REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

I.A. NOS.2609-2610 OF 2009  IN

WRIT PETITION (CIVIL) NO.202 OF 1995

IN RE.:

CONSTRUCTION  OF  PARK  AT  NOIDA  NEAR  OKHLA  BIRD  SANCTUARY

ANAND ARYA & ANR.                      APPLICANTS/

 T.N. GODAVARMAN THIRUMULPAD               PETITIONER

Versus

UNION OF INDIA & ORS.        RESPONDENTS

WITH

I.A. NOS.2896/10 & 2900/10 IN I.A. NOS.2609-2610 OF 2009            AND

      I.A. NO.2928/10 IN I.A. NOS.2609-2610/09 IN W.P. (C) NO.202 OF  

1995           

JUDGMENT

AFTAB ALAM, J.

1. At  the centre  of  the  controversy  is  a  very  large  project  of  the  

Uttar Pradesh government at NOIDA. Objecting to the project are the  

two applicants  who  are  residents  of  Sector  15A,  NOIDA,  U.P.  They  

claim  to  be  public  spirited  people,  committed  to  the  cause  of  

environment.  According  to  them,  the  project,  undertaken  at  the  

instance  of  Uttar  Pradesh  Government is  a  “huge  unauthorized  

construction”. The applicants state that a very large number of trees  

were cut down for clearing the ground for the project. The trees that  

were  felled  down for  the project  formed a “forest”  as  the term was  

construed by this Court in its order dated December 12, 1996 in Writ  

Petition (C) No.202 of 1995;  T.N. Godavarman Thirumulkpad v.  Union  

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of India & Ors., (1997) 2 SCC 267 and the action of the Uttar Pradesh  

Government  in  cutting  down  a  veritable  forest  without  the  prior  

permission  of  the  Central  Government  and this  Court,  was  in  gross  

violation  of  section  2(ii)  of  the  Forest  (Conservation)  Act,  1980  

(hereafter “the FC Act”).  The project  involved massive  constructions  

that  were made without  any prior environmental  clearance from the  

Central  Government based on Environment Impact  Assessment.  The  

constructions were, therefore, in complete breach of the provisions of  

the Environment Protection Act, 1986 (hereafter “the EP Act”) and the  

notification issued under the Act.  More importantly,  the project  was  

causing great harm, and was bound to further devastate the delicate  

and sensitive ecological balance of the Okhla Bird Sanctuary to which  

the site of the project lay adjacent. The project was, thus, in complete  

disregard of this Court’s directions concerning ‘buffer zones’.         

2. The State of Uttar Pradesh, of course denies, equally strongly, all  

the allegations made by the applicants. According to the State, it was  

setting up a park that would develop and beautify the area in a unique  

way.  The  park  was  conceived  as  a  fine  blend  of  hard  and  soft  

landscaping with memorial structures and commemoration pieces. The  

construction of  the park did not violate  any law or  the order of  the  

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Court. There was no infringement of the provisions of the FC Act or the  

EP Act or the notification made under it. Further, the setting up of the  

park caused no harm to the bird sanctuary. The applicants’ objections  

to  the  construction  of  the  park  were  fanciful  and  imaginary  and  

actuated by oblique motives.

THE PROJECT:

3. Before proceeding to examine the arguments of the two sides in  

greater detail it would be useful to take a look at the project and to put  

at one place the basic facts concerning it that are admitted or at any  

rate undeniable.

i. The  project  is  sited  at  sector  95,  Noida.  According  to  the  

applicants,  at  the  site  of  the  project  previously  there  

used  to  be  five  parks  on  the  Yamuna  front,  namely,  

Mansarovar,  Nandan  Kanan,  Children’s  Park,  Smriti  

Van and Navagraha, opposite Sectors 14A, 15A and 16A,  

Noida.

ii. The  project  site,  on  its  western  side,  lies  in  very  close  

proximity  to  the Okhla Bird Sanctuary.  The bird  sanctuary  

was  formed as  a  large  water  body  with  the adjoining land-

mass of the embankment as a result of the construction of the  

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Okhla Barrage. It falls partly in Delhi and partly (400 hectares  

in  area)  in  the  district  of  Gautam  Budh  Nagar,  U.P.  The  

administrative control  of the area of the Sanctuary is under  

the Uttar Pradesh Irrigation Department and its management  

is with the Uttar Pradesh Forest Department. The Sanctuary is  

home to about 302 species of birds. According to the Bombay  

Natural History Society, out of the bird species found here, 2  

are critically endangered, 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:   

                       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  

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  Okhla  Bird  

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Sanctuary but to be accurate it lies about 35-50 metres away  

from  the  outer  limit  of  the  Sanctuary.  According  to  the  

applicants, the boundary of the project site is as under:

North- Delhi-UP DND Toll Road     South- Not clearly stated

East-   Dadri Road West-  Okhla  Bird  Sanctuary,  left  

afflux bund

i. The project is spread over an area of 33.43 hectares, equal to  

334334.00  square  metres  of  land  surrounded  by  a  

boundary wall made of stone, 2 metres in height and 0.3  

metres in thickness. The estimated cost of the project is  

Rupees 685 crores.

ii. At the site of the project there used to be a tree cover, thin to  

high- moderate in density  and for clearing the ground  

for the project six thousand one hundred and eighty six  

(6186) trees were cut down and one hundred and seventy  

nine (179) were “shifted”. These trees were of Subabul,  

Bottle  Brush,  Bottle  Palm,  Morepankhi,  Ficus  

benjamina,  Cassia  siamia,  Eucalyptus,  Fishtail  palm,  

Rubber plant, Silver oak, etc.

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iii. The  project,  though  insisted  upon  by  the  Uttar  Pradesh  

Government is nothing but a ‘recreational park’, involves the  

construction  of  dedicatory  columns,  commemorative  plaza,  

national memorial, plinth with sculptures, larger than life-size  

statues  on  tall  pedestals,  large  stone  tablets  with  tributary  

engravings,  pedestrian  pathways,  service  block,  boundary  

wall, hard landscape, soft landscape, etc. As initially planned  

the breakup of the area under different uses was as under:

1 Total  Area  within  boundary  Wall

3,34,334.00 sq.m.

2 Total built up covered area for  activities

Memorial  Building & toilet  blocks

Utilities & facilities  

3,499.50 sq.m.   

3,500.00 sq.m.  

1.05%

1.05% 3 Area Under Hard Landscape  

(including platforms, plinth,  sculptures & surrounding  paved  areas, paths)

1,29,140.80sq.m.     38.62%

4 Total area under Soft  Landscape  

Area  under  grass  &  plantation

Area  under  planters  built  within paved areas         

1,57,161.79 sq.m.    

6,181.91 sq.m.           

47.01%

1.85%

5 Total area for vehicular 34,850.00 sq.m. 10.42%

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movement with grass pavers  (maintenances, fire path etc.)        

i. According to the State Government, the work on the project  

commenced in January 2008. The applicants filed IA no.1179  

before the Central Empowered Committee (hereafter “CEC”)  

constituted by this Court on March 5, 2009. They filed IA nos.  

2609-2610  of  2010  (presently  in  hand)  before  this  Court  on  

April  22,  2009.  According to  the State  Government,  by that  

time  50%  of  the  construction  work  of  the  project  was  

complete. The report from the CEC was received in this Court  

on September 4, 2009 and on October 9, 2009, this Court by an  

interim order restrained the State Government from carrying  

on any further constructions till further orders. By that time,  

according to the government, 70-75% of the construction work  

of the project was completed.  

i. In course of hearing of the matter, on a suggestion made by the  

Court,  the  State  Government  modified  the  layout  plan  

increasing the soft/green area from 47% to 65.28% of the total  

area of the project. The revised layout plan is as under:

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S. No. DESCRIPTION EXISTING  (in sq. metres +  %)

MODIFIED (in sq. metres +  %)

1. Green Area 157161.79 (47%)

218246.51 (65.28%)

2. Hard Landscape 129140.80 (38.6%)

98544.99 (29.48%)

aBoundary Wall 2700.79 (0.81%)

2700.79 (0.81%)

bPlatforms, Plinths,  Sculpture & Surrounding  Paved Areas

126440.00 (37.79%)

95844.99 (29.48%)

3. Area for vehicular  movement

34850.00 (10.42%)

0.00 (NIL)

4. Area under ornamental  water feature (may be  considered part of the Eco  Friendly Area)

0.00 (NIL) 6302.00 (1.88%)

5. Area under parking with  grass pavers (may be  considered part of the Eco  Friendly Area)

0.00 (NIL) 4241.00 (1.27%)

6. Utilities and Facilities 3500.00 (1.05%)

3500.00 (1.05%)

7. Memorial Building and  Toilets

3499.50 (1.05%)

3499.50 (1.05%)

8. Total Area 334334.00 (100%)

334334.00 (100%)

Under  the  amended  plan,  around  7300  trees,  more  than  4  

years of age and measuring 8-12 feet in height, belonging to  

the  native  species  such  as  Neem, Peepal,  Pilkhan,  Maulsari,  

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Imli, Shisham, Mango, Litchi and Belpatra will be planted in  

the project area.

 4. According to the State Government, the revised plan that includes  

planting of trees in such large numbers would not only restore the tree  

cover that was in existence at the site earlier but would make the whole  

area  far  better,  more  beautiful  and  environment  friendly.  The  

applicants  however,  would  have  none  of  it.  On  their  behalf  it  is  

contended  that  the  whole  project  is  bad  and  illegal  from  every  

conceivable point of view; its construction was started and sought to be  

completed  at  a  breakneck  speed  in  flagrant  violation  of  the  laws.  

According to the applicants therefore, all the structures at the project  

site,  complete,  semi-complete  or  under  construction  must  be  pulled  

down and the project site be restored to its original state.

THE PROJECT AND SECTION 2 OF THE FC ACT:

5. Mr.  Jayant  Bhushan,  learned  senior  counsel  appearing  for  the  

applicants submitted that over six thousand trees were admittedly cut  

down for clearing the area for the construction of the project  and 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.  

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Section 2 of the FC Act, in so far as relevant for the present, provides as  

follows:

“2.  Restriction  on  the  de-reservation  of  forests  or  use  of  forest  land  for  non-forest  purpose.-  Notwithstanding  anything contained in any other law for the time being in  force in a State,  no State Government or other authority  shall make, except with the prior approval of the Central  Government, any order directing.-  

(i) xxxxxxx (ii) that any forest land or any portion thereof may be  

used for any non-forest purpose. (iii) xxxxxxx (iv) xxxxxxx

Explanation.-  For  the  purpose  of  this  section  “non-forest  purpose” means the breaking up or clearing of any forest  land or portion thereof for- (a) the cultivation of tea, coffee, spices, rubber, palms, oil  bearing plants, horticulture crops or medicinal plants; (b) any purpose other than re-afforestation, but  does  not  include  any  work  relating  or  ancillary  to  conservation, development and management of forests and  wild-life, namely, the establishment of check-posts, ire lines,  wireless  communications  and  construction  of  fencing,  bridges  and  culverts,  dams,  waterholes,  trench  marks,  boundary marks, pipelines or other like purposes.”

The restriction imposed by section 2(ii) is in respect of forest land. It,  

therefore, needs to be ascertained whether the project area can be said  

to be forest land where there was a forest that was cut to make the site  

clear for the project.

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6. In support of the contention that the trees that were cleared for  

the construction of the project comprised a forest, the applicants rely  

heavily on the order passed by this court on December 12, 1996 in the  

case  of  T.N Godavarman  Thirumulkpad [Writ  Petition  (C)  No.202  of  

1995), (1997) 2 SCC 267], being the first in a series of landmark orders  

passed by this  Court  in  an effort  to  save  the fast  diminishing forest  

cover of the country against the greedy and wanton plundering of its  

natural resources. In that order the Court gave a number of directions.  

One such direction, at serial no.5 to each of the State Governments, is  

as under:

“Each  State  Government  should  constitute  within  one  month an Expert Committee to: (i) Identify  areas  which  are  “forests”,  irrespective  of  

whether  they  are  so  notified,  recognized  or  classified under any law, and irrespective of the  ownership of the land of such forest;

(ii) identify  areas  which  were  earlier  forests  but  stand  degraded, denuded or cleared; and  

(iii) identify  areas covered by plantation trees belonging  to  the  Government  and  those  belonging  to  private  persons. ”

7. In  pursuance  of  the  direction  of  the  Court,  the  Uttar  Pradesh  

Government  constituted  the  State  Level  Expert  Committee  for  

identifying forests  and forest-like areas.  The Committee in its  report  

dated December 12, 2007 framed certain parameters for identification  

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of forest-like areas according to which, in the plains, any stretch of land  

over  2  hectares  in  area  with  the  minimum  density  of  50  trees  per  

hectare would be considered as “forest”. On January 11, 2008 (as taken  

note of in the order of that date) it was reported to this Court that the  

guidelines were issued for identification of forest-like areas and steps  

would be taken to identify “forest-like areas” in all the districts in the  

State  of  Uttar Pradesh within  four months  and such areas  would be  

handed over to the forest  department,  excepting the private areas,  if  

any. As the process of search and identification of forest like areas in  

the districts of Uttar Pradesh proceeded, the District Level Committee  

headed  by  the  District  Collector,  Gautam Budh  Nagar,  by  its  letter  

dated February 26, 2008 addressed to Conservator Forests & Regional  

Director intimated that there was no forest-like area in the district and  

consequently the project site was not identified as a forest or forest-like  

area by the State Level Expert Committee constituted in pursuance of  

this Court’s order dated December 12, 2006.  

8. It was in this background that the project started, according to  

the State Government, in January 2008. When the work on the project  

became noticeable from the outside the applicants filed their complaint  

before  the CEC on March 5,  2009.  As the controversy  erupted  with  

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regards to “large scale 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 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 hectares and that showed that the area had sufficiently dense forest  

cover  and  would  qualify  as  “forest”  according  to  the  dictionary  

meaning  of  the  word  and  as  directed  by  the  Supreme  Court.  He,  

however,  suggested  that  before  taking  a  final  view  on  the  matter  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 noted that the number of cut trees, in ratio to the project area,  

was apparently more than three times in excess of the criterion fixed by  

the State Level Expert Committee for identification of forest like areas  

(i.e.,  minimum  of  50  trees  per  hectare).  As  suggested  by  the  CCF,  

therefore, the MoEF called for a report from the FSI based on satellite  

imagery and properly analysed by GSI application from the year 2001  

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onwards (vide letter dated July 17, 2009 from the Dy. Conservator of  

Forest (C) to the Director, Forest Survey of India).  The FSI gave its  

report on August 7, 2009 which we shall examine presently. In light of  

the report of the CCF and the report from the FSI, the MoEF in its first  

response  to  applicants’  complaint  before  the  CEC  (under  covering  

letter that is undated, received at the CEC on August 12, 2009) stated  

that at the project site “there was good patch of forests and which could  

be treated as deemed forest”. It further said that the report of the FSI  

showed that the forest cover existed there up to 2006 and the felling of  

trees might have taken place after that only.

9. In the meeting convened by the CEC on the applicants’ complaint  

on August  12,  2009,  the  Chief  Conservator  of  Forests  (CCF) MoEF,  

Lucknow  stated  that  the  plantation  done  in  the  project  area  was  

naturalized and having regard to the number of trees that existed in the  

area, the project area should be seen as “deemed forest” and, therefore,  

it attracted the provisions of the FC Act, and any non-forest use of the  

land required prior approval of the Central Government. In view of the  

stand  taken by  the  CCF,  the  CEC by  its  letter  of  August  13,  2009  

requested the MoEF to give its response on the issue. Here it may be  

noted that till that stage the stand of the MoEF, based on the reports of  

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the CCF and the FSI, though tentative seemed to be definitely inclined  

towards  holding  that  the  trees  that  were  felled  for  clearing  the  site  

comprised a forest/deemed forest  and the construction at  the project  

site was hit by the provisions of the FC Act. But now in a perceptible  

shift in its stand the MoEF informed the CEC by its letter of August  

22/24,  2009  that  in  its  view,  the  project  site  did  not  attract  the  

provisions of the FC Act. It referred to the order of this Court dated  

December 12, 1996 and pointed out that the project site did not appear  

in the list  of deemed forest land identified by the State Level Expert  

Committee  in  pursuance  of  the  order  of  the  Court.  It  concluded  by  

saying as follows:  

“In view of the above,  it  is  informed that the area under  discussion is neither recorded as forest nor deemed forest  and actually  an urban tree  park. Therefore,  construction  work  in  this  area  does  not  attract  the  provision  of  the  Forest (Conservation) Act, 1980.”

10. The letter dated August 22/24, 2009 from the MoEF was followed  

by another letter of September 2, 2009. This was purportedly to put the  

observation in the previous letter that “…[C]onstruction work in this  

area does not attract the 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  

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sensitivity of the matter and the high degree of public interest” left it to  

the CEC to draw appropriate conclusions from the materials furnished  

to it.

11. The CEC on a consideration of all the materials made available to  

it, including the report of the FSI (on which the applicants heavily rely),  

came to hold and find that the project site was not a forest or a deemed  

forest  or a forest-like area in terms of the order of this  Court dated  

December 12, 1996. In its report to this Court dated September 4, 2009  

it observed in this regard as follows:  

“28..… In the present case, even though as per the Report  of  the  Forest  Survey  of  India,  the  area  was  having  good  forest/tree cover and the project area had more than 6000  trees,  it  does  not  fall  in  the  category  of  “forest”  for  the  purpose of section 2 of the Forest (Conservation) Act and  therefore does not require any approval under the Forest  (Conservation)  Act.  The  project  area  does  not  have  naturally  grown  trees  but  planted  trees.  The  area  has  neither been notified as “forest” nor recorded as “forest” in  the Government record. In the exercise carried out by the  State  of  Uttar  Pradesh,  after  detailed  guidelines  for  identification of deemed forest 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 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  

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natural  regeneration.  As such hardly  any  tree  of  natural  regeneration exist.                                                               29. As per the definition of “forest” as held by the Hon’ble  Supreme Court  in  its  order  dated 12.12.1996,  the project  area therefore cannot be treated as “forest” for the purpose  of the Forest (Conservation) Act.”                                                             (emphasis added)

12. Mr. Jayant Bhushan strongly assailed the finding of the CEC as  

erroneous. Learned counsel stated that the CEC took the view that the  

project area could not be described as “forest” and did not attract the  

provisions of FC Act mainly because the trees in the project area that  

were cut down for making space for the constructions were  planted  

trees and not naturally grown trees. He contended that the reason given  

by the CEC was quite untenable being contrary to the judgments of this  

Court  where  it  is  held that  forest  may be natural  or  man-made.  He  

further submitted that the view that in order to qualify as forest the  

trees must be “naturally  grown” is  fraught  with  grave consequences  

inasmuch as a very large  portion of  the forests  in India  are planted  

forests and not original,  natural forests.  Further, any afforested area  

would also cease to be recognized as a forest if the view taken by the  

CEC were to be upheld.  

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13. The other reasons given by the CEC for holding that the project  

area was not a forest was that it was neither notified as “forest” nor  

recorded as “forest” in the Government record and even in the exercise  

carried out by the State of Uttar Pradesh, after detailed guidelines for  

identification of deemed forest were laid down, the project area was not  

identified  to  be  deemed  forest.  Mr.  Bhushan  contended  that  these  

reasons  were as misconceived as the previous one.  The area was not  

notified  or  recorded  as  forest  meant  nothing  since  this  Court  had  

passed a series of orders with the object to bring such areas within the  

protection of the FC Act that were not notified or recorded as forest. In  

the  same  way  the  failure  of  the  State  Level  Expert  Committee  to  

identify  the  project  area  as  forest  even  though  it  fully  satisfied  the  

criterion set by the Committee itself for the purpose will not alter the  

true nature and character of the area as forest land.

14. Mr.  K.K.  Venugopal,  learned  senior  counsel  appearing  for  the  

State of U.P. strongly supported the view taken by the CEC. Learned  

counsel submitted that the omission to identify the trees at the project  

site as forest or deemed forest was not due to any mistake or by chance.  

He pointed out that in the parameters set out by the State Level Expert  

Committee  for  identification  of  forests  or  forest-like  areas  it  was  

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clarified that “trees mean naturally grown perennial trees” and it was  

further stipulated that “the plantation done on public land or private  

land will not be identified as forest like area”. Mr. Venugopal submitted  

that the guidelines made by the Expert Committee were reported to this  

Court and accepted by it on December 12, 2007. The project site clearly  

did not come within the parameters fixed by the Expert Committee and  

it was rightly not identified as a forest like area. The parameters fixed  

by the expert committee for identification of forests or forest like area  

were never challenged by anyone and now it was too late in the day to  

question those parameters, more so after those were accepted by this  

Court. Mr. Venugopal contended that the non inclusion of the project  

site as a forest or forest-like area by the State Level Expert Committee  

should be conclusive of the fact that the area was not forest land and  

the trees standing there were no forest.  

15. Mr.  Bhushan  contended  that  a  tract  of  land  bearing  a  thick  

cluster of trees that would qualify as forest land and forest as defined  

by the orders of this Court would not cease to be so simply because the  

parameters  adopted  by  the  Expert  Committee  were  deficient  and  

inconsistent with this Court’s orders. In support of the submission that  

there  was  actually  a  forest  in  that  area  that  was  cut  down  for  the  

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project he relied upon the report of the FSI dated August 7, 2009 in  

which the forest  cover status at  the project  site  based on IRS 1D/P6  

LI88 III data is shown as follows:

Forest Cover Status in the Area of Interest (AOI) of NOIDA from 2001 to 2007

Area in ha.

Assessment  

Date of  Satellite Data  (sic)  

Very  Dense  Forest  

Moderately Dense Forest  

Open  Forest

Total  Forest  Cover  

Non Forest  

Total  Area

(State of  Forest  Report)   8th (2001) October-2000 0 3.74 10.42 14.16 32.27 46.43

9th (2003) November- 2002

0 6.05 10.71 18.76 29.67 46.43

10th (2005) November- 2004

0 7.54 14.23 21.77 24.66 46.43

11th (2007) October-2006 0 9.04 12.73 21.77 24.66 46.43  

16. In  the  report  it  was  also  stated  that  the  latest  forest  cover  

assessment by the FSI was based on satellite data of 2006 and it did not  

have any data of the later period. It further stated that the felling of  

trees might have taken place after October, 2006. Mr. Bhushan invited  

our attention to the order of this Court in the case of  T.N. Godavarman   

v. Union of India, (2006) 5 SCC 28 (paragraphs 16, 18, 33, 37, 38) to  

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show  that  this  Court  had  accepted  the  reliability  of  the  FSI  report  

based on satellite imagery.    

17. Mr.  Bhushan  also  relied  upon  the  report  of  the  CCF,  MoEF,  

Lucknow, a reference to which has already been made above. He also  

relied upon the first response of the MoEF, where it was stated that at  

the project site there was a “good patch of forests and which could be  

treated  as  a  deemed forest”  and  further  that  the  report  of  the  FSI  

showed that the forest cover existed there up to 2006 and the felling of  

trees might have taken place after that only. Mr. Bhushan lastly relied  

upon the Google image which has a dark patch in approximately 1/3rd  

of the area interpreted by him as a dense cover of trees.

18. In support of the submissions learned counsel  relied greatly  on  

the order passed by this Court on December 12, 1996 in the case of T.N  

Godavarman Thirumulkpad.  He also  relied upon the decisions  of  this  

court in Samatha v. State of Andhra Pradesh & Ors., (1997) 8 SCC 191  

(paragraphs 119, 120, 121, 123) and  M. C. Mehta  v. Union of India &  

Ors., (2004) 12 SCC 118 (paragraphs 55, 56, 57).

19. The point raised by Mr. Bhushan may be valid in certain cases  

but in the facts of the case his submissions are quite out of context. In  

support  of  the  applicants’  case  that  there  used to  be  a  forest  at  the  

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project  site  he  relies  upon  the  report  of  the  CCF  based  on  site  

inspection and the Google image and most heavily  on the FSI report  

based on satellite imagery and analysed by GSI application. A satellite  

image may not always reveal the complete story. Let us for a moment  

come down from the satellite to the earth and see what picture emerges  

from the government records and how things appear on the ground.  

20. In the revenue records, none of the khasras (plots) falling in the  

project  area  was  ever  shown  as  jungle  or  forest.  According  to  the  

settlement year 1359 Fasli (1952A.D.) all  the khasras are recorded as  

agricultural land, Banjar (uncultivable) or Parti (uncultivated).  

21. NOIDA was set up in 1976 and the lands of the project area 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 1991). But the  

possession of a very large part of the lands under acquisition (that now  

form the project site) was taken over in the year 1983. From the details  

of the acquisition proceedings furnished in a tabular form (annexure 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  

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acquisition.  The  records  of  the  land  acquisition  proceedings,  thus,  

complement the revenue record of 1952 in which the lands were shown  

as agricultural and not as jungle or forest. There is no reason not to  

give due credence to these records since they pertain to a time when the  

impugned  project  was  not  even  in  anyone’s  imagination  and  its  

proponents were no where on the scene. Further, in the second response  

of  the  MoEF,  dated  August  22/24,  2009  there  is  a  reference  to  the  

information  furnished  by  the  Deputy  Horticulture  Officer,  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 treated this area as an “Urban Park”.

22. It is, thus, to be seen that on a large tract of land (33.45 hectares  

in area) that was forever agricultural in character, trees were planted  

with the object of creating an urban park (and not for 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  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  

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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  dense tree cover over about half  of the  

project  site.  But  this  fact  is  all  but  admitted;  the  State  Government  

admits felling of over 6000 trees in 2008. How and when the trees came  

up  there  we  have  just  seen  with  reference  to  the  revenue  and  land  

acquisition  proceedings  records.  Now,  we  find  it  inconceivable  that  

trees planted with the intent to set up an urban park would turn into  

forest within a span of 10 to 12 years and the land that was forever  

agricultural,  would  be  converted  into  forest  land.   One  may  feel  

strongly  about  cutting  trees  in  such large  numbers  and question the  

wisdom behind replacing a patch of trees by large stone columns and  

statues but that would not change the trees into a forest or the land over  

which those trees were standing into forest land.  

24. The decisions relied upon by Mr. Bhushan are also of no help in  

this  case and on the basis  of  those decisions  the trees planted in the  

project area can not be branded as “forest”.

25. In order dated December 12, 1996 in Godavarman Thirumulkpad  

this Court held and observed as under:   

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“3.  It  has  emerged  at  the  hearing,  that  there  is  a  misconception in certain quarters about the true scope of  the Forest Conservation Act, 1980 (for short the 'Act') and  the meaning of the word "forest" used therein. There is also  a resulting misconception about the need of prior approval  of the Central Government, as required by Section 2 of the  Act, in respect of certain activities in the forest area which  are more often of a commercial  nature.  It is necessary to  clarify that position.

4. The Forest Conservation Act, 1980 was enacted with a  view to check further deforestation which ultimately results  in ecological imbalance; and therefore, the provisions made  therein  for  the  conservation  of  forests  and  for  matters  connected therewith, must apply to all forests irrespective  of  the  nature  of  ownership  or  classification  thereof.  The  word  "forest:  must  be  understood  according  to  its  dictionary meaning. This description covers all  statutorily  recognised  forests,  whether  designated  as  reserved,  protected or otherwise for the purpose of Section 2(i) of the  Forest Conservation Act. The term "forest land", occurring  in Section 2, will not only include "forest" as understood in  the dictionary sense, but also any area recorded as forest in  the Government record irrespective of the ownership. This  is how it has to be understood for the purpose of Section 2  of  the  Act.  The  provisions  enacted  in  the  Forest  Conservation Act, 1980 for the conservation of forests and  the matters connected therewith must apply clearly to all  forests  so  understood  irrespective  of  the  ownership  or  classification  thereof.  This  aspect  has  been  made  abundantly clear in the decisions of this Court in  Ambica   Quarry  Works v.  State  of  Gujarat,  Rural  Litigation  and  Entitlement Kendra v. State of U.P. and recently in the order  dated 29.11.1996 (Supreme Court Monitoring Committee  v.  Mussorie  Dehradun  Development  Authority).  The  earlier  decision of this Court in  State of Bihar v.  Banshi  Ram Modi  has,  therefore,  to  be  understood  in  the  light  of  these  subsequent decisions. We consider it necessary to reiterate  

26

this  settled  position  emerging  from  the  decisions  of  this  Court to dispel the doubt, if any, in the perception of any  State Government or authority. This has become necessary  also  because of  the  stand taken on behalf  of  the State  of  Rajasthan even  at  this  late  stage,  relating  to  permissions  granted for mining in such area which is clearly contrary to  the decisions of this court. It is reasonable to assume that  any State  Government which has failed to appreciate  the  correct  position  in  law  so  far,  will  forthwith  correct  its  stance and take the necessary  remedial  measures  without  any further delay.”  

26. In the above order the Court mainly said three things: one, the  

provisions of the FC Act must apply  to all  forests irrespective of the  

nature  of  ownership  or  classification  of  the  forest;  two,  the  word  

“forest” must be understood according to its dictionary meaning and  

three,  the  term  “forest  land”,  occurring  in  section  2,  will  not  only  

include “forest” as understood in the dictionary sense, but also any area  

recorded  as  forest  in  the  Government  record  irrespective  of  the  

ownership. The  order  dated  December  12,  1996  indeed  gives  a  very  

wide definition of “forest”. But any definition howsoever wide relates to  

a context. There can hardly be a legal definition, in terms absolute, and  

totally independent of the context. The context may or may not find any  

articulation in the judgment or the order but it is always there and it is  

discernible by a careful analysis of the facts and circumstances in which  

the  definition  was  rendered.  In  the  order  the  Court  said  “The  term  

27

‘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  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 mean that  after  the commencement of  the Act no  fresh breaking up of the forest land or no fresh clearing of  the forest on any such land can be permitted by any State  Government or any authority without the prior approval of  the Central Government. But if such permission has been  accorded before the coming into force of the Act and the  forest  land  is  broken  up  or  cleared  then  obviously  the  section cannot apply…..”

27. The observation in  Banshi Ram Modi (which again was made in  

the peculiar context of that case!) was sought to be interpreted by some  

to mean that once the land was broken in course of mining operations it  

ceased to be forest land. It was in order to quell the mischief and the  

subversion of section 2 of the FC Act that the court in the order dated  

December 12, 1996 made the observation quoted above italics.  

28. In Samatha, this Court was dealing with cases of grant of mining  

leases to non tribals in reserved forests and forests that were notified as  

28

scheduled  area  under  the  Andhra  Pradesh  Scheduled  Areas  Land  

Transfer  Regulation,  1959.  It  was  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 in regard to what  

constitutes a forest made in paragraphs 119, 120, 121 and 123, relied  

upon by Mr. Bhushan, was made when it was sought to be argued by  

the leaseholders that unless the lands are declared either as reserved  

forests or forests under the Andhra Pradesh Forest Act, 1967, the FC  

Act  had  no  application.  Hence,  there  was  no  prohibition  to  grant  

mining lease or to  renew it  by the State government.  The context  in  

which the Court expanded the definition of forest is, thus, manifest and  

evident.  

29. In M.C. Mehta v. Union of India & Ors., (2004) 12 SCC 118, in the  

paragraphs relied upon by Mr. Bhushan, this  Court was considering  

the question of permitting mining in Aravalli  Hills where large scale  

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  

29

over  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 were rendered  

in the context of mining or illegal felling of trees for timber or illegal  

removal of other forest produce or the protection of National Parks and  

wild  life  sanctuaries.  In  the  case  in  hand  the  context  is  completely  

different.  Hence,  the  decisions  relied  upon  by  Mr.  Bhushan  can  be  

applied only to an extent and not in absolute terms. To an extent Mr.  

Bhushan is right in contending that a man made forest may equally be a  

forest as a naturally grown one. He is also right in contending that non  

forest land may also, with the passage of time, change its character and  

become  forest  land.  But  this  also  cannot  be  a  rule  of  universal  

application  and  must  be  examined  in  the  overall  facts  of  the  case  

otherwise it would lead to highly anomalous conclusions. Like in this  

case,  Mr.  Bhushan  argued  that  the  two  conditions  in  the  guidelines  

adopted  by  the  State  Level  Expert  Committee,  i.e.,  (i)  “trees  mean  

naturally grown perennial trees” and (ii) “the plantation done on public  

land or private land will not be identified as forest like area” were not  

consistent with the wide definition of forest given in the December 12,  

30

1996 order of the Court and the   project area should qualify as forest  

on  the  basis  of  the  main  parameter  fixed  by  the  Committee.  If  the  

argument of  Mr. Bhushan is  accepted and the criterion fixed by the  

State Level Expert Committee that in the plains a stretch of land with  

an area of 2 hectares or above, with the minimum density of 50 trees/  

hectare would be a deemed forest is applied mechanically and with no  

regard  to  the  other  factors  a  greater  part  of  Lutyens  Delhi  would  

perhaps qualify as forest. This was obviously not the intent of the 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 FC Act.  

THE PROJECT AND THE EIA NOTIFICATION 2006:

32. Mr. Jayant Bhushan next contended that the construction of the  

project  was  started  by  the  U.P.  Government  (and  was  sought  to  be  

completed in great haste!)  without obtaining the prior environmental  

clearance  from  the  Central  Government  or  the  State  Level  

Environment Impact Assessment Authority in complete violation of the  

31

notification issued by the Central Government on September 14, 2006  

under section 3 (3) of the EP Act.

33. Before proceeding to examine the issue in detail it would be useful  

to  see  the  views  taken by  the  different  authorities,  agencies  and the  

MoEF on the question whether the law required prior environmental  

clearance  for  the  project.  It  appears  that  once  the  controversy  was  

raised,  the  project  proponents,  by  letter  dated  April  24,  2009  

approached the State Level Environment Impact Assessment Authority,  

Uttar  Pradesh  constituted  under  the  EIA notification,  2006,  seeking  

environmental  clearance  for  the  project.  In  reply  the  SEIAA by  its  

letter dated May 7, 2009 stated that having regard to the nature and the  

area of the project it was not covered by the schedule of the notification  

No. S.O.1533 (E) dated September 14, 2006 issued by the Government  

of India.     

34. Before  the  CEC,  the  MoEF in  its  first  response  dated  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  that  in  the  EIA  notification  2006,  all  building/  construction  

projects/ area development projects and townships, were categorized as  

category  ‘B’  projects  and  the  ‘general  condition’  prescribed  in  the   

32

notification was not applicable to construction projects. It went on to say  

that  the  project  did  not  require  any  prior  environmental  clearance  

under  the  EIA  notification  2006  even  though  “being  within  the  

prescribed distance from a wildlife  sanctuary/national  park or inter-

state boundary”. It needs to be stated here that the first response of the  

MoEF before he CEC was evidently based on the inputs received from  

the UP Government about the nature of the project and the extent of  

constructions involved in it.

35. In the second response before the CEC dated September 2, 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  project  from  various  sources  and  the  fresh  

findings  raised  far-reaching  issues  of  public  concern  that  extended  

beyond the parameters set by the EIA notification of 2006. It further  

stated that the certificate issued by the SEIAA of UP stated that the  

total built-up covered area was only 9,542 square metres and the report  

of the CCF was not clear as to the extent of the covered area vis-à-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  

33

relating to the project and its likely impact on the environment. It left  

the decision in the hands of the CEC.  

36. The CEC in its report to this Court dated September 4, 2009 held  

and found that the project was covered by the EIA notification 2006  

and  it  required  prior  environmental  clearance  in  terms  of  the  

notification. In its report, the CEC observed as follows:

“30. The CEC does not agree with the stand taken by the  State  Government  as  well  as  the  MoEF that  the  project  does not require environmental  clearance in terms of  the  MoEF notification dated 14.9.2006. The MoEF, as well  as  the State of Uttar Pradesh has taken this view primarily on  the ground that the built up area of the project is less than  20,000 sq. meter and therefore the project does not require  environmental  clearance.  The  built  up  area  has  been  calculated by the State of Uttar Pradesh on the basis of its  building  bye-laws.  The  CEC  is  of  the  view  that  for  the  purpose of environmental clearance, the building bye-laws  of the State Government have no relevance at all. As per the  details provided by the State Government itself, out of 33.43  ha of the project area, 3499.50 sq. meter is being used for  memorial building & toilet blocks, 3500 sq. meter is being  used for utilities and facilities, 129140.80 sq. meter area is  being  used  for  hard  landscape  including  for  platforms,  plinth,  sculptures  &  surrounded  paved  area,  path  etc.  Another 34850 sq. meter area is  to be used for vehicular  movement.  The  above  comes  to  more  than  50%  of  the  project area which in CEC’s view qualify to be included in  the activity area. The project cost is about Rs. 685 crores.  As  per  the  MoEF  notification  dated  14.9.2006,  for  building/construction project, in the case of facilities open  to the sky, the activity area is to be included in the built up  area. In the present case, after including the activity area  the total  built  up area,  for  the purpose  of  environmental  

34

clearance,  far  exceeds  the  threshold  limit  of  20,000  sq.  meter  of  built  up  area  provided  in  the  Notification.  The  MoEF,  on  its  own  admission,  has  merely  relied  on  the  details  of  the  built  up  area  as  provided  by  the  State  Government without independently verifying it and has not  included the area falling in the category of activity area. In  any  case,  even  if  there  was  any  doubt  in  the  MoEF  regarding the applicability of the environmental clearance  in  the  present  case,  in  view  of  precautionary  principle  it  should  have  erred  on the  side  of  the  caution  and should  have insisted for the environmental clearance.”

37. When the matter finally came up before the Court the MoEF was  

once again asked to take a clear stand on the issue whether the project  

was  covered  by  the  EIA  notification  2006.  The  MoEF  filed  a  brief  

affidavit on October 21, 2009 in which it acknowledged that the CEC in  

its  report  dated  September  4,  2006  had  stated  that  the  State  of  UP  

should be directed to seek environmental clearance for the project from  

the MoEF in terms of the notification. The MoEF, however, reiterated  

its  stand  in  very  definite  and  unequivocal  terms  that  the  project  in  

question did not fall within the ambit of the EIA notification 2006 and  

no environmental clearance was required for such kind of projects. The  

stand of the MoEF was based on the premise that the area of the project  

(33.43 hectares) was less than 50 hectares and its built up area (9,542  

square metres) was less than 20,000 square metres. Having thus made  

35

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  construction  

activity at the site and in the present case the project was already in the  

advanced stage of construction.

38. On April  22,  2010,  this  Court  passed  an  order  in  which  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 safeguard the environment,  with particular  

reference to the adjacent bird sanctuary.  

39. As directed by the Court, the MoEF asked the project proponents  

to submit the details  concerning the project  in the 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  

36

by  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 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.  

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 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.

42. Mr.  Harish  Salve,  learned  amicus  curiae and  Mr.  Jayant  

Bhushan,  Counsel  appearing  for  the  applicants,  both  staunchly  

37

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 on the issue.  

And to start the construction of the project and take it into an advanced  

stage 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 time to take a closer look at the provisions of the EIA  

notification no.  S.O.1533(E).  dated September 14,  2006 issued by the  

Central Government under section 3 (3) of the EP Act and to consider  

the submissions advanced by the 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.  

(1) xxxxxx

(2) xxxxxx

(3)  The  Central  Government  may,  if  it  considers  it  necessary or expedient so to do for 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  

38

specified  in  the  order  for  the  purpose  of  exercising  and  performing such of the powers and functions (including the  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  exercise and powers or perform the functions or take the  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.”

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. O. 1533(E) on September 14, 2006, which in so far as  

relevant for the present is reproduced below:

“MINISTRY OF ENVIRONMENT AND FORESTS

Notification

New Delhi, the 14th September, 2006

S.O. 1533(E).- whereas xxxxxx

                 And whereas xxxxxx

And whereas xxxxxx

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  

39

Ministry  of  Environment  and  Forests  for  matters  falling  under  Category  ‘A’  in  the  Schedule and at State level the State Environment Impact Assessment Authority (SEIAA)  for  matters  falling  under  Category ‘B’  in  the  said  Schedule,  before  any construction  work, or preparation of land by the project management 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; (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 or modernization; (iii) Any  change  in  product  -  mix  in  an  existing  manufacturing  unit  included  in  Schedule beyond the specified range.

3.         xxxxxx

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 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 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  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 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 (SEIAA). The SEIAA  shall base its decision on the recommendations of a State or Union territory level Expert  Appraisal Committee (SEAC) as to be constituted 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

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6.       xxxxxx

7.       Stages in the Prior Environmental Clearance (EC) Process for New Projects:-

7(i)    xxxxxx

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  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 specificity of  the project . The projects requiring an Environmental Impact Assessment report shall be  termed Category ‘B1’ and remaining projects shall be termed Category ‘B2’ and will not  require an Environment Impact Assessment report. For categorization of projects into B1  or B2 except item 8 (b), the Ministry of Environment and Forests shall issue appropriate  guidelines from time to time.

8. xxxxxx

9. xxxxxx

10. xxxxxx

11. xxxxxx

12. xxxxxx

SCHEDULE

(See paragraph 2 and 7)

LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL  CLEARANCE

          Project or Activity Category with threshold limit Conditions if any

A B 8 Building /Construction projects/Area Development projects and  

Townships (1) (2) (3) (4) (5)

8(a) Building  and ?20000 sq.mtrs and #(built up area for covered  

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Construction  projects  

<1,50,000  sq.mtrs.  of  built-up area#

construction; in the case of  facilities open to the sky, it  will be the activity area )

8(b) Townships  and Area  Development  projects.

Covering  an  area  ?  50  ha and or built up area ? 1,50,000 sq .mtrs ++

++All  projects  under  Item  8(b)  shall  be  appraised  as  Category B1

Note:-   

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 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.”

Specific Condition (SC):

xxxxxx  

(I) Basic Information xxxxxx

(II) Activity 1. Construction,  operation  or  decommissioning  of  the  Project  involving  

actions,  which will  cause  physical  changes  in  the  locality  (topography,  land use, changes in water bodies, etc.)

S.No. Information/Checklist confirmation Yes/No Details  thereof  (with  approximate  quantities  /rates,  wherever  possible)  with  source  of  information  data

1.1 Permanent  or  temporary  change  in  land  use,  land cover or topography including increase in  intensity of land use (with respect to local     land  use plan)

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1.2 Clearance  of  existing  land,  vegetation  and  buildings?

1.3 Creation of new land uses?

1.4 Pre-construction  investigations  e.g.  bore  houses,  soil testing?

1.5 Construction works?

1.6 Xxxxxx | | | |

1.31 Xxxxxx ”

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  various  factors  such  as  the  potential  

hazard to environment,  location,  the extent  of area involved,  etc.  are  

categorized in categories ‘A’ or ‘B’. 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 category  

‘B’, 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  

43

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 under the Wildlife (Protection) Act etc.). In other words, if a  

project  or  activity  attracts  the  general  condition,  the  competent  

authority to grant prior environmental clearance in that case would be  

the  Central  Government,  even  though,  the  project  or  activity  may  

figure in the Schedule in category ‘B’.  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 requiring an EIA report shall be termed as category ‘B1’ and  

the  remaining  shall  be  termed  as  ‘B2’  and  will  not  require  an  EIA  

report. For categorization of projects into B1 and B2, the MoEF would  

issue  appropriate  guidelines  from time to  time.  The  schedule  to  the  

notification  has  a  table  that  is  divided  into  five  columns.  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 ‘B’; the fifth column against each item indicates whether any  

44

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 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)  are  listed  in  

column 4, i.e., in category ‘B’. In column 5, against 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 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’. It is further clarified that the  

aforementioned 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  

45

ambit of the 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  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  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 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 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  

46

category ‘B’ will be treated as category ‘A’, if located within 10km from  

the boundary of protected areas notified under the 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  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 the MoEF. The office memorandum  inter   

alia provides  that  “…..while  granting  environmental  clearance  to  

projects involving forestland, 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 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   

47

clearance  from  the  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  

clearance but also a clearance from forestry and wildlife angle including  

clearance  from  the  Standing  Committee  of  the  National  Board  for  

Wildlife as precondition for the grant of 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 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  

constitute the built-up area. In the third step, he brings in the general  

condition  (even  though  in  regard  to  item  8(a)  its  application  is  not  

mentioned  in  column  5  of  the  table)  that  would  make  the  Central  

Government  as  the  competent  authority  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  

48

Wildlife  was a precondition for the 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 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.  

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 category ‘B’ 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  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  

49

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  

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  

square metres of built up area and/or covering more than 50 hectares,  

the EIS requirements should 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 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),  regardless  of  the  project’s  proximity  to  any  

sanctuary or reserved area.  

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.   

50

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 in question may be put more appropriately in category 8(b)  

as  an  “Area  Development  project”  rather  than  a  “Building  and  

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. 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)  (1,50,000  

square metres of built-up area) was the threshold mark under item 8(b)  

51

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  

Construction  projects”  and  projects  with  built  up  area  in  excess  of  

1,50,000 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  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 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 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  

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schedule  would  show  the  continuity  in  the  two  provisions;  1,50,000  

square metres of built up area that 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 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 8(b) must get  

the same meaning as in item 8(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 “built-up area”.

55. 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 character of the project and is based purely on the built up area. A  

building and construction project is nothing 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 the township development project and may be its first  

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stage when grounds are cleared, roads and pathways are laid out and  

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  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.   

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  quantitative  correlation  between  items  

8(a) and 8(b). But it must be realized that the converse of the illustration  

given by Mr. Bhushan may not be true. For example, a project which is  

by its nature and character an “Area Development project” would not  

become a “Building and Construction project” simply because it falls  

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 different magnitudes but in the difference in the  

nature and character of the projects enumerated there under.  

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57. In light of the above discussion it is difficult to see the project in  

question as a “Building and Construction project”. Applying the test of  

‘Dominant  Purpose  or  Dominant  Nature’  of  the  project  or  the  

“Common  Parlance”  test,  i.e.  how  a  common  person  using  it  and  

enjoying its facilities would view it, the project can only be categorized  

under item 8(b) of the schedule as a Township and Area Development  

project”. But under that category it does not come up to the threshold  

marker inasmuch as the total area of the project (33.43 hectares) is less  

than 50 hectares and its built-up area even if the hard landscaped area  

and  the  covered  areas  are  put  together  comes  to  1,05,544.49  square  

metres,  i.e.,  much  below  the  threshold  marker  of  1,50,000  square  

metres.

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 notification is framed and taking any  

other  view  would  be  doing  gross  violence  to  the  scheme  of  the  

notification.  

59. Since it is held that the project does not come within the ambit of  

the notification, the other three arguments based on the activity area,  

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the application  of  general  condition and the  application  of  the office  

memorandum dated December 2, 2009 become irrelevant and need not  

be gone into in this case.  

THE PROJECT AND THE OKHLA BIRD SANCTUARY:

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 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  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 NOIDA which was  

the project proponent was equally conscious about its responsibility in  

regard  to  the  preservation  and  conservation  of  the  habitat  of  the  

Sanctuary. A management 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  

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planning  to  set  up  a  corpus  for  the  Scientific  and  effective  

implementation of the Management Plan.

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  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  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 response dated August 22-24, 2009, however, the  

MoEF, though still blaming the UP Government for its failure to notify  

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.

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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, 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  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 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.  In its  report  to the Court,  the CEC observed as  

follows:    

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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  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 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 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 far not prepared any proposal in this  regard. The CEC is of the 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  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 would have fallen in the Eco-Sensitive  Zone, had a timely decision in this regard been taken  by the State Government/ MoEF.  

  (emphasis added)

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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. 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 delicate ecological balance  

required for the sanctuaries.  

66. 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 is not merely a statutory issue.  

Environment is one of the facets of the right to life guaranteed under  

article  21  of  the  Constitution1.  Environment  is,  therefore,  a  matter  

1M.C. Mehta & Anr. v. Union of India & Ors., AIR 1987 SC 985   M.C. Mehta  v. Union of India & Ors., (1987) 4 SCC 463   M.C. Mehta & Anr. v. Union of India & Ors., AIR 1988 SC 1115  Chhetriya Pardushan Mukti Sangarsh Samiti v. State of U.P., AIR 1990 SC 2060  Subhash Kumar v. State of Bihar, AIR 1991 SC 420  Virender Gaur v. State of Haryana, (1995) 2 SCC 577  B.L. Wadehra v. Union of India, (1996) 2 SCC 594  Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715  Andhra Pradesh Pollution Control Board v.  M.V. Nayudu, (1999) 2 SCC 718  Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664

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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,  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,  (The  Kalindikunj-Irrigation  

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 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,  the  

Court  had  asked  the  MoEF  to  make  a  study  of  the  environmental  

T.N. Godavarman Thirumulkpad v. Union of India, (2002) 10 SCC 606  Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch, (2000) 3 SCC 29  State of M.P. v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389

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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  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  a  joint  

study prepared by the Salim Ali Centre for Ornithology and Natural  

History  (SACON),  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  (WII)  

(Annexure III of Paper book 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  SACON,  in  its  report  practically  gave  a  clean  chit  to  the  

project  and  made  the  following  observations  in  connection  with  the  

felling of trees and the impact of the project construction on the Okhla  

Bird Sanctuary:

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• The Okhla  Bird  Sanctuary  is  primarily  an  urban  wetland  and  supports  primarily  water  birds  majority  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  small  or  insignificant.  

• 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  interfered  with  the  wetland  ecosystem of the OBS and the area was undisturbed.

 • The birds in the wetland of Okhla Bird Sanctuary are estimated  

during  the  month  of  January  by  the  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 2008-09 : 21,272 2009-10 : 22,004

• 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 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.

• 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  birds.  Hence,  the  construction  and  the  felling  of  trees  in  the  project site has minimal influence on the OBS.

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In view of the above, we are of the opinion that felling 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.  

71. The other report by the Wildlife Institute of India (WII) is not so  

sanguine about the project’s impact on the bird sanctuary. In the WII  

report under the heading “Assessment of the Impact” it was observed as  

under:  

“….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 of the Okhla  Bird Sanctuary, primarily terrestrial birds. Some of 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  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  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….  

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“…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….  

“….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.”

72. The WII also  suggested  certain  mitigation measures  (see  Paper  

book Volume IV, page 134) that would form part of this judgment.

73. The IIT, 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)  constituted  by  

the Government of India, MoEF in its 88th meeting held on June 28-29,  

2010,  reviewed the project  in  question in light  of  the aforementioned  

reports and made a number of recommendations (Paper book Volume  

III, page 32) that would form part of this judgment.

75. It is significant to note that none of the expert bodies has taken the  

view that the project is so calamitous or ruinous for the bird sanctuary  

that it needs to be altogether scrapped in order to save the Sanctuary.  

The  expert  bodies  have  given  recommendations  which  allow  the  

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completion of the project subject to certain conditions. On behalf of the  

State of U.P. it is unequivocally stated that all the conditions laid in the  

reports of the Expert Bodies are acceptable to the State Government/  

NOIDA in their entirety. In light of the 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  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 WII has focused 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  

focused on the increased artificial light at the project site, which is likely  

to affect the migratory bird 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 that is  

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unacceptable  from the  environmental  point  of  view.  The  area  under  

hard  surface,  whether  covered,  uncovered  (including  pathways  and  

boundary wall etc.) or of any kind whatsoever must not exceed 25% of  

the total  project  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, 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 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  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 weeks from  

today.  

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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 “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  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/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 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  

have  been  more  comfortable  if  the  environment  impact  studies  were  

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made  by  the  MoEF  or  by  any  organization  under  it  or  at  least  by  

agencies appointed and recommended by it.  

80. The  IAs  stand  disposed  of  with  the  above  observations  and  

directions.  

…………………………………………CJI.

…………………………………………..J. (AFTAB ALAM)

…………………………………………..J. (K.S. PANICKER RADHAKRISHNAN)

New Delhi, December 3, 2010

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APPENDIX I (by SACON):

7. SUGGESTED PROACTIVE ENVIRONMENTAL MEASURES

Although  there  appears  to  be  no  perceptible  impact,  as  a  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.

1. Artificial nest boxes should be placed along the western boundary  of  the  sanctuary  and  adjoining  parts  to  enhance  breeding  potential of birds.  

1. Periodical  monitoring  of  water  quality  parameters  should  be  undertaken  to  enhance  wetland  dependent  species  and  their  population.  

1. Regular  monitoring  of  population  of  avi  fauna  should  be  undertaken. On the terrestrial habitat,  also monitoring of small  mammals may be carried out.  

1. 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  to  mention  that  NOIDA  Authority  has  already  planted 1,70,000 saplings.  

1. For the scientific management of  the OBS, the prescriptions of  the Management Plan under preparation by the Wildlife Institute  of India, Dehradun should be followed with necessary financial  support.  

1. Inside the sanctuary, battery operated vehicles should be used for  visitors.  

1. For  the  effective  protection  and  management  of  the  OBS,  the  sanctuary should be suitably fenced.  

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1. In  view  of  its  unique  location  and  interspersion  of  ecological  settings  of  various  landscape  elements,  it  is  suggested  that  the  proposed park may have an ecological interpretation centre.

APPENDIX II (by WII):

5. SUGGESGED MITIGATION MEASURES

To mitigate the loss of tree cover and the change in landscape 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 have been suggested:

(1) Re-vegetation  of  the  Project  site  to  compensate  the  loss  of  vegetation:     Ameliorative measures have already been taken  up by the NOIDA by planting both native and exotic species  within  in  the  project  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.

(1) Reduction of adverse impact on the OBS:  It is 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  water  or  grass  growth  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 WPA, 1972 be provided.

The strip 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.  Being in close proximity of the OBS it  

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will have an ameliorative effect on the Sanctuary.  It would  also provide additional habitat to the terrestrial bird species  of the OBS.

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, 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.

(1) 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 also  be persuaded to take active  part in its management.

(1) Ensuring  financial  commitment  for  the  improved  conservation management of the Park:  As per the Order of  the Honorable Supreme Court granted for 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  Department,  Government of  U.P. to  improve the ecosystem  structure and functions, waterbird habitat,  public amenities  and interpretation centre and improved management of the  OBS.

APPENDIX III (by EAC):

During discussions following points emerged:

i) Noida Authority,  while  making presentation,  informed that  the  project involves the renovation, preservation and beautification of Park  

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on a total plot area is 33.43 Ha.  The total built-up area of the covered  construction is 6,999 sq. 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:

(a) Boundary wall and gate - 90% (b) Construction of Monument building - 60% (c) Landscaping and plantation - 80% (d) Pavements - 75%

The  other  infrastructural  works  proposed  by  Noida  Authority  for  environmental  safeguards/measures and for effective EMP are use of  treated  waste  water,  sold  waste  management,  energy  saving,  tree  plantation and parking 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 and outside the park.  This will help in the reduction of surface runoff.

(iii) The  water  quality  and  water  balance  are  key  elements  and  require detailed management and monitoring.  No 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.  

(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  pavement/  floor  washing.   The  aforesaid  purposes  will  need  tertiary  treatment  of  sewage.  

v) No more than 20 per cent of rain water shall be discharged out of  the  project  site  into  the  existing  drain.   The  rain  water  harvesting  system should be designed based on the soil characteristics and highest  level of ground water table.  

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vi) The species of trees inside the park and in buffer zone both on  Okhla Bird Sanctuary side and road side should 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 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 development of green belt and tree plantation shall be  carried out in consultation with Indian Council of Forest Research and  Education, Dehradun.  

(viii) Solar energy should be utilized for illumination of common areas,  lighting of gardens and paved footpaths etc.  

(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  intensity and low height with least disturbance to the birds’ habitat.  

(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.  

(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.  

(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 considered for realistic assessment of traffic and  parking management.  

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(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.  

(xiv) Adequate  drinking  water  and  sanitary  facilities  should  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 safeguards.  

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