GAURAV KUMAR BANSAL v. UNION OF INDIA, National Green Tribunal, Judgment, Law, casemine.com

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Case Number

Original Application No. 411/2019 / DELHI

Judges

Mr. Justice Adarsh Kumar Goel
Mr. Justice Sonam Phintso Wangdi
Mr. Justice K Ramakrishnan
Dr. Nagin Nanda
Mr. Saibal Dasgupta

Acts

SECTION 38 A WILD LIFE PROTECTION ACT 1972
FOREST CONSERVATION ACT 1980
Section 38 (1)(g) of the Wildlife (Protection) Act, 1972
section 38 (0) (1) (b) of the Wildlife (Protection) Act, 1972.

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Smart Summary

Factual and Procedural Background

The application concerns the construction of the Laldang-Chillarkhal Road (11 km) within the buffer area of the Rajaji Tiger Reserve, Uttarakhand. The applicant raised concerns that the road construction was carried out without obtaining the necessary statutory clearances and safeguards, potentially causing damage to biodiversity and biological resources. The National Green Tribunal (NGT) considered the matter and sought a factual and action taken report from a joint Committee comprising representatives from the Ministry of Environment, Forest and Climate Change (MoEF&CC), Public Works Department (PWD) Uttarakhand, and National Tiger Conservation Authority (NTCA).

The Committee’s report, filed on 30.09.2019, found that the road construction violated provisions of the Wildlife (Protection) Act, 1972, and the Forest (Conservation) Act, 1980, since the road traversed a tiger corridor and was undertaken without the requisite clearances and approvals, including from the NTCA and Standing Committee of the National Board for Wildlife (NBWL). The report highlighted that forest land transfers for the road were in contravention of legal guidelines and that permissions for widening the road had not been obtained.

The Tribunal also noted a Supreme Court order dated 29.07.2019 in a related matter directing the State of Uttarakhand to withdraw certain orders permitting road activities within the Rajaji Tiger Reserve and mandating statutory approvals under Section 38 of the Wildlife (Protection) Act, 1972 before any such activities.

Following these developments, the only issue remaining before the Tribunal was the determination of appropriate mitigation measures for protecting biodiversity and biological resources affected by the construction already undertaken. The application was accordingly disposed of.

Legal Issues Presented

Whether the construction of the Laldang-Chillarkhal Road within the Rajaji Tiger Reserve buffer zone was carried out in compliance with statutory clearances under the Wildlife (Protection) Act, 1972 and the Forest (Conservation) Act, 1980.
Whether the State government’s actions permitting road construction without referral to the National Tiger Conservation Authority and Standing Committee of the National Board for Wildlife violated relevant statutory provisions.
What mitigation measures are required to protect biodiversity and biological resources following the unauthorized construction activities.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal analyzed the application of the Wildlife (Protection) Act, 1972, particularly Section 38, and the Forest (Conservation) Act, 1980 in the context of the road construction within a notified tiger reserve. It relied on the joint Committee's report which found violations of statutory provisions, including failure to obtain mandatory clearances from the NTCA and non-compliance with guidelines for forest land transfers and linear projects under the Forest Conservation Rules. The Tribunal also considered the Supreme Court’s order directing the State of Uttarakhand to withdraw prior permissions for road activities and to obtain statutory approvals before undertaking any such development within the tiger reserve.

Based on this legal framework and factual findings, the Tribunal concluded that the primary issue remaining was to address mitigation measures for the damage already caused. It entrusted this responsibility to the Forest Department of Uttarakhand in consultation with its Wildlife Wing, thereby avoiding further intervention on the legality of the construction itself given the Supreme Court’s directions.

Holding and Implications

The application is disposed of.

The Tribunal’s decision effectively confirms that the construction of the Laldang-Chillarkhal Road violated statutory provisions under the Wildlife (Protection) Act, 1972 and the Forest (Conservation) Act, 1980 due to lack of requisite clearances. The immediate consequence is that no further road development activities shall proceed without obtaining mandatory statutory approvals as per the Supreme Court’s order. The Tribunal directs the State Forest Department to implement mitigation measures to protect biodiversity and biological resources affected by the existing construction. No new precedent was established by this order; it primarily enforces compliance with existing environmental protection laws and Supreme Court directions.

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GAURAV KUMAR BANSAL v. UNION OF INDIA

Item No. 07 Court No. 1

BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

Original Application No. 411/2019 (I.A. No. 299/2019)

(With Report dated 30.09.2019) Gaurav Kumar Bansal Applicant(s) Versus

Union of India & Ors. Respondent(s) Date of hearing: 28.11.2019

CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON'BLE MR. JUSTICE S.P WANGDI, JUDICIAL MEMBER HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE DR. NAGIN NANDA, EXPERT MEMBER HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER

For Applicant(s): Mr. Gaurav Kumar Bansal, Advocate For Respondent(s): Mr. Vidyottma and Mr. S.D. Singh, Advocates

ORDER

1. The issue raised in this application relates to ex-situ conservation and in-situ conservation methods for protection of biodiversity and biological resources of Laldang- Chillarkhal Road buffer area of Rajaji Tiger Reserver, Uttarakhand. According to the applicant, in the course of construction of road, there was a potential for damage to the biological diversity and biological resources as road was being constructed without statutory clearances and requisite safeguards.

2. The matter was considered on 03.05.2019 and a factual and action taken report was sought from joint Committee comprising representatives of the Additional Director General, Wildlife,

MoEF&CC, PWD, Uttarakhand and National Tiger Conservation Authority.

3. Accordingly, report has been filed on 30.09.2019 recommending as follows:-

"Since, the Laldhang-Chillarkhar road (11 km) falls within Rajaji tiger reserve, and matter was not referred to the NTCA for comments, all actions taken by the Uttarakhand Govt for allowing construction of road under the Forest (Conservation) Act, 1980 are violative of the provision under section 38 (0)

(1) (b) of the Wildlife (Protection) Act, 1972. Since, the road traverses through identified tiger corridor between Rajaji and Corbett Tiger Reserve, its construction is also violation of the Section 38 (1)(g) of the Wildlife (Protection) Act, 1972 that empowers the NTCA to "ensure that the tiger reserves and areas linking one protected area or tiger reserve with another protected area or tiger reserve are not diverted for ecologically unsustainable uses.

Further, Letter No. 6-10/2011 WL dt. 19.12.2012 (Annexure-

X) from the Wildlife Division of the Ministry of Environment and Forests on the subject "Guidance document for taking up non-forestry activities in wildlife habitats"

vide S.N. 3.3: "Activities inside a tiger reserve" clearly stipulates that any proposal involving any area under the notified Tiger Reserve will also be governed by the relevant provisions applicable to the Wildlife Sanctuaries and therefore, will be referred to the Standing Committee of NBWL for consideration. The Wildlife Division of the Ministry has also circulated a letter dtd 10.04.2015 to all Principal Secretary (Forests), all CWLWs and PCCFs

(Annexure-XI) for online integration of Wildlife Clearance with Forest and Environmental Clearances. Since, the whole stretch of 11 km from Laldhang to Chillarkhar lies within the notified tiger reserve, thus the forest land transfer for two stretches involving less than 1 hectare of forest land for road construction is in contravention of the guidelines seeking recommendations of Standing Committee of National Board of Wildlife for activities in protected areas.

The middle portion (4.7 km length) of the road is still forest land and the work of culvert making at three different locations [See 4.1.1(li)] has almost been completed. Except the pucca black topped road of initial 2.75 km from Laldhang side, most part of road is more than 3 metre wide. The requite permissions for taking up these works have not been taken for extending the width of road.

The Forest (Conservation) Act, 1980 and Forest Conservation Rules, 2003 (Guidelines and Clarifications) issued by the MoEF86CC vide Section 11.2 (chapter 11) reads " Any proposal for linear projects such as roads, railway

line, transmission lines, etc need to be processed in their entirety for comprehensive assessment of requirement of forest land...(MoEF&CC's F.No. 11- 63/2012-FC dtd 7.1.2013)" Two separate cases of land transfer at two different occasion (3.0 km and 3.3 km) out of total 11 km length to PWD by the Uttarakhand Govt is in contrary to the guidelines of the Forest (Conservation) Act, 1980."

4. We are also informed that Hon'ble Supreme Court has passed an order on the subject on 29.07.2019 in W.P. No. 202/1995 (I.A. No. 90182/2019) as follows:-

"(2) INTERLOCUTORY APPLICATION NO. 90182 OF 2019

(APPLICATION FOR DIRECTION)

IN RE: RAJAJI TIGER RESERVE, STATE OF

UTTARAKHAND

The State of Uttarakhand is directed to withdraw the orders dated 07.12.2018 and 28.12.2018 forthwith and the orders shall not be acted upon. Similarly, it is also ordered that the State Government shall obtain the statutory approvals, required under Section 38 of the Wild Life (Protection) Act, 1972 before undertaking road development activities within Rajaji Tiger Reserves. No road activity shall be undertaken without obtaining statutory approvals under Section 38 of the Wild Life (Protection) Act, 1972.

It is open to the State of Uttarakhand to approach the Ministry of Environment and Forest in accordance with law.

I.A. No. 90182/2019 in W.P. (C) No. 202/1995 is, accordingly, disposed of.

Thus, no further orders are required in Report Nos. 16/2019 and 21/2019, which are also disposed of."

5. In view of the above, only issue which survives is the mitigation measures for the protection of bio-diversity and bio-logical resources on account of construction already made. This aspect may be looked into by the Forest Department of the State of Uttarakhand in consultation with Wildlife Wing of the said Department.

The application is disposed of. Adarsh Kumar Goel, CP

S.P Wangdi, JM

K. Ramakrishnan, JM

Dr. Nagin Nanda, EM

Saibal Dasgupta, EM

November 28, 2019

Original Application No. 411/2019 (I.A. No. 299/2019)

GAURAV KUMAR BANSAL v. UNION OF INDIA

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

GAURAV KUMAR BANSAL v. UNION OF INDIA

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