National Green Tribunal
Sudiep Shrivastava vs Union Of India on 29 April, 2019
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
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APPEAL No. 188 OF 2018
(M.A. Nos. 1358/2018 & 1359/2018)
IN THE MATTER OF:
1. Sudiep Shrivastava
R/o Dharam Prakash Chawl
Mungeli Naka, Bilaspur, Chhattisgarh .....Appellant
Versus
1. Union of India
Through the Secretary
Ministry of Environment and Forest and Climate Change
Indira Paryavaran Bhawan
Jor Bagh Road, New Delhi -110003
2. State of Chhattisgarh
Through its Principal Secretary
Forest Department, Mantralaya,
Naya Raipur, Chhattisgarh -492001
3. Chhattisgarh East West Rail Ltd.
Through its Managing Director
Mahadev Ghat Road, Raipura Chowk,
Raipur, Chhattisgarh - 492001
4. Ministry of Railway
Through its Chairman,
Railway Board, Rail Bhawan,
1
New Delhi - 110001
5. Ministry of Coal
Through its Secretary Shastri Bhawan,
New Delhi - 110001
6. Chief Wild Life Warden State of Chattisgarh
Aranya Bhawan, Jail Road
Raipur, Chhattisgarh - 492001
7. IRCON International Ltd.
Through Managing Director
C-4 District Centre, Saket,
New Delhi - 110017
8. South Eastern Coal Fields Ltd.
Through its Chief Managing Director
Seepat Road, Bilaspur,
Chhattisgarh - 495001
9. Project Elephant
Through its Director and Inspector General of Forest
Ministry of Environment and Forest
Indira Paryavaran Bhawan,
Jor Bagh, New Delhi -110003
10. National Tiger Conservation Authority
Through its Director
Ministry of Environment and Forest
Indira Paryavaran Bhawan,
Jor Bagh, New Delhi -110003 .....Respondents
2
COUNSEL FOR APPELLANT (S):
Mr. Rahul Choudhary and Mr. Sany Antony, Advocates
COUNSEL FOR RESPONDENTS:
Mr. Krishan Kumar Singh, Advocate for MoEF & CC
Mr. Naveen R. Nath and Mr. Darpan K.M. Advocate for R-2
Mr. Ajit Kr. Sinha, Sr. Advocate with Mr. R.K. Singh Advocate
for R-3
Mr. Sameer S. Sinha, Advocate for R-5, Ministry of Coal
Ms. Priyanka Sinha, Advocate for R-7
Mr. Ashwarya Sinha, with Ms. Mohini Priya, Advocates for R-8
JUDGEMENT
PRESENT:
Hon'bleMr. Justice Raghuvendra S. Rathore(Judicial Member) Hon'ble Dr.Satyawan Singh Garbyal (Expert Member) Reserved on: 10th April, 2019 Pronounced on: 29th April, 2019
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?
Dr. S.S. GARBYAL, (EXPERT MEMBER)
1. This Appeal has been filed against the order dated 4th July, 2018 passed by State Government of Chhattisgarh, whereby 459.522 ha of Forest land was diverted in favour of Chhattisgarh East West Rail Corridor Ltd. for construction of a Corridor from Marwahi Forest Division (77.178 ha) and Katghora Forest Division (382.344 ha), under Section 2 of 3 Forest (Conservation) Act, 1980 in Bilaspur and Korba Districts of State of Chhattisgarh.
2. It has been alleged that this clearance has been granted against the Principles of sustainable development precautionary principle; violative of the provisions of the Forest (Conservation) Act, 1980; the relevant rules and Guidelines. It has been stated that the Ministry of Environment Forest & Climate Change (MoEF & CC) had issued stage-I clearance on 26.02.2018. However any separate order, as required under the directions of this Tribunal, in O.A. No. 52 of 2015 effective on linear project under Section 2 of Forest (Conservation) Act, 1980, has not been passed and merely on receipt of the compliance report of stage-I, working permission on the condition of demarcation of the forest land, has been granted.
3. It has further been alleged that the demarcation is still not been done and only some alignment boundary pillars are being erected. The said letter has been treated as working permission and the MoEF, despite being aware of these violations, had granted stage-II clearance on 07.06.2018 in a mechanical manner without applying its mind or considering the violations.
4. It has also been alleged that the area in question is a migratory corridor for various Schedule-I species and existence of many critically endangered species of flora and 4 fauna has not been considered either by FAC or MoEF while granting forest clearance.
5. The Appellants have stated that in spite of the project site being adjacent to a Tiger Reserve and also part of elephant habitat area, the proposal was not sent to the National Board of Wild life for approval. Therefore, the following prayers have been made:-
(i) Quash the Section 2 of the FCA 1980 order passed by the State Govt. allowing diversion of 459. 522 Hect of forest land of the Gevra Pendra Rail Line Project, and the Stage-I clearance dated 26th February 2018, Stage II Clearance dated 07.06.2018 granted in violation of FCA 1980 and rules framed there under by the MoEF.
(ii) Restrain the respondents from carrying out any Non Forest Activity including construction of the rail line, felling of trees in the Forest Area as well as in non-forest areas.
(iii) Restrain the Respondents from carrying out any mining activity for the said rail line project in forest land as well as on non-forest land in violation of FCA 1980 and EPA 1986.
(iv) Direct the respondents to carryout restoration of the all lands and do plantation in the area where trees have already been filled. Illegal mining is carried and construction in violation of the FCA 1980 is done.
(v) Direct the respondents to fully comply the Traditional Forest Dwellers Recognition of Forest Right Act 2006 before allowing the rail line project.
(vi) Direct that a comprehensive impact assessment be done for the entire rail corridor project and allied mining activities before submitting any proposal in peace meal.5
(vii) Direct that a comprehensive impact assessment be done so far as impact of the proposed liner intrusion on Tiger Corridor and elephant coming from Odisha and Jharkhand is concerned.
(viii) Pass any other orders that the Hon'ble Tribunal may deem fit in the facts and circumstances of the case.
6. From the records made available, it appears that in principle approval of stage- I clearance for diversion of 459.522 of forest land was granted, on 26th February, 2018, in favour of Chhattisgarh East West Rail Corridor Ltd. for construction of East West Rail Corridor from Marwahi Forest Division and Katghora Forest Division (382.344 ha), under Section 2 of Forest (Conservation) Act, 1980, in Bilaspur and Korba District in State of Chhattisgarh with certain conditions.
Conditions no. xxvi & xxxiii specifically state as follows.
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(xxvi) The State Government shall ensure that settlement of rights, in terms of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, if any on the forest land to be diverted has been completed in accordance with the relevant guidelines issued by the MoEF.
(xxxiii) Grant of working permission to the extant proposal may be considered by the State Government in accordance with the provisions as contained in the MoEF&CC's Guidelines dated 07.01.2015.
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67. Thereafter on receipt of compliance report from the Government of Chhattisgarh and further on the basis of the recommendations of the proposal by the National Tiger Conservation Authority, the final approval i.e. stage-II approval of the Central Government under Section 2 of the Forest (Conservation) Act, 1980 was granted on 7th Jun, 2018 with 32 conditions.
8. Finally the State Government of Chhattisgarh issued an order under Section 2 of Forest (Conservation) Act, 1980 for diversion of 459.522 ha of forest land on 04.07.2018 in favour of Chhattisgarh East West Rail Corridor Ltd. for construction of East West Rail Corridor from Marwahi Division and Kathghora Forest Division in Bilaspur and Korba District in State of Chhattisgarh with 32 conditions. Some of the conditions imposed are as follows:-
(i) It is recommended to revisit of mitigation measures proposed in the mitigation plan proposed by the Forest Department. Chhattisgarh and follow the protocol laid down in WII's guideline document. 'Eco-
friendly measures to mitigate impact of linear infrastructure on wildlife' without proper/ adequate mitigate measures. The Proposed East West Rail Corridor shall compromise the connectivity of the landscape and will result in enhancement of human wildlife conflict.
(ii) The underpasses should be structured in a manner so that they have heights at least equal to their width and openings that allow unobstructed view of habitat so as to maximize their use by wildlife. The dimensions of the underpasses for this landscape should be 300 m span and at least 7 m high span 7 would work for the railway track passing through the reserved forest areas sensitive for wild animal's movements and conflict. The 300 m span refers to clear open passageways excluding the support pillars (WII guidelines, 2016). The Geo locations of the mitigation measures should be finalized after physical inspection involving the representative of NTCA, WII and the CWLW, Chhattisgarh.
(iii) Technology aided surveillance systems such as infra-
red camera based e-Eye, seismic and wireless sensor based monitoring systems developed by IIT, Delhi and WII should be implemented for minimizing animal-rail collisions in the track. The sensors should be placed on both sides of the track in the accident prone areas (for wild animals) and should emit warning signals when being approached by large bodies' animals. NTCA & the Forest Departments of Uttarakhand, MP & Assam have already applied e-Eye and the same technology should be extended for this purpose. Incidents of train animal collisions in many areas of the country (like Rajaji Tiger Reserve, Uttarakhand) have already been minimized by using these technologies.
(iv) Steps should be taken for enhancing the visibility for train drivers along sensitive sections by clearing vegetation, leaving mounds (under supervision of Forest Department) and putting solar light posts at appropriate places.
(v) A joint team comprising of watchmen of forest and railway departments (equipped with wireless sets) should patrol the very critical sections of the track (24X7 basis) and warn the train drivers whenever necessary. A separate team needs to be engaged for disposing food waste and other garbage from the tracks regularly which otherwise might attract animals to approach the track. Care should be taken in planning water point's creations near the track as this might draw more animal movements near the track.
8(vi) Both attacking and exit speed of the passenger and goods trains (especially at night) inside the forested area should be decided after technical deliberations with the Forest Department.
(vii) Standardized signages should be erected at appropriate places along the track sensitizing the drivers and guards. Regular awareness training programs for loco pilots, guards, caterers and other railway officials should be organized in collaboration with the state Forest Department for sensitizing them about the measures need to be taken for averting accidents.
(viii) Construction work should be done during daytime (6AM-6PM) and no night camp of labours should be allowed within the forest area. User agency should also monitor that no labour gets involved in extraction of forest products. Local RFO and forest staff should pay regular and sudden visits to the construction sites for monitoring these.
(ix) The Nodal Officer, Forest Conservation Act, 1980 and user agency should ensure that the construction period within the reserved Forest areas is kept minimal since construction work continued for a longer duration might completely decimate the wildlife populations in the area. Use of pre- fabricated structures is recommended wherever feasible. Light and sound barriers should also be created along the railway as per WII's recommendations (WII guidelines, 2016).
(x) The CWLW, Chhattisgarh should constitute a monitoring committee comprising of forest officials of NTCA, WII, Indian Railway and IRCON representatives to supervise the compliance of the conditions laid in this report during various phases of project implementation.
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9(19) The user agency in consultation with the nodal officer Forest Conservation Act, 1980 Chattisgarh shall create and maintain alternate habitat/home for the avifauna, whose nesting trees are to be cleared in this project. Bird's nests artificially made out of eco-friendly material shall be used in the area including forest area and human settlements, adjoining the forest area being diverted for the project.
(20) Provisions contained in the Wildlife Management Plan prepared for the conservation protection and development of wildlife in the region shall be implemented after incorporating the suggestions of NTCA as contained in their letter no. 7-60/2017- NTCA dated 17.04.2018 in consultation with the PCCF (Wildlife) & Chief Wildlife Warden, Chhattisgarh. Increase in the number and shifting of underpasses/overpasses. If so recommended by CWLW shall be incorporated into the Wildlife Management Plan and the same shall be implemented at the project cost. Approved Management Plan shall be submitted to the Regional Office along with six monthly compliance report;
(21) Speed of the train shall be regulated in the patches of forest areas reported to be used by the Wildlife in consultation with the PCCF (Wildlife) & Chief Wildlife Warden, Chhattisgarh.
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(26) The Nodal Officer Forest Conservation Act, 1980, Chhattisgarh shall complete settlement of rights in terms of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. If any, on the forest land to be diverted in accordance with the relevant guidelines issued by the MoEF.
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109. MoEF & CC, Respondent No. 1, have stated in their reply affidavit, filed on 17.12.2018 that as per their guideline dated 28.08.2015, the procedure for felling of trees and commencement of work have been streamlined which are as follows:-
(i) With a view to facilitate speedy execution of projects involving linear diversion of forest land such as laying of new roads, widening of existing highways, transmission lines, water supply lines, optic fiber cabling, railway lines etc, in-principle approval under the Forest (Conservation) Act, 1980 (FC Act) issued by the Central Government may be deemed as the working permission for tree cutting and commencement of work, if the required funds for compensatory afforestation net present value (NPV), wildlife conservation plan, plantation of dwarf species of medicinal plants, and all such other compensatory levies specified in the in-principle approval are realised from the user agency and where necessary for compensatory afforestation, transfer and mutation of non-forest/ revenue forest land in favour of State Forest Department is affected.
(ii) After aforementioned compensatory levies specified in the in-principle approval are realized from the user agency and where necessary, for compensatory afforestation, transfer and mutation of non-forest/ revenue forest land in favour of State Forest Department is affected , the State Government or a Senior Officer not below the Rank of a Divisional Forest Officer, having jurisdiction over the forest land proposed to be diverted, duly authorized in this behalf by the State Government , shall pass an order for tree cutting and commencement of work of a linear project in forest land for a period of one year.
The Central Government may extend the permission for one more year subject to submission of reasonable progress report from the State Government as regards to the steps taken to comply 11 with the remaining conditions stipulated in the in- principle approval.
(iii) No non-forest activity in the forest area that is covered under Section 2 of the FC Act would be permitted and carried on in any manner whatsoever unless an order specified in para (ii) above has been passed by the competent authority of that State Government and is placed in the public domain by putting it on its website and all other requirements in accordance with law are complied with.
(iv) For the purpose of Section 2A of the FC Act and Section 16 (e) of the National Green Tribunal Act, 2010 (NGT Act) the order for tree cutting and commencement of work of linear project in forest land, specified in para (i) above, shall be an order under Section 2 of the FC Act.
(v) An appeal as per provisions of section 2 A of FC Act and / or Section 16 (e) of the NGT Act can be filed against any such order specified in para (ii) above for tree cutting and commencement of work of linear project in forest land:
(vi) In the event of filing of such appeal, it would be open for the person aggrieved to assail the order/ clearance granted by the Central Government under Section 2 of the FC Act which forms an integral part and sole basis of the order specified in para (ii) above;
(vii) The State Government and the Project proponent shall take further action as has been stipulated by the Hon'ble National Green Tribunal in their Judgment dated 7th November 2012 in Appeal No. 7/2012 to accord publicity and to ensure availability in public domain of in-principle approval under the FC Act accorded by the Central Government and the order specified in para (ii) above. State Government and the project proponent shall also ensure strict compliance of other directions contained in the said judgment; and
(viii) The State Governments, in such cases shall seek and obtain from the Central Government final/ formal approval under the FC Act for diversion of such 12 forest land at the earliest, and in any case not later than five years from the date of grant of the in-
principle approval.
10. It is to be noted that when the proposals were examined by National Tiger Conservation Authority, it was observed as follows:-
1. The proposed broad gauge railway line between Gevra Road and Pendra road via Pasan in Chhattisgarh state was passed by the Cabinet Committee on Economic Affairs (CCEA) in 2013 as a Special Railway Project. The Govt. of Chattisgarh entered into MOU with SECL & IRCON on 03.11.2012 to construct these corridors.
2. The project is envisaged to connect backward areas of the State mostly inhabited by tribals. These villages are mostly inhabited by tribals and do not have public transport system. Construction of East West Rail Corridor will provide much needed infrastructure for development of these tribal areas and tribal people therein. There are 115 villages and 426 hamlets within 5 km influence area of the proposed railway line that are expected to benefit from the proposed railway line. The project is expected to generate 1796 permanent jobs and 2,47,00,000 man days. The project would also act as supporting infrastructure for the transport of coal existing and upcoming mines in the area.
3. The proposed line measures approximately 131.4 km and passes mainly through Revenue forest with patches of protected, Reserved and Village forest falling within Katghora and Pendra Forest Divisions.
Some part of the project area also falls under the Achanakmar-Amarkantak Biosphere Reserve but outside the boundary of Achanakmar Tiger Reserve and also its corridor with Bandhavgarh Tiger Reserve. Faunal species found in the area are spotted deer (Aaxis axis), leopard (Panthera pardus), sloth bear (Melursus ursinus), jackal (Cansis aureus), wild pig (Sus scrofa), hyaena (Hyaena hyaena), 13 Elephant (Elephas maximus). Signs and sightings of these animals have been recorded in several areas.
4. The proposed railway line would fragment the forests leading to creation of smaller habitat patches which would affect the ability of the landscape to harbour any wildlife. The disturbance due to rail and associated activities would also alter the habitat use patterns of wildlife in these areas, and would affect their abilities to travel across habitat patches.
5. The Forest Department has identified 8 locations for mitigation measures. Considering the species in the landscape and locations for mitigation measures as shown during the site visit, the proposed mitigation measures are of very limited use to maintain effective connectivity for the species in the landscape. The mitigation plan to maintain effective connectivity needs to be revisited. According to the WII guidelines Éco-friendly measures to mitigate impacts of linear infrastructure on wildlife', the dimensions of the underpasses for this landscape should be 300 m wide span and at least 7 m high. The Proposed underpasses are not as per the above specifications.
6. As per maps provided by Tiger Cell, Wildlife Institute of India (Figures 1, 2 & 3:- enclosed in the report), the potential pray species, leopard and tiger have been shown to occur on both sides of the proposed railway track which indicates that the track is going to compromise the connectivity of the landscape. The landscape has witnessed elephant, sloth bear and leopard conflict in the past couple of years. The conflict locations of these three species for the years 2013-18 have been plotted across the proposed railway line in Figure 4 and 5. The basic analysis of the conflict locations indicates that the railway track is crisscrossing the areas where there is high conflict. The railway track will result in enhanced conflict in the landscape which may affect conservation in the long-run.
7. As mentioned in the Conservation plan, the proposed habitat improvement exercise by planting tree 14 species preferred by sloth bear, elephants and other animals will lead to enhanced conflict in the area.
11. Thereafter the proposal was recommended by (NTCA) on 17.04.2018 under Section 38 O(1)(g) of Wildlife (Protection) Act, 1972 subject to the strict adherence to the following suggested mitigation measures:-
1. It is recommended to revisit the mitigation measures proposed in the Mitigation Plan proposed by the Forest Department, Chattisgarh and follow the protocol laid down in WII'S guideline document 'Eco-
friendly measures to mitigate impacts of linear infrastructure on wildlife'. Without proper/adequate mitigation measures, the proposal East West Rail Corridor shall compromise the connectivity of the landscape and will result in enhancement of human- wildlife conflict.
2. The underpasses should be structured in a manner so that they have heights at least equal to their width, and openings that allow unobstructed view of the habitat so as to maximise their use by wildlife. The dimensions of the underpasses for this landscape should be 300 m span and at least 7 m high span would work for the railway track passing through the reserved forest areas sensitive for wild animals' movements and conflict. The 300 m span refers to clear open passageways excluding the support pillars (WII Guildelines, 2016). The Geo locations of the mitigation measures should be finalized after physical inspection involving the representative of NTCA, WII and the CWLW, Chhattisgarh.
3. Technology aided surveillance systems such as infra-
red camera based e-Eye, seismic and wireless sensor based monitoring systems developed by IIT, Delhi and WII should be implemented for minimizing animal-rail collisions in the track. The sensors should be placed on both sides of the track in the accident prone areas (for wild animals) and should 15 emit warning signals when being approached by large bodied animals. NTCA & the Forest Departments of Uttarakhand, MP & Assam have already applied e-Eye and the same technology should be extended for this purpose. Incidents of train animal collisions in many areas of the country (like Rajaji Tiger Reserve, Uttarakhand) have already been minimized by using these technologies.
4. Steps should be taken for enhancing the visibility for train drivers along sensitive sections by clearing vegetation, levelling mounds (under supervision of Forest Department) and putting solar-light posts at appropriate places.
5. A joint team comprising of watchmen of forest and railway departments (equipped with wireless sets) should patrol the very critical sections of the track (24X7 basis) and warn the train drivers whenever necessary. A separate team needs to be engaged for disposing food waste and other garbage from the tracks regularly which otherwise might attract animals to approach the track. Care should be taken in planning water point's creations near the track as this might draw more animal movements near the track.
6. Both attacking and exit speed of the passenger and goods trains (especially at night) inside the forested area should be decided after technical deliberations with the Forest Department.
7. Standardized signages should be erected at appropriate places along the track sensitizing the drivers and guards. Regular awareness training programs for loco pilots, guards, caterers and other railway officials should be organized in collaboration with the state Forest Department for sensitizing them about the measures need to be taken for averting accidents.
8. Construction work should be done during daytime (6AM-6PM) and no night camp of labours should be allowed within the forest area. User agency should also monitor that no labor gets involved in extraction of forest products. Local RFO and forest 16 staff should pay regular and sudden visits to the construction sites for monitoring these.
9. The Forest Department and user agency should ensure that the construction period within the reserved Forest areas is kept minimal since construction work continued for a longer duration might completely decimate the wildlife populations in the area. Use of pre-fabricated structures is recommended wherever feasible. Light and sound barriers should be created along the railway as per WII's recommendations (WII guidelines, 2016).
10. The CWLW, Chhattisgarh should constitute a monitoring committee comprising of forest officials of NTCA, WII, Indian Railway and IRCON representatives to supervise the compliance of the conditions laid in this report during various phases of project implementation.
12. It is not worthy to mention that the proposed Rail Line is at a distance of 8.97 km. from Achanakmar Bandhavgarh Tiger Reserve National Park where presence of various important wildlife species like leopard, elephant, sloth bear, spotted deer and hyena have been reported. Further, as per the details of flora and fauna submitted, it has been observed that the area is inhibited by several schedule -1 and critically endangered species.
13. In view of aforesaid submissions made, we are of the considered opinion that sufficient care has been taken to consider all the aspects required while issuing clearances under Forest (Conservation) Act, 1980. Therefore, we do not find any infirmity in the stage-I clearance issued on 26.02.2018, stage-II clearance on 07.06.2018 by MoEF & CC 17 and 04.07.2018 order issued by State of Chhattisgarh, under Section 2 of Forest (Conservation) Act, 1980. Since the settlement of rights in terms of Scheduled Tribes and other traditional forest dwellers (Recognition of Forest Rights) Act, 2006 is not a mandatory requirement while issuing orders for diversion of non-forest purposes under Forest (Conservation) Act, 1980, no such orders are necessary while issuing orders for diversion of forest land. It has already been stated that as part of the conditions of the clearance the State Government shall complete settlement of rights in terms of Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, if any, on the forest land to be diverted in accordance with the relevant guidelines issued by MoEF &CC.
14. However, we are conscious of the fact that area in question is part of the elephant corridor and, therefore, it is required to be kept in such a state that Elephants are able to move freely. We are also aware of the fact that Elephant is a free ranging animal and it is also a 'National Heritage Animal' in our country. Moreover, elephants are frequently subjected to severe man animal conflict situation in several areas. We would, therefore, send this proposal to the National Board for Wildlife in the MoEF&CC for examination so that if necessary, some additional mitigation measures could be imposed for providing free passages for the movement of elephants which 18 would have to be taken up by the project proponent, in addition to what has already been imposed by the National Tiger Conservation Authority.
15. With this direction, this Appeal is disposed of. The MA Nos. 1358/2018 & 1359/2018 also stand disposed, with no order as to cost.
.............................................. Justice Raghuvendra S. Rathore (Judicial Member) .............................................. Satyawan Singh Garbyal (Expert Member) Dated: 29th April, 2019 New Delhi 19