Amit Kumar v. Union Of India & Ors.

This original Application has been filed to prevent illegal and unauthorised construction work undertaken by the developers within 10 km radius of the Okhla Bird Sanctuary, apart from directing initiation of criminal proceedings against the developers who have started construction work within 10 km radius of the Okhla Bird Sanctuary without prior clearance from the National Board for Wild Life. When the matter was heard, this Tribunal has passed an interim order on 14.08.2013, wherein it was stated that nearly 53 builders have been unauthorisedly carrying on the construction activities and, therefore, the Tribunal has directed the Respondent No. 6 in the original Application, namely, the New Okhla Industrial Development Area (NOIDA) to inspect and identify the builders who are allegedly situated within 10 km radius of the Okhla Bird Sanctuary. This Tribunal has also stated that in case the said Respondent No. 6 finds out during the course of such inspection that certain construction work is going on within 10 km radius of the Okhla Bird Sanctuary without obtaining prior Environmental Clearance (EC) or in contravention of the same, then it shall be immediately stopped by making necessary Punchnamas and by preparing status report. The said interim order came to be continued and in a subsequent order dated 17.09.2013 the Respondent No. 6 has brought to the notice of this Tribunal that out of the 55 builders, 6 are outside the area of 10 km and, therefore, they need not be taken into consideration. In so far as it relates to the remaining 49 builders, who are stated to be within 10 km radius of the Okhla Bird Sanctuary, it was stated that 7 projects have not started the work while 15 projects have already been completed. It was in those circumstances, we directed the Respondent No. 6 to file a detailed report. When it is brought to the notice by this Tribunal to the Learned Counsel that there is an order of 14.08.2013 preventing further construction work, the Learned Counsel for Respondent No. 6 has submitted that the Respondent No. 6 would take all necessary steps to comply with the order that no further construction are made in respect of said 49 projects. Learned Counsel also undertook to file all particulars and details relating to the 49 projects including the particulars as to from where they draw water for their projects, by the next date of hearing. While recording the said submission, we had made it very clear in the following terms:

“We make it very clear that the earlier order restraining the construction without proper authority shall be implemented scrupulously and the Respondent No. 7 (District Magistrate) and Respondent No. 8 (Senior Superintendent of Police) are directed to see that restriction is implemented and no further construction are done in respect of 49 units and report the same by the next date of hearing.”

It is the subsequent order dated 17.09.2013 which appears to have caused some problems to some of the builders.

We make it very clear that intention of this Tribunal on 17.09.2013 was to extend interim order already passed by this Tribunal dated 14-09-2013 by which the Tribunal has injuncted any person or the builder from carrying on its construction activity without EC or against the provisions of EC and, therefore, by way of clarification of the said position we only reiterate that the earlier order dated 14.08.2013 was extended on 17-09-2013 and nothing more.

Even though, the said order has been clarified whereby it is made clear that as on date for construction activities within 10 km radius of the Okhla Bird Sanctuary by any builder, the same shall not be carried on without any EC or against the terms stipulated under the EC, elaborate arguments have been advanced on behalf of both the Applicants as well as Respondents apart from many other builders who have filed miscellaneous applications to implead them as party Respondents and also to modify the earlier order dated 17.09.2013

During the course of the argument, we directed the Learned Counsel appearing for the UP Pollution Control Board to produce the copy of the Notification issued by the State of UP declaring “protected area” under Section 18(1) of the Wild Life (Protection) Act in respect of Okhla Bird Sanctuary. The Learned Counsel for UP Government accordingly has produced the Notification issued by the State Government dated 08.05.1990 It is as per the said Notification issued by the Government of UP that the Government has declared the Okhla Bird Sanctuary as a “protected area”. But in so far as, it relates to the declaration of eco-sensitive zone in the said area, admittedly, no Notification has been issued by the Ministry of Environment & Forests (MoEF). The contention of the Learned Counsel for the MoEF in this regard is that the State Government is being consulted and after its reports are received as proposal, the MoEF will notify the same.

Mr. Pinaki Mishra, Learned Senior Counsel appearing for some of the builders and also other Counsel who have joined with him similarly situated, have submitted that these 49 Project Proponents have obtained EC and it is not the case of the Respondents themselves that these builders are carrying on their building activities against provisions of the EC granted by the competent authority.

However, taking note of the earlier order passed by this Tribunal dated 17.09.2013, notices have been issued to them for the purpose of stopping their activities which made them to file the present applications for clarification.

Learned Counsel would submit that under the EIA Notification dated 14.09.2006 issued by the MoEF in the schedule annexed thereto the construction of buildings is covered under the schedule, in 8(a). According to the Learned Counsel, that in so far as it relates to the said schedule in item no. 8(a) is concerned, in column no. 5 which stipulates general conditions as well as remarks, there is nothing mentioned except the spill-over of sentences from column 4 and, therefore, the general conditions are not applicable. Accordingly, there is nothing mentioned in column no. 5 and as such in any event, the said general conditions are not applicable as far as the construction activities are concerned, and consequently the question of obtaining EC does not arise from MoEF and rather the EC will be given by the SEIAA. He would submit that the Indian Board for Wild Life on 21.01.2002 had evolved a strategy in which it has stipulated that 10 km radius of the Okhla Bird Sanctuary and other sanctuaries could be notified as eco-fragile/sensitive area. He also brought to the notice of this Tribunal that thereafter that was re-examined by the Government and the Government has issued a fresh Notification on 27.05.2005 communicating to the State Governments that the State Governments should decide eco-sensitive zones based on site specific concept and the same must be regulatory in nature rather than prohibitive. In the meantime, the matter was taken up by the Hon'ble Apex Court in the case of “Goa Foundation v. Union of India” in writ petition no. 460/2004. In the order dated 04.12.2006, the Hon'ble Supreme Court while continuing the earlier order passed on 16.10.2006 directed the States to identify the suitable areas and also directed the MoEF to give final opportunity to all the States/Union Territories to respond to the letter of the MoEF dated 27.05.2005 It is also stated in the said order that in the communications to be sent to the State Governments it must be made clear that if the proposals are not sent within a period of 4 weeks of receipt of the communication to the Ministry, the Court may have to consider passing further order for implementation of its decision passed on 21.01.2002, to notify the areas within 10 km radius of the boundaries of the National Parks and Wild Life Sanctuaries as eco sensitive areas with a view to conserve the forest, wild life, environment, and having regard to the precautionary principles. The Hon'ble Supreme Court has also stated that if the State/Union Territories now fail to respond, they would do so at their own risk. Finally, the Hon'ble Apex Court has concluded in the said order that the MoEF would also refer to the Standing Committee of the National Board for Wild Life (NBWL), under section 5(b) and 5(c)(ii) of the Wild Life (Protection) Act, the cases where the EC has already been granted when the activities are within the 10 km of the area.

It is, thereafter, certain Notifications were issued by the MoEF in respect of various sanctuaries based on the proposals sent by some of the State Governments. For example, on 27.01.2010, the MoEF has issued a Notification by virtue of the powers conferred under section 3(2) of the Environment (Protection) Act, 1986, in respect of “Sultanpur National Park” including various minute details as eco-sensitive zone. It is also seen that there has been another Notification issued on 22.08.2013 by the MoEF in respect of Marine National Park and Marine Sanctuary identifying as eco-sensitive zone in south coast of Gulf of Jamnagar. But in respect of Okhla Bird Sanctuary, there is no Notification issued regarding the identification of the eco-sensitive area.

It is contended by the Learned Counsel that subsequently, considering the issue relating to the construction of Green parks at NOIDA near the Okhla Bird Sanctuary, in the judgment, reported in (2011) 1 SCC 744, the Hon'ble Supreme Court had occasion to decide exactly about one of the Project Proponents situated within 500 meters from the Okhla Bird Sanctuary. The Learned Counsel would submit that in that case, the Hon'ble Supreme Court has clearly come to a conclusion that in respect of projects covered under item no. 8(a) and 8(b) of the schedule of the EIA Notification, 2006, the contention raised by one of the Counsel that the general conditions would not apply cannot be said to be without substance since there is no mention of anything in column no. 5 of the table. He has also brought to the notice various observations made by the Hon'ble Supreme Court dealing with various contentions, especially the contention raised on behalf of the Government of India, namely, ASG appearing for the Government of India wherein he has conceded that item no. 8(a) and 8(b) in the schedule does not contemplate any general conditions and applicability of the same. Therefore, according to him, these observations made by the Hon'ble Supreme Court cannot be ignored even though ultimately the Hon'ble Supreme Court has decided in respect of issue involved in that case and permitted the project to go on. He has also submitted that in one of the paragraphs, the Hon'ble Supreme Court has stated that the directions given in the case pertains to the facts and circumstances of the said case only. Therefore, it shall not be cited as a precedent when the matter is heard in respect of buffer zone. Therefore, according to him the said paragraph is only in respect of the buffer zone alone where heard by the Hon'ble Supreme Court and all other Courts in India are bound by the various observations made by the Hon'ble Apex Court.

It is seen that the Hon'ble Apex Court was dealing with the project which was started in Sector-95 NOIDA relating to the 5 Parks on the Yamuna front, namely, Mansarovar, Nandan Kanan, Children's Park, Smriti Van and Navagraha opposite to Sectors 14-A, 15A & 16A NOIDA. While dealing with the said projects which are admittedly within the 500 meters from the Okhla Bird Sanctuary the Hon'ble Apex Court has taken note of the pathetic situation of the bird sanctuary and as to how illegal construction has been allowed near the vicinity of the bird sanctuary thereby affecting not only movement of birds but also the environmental conditions. Ultimately, the Hon'ble Supreme Court has come to the conclusion in favour of the projects, based on the reports of atleast three expert bodies, one by SACON, another by Wild Life Institute of India and third by the IIT, Delhi. All the three expert reports pointed out that the presence of the said parks was not impediment to the Okhla Bird Sanctuary. The Hon'ble Apex Court has ultimately held that the felling of trees or construction made therein have no adverse impact on the Okhla Bird Sanctuary habitat. It was in those circumstances, the Hon'ble Supreme Court has allowed the projects to go on.

It is the contention of the Learned Senior Counsel, Mr. Raj Panjwani appearing for the Applicant in the Original Application that the decision taken by the Hon'ble Apex Court in the said case cannot be taken as a precedent to the effect that within 10 km radius of the Okhla Bird Sanctuary, any construction can be put up. According to him, the observation made by the Hon'ble Apex Court stated supra, makes it very clear that the Hon'ble Apex Court has permitted the said project based on various experts reports. Therefore, it does not mean that the earlier order passed in 2006 is not operative. He has also brought to the notice of this Tribunal that in the said judgment regarding NOIDA there is no discussion about the order passed by the Hon'ble Apex Court in the year 2006 in Goa Foundation case. It was also contended by Mr. Panjwani that the total built up area which is covered in the said project dealt with by the Hon'ble Apex Court in the year 2010 is less than 20,000 sq. meters and therefore, even otherwise it does not require EC. It is also his submission that in this case the Government of UP has notified the protected area on 8.05.1990 which is before the amendment brought to Section 18(c) of the Wild Life (Protection) Act, 1972 which was on 2.10.1991 Therefore, according to him the Notification in respect of the said Sanctuary became effective much before the amendment, which has brought in a new concept of “Protected Area” and the term “intention to constitute”, was operational and there is no necessity to form an intention and it notify again. Mr. Panjwani also would submit that one has to go by the contents of Form 1 and 1A submitted by the Project Proponent for seeking EC to find out as to whether all material facts have been recorded at the earlier stage of environmental appraisal.

Ms. Neelam Rathore, Learned Counsel appearing for the MoEF would submit that the Government has evolved a policy in respect of declaration of the eco-sensitive zone and issued guidelines, the State Governments can notify protected area or any sanctuary under the provisions of the Wild Life (Protection) Act. It is the duty of the State Government to send a proposal regarding the declaration of eco sensitive Zone which is to be declared as per the Environment (Protection) Act, by the MoEF. It is only after the said proposals are received from the State Government, the MoEF would issue the proper Notification for the purpose of declaration of the eco sensitive zone. She contended that many letters have been written to various State Governments. She brought to the notice of this Tribunal the latest letter dated 17.10.2013/31.07.2013 written to the State Government in this regard. Inspite of such letters, the State Government has not given its proposal in respect of the Okhla Bird Sanctuary. She would also submit that as soon as the MoEF receives the proposal from the State Government, the MoEF will issue the necessary Notification in accordance with law. She also submits that MoEF has also issued guidelines relating to the declaration of eco-sensitive zone and sent to all State Government on 09.02.2011 Ms. Neelam Rathore would submit that the MoEF has issued Notification on the direction given by the Hon'ble Apex Court in December, 2010. The Government of India has also issued Office Memorandum on 02.12.2009 in terms of the earlier order of the Hon'ble Apex Court dated 04.12.2006

The Learned Counsel for Respondent No. 6 brought to the notice of this Tribunal that in the affidavit dated 17.09.2013 it has been stated that out of remaining 37 projects, EC has been received in respect of 25 projects. He also relied upon the affidavit dated 17.09.2013 wherein Respondent No. 6 has stated as follows:

(a) “The present case is concerned with the projects which are falling within the radius of 10 kms. Although, the Applicant has alleged that he has been able to identify 55 projects within the said radius, upon verification by the Department, it is submitted that 6 (at sl. Nos. 10, 12, 13, 14, 42 & 39 of the list) out of the said 55 projects are outside 10 kms radius. Thus, the list shrinks to 49 nos.

(b) Out of the 49 projects within the 10 kms radius, in respect of 7 projects (at sl. Nos. 3, 29, 36, 44, 45, 46 & 52), no construction has commenced as the layout and building plans are yet to be sanctioned by the Authority.

(c) Out of the 49 projects, a total of 15 nos. of projects (at sl. Nos. 18, 24, 25, 30, 31, 32, 33, 35, 37, 38, 40, 41, 49, 50 & 55) are completed and the completion certificate has been issued.

(d) Out of the remaining 27 nos. of projects, EC has been received in respect of 25 nos. Two projects are of an area of 6000 sq. mts. (sl. no. 31) and 8000 sq. mtrs. (Sl. No. 31) respectively and, therefore, require no EC. The answering respondent reserves it right to file detailed reply to the Original Application in due course.”

We have heard Learned Counsel for the parties in detail and given our anxious thoughts to the issue involved.

Apart from the clarification which we have already made, we would like to, as a matter of interim measure pass some more directions for the purpose of preservation of the Okhla Bird Sanctuary. Accordingly, we pass the following directions:—

1. State of UP shall send its proposal relating to the eco-sensitive zone in respect of Okhla Bird Sanctuary to MoEF within a period of four (4) weeks from today. Thereafter the MoEF shall issue Notification in accordance with law within a period of two (2) weeks.

2. As per the order of the Hon'ble Apex Court in the case of “Goa Foundation v. Union of India” dated 04.12.2006 in the last paragraph as we have stated earlier the Hon'ble Apex Court has given certain terms stated as follows:—

“MoEF would also refer to the Standing Committee of the National Board of Wild Life under section 5(b) and 5(c)(ii) of the Wild Life (Protection) Act, the cases where EC has already been granted where activities are within 10 km radius of the Okhla Bird Sanctuary.”

Therefore, it is clear that the Hon'ble Apex Court has made up its mind that even in respect of closed projects, if they are within 10 km radius of the Okhla Bird Sanctuary, the MoEF has got a duty to refer to the Standing Committee of the National Board for Wild Life. Therefore, we are of the view that in order to give proper meaning to the order of the Hon'ble Apex Court, the MoEF must be directed to refer all these said issues to the Standing Committee of the National Board for Wild Life (NBWL) atleast now and accordingly, we direct that in respect of all projects including buildings situated within the area of 10 km radius of the Okhla Bird Sanctuary and in accordance with the order of the Hon'ble Apex Court stated above, such projects be examined by NBWL. The MoEF shall also refer all the buildings and projects to the Standing Committee of the National Board for Wild Life within a period of four (4) weeks.

3. Accordingly, we direct the Government of UP to send the entire particulars relating to the EC given to all the projects located within 10 km radius of the Okhla Bird Sanctuary to the MoEF within a period of four (4) weeks from today and, thereafter within four (4) weeks, the MoEF shall refer the same to the Standing Committee of National Board for Wild Life. The National Board for Wild Life shall after giving opportunity to the parties concerned, and after conducting enquiry for verifying the correctness of the statement made by the Project Proponent in new cases shall pass appropriate orders within a period of 8 weeks. We make it very clear that in the order passed by the National Board for Wild Life, which shall be specifically indicated as to whether the projects should be permitted or not permitted, if not permitted proper reason should be given and also if permitted with proper environmental safeguards. The National Board of Wild Life shall also issue all mitigative measures for the purpose of the conservation of the Okhla Bird Sanctuary.

4. If in the meantime, based on the proposal given by the State Government, MoEF has given Notification regarding the eco-sensitive zone in respect of the Okhla Bird Sanctuary therein, the NBWL shall act as per the said Notification and pass appropriate orders in terms of the previous paragraphs.

5. We make it clear that all the building constructions made within 10 km radius of the Okhla Bird Sanctuary or within distance of eco-sensitive zone as may be prescribed by the Notification issued by the MoEF shall be subject to the decision of the NBWL and till the time the clearance of NBWL is obtained, the authority concerned shall not issue completion certificates to the projects.

6. In respect of construction made or construction to be made because of the clarification made by this Tribunal, we make it clear that any development made by the developer shall not be entitled to any equity claim in respect of such developments.

7. We make it clear that in respect of the new projects which are being considered for the purpose of issuance of EC either by the State Level Environment Impact Assessment Authority (SEIAA) or by the MoEF within 10 km radius of Okhla Bird Sanctuary till the Notification is issued by the MoEF as Stated above, unless the authority is satisfied that the NBWL has given permission no EC shall be granted. In cases where the EC has been granted, the EC shall be kept under suspension as inoperative unless and until NBWL gives NOC. Otherwise EC may be granted subject to the condition that the parties shall be referred to the MoEF which in turn shall send the project to the NBWL whose clearance shall be final and till such time, no construction shall be permitted in respect of new proposals.

8. We hope that the MoEF will take all necessary steps for the purpose of incorporating this aspect in the EIA Notification, 2006, suitably so as to make it clear to the Project Proponents that NOC or approval of NBWL in such cases is mandatory.

9. We make it clear that all other buildings which are built up without EC within 10 km radius of Okhla Bird Sanctuary or within the territorial limit of eco-sensitive zone as may be notified by the MoEF as stated above are to be declared as illegal constructions and Government of UP shall take immediate steps for removal of those buildings after giving proper notice to the parties concerned.

10. By the next date of hearing, we make it clear that all the Project Proponents before us shall produce the original copies of EC granted to them apart from their copies of Form No. 1 and Form No. 1A submitted by them to the authorities concerned for environmental appraisal.

11. We also make it clear that in respect of any constructions that are made within the said area, the builders shall not use flood lights during the night time which are likely to affect movement of birds.

12. We make it clear that neither the Government of UP nor any other Project Proponent shall be allowed to take water from the Okhla Bird Sanctuary (OBS) places or ground water. As far as removal of water either potable water or ground water within 10 km radius of outer periphery of OBS is concerned, the same shall not be taken by any builder without specific permission of the competent authority.

Since it is stated that the eco-sensitive zone in respect of Okhla Bird Sanctuary is also extendable to the territories of Delhi and Haryana, we hereby implead the State of Haryana, represented by its Chief Secretary, Chandigarh and Govt. of NCT of Delhi by its Chief Secretary, New Delhi as party Respondents.

Issue Notice to the newly impleaded parties i.e the State of Haryana represented by its Chief Secretary, Chandigarh and Govt. of NCT of Delhi by its Chief Secretary, New Delhi by registered post/acknowledgment due and Dasti as well.

Copy of this order to be forwarded to the newly impleaded parties by the Registry.

The Respondents shall file their compliance report by the next date of hearing.

Stand over to 16 December, 2013.

M.A No. 962/2013, M.A No. 963/2013, M.A No. 965/2013 and M.A No. 970/2013 in Application No. 158/2013

The Miscellaneous Applications (No. 962/2013, 963/2013 and 970/2013) filed for impleadment and exemption from filing the original documents are heard and allowed and are disposed of accordingly.

Copies of the application have been served upon the Learned Counsel for original Applicant. The Applicant shall file amended memo of parties by the next date of hearing.

List the M.A No. 965/2013 on 16 December, 2013.