental point of view. The
are~ under hard surface, whether covered, uncovered (includir;ig
pathways and boundary wall etc.) or of any kind whatsoever
must not .exceed 25% of the total project area; of the rest, 25%
sho1,1ld be used for soft/green landscaping and the remaining,
I: . H
846 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A preferably 50% must have a thick cover of trees of the native
variety, a list of which is given by the State of UP (Annexure
4(b), Paper book Volume IV) The plantation of trees 'should be
especially dense towards the Okhla Bird Sanctuary on .the
western side of the project area. Any construction work should
B commence only on completion of the planting of the trees .
. -- 77. In order to ensure full compliance with the
recommendations of the expert bodies (which form part of the
judgment) and the directions of this Court, the construction of
the project needs to be overseen by an expert committee. One
C member of the committee, preferably an ornithologist will be
nominated by the MoEF, the other member will be nominated
by the CEC in consultation with the amicus and the Chairman-
cum-CEO of NOIDA will be the member-secretary of the
committee. The committee should be constituted within two
D weeks from today.
78. It is made clear that the above directions are given in
the peculiar facts of this case and nothing said in the judgment
shall form precedent when the court is hearing the matter of the
E "buffer zones".
79. Before putting down the records of the case a few
observations may not be out of place. The EIA notification
dated September 14, 2006 urgently calls for a close second
look by the concerned authorities. The projects/activities under
F items 8(a) and 8(b) of the schedule to the notification need to
be described with greater precision and clarity and the
definition of built-up area with facilities open to the sky needs
to be freed from its present ambiguity and vagueness. The
question of application of the general condition to the projects/
G activities listed in the schedule also needs to be put beyond
any debate or dispute. We would also like to point out that the
environmental impact studies in this case were not conducted
either by the MoEF or any organization under it or even by any
agencies appointed by it. All the three studies that were finally
H placed before the Expert Appraisal Committee and which this
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA, 847
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTAB ALAM, J.]
Court has also taken into consideration, were made at the A
behest of the project proponents and by agencies of their
choice. This Court would have been more comfortable if the
environment impact srudies were made by the MoEF or by any
organization under it or at least by agencies appointed and
recommended by it. s_
80. The IAs stand disposed of with the above observations
and directions.
D.G. IAs disposed of.
-- c
APPENDIX I '{by SACON):
7. SUGGESTED PROACTIVE ENVIRONMENTAL
MEASURES
Although there-appears to be no perceptible impact, as a D
precautionary approach, we suggest following measures for the
, overall improvement of the OBS:
1. The periodical removal of water hyacinth should be
ensured for better quality of water.
E
2. Artificial nest boxes should be placed along the
western boundary of the sanctuary and adjoining
parts to enhance breeding potential of birds.
3. Periodical monitoring of water quality parameters F
should be undertaken to enhance wetland
dependent species and their population.
4. Regular monitoring of population of avi fauna
should be undertaken. On the terrestrial habitat, also
monitoring of small mammals may be carried out. G
5. Extensive planting of native species suitable for
urban habitat should be done more than 10 times
in and around the project area. This will in turn help
in sustainability of key bird species. It is noteworthy H
848 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A to mention that NOIDA Authority has already
planted 1,70,000 saplings.
6. For the scientific management of the OBS, the
prescriptions of the Management Plan under
preparation by the Wildlife Institute of India,
B Dehradun should be followed with necessary ·
financial support.
7. Inside the sanctuary, battery operated vehicles
should be used for visitors.
c 8. For the effective protection and management of the
OBS, the sanctuary should be suitably fenced.
9. In view of its unique location and interspersion of
ecological settings of various landscape elements,
D it is suggested that the proposed park may have
an ecological interpretation centre.
APPENDIX II (by Wiil:
E 5. SUGGESGED MITIGATION MEASURES
To mitigate the loss of tree cover and the change in 1andscape
structure due to the construction of the Park and subsequent
anticipated increase in disturbance due to the increased human
activities adjacent to the OBS, following mitigation measures
F have been suggested:
(1) Re-vegetation of the Project site to compensate the
loss of vegetation: Ameliorative measures have
already been ,aken up by the NOIDA by planting
both native and exotic species within in the project
G
area and on the eastern flank of left afflux bund of
the Yamuna River/OBS at close spacing. However,
emphasis should be given to propagate only the
native species.
H
IN RE: CONSTRUCTION OF PARK AT NOIDA ANAND ARYA, 849
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AFTABALAM, J.]
(2) Reduction of adverse impact on the OBS: It is A
suggested that buffer at the north and north eastern
side of the Sanctuary to reduce direct disturbance .
to the OBS may be created. The area north of the
weir bund of the OBS is a promising site for water
birds which prefer shallow w~ter or grass growth B
particularly geese and waders. It is suggested that
the waterlogged Yamuna floodplain north to the
OBS and up to the DND flyover having an area of
130 ha (Fig .1) may be included with the OBS or
protection to it as the buffer under the provision of c
WPA, 197.2 be provided.
The str.ip of woodland with an area of 24 ha
immediately to the north of the project area (Fig.1)
needs to be protected as buffer of the OBS also
and its land~use needs to be maintained unaltered. D
Being in close proximity of the OBS it will have an
ameliorative effect on the Sanctuary. It would also
provide additional habitat to the terrestrial bird
species of the OBS.
E
Efforts should also be made to keep the intensity
of artificial light and noise at the project site to a
bare minimum during night, especially after sunset
in migratory seasons of birds (October-March). Bird
friendly diffused light with blue tinge during night, F
may reduce the negative impacts if any on OBS,
though much research on this aspect is required.
It is suggested that at the periphery of the OBS,
fence wherever not existing be created and the
breach in the existing fence be mended on priority. G
(3) Eliciting support from the Government of Delhi for
the conservation of OBS: As the OBS is a interstate
Protected Area having open access from all side
it is imperative that the Government of Delhi may H
850 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A also be persuaded to take active part in its
management.
(4) Ensuring financial commitment for the improved
conservation management of the Park: As per the
Order of the Honorable Supreme Court granted for
B
other development project adjacent to Protected
Area (e.g. IA No.856/2006), 5% of the total costs
of the project be deposited with the Forest
Departmer.t, Government of U.P. to improve the
ecosystem structure and functions, waterbird
c habitat, public amenities and interpretation centre
and improved management of the OBS.
APPENDIX Ill (by EAC):
D During discussions following points emerged:
(i) Naida Authority, while making presentation, informed
that the project involves the renovation, preservation and
beautification of Park on a total plot area is 33.43 Ha. The
total built-up area of the covered construction is 6,999 sq.
E m. Before the development of site there were 6;803 trees
of different species out of which 6241 trees were cut and
562 trees were shifted to other parks. Further they informed
that the following components of the project have already
been completed:
F
(a) Boundary wall and gate - 90%
(b) Construction of Monument building - 60%
(c) Landscaping and plantation - 80%
G
(d) Pavements - 75%
The other infrastructural works proposed by Naida Authority
for environmental safeguards/measures and for effective
EMP are use of treated waste water, sold waste
H
IN RE: CONSTRUCTION OF PARK AT NOi DA ANAND ARYA, 851
T.N. GODAVARMAN THIRUMULPAD v. U.OJ [AFTAB ALAM, J.]
management, energy saving, tree plantation and parking A
etc. The other works which are important in the context of
Okhla Bird Sanctuary·are control of noise, glare and
efficient traffic management.
(ii) Possibility should be explored to increase the greenery
and plant broad leaf native trees along the pathways inside
B
and outside the park. This will help in the reduction 9f
surface runoff.
(iii) The water quality and water balance are key elements
and require detailed management and monitoring. No c
fresh water/ground water should be used for gardening/
horticulture purposes. The requirement of water should be
met from self recycling treated sewage without placing of
strain on the supply system for the nearby residential and
commercial areas. D
(iv) Treated waste water from Sector 54 Sewerage
Treatment Plant is proposed for horticulture purposes. It
must also be utilised as much as possible for such
purposes as toilet flushing and pavemenU floor washing.
i;he aforesaid purposes will need tertiary treatment of
E
·sewage.
(v) No more than 20 per cent of rain water shall be
discharged out of the project site into the ~xisting drain.
The rain water harvesting system should be designed F
based on the soil characteristics and highest level of
_,,... ground water table.
(vi) The species of ttees inside the park and in buffer zone
both on Okhla Bird Sanctuary side and road side should
G
be of indigenous types that do not disturb the water
balance of the area. The grass and artificial plantations
which are not native should be avoided.
(vii) Adequate noise barriers in the form of thick plantation
of appropriate species of trees and bushes laid in a tiered H
852 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A form to create a green screen on either side of bund road
should be provided. A no horn zone should be declared
and maintained around the Okhla Bird Sanctuary. The
develooment of qreen belt and tree plantation shall be
carried out in consultation with Indian Council of Forest
B Research and Education, Dehradun.
(viii) Solar energy should be utilized for illumination of
common areas, lighting of gardens and paved footpaths
etc.
c (ix) No artificial illumination on tall poles or towers should
be allowed inside the park during the night hours. The
street lights on the bund road and the round about should
be of special design, low ~ntensity and low height with least
disturbance to the birds' habitat.
D
(x) The solid waste generated should be properly collected
and segregated before disposal. The in-vessel bio-
conservation technique should be used for composting the
organic waste.
E
(xi) The opening of the park would increase the traffic load
on the front road and adjoining link road intersections. A
detailed traffic study should be carried out and proposals
for necessary widening redesign of intersections and
strengthening of road structure should be prepared.
F
(xii) Provision of a parking area is proposed inside the
park. Allocation and configuration of spaces for other
modes of transport like mini buses, 2-3 wheelers, cycle-
rickshaws and bicycles and even pedestrians have to be
G considered for realistic assessment of traffic and parking
management.
(xiii) All required sanitary and hygienic measures should
be in place before the opening of the park and should be
maintained through out the operation.
H
IN RE: CONSTRUCTION OF PARK AT NOIDAANANDARYA,853
TN. GODAVARMAN THIRUMULPAD v. U.0.1. [AETABALAM, J.]
(xiv) Adequate drinking water and sanitary facilities should A
be provided in the park.
(xv) A monitoring committee should be constituted for
overseeing the project so as to ensure effective
implementation and compliance to environmental 8
safeguards. ·
*********
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