National Green Tribunal
Pradeep Singh Shekhawat vs State Of Assam on 19 February, 2025
Item No.08 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.192/2024/EZ
Pradeep Singh Shekhawat Applicant(s)
Versus
State of Assam & Ors. Respondent(s)
Date of hearing: 19.02.2025
Date of uploading: 01.03.2025
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s) : Mr. Madhav Bhatia, Adv. a/w
Mr. Vivek Sura, Adv. (in Virtual Mode)
For Respondent(s) : Ms. Malabika Roy Dey, Adv. for R-1, 2 & 5,
Mr. P. Nayak, Adv. for R-3 (in Virtual Mode),
Ms. Anamika Pandey, Adv. for R-4 (in Virtual Mode)
ORDER
1. Mr. Madhav Bhatia, assisted by Mr. Vivek Sura, learned Counsel is present (in Virtual Mode) on behalf of the Applicant.
2. Affidavit dated 30.01.2025 has been filed on behalf of the Respondent No.4, Ministry of Environment, Forests and Climate Change (MoEF&CC); the same is taken on record.
3. Rejoinder affidavit dated 14.02.2025 has been filed by the Applicant; the same is taken on record.
(The final order of this case shall be uploaded in the NGT Website by separate sheets of paper) .....................................
B. Amit Sthalekar, JM .............................................
Dr. Arun Kumar Verma, EM
February 19, 2025,
Original Application No.192/2024/EZ
SKB
1
Item No.08 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE) Original Application No.192/2024/EZ In the matter of:
Pradeep Singh Shekhawat, Aged about 37 years, S/o Govind Singh, R/o A-34, A, Vivekanand Colony, Naya Khera, Jaipur, Rajasthan - 302023;
.... Applicant(s) Versus
1. State of Assam, Through its Chief Secretary, Block A, Assam Secretariat, Dispur, Guwahati - 781006 ;
2. Department of Environment and Forest, Assam, Through Principal Chief Conservator of Forests, & Head of Forest, Force Aranya Bhawan, Panjabari, Guwahati, Assam - 781037;
3. Sh. M. K. Yadava, Special Chief Secretary (Forest), D-Block, 2nd Floor, Janata Bhawan, Dispur - 781006;
4. Ministry of Environment, Forest & Climate Change, Through its Secretary, Indira Paryavaran Bhawan, Jor Bagh Road, New Delhi - 110003;
5. Deputy Commissioner, Cachar, Cachar District, Silchar, Assam - 788001 .... Respondent(s) Date of hearing: 19.02.2025 Date of uploading: 01.03.2025 CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER For Applicant(s) : Mr. Madhav Bhatia, Adv. a/w Mr. Vivek Sura, Adv. (in Virtual Mode) For Respondent(s) : Ms. Malabika Roy Dey, Adv. for R-1, 2 & 5, Mr. P. Nayak, Adv. for R-3 (in Virtual Mode), Ms. Anamika Pandey, Adv. for R-4 (in Virtual Mode) 2 ORDER
1. This Original Application has been filed by the Applicant, seeking the following reliefs:-
a. "Issue suitable order/directions directing the Respondents to stop all illegal constructions, including the illegal construction of road to Bhuban Hill, within the Barak Bhuban Wildlife Sanctuary located in Cachar District, Assam;
b. Issue suitable order/directions directing the Respondents to undertake site inspection and assess the damage done to the forest area and to recover payment for Compensatory Afforestation and Net Present Value from the erring officials of the Forest Department were responsible illegal activities;
c. Direct that Sh. MK Yadava and the concerned officials of the Respondent No.2 be made personally liable for the damage caused to the forest area and pay compensation for the loss to ecology and environment;
d. Direct punishment of Sh. MK Yadava-Respondent No.3 and other concerned officials of Respondent No.2 as well as Respondent No.3 under Section 3A and 3B for committing offences under the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980; e. Pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the instant case."
2. The Applicant in the present Original Application is stated to be a resident of A-34, A, Vivekanand Colony, Naya Khera, Jaipur, Rajasthan, and is stated to have conducted a lot of investigative work on the adverse impacts of illegal mining in Rajasthan as well as in Assam.
3. The allegation, inter alia, of the Applicant is of construction of a road within the Barak Bhuban Wildlife Sanctuary without obtaining prior approval from the Central Government as mandated by the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980. 3
4. It is also alleged that the illegal construction is still ongoing and creating an environmental hazard in the said Wildlife Sanctuary.
5. Learned Counsel for the Applicant has also drawn our attention to Annexure-A/7 (page no.78) to the Original Application, which is the Minutes of the field visit of the site in question dated 29.11.2022, and submits that in the report itself it is mentioned by the then PCCF & HoFF, Assam, that diversion of the area under the Forest (Conservation) Act, 1980, and afforestation in an equivalent area elsewhere, in which case, the road as well as the Right of Way (ROW) of the road shall be under the control of the PWD; the Forest Department shall have no control over the road as it will be a public road.
6. Learned Counsel further submits that in the Minutes dated 29.11.2022, two 'Approaches' were suggested for purposes of taking decision. Approach-1 mentions that the Forest Department shall have no control over the road as it will be a public road; whereas Approach-2 mentions that the entire control of the road and Right of Way (ROW) shall continue to be with the Forest Department.
Approach 1 & 2 of the Minutes dated 29.11.2022 read as under:-
"Approach 1: Diversion of the area under FC Act and afforestation in an equivalent area elsewhere, in which case, the road as well as the ROW of the road shall be under the control of the PWD; the Forest department shall have no control over the road as it will be a public road.
Approach 2: The entire land to be under the control of the Forest Department by way that the road to be developed by PWD on behalf of the Forest Department. In that case the entire control of the road and ROW shall continue to be with the Forest Department."
7. Learned Counsel further submits that subsequently in the said Minutes a decision was taken that the Forest Department will have full control of the road as it will be a departmental road with right of the PWD to maintain it at regular intervals. Learned Counsel, 4 therefore, submits that construction of the road over the land which is admitted in the report to be forest land would amount to diversion of forest land which is not permitted without sanction of the Central Government in view of the mandatory provisions of Section 2 of the Forest (Conservation) Act, 1980, irrespective of whether the Forest Department will have full control of the road as mentioned in the Minutes dated 29.11.2022.
I.A. No.70/2024/EZ:-
8. I.A. No.70/2024/EZ has also been filed by the Applicant, seeking stay of illegal construction including the illegal construction of road to Bhuban Hill within the Barak Bhuban Wildlife Sanctuary located in Cachar District of Assam, and for constituting a Committee to assess the extent of illegal diversions within the said Sanctuary.
9. The Tribunal at the time of admission, considered the allegations and by way of interim measure directed that unless and until there is sanction from the Central Government as required under Section 2 of the Forest (Conservation) Act, 1980, no construction shall be permitted within the Barak Bhuban Wildlife Sanctuary during the pendency of the present Original Application.
10. We have heard learned Counsel for the parties and perused the documents on record.
11. Annexure-A/7 to the Original Application is the Minutes of the Meeting held on 29.11.2022 with regard to construction of approach road to the Bhuban Hills under Barak Reserve Forest, Cachar Forest Division, Silchar and with regard to the approach roads two options have been suggested which have already been extracted hereinabove. The Minutes of the Meeting further disclose that team of Senior Officers of the Forest Department visited the 5 site and took stock of the situation and it was noticed that the local people who have an inkling that a PWD road will be constructed here have already started constructing pucca and kaccha sheds/shops in the area on the sides of the present kaccha road leading to the Bhuban Hill. However, it is stated that all such works were stopped on the spot and the occupants were told to remove the structures forthwith and it was seen that the areas surrounding the proposed road already had marks of human presence such as lopping, jhumming, pan jhum. In the meeting the following decisions was taken:-
"1. The road is a dead end and does not create a thoroughfare and does not connect to any other public road.
2. Further, that if the area is diverted, the road along with the ROW would become non forest and stopping establishments coming up along the ROW will not be possible as the area shall go out of the control Forest Department. As already seen on the ground, the human activities such as construction of shops. Sheds, houses, dwelling units and other activities such as Jhum, Pan Jhum, lopping and felling of trees would increased in near future and it would not be possible to stop these as the ROW areas would not be in control of the Department.
3. The Forest Department itself needs quick access to the area and easy movement of patrolling parties and Forest Forces for protection purposes. Further, if the area is retained under the control of Forest Department, the access control would be exercised by the Forest Department and any unauthorized constructions etc. can be easily evicted and protection of the said area would enhance. And the pristine nature of the forest of the evergreen forest occurring in the area can be maintained. Further, the entry and the exit would be regulated by the Forest Department.6
4. since the Forest Department does not have adequate fund or the expertise to construct such a road with sharp gradient, the Department may taken assistance from PWD to construct the road, including funding from the available resources of PWD; while the PWD would not be having any rights on the land other than maintenance & upkeep of the said road."
12. It was also decided that the road construction would be taken up departmentally through the PWD from the resources available and the Forest Department will have full control of the road as it will be a departmental road with right of the PWD to maintain it at regular interval.
13. A counter-affidavit dated 30.01.2025 has been filed by the Respondent No.4, Ministry of Environment, Forests and Climate Change, stating that the State Government of Assam has issued a Notification dated 25.07.2022 published in the official gazette of Assam notifying 320 sq. km. comprised within the boundaries described as Barak Bhuban Wildlife Sanctuary in the Cachar District of Assam. It is also stated that no proposal either under the Wild Life (Protection) Act, 1972 for consideration by the Standing Committee of the National Board for Wild Life or Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 for seeking approval of the Central Government for construction of road to Bhuban Hill within the Barak Bhuban Wildlife Sanctuary has been received in the Ministry till date.
14. The State Government in its affidavit has confirmed that the Government of Assam has declared its intention to constitute the area described in the Preliminary Notification dated 25.07.2022, as the Barak Bhuban Wildlife Sanctuary; the proposed Barak Bhuban Wildlife Sanctuary comprises of parts of Barak Reserve Forest and 7 the Inner Line Reserve Forest. It is also stated that even otherwise under the provisions of Section 27 to 33A of Wild Life (Protection) Act, 1972 applied to the area which is not the reserved forests or territorial waters. The said areas as on date are legally a Reserve Forest, pending the final notification as a Wildlife Sanctuary. It is further stated that in the Bhuban Hills which is a part of the Barak Reserve Forest there is a temple being Bhuban Temple situated at the top of the Bhuban Hill which is a historical site of great spiritual significance since the 18th century, dating back to the reign of Dimasa Heramba King, Krishna Chandra Narayan (1774 - 1813), which makes the temple more than 250 years old.
15. It is stated that as per topographic sheet of the Survey of India, the height of the temple is 775m from the Mean Sea Level (MSL) and there was also a Forest Rest House at the top, however, is not traceable currently and the said track route is also clearly seen in the topographic map; the road is primarily used by the Forest Department personnel for patrolling; the vehicular movement is almost impossible as earlier the road was kaccha and steep but due to aggressive nature of encroachment from across the border, patrolling of the area with armed battalion has become a necessity.
16. Referring to the Minutes of the Meeting dated 29.11.2022, it is stated that the road in question is an internal road of the Department and the reason for not allowing the PWD to build their own road under Approach 1 option, is that the road would, then, become a public road and the Forest Department would have no control over the flow of traffic. It is also stated, and is also clear from the Minutes of Meeting that the road in question is a dead end 8 and does not create a thoroughfare and does not connect to any other public road.
17. It is categorically stated in the affidavit of the State Government that the Minutes of the Meeting also clearly states that if the area is diverted, the road in question along with the Right of Way would go out of the control of the Forest Department and growth of human activities such as construction of shops, sheds, houses etc. would increase in the near future and it would not be possible to stop these illegal activities as the Right of Way areas would not be under the control of the Forest Department.
18. Referring to the Minutes of the Meeting, it is stated that the MoM itself notes the Forest Department itself needs quick access to the area and easy movement of patrolling parties and Forest Force for protection purposes; if the area is retained under the control of the Forest Department, the access control would be exercised by the Forest Department and any unauthorized construction etc. along the road can be easily evicted and protection of the forest area would be enhanced. It is further stated that since the Forest Department itself does not have the financial resources/fund or expertise to construct such road with over a sharp gradient, the Department may take assistance from the PWD to construct the road including funding from the available resources of the PWD but the PWD will not be having any rights on the road other than maintenance and upkeep of the road.
19. In the Google images which are on record, it is stated that the road is shown in red color; the temple is located inside the Barak Reserve Forest but is outside the boundary of the Proposed Barak Bhuban Wildlife Sanctuary; most of the road, except a treacherous 9 'U' turn also falls outside the Proposed Barak Bhuban Wildlife Sanctuary; the length of the road falling within the Proposed Sanctuary, pertaining to the 'U' turn is roughly 1.11 km out of the total length of 8 km of the road; it is stated that the Bhuban Temple though located inside Barak Reserve Forest is kept outside the Proposed Barak Bhuban Wildlife Sanctuary, so that the devotees do not have to face any hardship in reaching the temple.
20. It is also stated that on 26.02.2013, the Ministry of Home Affairs, Government of India, to a Lok Sabha question Nos.3, 4 and 5, replied that three devotees were killed on 12.02.2010 in Buban Hills on Maha Shivaratri day; there was a further news report of "North East Now" dated 05.03.2022 stating that five people were found dead at a different location in the Bhuban Hills of Cachar District and another news report in "Barak Bulletin" dated 02.03.2022 which mentioned that Maha Shivaratri was on 01.03.2022 and some pilgrims had died in the Bhuban Hills Pilgrimage. Again, there was a report on 18.02.2023, Maha Shivaratri day and the "Assam Tribune" dated 19.02.2023 reported that two devotees were reported to be dead. It is stated that these news items clearly show that there is a large gathering of devotees on Maha Shivaratri day at the top of the Bhuban Hill and due to lack of appropriate road communication from the foot of the hill to the Bhuban Temple which is about 775m from the Mean Sea Level (MSL) there were some casualties.
21. Reference has also been made to a news report published in "Barak Bulletin" dated 17.07.2024 which stated that arms were recovered from Bhuban Pahar and Hmar militants were killed in crossfire and large cache of arms was stated to have been recovered from the 10 Bhuban Hills and the police had to engage in an armed conflict with heavily armed militants; three persons were apprehended with AK-47 Rifles while approaching the Bhuban Hills and during interrogation, it was revealed that their counterparts were taking shelter around the Bhuban Hills with huge cache of arms to carry out some subversive activities on the Assam - Manipur border areas. It is stated that the police along with commando battalion launched a special operation in the area of the Bhuban Hills encountering sudden firing attack by the suspected militants taking shelter behind the steep hills and there was heavy exchange of fire from both sides. It is stated that the southern boundary of the proposed Barak Bhuban Wildlife Sanctuary goes along the Mizoram border and three encroachments have been reported by the Divisional Forest Officer, Cachar Division. It is further stated that in the absence of proper security and proper road communication, it will be next to impossible to control encroachments, forest destruction, tree felling and militants activities, arms smuggling and drug trafficking which are a great threat to the internal security of the State.
22. Reference has also been made to the Government of India, MoEF, Notification dated 29.04.2005, copy of the Notification filed along with the affidavit, at page no.366 of the paper-book, which requires that the following conditions are to be met for construction of kutcha road to pucca road:-
"a) The 'Kutcha' road must be existing prior to 1980 'Pucca'.
b) If the road is not black topped/tarred, the upgradation is allowed without any permission.11
c) If the 'Pucca' road is tarred, it would need prior Environmental Clearance (EC).
d) As black topped 'Pucca' road would require prior EC, the permission of the National Board of Wildlife (NBWL) would be required as well."
23. From the photographs which have been filed, we find that the road in question are made of Paver Blocks and it is stated that rural roads are constructed in this fashion as per the Pradhan Mantri Gram Sarak Yojna (PMGSY) Guidelines. We have perused the MoEF Notification dated 29.04.2005 which clearly mentions that kutcha roads constructed prior to 1980 in forest areas for conversion to pucca roads, the certain conditions must be borne in mind; the Notification dated 29.04.2005 is extracted herein below:-
"1. The up-gradation of roads constructed in forest areas prior to 1980 from 'Kutcha to Pucca' is allowed to the extent that these roads are not black topped/tarred, and if during the process of up-gradation, thee roads need to be black topped/tarred, prior environmental clearance shall be sought by the user agency in this regard.
2. For such up-gradation in protected areas like National Park/Sanctuaries, prior permission of National Board of Wildlife and the Supreme Court shall be taken by the State / UT Government.
3. Fire for melting of coal tar and mixing, shall be lit at a safe distance from the trees/vegetation, which shall be decided by the concerned Divisional Forest Officer. For such constructions, it is better to avoid dry/hot windy seasons. For this purpose, fuelwood shall be purchased by the implementing agency in advance from the deport of State Forest Development Corporation.
4. No crushing/breaking of stones shall be allowed inside forest areas. Readymade materials shall be used for up-gradation of such roads.12
5. Both sides of the up-graded roads shall be reinforced with brick/stone works, and vegetative measures to check soil erosion, at the project cost, in consultation with the Divisional Forest Officer.
6. No tree felling shall be allowed.
7. No widening of roads shall be undertaken without prior permission of the Central Government under Forest (Conservation) Act, 1980.
8. No breaking of fresh forest land shall be carried out.
9. Plantation activities if the concerned Divisional Forest Officer funds it necessary, shall be taken up along the road at the project cost immediately. The plantation shall be maintained at the project cost.
10. No labour camp shall be established on the forest lands.
11. No work shall be allowed after sunset.
12. Any other conditions that the Divisional Forest Officer may impose from time to time to the protection and improvement of flora and fauna in the forest area, shall be applicable.
13. Any damage to forest area due to such up-gradation works shall be compensated by the implementing agency from the project cost. The extent of damage shall be assessed by the concerned Divisional Forest Officer.
14. State Forest Department shall establish permanent check posts o strategic locations on such roads which are already up- graded/under up-gradation."
24. A perusal of the Notification provides that up-gradation of roads constructed in forest areas prior to 1980 from 'Kutcha to Pucca' is allowed to the extent that these roads are not black topped/tarred and if during the process of up-gradation these roads need to be 13 black topped/tarred, prior Environmental Clearance shall be sought by the user agency in this regard.
25. Mr. Madhav Bhatia, learned Counsel for the Applicant agreed that Kutcha road might have existed prior to 1980 and submitted that from the photographs it would be noticed that the road is being widened and both sides of the road have been cleared of vegetation.
26. As we have already noted hereinabove the road in question is clearly observed to be a paver road made of pavement tiles. The MoEF Notification dated 29.04.2005 provides that both sides of the up-graded roads shall be reinforced with brick/stone works, and vegetative measures to check soil erosion, at the project cost, in consultation with the Divisional Forest Officer. It also mentions that no widening of roads shall be undertaken without prior permission of the Central Government under Forest (Conservation) Act, 1980
27. The photographs clearly show that the road itself is not being widened though the area has been widened and some areas also show landslides. The learned Counsel for the Government of Assam also submitted that in furtherance of the directions given in the MoEF Notification dated 29.04.2005, both sides of the upgraded roads are to be reinforced with brick/stone works and vegetative measures to check soil erosion.
28. The learned Counsel for the Government of Assam stressed that the road is neither being black topped/tarred nor are trees being felled indiscriminately in the area and whatever up-gradation works have been carried out of the Kutcha road which has existing since prior 1980 the same is being carried out strictly within the parameters laid down by the MoEF in its Notification dated 29.04.2005. The 14 photographic evidences which have been filed with the Original Application as well as the affidavits of the Respondents clearly show that the there is no road widening nor is the road being upgraded by black topping/tarring. It cannot be said that both sides of the road cannot be widened in order to meet the necessity and requirements of para-5 of the MoEF Notification dated 29.04.2005.
29. Thus, there has existed a Kutcha Road prior to 1980 and upgrading is through paver blocks and not tarring and also the road has not been widened. There is impact of landslide and soil erosion along the road, so reinforcement appears necessary. This is not in violation of Forest (Conservation) Act, 1980 and is in line with the guidelines of MoEF&CC.
30. We, therefore, dispose of this Original Application with a direction to the Respondents to ensure that in the matter of up-gradation of the paver road in question, the directions and guidelines laid down in the MoEF Notification dated 29.04.2005 are strictly observed in letter and spirit.
31. I.As. if any, stand disposed of accordingly.
32. There shall be no order as to costs.
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B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM February 19, 2025, Original Application No.192/2024/EZ MN 15