National Green Tribunal
Sudiep Shrivastava vs Union Of India on 8 August, 2019
Bench: Adarsh Kumar Goel, K. Ramakrishnan
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 470/2015
(M.A. No. 1076/2015),
(M.A. No. 505/2017) &
(M.A. No. 860/2017)
WITH
Appeal No. 151/2015
(M.A. No. 1349/2015),
(M.A. No. 458/2016) &
(M.A. No. 860/2016)
WITH
Appeal No.01/2018
(M.A. No. 04/2018)
Sudiep Shrivastava & Anr Applicant(s)
Versus
Union of India & Ors Respondent(s)
With
Sudiep Shrivastava & Anr Applicant(s)
Versus
Union of India & Ors Respondent(s)
With
Sudiep Shrivastava & Anr Applicant(s)
Versus
Union of India & Ors Respondent(s)
Heard on: 16.07.2019
Uploaded on: 08.08.2019
CORAM:HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant/Appellant(s): Mr. Ritwik Dutta & Mr. Rahul
Choudhary, Advs for Appellant
For Respondent (s): Mr. Balendu Shekhar, Adv for R-1, 5 &
8
Ms. Priyanka Sinha, Adv for R-4 & 7
Ms. Deepa Rai, Adv for CERL
Mr. A.K. Prasad, Adv for R-9
Mr. Om Prakash, Adv for M/o Railways
Mrs. Shashi Juneja, Adv for
Chattisgarh
Mr. Soumyajit Pani, Adv for Odisha
1
ORDER/JUDGEMENT
Per Justice K. Ramakrishnan, Judicial Member
1. The Ministry of Railway though IRCON and Government of
Chhattisgarh have formed a Company in the name of
Chhattisgarh East Rail Ltd (herein after called CERL). They
decided to lay a railway line from Kharsiya near Raigarh to
Dharam Jaigarh of around 74 Km with a spur for Daunga
Mahua in between of around 30 Km, totalling a length of
104 Km in Raigarh district of Chhattisgarh. The above such
area is situated within two Forest Divisions namely Raigarh
and Dharam Jaigarh.
2. The said Rail Corridor is primarily to transport coal from
existing mines of Chhal area and of Gare Pelma area
besides from virgin coal blocks of Dharam Jaigarh area of
Mand Raigarh Coal fields.
3. The MOU with regard to the rail corridors was signed during
2012 between the State of Chhattisgarh and Ministry of
Railways on some preliminary findings with the
understanding that the mining companies would be invited
to invest in the project which would be treated on Public
Private Parameter mode.
4. The portion between 10 and 74 km area was allotted to the
CERL. The State Government had forwarded the proposal
with all documents submitted by the project proponent for
this project for conversion of 76.099 ha of forest land for
this purpose under Section 2 of the Forest (Conservation)
2
Act, 1980 for permission to MoEF & CC who in turn
forwarded the same to Forest Advisory Committee (FAC) for
its scrutiny and recommendations.
5. Accordingly the FAC considered the proposal and on
22.12.2014, in the meeting of the Forest Advisory
Committee (hereinafter referred as FAC), the matter
regarding diversion between 76.099 hectare of forest land
for the construction of the rail line between Kharsiya and
Dharam Jaigarh (the spur between Gharghoda and Donga
Mauha not included) was considered and the same was
recommended to the Ministry of Environment, Forest and
Climate Change (MoEF & CC).
6. On the basis of the recommendations of the Forest Advisory
Committee, the MoEF & CC had issued Stage-I approval
known as "in principle" approval dated 26.02.2015 to the
State of Chhattisgarh by citing 30 preconditions which are
required to be complied by the State Government or project
proponent. One of the conditions was with regard to
preparation of Wildlife Management Plan and also a study
pertaining to underpasses.
7. Thereafter on getting report of compliance from the State of
Chhattisgarh, the MoEF vide order dated 22.05.2015
granted formal approval known as Stage II approval for
diversion of forest land for this purpose.
8. When the applicant/appellant came to know that final order
regarding diversion of the above forest land for this purpose
3
was not granted by the State Government under Section 2
of the Forest (Conservation) Act, 1980 and when he came to
know that without obtaining the same the project proponent
namely CERL was proceeding with the cutting of trees, he
filed O.A. No 470/2015 stating that without getting the
clearance from the State Government on this regard under
Section 2 of the above said Act, proceeding with the cutting
of trees is illegal. He has also alleged in the petition that
the granting in principle approval and formal approval by
the MoEF for this project on piecemeal manner is not legal.
Further neither the MoEF & CC nor the Forest Advisory
Committee nor the State Government had applied their
mind regarding the impact of the project on forests, wild
life, human-elephant conflict and the ecology and without
conducting a comprehensive study of the entire project
involving a large area of forest, granting approval is not
legal. Further self work group created by State Government
for this purpose is also not proper. The formal approval
was granted without studying the Wildlife Management Plan
which was directed to be prepared by the project proponent
as one of the conditions in the "in principle" approval
granted. The authorities have not considered the impact of
the project on the movement of elephants in that area,
number of elephant corridor within that area and the
mitigation measures taken by the project proponent to
mitigate that situation and also number of death of
4
elephants and human happened in that area before
granting the approvals. So the applicant/appellant, on the
impression that no final forest clearance was granted, filed
originally O.A 470/2015 seeking following reliefs;
i. Restrain the respondents from carrying out any Non
Forest Activity including felling of trees in the Forest
Area in question.
ii. Direct the State Government to initiate Criminal
Proceedings/Departmental Proceedings against the
Officials and other persons involved in the violation of
the provisions of the Forest (Conservation) Act, 1980.
iii. Direct that a Comprehensive Impact Assessment be
done so far as the impact of the proposed liner
intrusion on elephant population in Orissa and
Jharkhand is concerned.
9. In that case the State of Chhattisgarh and Chief Wildlife
Warden have filed a joint reply statement denying the
allegation. They have stated that in order to improve the
connectivity of the people living in remote areas and to
facilitate both freight and passenger traffic in remote areas
of Northern Chhattisgarh, the State Government of
Chhattisgarh as part of Rail Infrastructure Development
Programme identified the proposed corridor for developing
rail corridor through integrated infrastructure development
committee. To implement the same, a joint venture
company by name Chhattisgarh East Rail Limited (CERL)
5
comprising of Government of Chhattisgarh, South East
Coalfields Limited and IRCON was formed.
10. To carry out the aforesaid purpose, diversion of 76.099
ha of forest land was proposed which was subject matter of
the present application. Out of the proposed area, Revenue
Forest Land comprises of 49.245 ha and
protected/reserve/orange forest comprises about only
26.245 ha in the Dharamjaigarh and Raigarh divisions was
proposed. The forest area to be diverted within this division
excluding the revenue forest is only 26.245 ha of the entire
project area of 342.421 ha which will come to only 7.62 % of
the total land required. The proposed corridor was designed
considering its geographical features of various routes,
existing water sources and forest land. It contains built up
areas, coal bearing areas, power lines and forest land and in
fact, the forest area including revenue forest comprises only
22.2 % of the entire proposed rail corridor which is very
insignificant comparing the total forest area of the State.
11. The entire forest area in that State is roamed by
elephants. The proposed area to be diverted for the project
falls under the area roamed by migrant elephant which is a
long ranging nomadic animal which can travel more than
25 kms in a day. There is no area notified as elephant
habitat or elephant corridor in the State of Chhattisgarh.
They have stated that only after considering their
responsibility of protecting forest and environment and
6
strictly in accordance with the provisions of the Forest
Conservation Act that Stage-I approval was granted on
26.02.2015 and Stage-II approval was granted on
22.05.2015. As per the circular issued by the Department
in the interest of such projects "in principle" approval is
deemed as working permission for cutting trees and
commencement of work if required, compensatory levies
stipulated in "in principle" approval are realized from the
user agency. It is only after the amount for compensatory
afforestation as stipulated in Stage-I approval was deposited
by CERL on 09.04.2015, permission for felling of trees was
granted by Additional Principal Chief Conservator of Forests
(Production), Government of Chhattisgarh vide letter No. F.
No./14/Utpadan1614/603 dated 25.04.2015. After getting
the formal approval namely Stage-II approval, the State
Government vide letter No.F-5-252014/10-2 dated
23.06.2015 accorded final sanction under Section 2 of the
Act for diversion of 76.099 ha of forest land for this
purpose. The said diversion permission was permitted vide
letter No./bhuprabandh/vividh/115-368/2125 dated
24.07.2015. It is only thereafter that the work has been
started. So the petitioner is not entitled to get the reliefs
claimed.
12. The CREL, the project proponent filed reply statement
denying the allegations and more or less supporting the
contentions raised by the State Government. They have
7
further contended that it is only a public sector undertaking
and there is no private equity involved. The Forest Advisory
Committee held at New Delhi on 22.04.2014 to examine the
East Corridor Project on all aspects in detail and made
accommodation approving the same. As per the data
available, there is no elephant corridor declared within the
State.
13. After considering the project, the Committee
recommended the same. As part of the project itself and as
required by the Forest Advisory Committee, the Tropical
Forest Research institute (TFRI), an autonomous council
under the MoEF & CC, Government of India was granted
the work to prepare the Wildlife Management Plan as earlier
on January 16, 2015.
14. After considering the recommendation of the Forest
Advisory Committee, Stage-I approval was granted by MoEF
& CC for this corridor. Thereafter after getting the
compliance report from the State Government regarding the
conditions imposed in Stage-I approval, Stage-II approval
was granted vide order dated 22.05.2015 and following the
same, the State Forest Department issued Forest clearance
order/approval as required under Section 2 of the Forest
Conservation Act, 1980 vide O.M dated 23.06.2015. The
CERL submitted draft report of Wild Life Management Plan
as prepared by TFRI on 15.07.2015. The Principal Chief
Conservator of Forest (Wildlife) made his observation on
8
27.07.2015 and referred the matter to Chief Conservator of
Forest, Bilaspur with a copy to CERL.
15. The TFRI, Jabalpur revised the Wildlife Management Plan
and it was completed the field work. The final Wildlife
Management Plan has been submitted vide letter dated
18.11.2015 incorporating all the suggestions and comments
made by PCCF, Chhattisgarh. Only after getting the formal
permission, the CERL started cutting of the trees. They
have deposited a total amount of Rs.8.35 crores with MoEF
& CC in CAMPA account. For irrigated plantation of about
3,82,500 trees for an area 153 ha of forest land already
identified and designated by the Forest department as
compensatory afforestation as against 10,149 trees to be
felled and also towards the expenses of cutting and
transport of the above number of trees. The areas where 17
elephants died due to electrocution did not fall within the
proposed rail corridor. As per the suggestion of FSE and
MoEF & CC, the CERL has planned to construct 24
underpasses, bar crossing and undercrossing for passage of
elephants and other wildlife /Cattle for the length of 64 km
of wildlife. All necessary precautions have been taken by the
authorities. Alternate alignments were also considered
before approving this project. So according to them the
allegations are not correct and they prayed for dismissal of
the application.
9
16. On the basis of the contentions raised by the
Respondents in the above Original Application that final
approval has been granted under Section 2 of the Forest
Conservation Act by the State Forest Department, the
appellant/applicant filed Appeal No. 151/2015 challenging
the forest clearance granted for diversion of 76.099 ha of
forest land for the project to be established by CERL raising
more or less the same contentions raised by them in the OA
namely no comprehensive impact study was conducted
before granting the approval, the Wildlife Management Plan
has not been submitted for consideration by the Forest
Advisory Committee or MoEF & CC before granting the
approvals, etc. Further there was no field visit made by the
officers of the MoEF&CC for ascertaining the genuineness
and sufficiency of the data furnished by the State
Government and the project proponent. There was no
application of mind and the fact of human-elephant conflict
and death of elephants caused and the impact of project on
Wildlife on a larger angle were not considered which is
essential to find out the mitigating measures provided were
sufficient to meet the possible degradation to be caused to
the environment on account of felling of trees and laying of
railway line through this area. It is also challenged on the
ground that it involves two portions of forest land of which
only a portion of forest land was considered and the other
portion was not included in the study and conducting
10
piecemeal appraisal of impact on environment is not proper
and will not be sufficient to impose necessary conditions to
mitigate the damage if any to the forest which ought to have
been considered by the authorities before granting of the
same.
17. To this also the State Government, MoEF & CC, the
project proponent, the Forest Department have filed detailed
reply statements, denying the allegation and supporting the
granting of forest clearance. According to them all necessary
precautions have been taken for this purpose.
18. When CERL applied for diversion of 26.52 ha of forest
land for the remaining portion of the same project, the
MoEF &CC issued Stage-I clearance dated 27.06.2017 and
Stage-II clearance on 07.09.2017 and State Government
proceeded to grant final forest clearance on 06.02.2017.
This was challenged by the applicant/appellant by filing
Appeal 01/2018, raising more or less similar objections
raised by him in Appeal No. 151/2015 for granting the
same. Further it was also alleged in the appeal
memorandum that REC in their meeting dated 29.05.2017
wanted certain clarification before recommending the
project and according to the applicant, later the Regional
Expert Committee, without application of mind, simply
accorded sanction changing from its earlier view without
taking it account the environment impact on the forest.
Reply has been filed to this also by the project proponent,
11
the State Government and the various departments
explaining the circumstances and affirming their stand of
granting clearance to the project. According to the Project
Proponent there was no deliberate attempt on their part in
not applying for forest clearance earlier for this portion as
they were only awarded the work for the portion from 10 to
74 Km area and 0 to 10 with spur area having a distance of
28 Km was granted to some other agency. But since that
agency did not properly proceeded with the project, the
CERL was directed to undertake this portion as well and
that was how they had to apply for this portion separately.
According to them, all precautionary measures have been
taken to avoid any degradation on environment and bio
diversity. So according to them, there is no illegality in
granting the clearance to them.
19. Since, all these cases are inter connected and dealing
with the same project but the forest clearance was granted
on two occasion and the grounds raised all these cases are
more or less similar, we decided to hear and dispose of the
same together.
20. The learned senior counsel appearing for the
appellant/applicant submitted that the project involves
larger extent of forest area but forest clearance was granted
in piecemeal which in fact not considered the cumulative
and comprehensive impact of the project on environment
and the ecology affecting the forest. They have also not
12
considered the human-animal conflict as several reports
show there were causalities of elephants in the State and
that aspect has not been properly considered. No Wildlife
Management Plan was obtained before granting approval
which would have been more appropriate for the authorities
to consider all the aspects including the impact of the
project on wildlife in the forest area. The precautionary
principles and sustainable development have not been
properly considered by the authorities before granting the
same. They have also contended that the Wildlife
Management Plan submitted was not in accordance with
the guidelines given by MoEF & CC in this regard. The
learned senior counsel also argued that the Division Forest
Officer had recommended underpasses but the same was
reduced to six by the PCCF without application of mind.
21. According to the learned senior counsel, a comprehensive
study for the entire project has to be conducted before
proceeding with the project so as to ascertain whether any
further mitigating circumstances have to be considered and
the precautionary measures to be provided to meet the
same. Unless such study has been conducted, the impact of
the project on environment will be irreversible and the
granting of approval cannot be said to be legal.
22. On the other hand learned counsel appearing for the
State Government, the Project Proponent and the MoEF &
CC have contended that all precautions have been taken
13
before granting the approval. Necessary conditions have
been imposed taking into account the impact of the project
on forest, ecology and environment and the human-animal
conflict and mitigating measures have been provided for
these purposes. The approval was granted is strictly in
accordance with law and no interference is required.
23. The counsel for the project proponent also submitted that
all precautions had been taken and necessary conditions
have been imposed. There is no need to set aside the
approvals granted and prayed for dismissal of the
application as well as the appeals. However he has further
submitted that they have no objection in making any
further study on this aspect for the purpose of providing
any further conditions as a mitigating measure to protect
environment if the Tribunal feels that it is necessary.
24. The points that arise for consideration:
(i) Whether the forest clearances granted to the
project proponent on two different occasions are
liable to be set aside for the reasons stated in
the appeal memorandum?
(ii) Whether the authorities have considered the
principles of precautionary principles on
sustainable development and inter generation
equity, conservation of forest, etc before
granting the forest clearance as mentioned
above
(iii) Whether there is any necessity for any further
studies in this regard and if so what is the
nature of the study to be conducted and for that
purpose the forest clearances already granted
14
have to be set aside or even without setting
aside the same direction can be issued to find
out the mitigating circumstances in
implementing the project?
25. In fact O.A. No. 470/2015 has become insignificant and
the averments in the same were raised in Appeal
No.151/2015 and Appeal No. 1/2018.
26. Before going into the merits of the case let us analysis
the statutory provisions and also the precedents on this
aspect.
27. Section 2 of the Forest Conservation Act, 1980 deals with
the restriction on the de-reservation of forest or use of forest
land for non-forest purpose which reads 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) That any reserved forest (within the meaning of
the expression "reserved forest" in any law for the
time being in force in that State) or any portion
thereof, shall cease to be reserved;
(ii) That any forest land or any portion thereof may
be used for any non-forest purposes;
(iii) That any forest land or any portion thereof may
be assigned by way of lease of otherwise to any
private person or to any authority, corporation,
agency or any other Organisation not owned,
managed or controlled by Government.
(iv) that any forest land or any portion thereof may
be cleared of trees which have grown naturally in
that land or portion, for the purpose of using it for re-
afforestation.
15
[Explanation:- For the purpose of this section "non-
forest purpose" means the breaking or clearing of
any forest land or portion thereof for-
(a) the cultivation of tea, coffee, species, rubber,
palms, oil-bearing plants, horticultural crops of
medicinal plants;
(b) any purpose other than reafforestation, but does
not include any work relating or ancillary to
conservation, Development and management of
forests and wildlife, namely, the establishment of
check-posts, fire lines, wireless communications and
Construction of fencing, bridges and culverts, dams,
waterholes, trench marks, boundary marks,
pipelines or other like purposes.]"
28. Rule 6 to 8 of the Forest Conservation Rules, 2003 deals
with the procedure for grant of clearance by stage by stage
which reads as follows:
6. Submission of proposal seeking approval of the
Central Government under section 2 of the Act- (1)
Every User Agency that wants to use any forest
land for non-forest purposes, shall make its proposal
in the relevant Form appended to these rules,
namely; Form 'A' for proposal seeking first time
approval under the Act, Form 'B' for proposal
seeking renewal of leases, where approval of the
Central Government under the Act had already been
obtained, and Form 'C' for prospecting of minerals,
to the Nodal Officer of the concerned State
Government or the Union Territory Administration,
as the case may be, along with requisite information
and documents, complete in all respect.
(2) The User Agency shall endorse a copy of the
proposal, along with a copy of the receipt obtained
from the office of the Nodal Officer to the concerned
Divisional Forest Officer, District Collector and
Regional Office as well as the Monitoring Cell of the
Forest Conservation Division of the Ministry of
Environment, Forests and Climate Change.
(3) (a) The Nodal Officer of the State Government or
the Union Territory Administration, as the case may
be, after having received the proposal under sub-
rule (1) and on being satisfied that the proposal is
complete in all respects and requires prior approval
under section 2 of the Act, shall send the proposal to
16
the concerned Divisional Forest Officer and the
District Collector within a period of ten days of the
receipt of the proposal.
(b) If the Nodal Officer of the State Government or
the Union territory Administration, as the case may
be, finds that the proposal is incomplete, he shall
return it within a period of ten days to the User
Agency and this time period and the time taken by
the User Agency to re-submit the proposal shall not
be counted for any future reference.
(c) The Divisional Forest Officer shall examine the
factual details and feasibility of the proposal, certify
the maps, carry out site-inspection and enumeration
of the trees and forward his findings in the Format
specified in this regard to the Conservator of
Forests.
(d) The Divisional Forest Officer shall process and
forward the application along with his findings on
the proposal involving forest land upto forty
hectares, above forty hectares and up to one
hundred hectares and above one hundred hectares
to the Conservator of Forests within a period of
thirty days, forty-five days and sixty days
respectively.
(e) The District Collector shall-
(i) complete the process of recognition and vesting of
forest rights in accordance with the provisions of the
Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 (2
of 2007) for the entire forest land indicated in the
proposal;
(ii) obtain consent of each Gram Sabha having
jurisdiction over the whole or a part of the forest
land indicated in the proposal for the diversion of
such forest land and compensatory and ameliorative
measures, if any, having understood the purposes
and details of diversion, wherever required; and
(iii) forward his findings in this regard to the
Conservator of Forests;
(f) The entire process referred to in clause (e) shall be
completed by the District Collector within the time
period stipulated in these rules for grant of in-
principle approval under the Act to the proposal;
17
(g) The Conservator of Forests shall examine the
factual details and feasibility of the proposal, carry
out site- inspection in case the area of forest land
proposed to be diverted is more than forty hectares,
and forward the proposal along with his
recommendations to the Nodal Officer;
(h) The time taken by the Conservator of Forests to
process and forward to the Nodal Officer the
proposal involving forest land up to forty hectares
and above forty hectares shall not be more than ten
days and thirty days respectively.
(i) The Nodal Officer, through the Principal Chief
Conservator of Forests, shall forward the proposal to
the State Government or the Union territory
Administration, as the case may be, along with his
recommendations.
(j) The Nodal Officer shall process and forward the
proposal along with his findings on the proposal
involving forest land, up to five hectares, above five
hectares and up to forty hectares, above forty
hectares up to one hundred hectares and above one
hundred hectares, to the State Government or the
Union territory Administration, as the case may be,
within a period of ten days, twenty days, twenty
five days and thirty days respectively.
(k) In case the State Government or the Union
territory Administration, as the case may be,
decides not to, de-reserve or divert for non-forest
purpose or assign on lease the forest land indicated
in the proposal, as the case may be, the same shall
be intimated to the User Agency within thirty days
of the receipt of proposal from the Nodal Officer:
Provided, all proposals involving diversion of forest
land for projects of the Central Government or
Central Government Undertakings where the State
Government or the Union territory Administration, as
the case may be, does not agree in-principle to de-
reserve or divert for non-forest purpose or assign on
lease the forest land indicated in the proposal, as
the case may be, shall be forwarded to the Central
Government along with comments of the State
Government or the Union territory Administration, as
the case may be.
(l) The State Government or the Union territory
Administration, as the case may be, shall forward
along with its recommendations all those proposals
where State Government or the Union Territory
18
Administration, as the case may be, agrees in-
principle to de-reserve or divert for non-forest
purpose or assign on lease the forest land indicated
in the proposal, as the case may be, and all
proposals involving diversion of forest land for
projects of the Central Government or Central
Government Undertakings, to the Central
Government within thirty days:
Provided that all proposals involving felling of trees
on forest land or a portion thereof for the purpose of
using it for re-afforestation shall be sent in the form
of Working Plan or Working Scheme or Management
Plan:
Provided further that the concerned State
Government or the Union territory Administration, as
the case may be, shall simultaneously send the
intimation to the 12 User Agency about forwarding
of the proposal, along with its recommendations, to
the Regional Office or the Ministry of Environment,
Forests and Climate Change, as the case may be;
Provided also that total time taken exclusively for
transit of a proposal between various authorities in
the State Government or the Union Territory
Administration, as the case may be, shall not be
more than twenty days, over and above the time
period specified for processing of proposal by each
authority.
(m) Whenever the time taken by the State
Government or the Union territory Administration, as
the case may be, for processing the proposal
exceeds the time limits stipulated in clauses (a) to (l)
above, the proposal shall be considered by the
Central Government only if an explanation for the
delay is furnished to the satisfaction of the Central
Government, together with action taken against any
individual held to be responsible for the delay.
(4)(a) The proposal referred to in clause (l) of sub-rule
(3), involving forest land up to forty hectares and all
proposals related to linear projects irrespective of
the area of forest land involved, shall be forwarded
by the concerned State Government or the Union
Territory Administration, as the case may be along
with its recommendations to the concerned Regional
Office.
(b) The proposal referred to in clause (1) of sub rule
(3), involving forest land of more than 40 hectares,
other than proposals related to linear projects shall
be forwarded by the concerned State Government or
19
the Union Territory Administration, as the case may
be, along with its recommendations, to the
Secretary, Government of India of Ministry of
Environment, Forests, and Climate Change.
(c) The proposals referred to in clause (l) of sub-rule
(3), involving clearing of trees in forest land or
portion thereof for the purpose of using it for re-
afforestation shall be sent to the concerned Regional
Office.
(5)(a) notwithstanding anything contained in these
rules, the proposal to obtain approval under the Act
to undertake prospecting of minerals without felling
of trees and construction of new road or path in
mining blocks falling outside the protected areas,
eco-sensitive zone of protected areas, identified tiger
corridors and having no forest cover of more than
ten percent crown density as per the latest India
State of Forest Report published by the Forest
Survey of India, shall be submitted by the User
Agency in a letter form along with a geo-referenced
map indicating boundary of the prospecting block,
location of each bore-hole site and roads or paths to
be used for prospecting; and a certificate to the
effect that the proposal meets the afore-mentioned
requirements to the Nodal Officer;
(b) the Nodal Officer, after having received the
proposal under clause (a) and on being satisfied that
the geo- referenced map and the certificate are in
order, shall send the proposal to the Divisional
Forest Officer within a period of ten days of the
receipt of the proposal;
(c) if the Nodal Officer, finds that the geo-referenced
map or the certificate are not in order, he shall
return the proposal within a period of ten days to
the User Agency and the said period taken by the
Nodal Officer and the time taken by the User Agency
to re-submit the geo-referenced map and the
certificate shall not be counted for any future
reference;
(d) the Divisional Forest Officer shall authenticate
the geo-referenced map and certificate submitted by
the User Agency and forward the same directly to
the State Government or Union territory
Administration, as the case may be, or an officer not
below the rank of the Nodal Officer, authorized by
the State Government or Union territory
Administration, as the case may be, to finally
20
dispose of such proposals, within thirty days of its
receipt;
(e) the State Government or the Union territory
Administration, as the case may be, or the officer
not below the rank of the Nodal Officer, duly
authorized by the State Government or the Union
territory Administration, as the case may be, to
finally dispose of such proposals, after examination
of the geo- referenced map and certificate and after
such further enquiry as it may consider necessary,
grant permission for prospecting of minerals subject
to fulfilment of stipulated conditions, or reject the
same within twenty-five days of receipt of the
proposal from the Divisional Forest Officer and
communicate the same to the concerned Divisional
Forest Officer and the User Agency, within next five
days;
(6) (a) notwithstanding anything contained in these
rules, proposal to obtain approval under the Act to
undertake prospecting of minerals without felling of
trees and construction of new road or path in mining
blocks falling outside the protected areas, eco-
sensitive zone of protected areas, identified tiger
corridors and having no forest cover of more than
forty percent crown density as per the latest India
State of Forest Report published by the Forest
Survey of India, shall also be submitted in a letter
form along with a geo referenced map indicating
boundary of the prospecting block, location of each
borehole site and roads or paths to be used for
prospecting; and a certificate to the effect that the
proposal meets the afore-mentioned requirements to
the Nodal Officer;
(b) the Nodal Officer, after having received the
proposal under clause (a) and on being satisfied that
the geo-referenced map and the certificate are in
order, shall send the proposal to the Divisional
Forest Officer within a period of ten days of the
receipt of the proposal;
(c) if the Nodal Officer, finds that the geo-referenced
map or the certificate are not in order, he shall
return the proposal to the User Agency within a
period of ten days and the said period taken by the
Nodal Officer and the time taken by the User Agency
to resubmit the proposal shall not be counted for any
future reference;
21
(d) the Divisional Forest Officer shall authenticate
the geo-referenced map and certificate submitted by
the User Agency and forward the same directly to
the Nodal officer, within a period of thirty days of
receipt of the geo-referenced map and the certificate;
(e) the proposal received by the Nodal Officer under
clause (d) shall be further processed in the manner
and within the period as provided in clause (i) to
clause (m) of sub-rule (3) and sub-rule (4) of rule 6
and rule 7 of these rules.
7. Processing of proposals received by the
Central Government. - (1) (a) The Regional Office,
after having received the proposal referred in clause
(a) and clause (c) of sub-rule (4) of rule 6 shall
determine the completeness of proposal within five
working days.
(b) If the Regional Office finds that the proposal is
incomplete, it shall return it within the period of five
working days as specified under clause (a), to the
State Government or the Union Territory
Administration, as the case may be, and this time
period and the time taken by the State Government
to re-submit the proposal shall not be counted for
any future reference.
(2)(a) The regional office shall after examination of
the proposal involving forest land up to 5 hectares
other than the proposal relating to mining,
encroachments, and hydel projects, which are
complete in all respect, and after such further
enquiry as it may consider necessary, grant in-
principle approval subject to fulfilment of stipulated
conditions, or reject the same within twenty five
days of its receipt form the State Government or the
United Territory Administration, as the case may be,
and communicate the same to the concerned State
Government or the United Territory Administration,
as the case may be, within next five days.
(b) In case a proposal involves forest land more than
one hundred hectares or renewal of lease, Regional
Office shall within forty-five days of the receipt of
the proposal complete in all respects from the State
Government or the Union Territory Administration,
as the case may be, inspect the forest land proposed
to be diverted and prepare a site inspection report:
Provided that in case of the proposals seeking
approval under the Act for prospecting of minerals in
forest land, prior site inspection by the Regional
Office shall be required only if the area of forest land
22
required for construction of roads, paths, drilling of
bore holes and all such non-forest purpose is more
than one hundred hectares.
(c)Regional office shall refer all proposals involving
forest land above 5 hectares and up to forty
hectares, proposals relating to mining,
encroachments, and hydel projects involving forest
land up to 5 hectares, and all proposals related to
linear projects which are complete in all respect,
including site inspection report, wherever required,
to the Regional Empowered Committee within ten
days of receipt form the State Government or the
United Territory Administration, as the case may be:
Provided that the proposals referred to in clause (b)
above shall be referred to the Regional Empowered
Committee within five days of receipt of the site
inspection report.
(d) The Regional Empowered Committee shall within
a period of thirty days examine the proposal
referred to it under clause(c) above and after such
further enquiry as it may consider necessary, grant
in-principle approval to the proposals other than
proposals relating to mining, encroachment and
hydel projects subject to fulfilment of stipulated
conditions, or reject the same and the Regional
Office shall communicate the decision of the
Regional Empowered Committee to the concerned
State Government or the United Territory
Administration, as the case may be, within next five
working days.
(e) The Regional Empowered Committee shall within
a period of thirty days examine the proposals
relating to mining, encroachments, and hydel
projects involving diversion of forest land up to forty
hectares and tender its advice:
Provided the Regional empowered Committee may
suggest such conditions or restrictions if any,
required to be imposed on the use of any forest land
for non-forest purpose, which in its opinion would
minimize adverse environmental impact.
(f) The Regional office shall within a period of five
days of the receipt of the advice of the Regional
Empowered Committee on proposals referred to it
under clause (e) above, forward such proposal along
with advice of the Regional Empowered Committee
to the Secretary, Ministry of Environment, Forests,
23
and Climate Change for obtaining the decision of the
Central Government:
Provided that time taken in transit of proposal from
Regional Office to the Ministry of Environment,
Forests and Climate Change shall not be more than
five days.
(g) The Central Government shall, after considering
the advice of the Regional Empowered Committee
and after further enquiry as it may deem necessary,
grant in principle approval subject to fulfilment of
stipulated conditions, or reject the same within thirty
days of its receipt from the regional office and
communicate the same to the concerned State
Government or the United Territory Administration,
as the case may be, within next five working days.
(3)(a) All proposals involving clearing of trees in
forest land or portion thereof for the purpose of using
it for re-afforestation shall be finally disposed of by
the Regional Office within a period of sixty days of
receipt of the proposals from the State Government
or the Union territory Administration, as the case
may be.
(b) While examining the proposal, the Regional Office
shall ensure that the final decision is in conformity
with the National Forest Policy, Working Plan
guidelines and other relevant rules and guidelines
issued by the Central Government from time to time.
(c) The Regional Office shall however seek prior
clearance of the Ministry of Environment, Forests
and Climate Change whenever the proposal involves
clear-felling of forest land having crown density
above forty per cent irrespective of the area involved,
or clear-felling of forest area of size more than
twenty hectares in the plains and ten hectares in the
hilly region, irrespective of density.
(4)(a) The Ministry of Environment, Forests and
Climate Change after having received the proposal
referred to in clause (b) of sub-rule (4) of rule 6 shall
determine the completeness of the proposal within
ten days.
(b) If the Ministry of Environment, Forests and
Climate Change finds that the proposal is
incomplete, it shall return it within the period of ten
days as specified under clause (a), to the State
Government or the Union territory Administration, as
24
the case may be, and this time period and the time
taken by the State Government to re-submit the
proposal shall not be counted for any future
reference.
(c) In case the proposal involves forest land more
than one hundred hectares or renewal of lease, the
Ministry of Environment, Forests and Climate
Change shall within ten days of the receipt of a
proposal complete in all respects, request the
concerned Regional Office to inspect the forest land
proposed to be diverted and submit a report to the
Ministry of Environment, Forests and Climate
Change within a period of forty-five days:
Provided that in case of the proposals seeking
approval under the Act for prospecting of minerals in
forest land, prior site inspection by the Regional
Office shall be required only if the area of forest land
actually required for construction of roads, paths,
drilling of bore holes and all such non-forest purpose
is more than one hundred hectares:
Provided further that the total time taken in
communication of the request for site inspection from
the Ministry of Environment, Forests and Climate
Change to Regional Office and communication of the
site inspection report from the Regional Office to the
Ministry of Environment, Forests and Climate
Change shall not be more than ten days, over and
above the time taken in undertaking site inspection
by the Regional Office.
(d) The Central Government shall refer every
proposal, which is complete in all respects, received
by it under clause (b) of sub-rule (4) of rule 6
including site inspection reports, wherever required,
to the Committee for its advice and the Committee
shall give its advice within thirty days from the date
of receipt of the said proposal.
(e) The Committee shall have due regard to all or
any of the following matters while tendering its
advice on the proposals referred to it under clause
(d), namely: -
(i) whether the forests land proposed to be used
for non-forest purpose forms part of a nature
reserve, national park, wildlife sanctuary,
biosphere reserve or forms part of the habitat
of any endangered or threatened species of
25
flora and fauna or of an area lying in severely
eroded catchment;
(ii) whether the use of any forest land is for
agricultural purposes or for the rehabilitation of
persons displaced from their residences by
reason of any river valley or hydroelectric
project;
(iii) whether the State Government or the Union
territory Administration, as the case may be,
has certified that it has considered all other
alternatives and that no other alternatives in
the circumstances are feasible and that the
required area is the minimum needed for the
purpose;
(iv) whether the State Government or the Union
territory Administration, as the case may be,
undertakes to provide at its cost for the
acquisition of land of an equivalent area and
afforestation thereof;
(v) whether the per unit requirement of forest land
is significantly higher than the national
average for similar projects; and
(vi) whether the State Government or the Union
territory Administration, as the case may be,
before making their recommendation has
considered all issues having direct and indirect
impact of the diversion of forest land on forest,
wildlife and environment.
(f) While tendering advice, the Committee may also
suggest any condition or restriction on the use of
any forest land for any non-forest purpose, which in
its opinion would minimize adverse environmental
impact.
(g) The Central Government shall, after considering
the advice of the Committee under clause (e) and
clause (f) and after such further enquiry as it may
consider necessary, grant in-principle approval
subject to fulfilment of stipulated conditions, or reject
the same within thirty days of the receipt of advice
from the Committee and communicate the same to
the concerned State Government or the Union
territory Administration, as the case may be, within
next five working days.
8. Submission of report on compliance to
conditions stipulated in the in-principle
approval and grant of final approval. (1)(a) The
Nodal Officer shall within five days of receipt of the
in-principle approval, endorse a copy of the same to
26
the concerned Divisional Forest Officer and the
Conservator of Forests;
(b) On receipt of a copy of the in-principle approval,
the Divisional Forest Officer shall prepare a demand
note containing item-wise amount of compensatory
levies such as cost of creation and maintenance of
compensatory afforestation, Net Present Value
(NPV), cost of implementation of catchment area
treatment plan or wildlife conservation plan etc. to
be paid by the User Agency and communicate the
same, along with a list of documents, certificates
and undertakings required to be submitted by the
User Agency in compliance with the conditions
stipulated in the in-principle approval to the User
Agency within ten days of the receipt of a copy of
the in-principle approval.
(c) The User Agency shall within thirty days of
receipt of demand note and list of documents,
certificates and undertakings from the Divisional
Forest Officer make payment of compensatory levies
and submit a compliance report containing a copy of
documentary evidence in respect of the payment of
compensatory levies along with documents,
certificates and undertakings indicated in the said
list to Divisional Forest Officer.
(d) The Divisional Forest Officer, after having
received the compliance report shall determine its
completeness within a period of fifteen days of its
receipt from the User Agency.
(e) If the Divisional Forest Officer finds that the
compliance report is incomplete, he shall
communicate the shortcoming or shortcomings in the
compliance report to the User Agency within a period
of fifteen days of its receipt from the User Agency
and if the compliance report is complete in all
respect, it shall be forwarded to the Conservator of
Forests within a period of fifteen days of its receipt
from the User Agency.
(f) The Conservator of Forests, after having received
the compliance report shall determine its
completeness within a period of fifteen days of its
receipt from the Divisional Forest Officer.
1(g)in case the Conservator of Forests finds that the
compliance report is complete in all respect, he shall
forward such report along with the report on
completion of the process of recognition and vesting
27
of forest rights and consent of the each Gram Sabha
received from the District Collector referred to in sub-
clause (f) of sub-rule (3) of rule 6, to the Nodal Officer
within a period of fifteen days of its receipt from the
Divisional Forest Officer:
Provided that in case the Conservator of Forests
finds that the compliance report is incomplete, he
shall communicate the shortcoming or shortcomings
in the compliance report to the User Agency and the
Divisional Forest Officer within a period of fifteen
days of its receipt from the Divisional Forest Officer;
(h) The Nodal Officer, after having received the
compliance report shall determine its completeness
within a period of fifteen days of its receipt from the
Conservator of Forests.
(i) in case the Nodal Officer finds that the compliance
report is complete in all respect, he shall forward
such report to the State Government or Union
territory Administration, as the case may be, within
a period of fifteen days of its receipt from the
Conservator of Forests:
Provided that the State Government or the Union
Territory Administration, as the case may be, may
authorize the Nodal Officer to send the compliance
report directly to the Ministry of Environment, Forest
and Climate Change or the Regional Office, as the
case may be;
Provided further that in case the Nodal Officer finds
that the compliance report is incomplete, he shall
communicate the shortcoming or shortcomings in the
compliance report to the User Agency, the
Conservator of Forests and the Divisional Forest
Officer within a period of fifteen days of its receipt
from the Conservator of Forests;
(j) The State Government or Union territory
Administration, as the case may be, after having
received the compliance report shall determine its
completeness within a period of fifteen days of its
receipt from the Nodal Officer.
(k) If the State Government or Union territory
Administration, as the case may be, finds that the
compliance report is incomplete, it shall
communicate the shortcoming or shortcomings in the
compliance report to the User Agency, the Nodal
Officer, the Conservator of Forests and the
28
Divisional Forest Officer within a period of fifteen
days of its receipt from the Nodal Officer and if the
compliance report is complete in all respects, it shall
be forwarded to the Ministry of Environment and
Forests or the Regional Office, as the case may be,
within a period of fifteen days of its receipt from the
Nodal Officer.
(l) The Ministry of Environment, Forests and Climate
Change or the Regional Office, as the case may be,
after having received the compliance report shall
determine its completeness within a period of fifteen
days.
(m) in case the Ministry of Environment, Forests and
Climate Change or the Regional Office, as the case
may be, finds that the compliance report is complete
in all respect, it shall accord the final approval under
the Act and communicate such approval to the State
Government or the Union Territory Administration,
as the case may be, within a period of twenty days
of the receipt of the compliance report:
Provided that in case the Ministry of Environment,
Forests and Climate Change or the Regional Office,
as the case may be, finds that the compliance report
is incomplete, the shortcoming or shortcomings in the
compliance report shall be communicated to the
State Government or the Union territory
Administration, as the case may be, to the Nodal
Officer and the User Agency, within a period of
twenty days of the receipt of the compliance report.
(n) The report on fulfilment of shortcoming or
shortcomings in the compliance report shall be
processed and forwarded to authorities concerned in
the State Government or the Union territory
administration, as the case may be, and Central
Government in the manner and within the time limits
stipulated in clause (d) to clause (l) above.
(2)1(a) In cases where compliance of conditions in the
in-principle approval is awaited for more than five
years from the State Government or the Union
Territory Administration, as the case may be, the in-
principle approval may be summarily revoked:
Provided that in cases where for valid and cogent
reasons it has not been possible for the User Agency
or the State Government or the Union Territory
Administration, as the case may be, to comply with
one or more of the conditions stipulated in the in-
principle approval for obtaining final approval, the
29
Central Government may extend the period for
compliance of such conditions by further period as it
deems fit.
(b)If the User Agency or the State Government or the
Union territory Administration, as the case may be,
is still interested in the project, after its revocation,
they may submit a fresh proposal which shall be
considered de-novo.
3 (a) In case, before submission of a report on
compliance to conditions stipulated in the in
principle approval accorded under the Act for a
mining project by the State Government or the Union
territory Administration, as the case may be, and
grant of final approval by the Central Government
within five years from the date of grant of in-
principle approval, validity of the mining lease
expires, instead of submission of a de-novo proposal
to obtain approval of Central Government under the
Act for diversion of such forest land, for renewal of
mining lease, the State Government or Union
territory Administration, as the case may be, while
submitting report on compliance to conditions
stipulated in the in principle approval may seek final
approval of Central Government under the Act for
diversion of such forest land for original period of
the mining lease for which in-principle approval has
already been accorded, and also for renewal of
mining lease for a period, as specified by the State
Government and Union Territory Administration, as
the case may be, not exceeding twenty years.
(b) Report on compliance to statutes, circulars or
directives, as applicable to such proposals, which
came into force after grant of in-principle approval, if
any, shall also be submitted to the Central
Government along with the report on compliance to
conditions stipulated in the in-principle approval.
19(c) In cases, apart from grant of final approval
under the Act for diversion of such forest land for
original period of mining lease, the central
government, shall after considering advice of the
Forest Advisory Committee or the Regional
Empowered Committee, as the case may be, and
after further enquiry as it may consider necessary,
grant final approval to the proposal of the State
Government or the Union Territory Administration,
as the case may be, for renewal of the mining lease
for a period, as may be specified by the Central
Government, not exceeding twenty years, with
appropriate conditions, or reject the same.
30
(d) Procedure stipulated in clauses (a) to (c) above,
shall also be applicable to the cases where in-
principle approval under the Act for diversion of
forest land has been accorded on a day more than
five years prior to the date of expiry of the lease and
for valid and cogent reasons it has not been possible
for the User Agency or the State Government or the
Union Territory Administration, as the case may be,
to comply with one or more of the conditions
stipulated in the in-principle approval and obtain
final approval within five years from the date of in-
principal approval:
Provided such in-principal approval has not already
been summarily revoked by the Central Government;
Provided further that in such cases, apart from the
report referred to in clause (b) above, the State
Government or the Union Territory Administration,
as the case may be, shall also submit to the Central
Government, reason or reasons for delay in
compliance to conditions stipulated in the in-
principal approval.
(e) Procedure stipulated in clause (a) to (e), shall also
be applicable to the cases where mining lease
expires or has already expired within the period of
ten years from the date of grant of in-principal
approval under the Act, even if final approval under
the Act for diversion of such forest land has been
granted prior to the expiry of the mining lease:
Provided that in such cases, in place of a report on
compliance to conditions stipulated in the in-
principal approval, a report on compliance to
conditions stipulated in the final approval under the
Act for diversion of such forest land during the
validity of the original lease period shall be
submitted to the Central Government by the State
Government or the Union Territory Administration,
as the case may be.
29. Section 20 of the National Green Tribunal Act deals with
the matters to be considered by the Tribunal while passing
orders or award or judgement which reads as follows:
20. Tribunal to apply certain principles-
"The Tribunal shall, while passing any order or
decision or award, apply the principles of sustainable
31
development, the precautionary principle and the
polluter pays principle."
30. The decision reported in 1 [T.N. Godavarman
Thirumulpad Vs. Union of India and Others] the Apex
court has considered adherence of principles of sustainable
development vis a vis environment impact and also given
guidelines as to how this has to be considered while
considering the project in question in the angle of
environment protection and observed as follows:
"Adherence to the principle of sustainable
development is now a constitutional requirement.
How much damage to the environment and ecology
has got to be decided on the facts of each case.
While applying the principle of sustainable
development one must bear in mind that
development which meets the needs of the present
without compromising the ability of the future
generations to meet their own needs is sustainable
development. Therefore, courts are required to
balance development needs with the protection of
the environment and ecology. It is the duty of the
State under our Constitution to devise and
implement a coherent and coordinated programme to
meet its obligation of sustainable development
based on inter-generational equity."
31. The Apex court also relied on the decision reported in
2 [A.P. Pollution Control Board Vs. Prof. M.V. Nayudu
(Retd.) & Others], in which also the same principle has
been reiterated and also considered the role of State in
protecting environment and selecting a particular area for a
project before proceeding with the acquisition of land for
that purpose.
1
(2008) 2 Supreme Court Cases 222
2
1992 (2) SCC 718
32
3
32. In the decision reported in [T.N.Godavarman
Thirumulpad Vs. Union of India and Others], the scope
of forest as defined under Forest Conservation Act was
considered and observed as follows:
"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(t) 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
vs. State of Gujarat 4 , Rural Litigation and
Entitlement Kendra v. State of U.P5. and recently
in the order dated 29-11-1996 (Supreme Court
Monitoring Committee v. Mussoorie Dehradun
Development Authority6). The earlier decision of this
Court in State of Bihar v. Banshi Rain Modi7 has,
therefore, to be understood in the light of these
subsequent decisions. We consider it necessary to
reiterate this settled position emerging from the
3
1997 (2) SCC 267
4
(1987)1 SCC 213
5
1989 Supp (1) SCC 504
6
WP (C) No 749 of 1995 decided on 29.11.1996
7
(1985) 3 SCC 643
33
decisions of this Court to dispel the doubt, if any, in
the perception of any State Government or authority."
33. In the decision reported in 8 [Vellore Citizen Welfare
Forum Vs Union of India & Others], the Apex Court has
considered the question of striking balance between
development and environment issue and observed as
follows:
"The traditional concept that development and ecology
are 9 opposed to each other is no longer acceptable.
"Sustainable Development" is the answer. In the
international sphere, "Sustainable Development" as a
concept came to be known for the first time in the
Stockholm Declaration of 1972. Thereafter, in 1987 the
concept was given a definite shape by the World
Commission on Environment and Development in its
report called "Our Common Future". The Commission
was chaired by the then Prime Minister of Norway, Ms
G.H. Brundtland and as such the report is popularly
known as "Brundtland Report". In 1991 the World
Conservation Union, United Nations Environment
Programme and Worldwide Fund for Nature, jointly
came out with a document called "Caring for the Earth"
which is a strategy for sustainable living. Finally,
came the Earth Summit held in June 1992 at Rio
which saw the largest gathering of world leaders ever
in the history deliberating and chalking out a blueprint
for the survival of the planet. Among the tangible
achievements of the Rio Conference was the signing of
two conventions, one on biological diversity and
another on climate change. These conventions were
signed by 153 nations. The delegates also approved
by consensus three non-binding documents namely, a
Statement on Forestry Principles, a declaration of
principles on environmental policy and development
initiatives and Agenda 21, a programme of action into
the next century in areas like poverty, population and
pollution. During the two decades from Stockholm to
Rio "Sustainable Development" has come to be human
8
(1996) 5 SCC 647
34
life while living within the carrying capacity of the
supporting accepted as a viable concept to eradicate
poverty and improve the quality of ecosystems.
"Sustainable Development" as defined by the
Brundtland Report means "Development that meets
the needs of the present without compromising the
ability of the future generations to meet their own
needs". We have no hesitation in holding that
"Sustainable Development" as a balancing concept
between ecology and development has been accepted
as a part of the customary international law though its
salient features have yet to be finalised by the
international law jurists.
Some of the salient principles of "Sustainable
Development", as culled out from Brundtland Report
and other international documents, are Inter-
Generational Equity, Use and Conservation of Natural
Resources, Environmental Protection, the
Precautionary Principle, Polluter Pays Principle,
Obligation to Assist and Cooperate, Eradication of
Poverty and Financial Assistance to the developing
countries. We are, however, of the view that "The
Precautionary Principle" and "The Polluter Pays
Principle" are essential features of "Sustainable
Development". The "Precautionary Principle" in the
context of the municipal law means:
(i) Environmental measures by the State
Government and the statutory authorities must
anticipate, prevent and attack the causes of
environmental degradation.
(ii) Where there are threats of serious and
irreversible damage, lack of scientific certainty should
not be used as a reason for postponing measures to
prevent environmental degradation.
(iii) The "onus of proof" is on the actor or the
developer/industrialist to show that his action is
environmentally benign.
34. In the same decision it has been held:
"In view of the above-mentioned constitutional and
statutory provisions we have no hesitation in holding
that the Precautionary Principle and the Polluter Pays
Principle are part of the environmental law of the
country.
35
Even otherwise once these principles are accepted as
part of the Customary International Law there would
be no difficulty in accepting them the rules of
Customary International Law which are not contrary
to the as part of the domestic law. It is almost an
accepted proposition of law that municipal law shall
be deemed to have been incorporated in the domestic
law and shall be followed by the courts of law. To
support we may refer to Justice H.R. Khanna's opinion
in A.D.M. vs. Shivakant Shukla 10 , Jolly George
Varghese case11 and Gramophone Co. case12.
The constitutional and statutory provisions protect a
person's right to fresh air, clean water and pollution-
free environment, but the source of the right is the
inalienable common law right of clean environment. It
would be useful to quote a paragraph from
Blackstone's commentaries on the Laws of England
(Commentaries on the Laws of England of Sir William
Blackstone) Vol. III, fourth edition published in 1876.
13 Chapter XIII, "Of Nuisance" depicts the law on the
subject in the following words:
Also, if a person keeps his hogs, or other noisome
animals, or allows filth to accumulate on his premises,
so near the house of another, that the stench
incommodes him and makes the air unwholesome,
this is an injurious nuisance, as it tends to deprive him
of the use and benefit of his house. A like injury is, if
one's neighbour sets up and exercises any offensive
trade; as a tanner's, a tallow-chandler's, or the like;
for though these are lawful and necessary trades, yet
they should be exercised in remote places; for the rule
is, 'sic utere tuo, ut alienum non leadas' ; this therefore
is an actionable nuisance. And on a similar principle a
constant ringing of bells in one's immediate
neighbourhood may be a nuisance.
With regard to other corporeal hereditaments; it is a
nuisance to stop or divert water that used to run to
another's meadow or mill; to corrupt or poison a
watercourse, by erecting a dye-house or a lime-pit, for
10
(1976) 2 SCC 521: AIR 1976 SC 1207
11
Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360: AIR 1980 SC 470
12
Gramophone Co of India Ltd v Birendra Bahadur Pandey (1984) 2 SCC 534:1984 SCC
36
the use of trade, in the upper part of the stream; to
pollute a pond, from which another is entitled to water
his cattle; to obstruct a drain; or in short to do any act
in common property, that in its consequences must
necessarily tend to the prejudice of one's neighbour. So
closely does the law of England enforce that excellent
rule of gospel-morality, of 'doing to others, as we
would they should do unto ourselves'."
35. The same principle has been reiterated by the Apex
Court in the decisions reported Hanuman Laxman
Aroskar Vs. Union of India in Civil Appeal No. 12251 of
2018 with Federation of Rainbow Warriors vs. Union of
India and Ors in Civil Appeal No. 1053 of 2019.
36. It is clear from the above dictums that the forest as
defined under the Forest Conservation Act has to be
liberally construed so as to include not only the reserved,
notified and protected forest but also forest like land in the
generic sense. The Sustainable development must be
understood as a development which is required to meet the
needs of the present generation without compromising the
needs of the future generation for their use. While applying
the principle of sustainable development the functionaries
must apply the precautionary principles so as to mitigate
the circumstances to reduce the degradation that is likely to
be caused to environment with a view to protect
environment and support development. Only if it is proved
that irreversible damage will be caused and none of the
precautionary principles will protect environment, then only
the authorities should decline permission for such projects.
37
With these principles in mind, the question that arises for
consideration of this case has to be considered.
37. It is an admitted fact that Chhattisgarh East Railway
Limited (hereinafter called CERL) was formed as a Public
Private Partnership between the Ministry of Railways, State
of Chhattisgarh and the South Eastern Coal Fields Ltd for
the construction of a railway line for the transport of coal
and passenger traffic between Kharsia and Dharamjaigarh.
It is also not in dispute that it was connecting Katghora to
Parsa and Dharamjaigarh to Pendra Road via Korba and
Katghora totalling about 453 KM in length and it was
divided in its three corridors as follows:
Corridor 1: East Corridor- Kharsia-Gharghoda-
Korichhapar- Dharamjaigarh up to Korba with a
spur from Gharghoda to Donga Mauha to connect
mines of Gare-Pelma block approximately 180 KM
in length.
Corridor 2: North Corridor- Surjur-Parsa-Katghora-
Korba, approximately 150 KM in length
Corridor 3: East West Corridor- Gevra Road to
Pendra Road via Dipka, Katghora, Sindurgarh,
Pasan, approximately 122 KM in length
38. It is also an admitted fact that a portion of the project for
10 - 64 Km was granted to CERL earlier where 76.099 ha of
forest land involved. So a proposal was given by the Project
Proponent through the State of Chhattisgarh for permission
for conversion of 76.099 ha of forest land for construction of
East Rail Corridor with all relevant papers to the MoEF &
CC and the same was forwarded to the Forest Advisory
38
Committee by the MoEF & CC for its comments and
recommendations and in the meeting dated 22.12.2014,
they considered the same and recommended the project
with the following additional conditions:
a. If required provision for construction of sufficient
underpasses for safe crossing of animals shall be
made in consultation with the Chief Wildlife
Warden
b. As and when required speed of train shall be
regulated in consultation with the Chief Wildlife
Warden of the State Government
c. Integrated Wildlife Management Plan shall be
prepared and implemented by the State
Government as the project cost to mitigate the
impact of railway project.
39. On the basis of this recommendation, the MoEF & CC
had granted Stage I approval dated 26.02.2015 with the 30
conditions of which following conditions relates to the
protection of Wildlife namely;
(12) If required provision for construction of
sufficient underpasses for safe crossing of
animals shall be made in consultation with the
Chief Wildlife Warden
(13) As and when required speed of train shall be
regulated in consultation with the Chief Wildlife
Warden of the State Government
(14) Integrated Wildlife Management Plan shall
be prepared and implemented by the State
Government as the project cost to mitigate the
impact of railway project.
(15) The forest land shall not be used for any
purpose other than that specified in the proposal.
(16) The forest land proposed to be diverted shall
under no circumstances be transferred to any
other agency, department or person without prior
approval of the Central Government.
(17) No damage to the flora and fauna of the
adjoining area shall be caused.
39
(18) Any tree felling shall be done only when it is
unavoidable and that too under strict supervision
of the State Forest Department.
(19) The user agency in consultation with the
State Government 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) The State Government shall ensure
controlled speed limit of the trains passing
through the forest portion to enable the trains
drivers to react to the sudden appearance of the
wild animals on the track;
40. It is also mentioned as one of the conditions that the user
agency shall submit the annual self compliance report in
respect of above conditions to the Nodal Officer and to the
Regional Office Ministry of Environment, Forest and Climate
Change, Nagpur regularly and any other condition that the
concerned Regional Office, Ministry of Environment, Forest
and Climate Change, Nagpur may stipulate, from time to
time, in the interest of conservation, protection and
development of forest and Wildlife. So it is clear from above
that while granting "in principle approval" known as Stage-I
approval, the Central Government had considered the
recommendations of the Forest Appraisal Committee and it
is thereafter incorporated the above conditions taking into
account the interest of Conservation, preservation and
Protection of wildlife.
41. After getting the compliance report furnished, the State
Government vide their letter No.Bhu-rabandh/Vividh/11-
40
368/1128 dated 02.05.2015 submitted before the Central
Government for final approval and MoEF &CC granted
formal approval to CERL Limited, Chhattisgarh for
conversion of 76.099 ha of forest land in Raigarh district of
Chhattisgarh subject to fulfilling as many as 12 conditions
of which following conditions are relevant for this purpose
for the purpose of protection of forest:
2. Compensatory afforestation over the
degraded forest land, twice in extent to the
forest land being diverted, shall be raised and
maintained by the State Forest Department from
the funds already deposited by the user agency.
3. The user agency shall pay the additional
amount of NPV, if so determined, as per the final
decision of the Hon'ble Supreme Court of India
4. If required provision for construction of
sufficient underpasses for safe crossing of
animal shall be made in consultation with Chief
Wildlife Warden.
5. As and when required speed of train shall be
regulated in consultation with Chief Wildlife
Warden of the State Government.
6. An integrated Wildlife Management Plan shall
be prepared and implemented by the state
Government at the project cost to mitigate the
impact railway projects.
7. The user agency consultation with the State
Government 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.
11. Any other condition that the concerned
Regional Office of this Ministry may stipulate,
from time to time, in the interest of conservation,
protection and development of forests & Wildlife.
41
42. It is on the basis of this, final approval was granted by
State Government dated 23.06.2015. There also the
conditions imposed by MoEF & CC have been reiterated.
43. There is no case for the appellant/applicant that it is a
declared reserved forest or it is part of any wild life
sanctuary or declared elephant corridor. According to the
State department including forest department none of this
area is part of notified reserved forest or wild life sanctuary
or bird sanctuary or part of national park. It is also stated
by Government of Chhattisgarh that there is no declared or
notified elephant corridor in their State. But it was admitted
by them that elephant being a nomadic animal used to
travel long distances from neighbouring state as well and
they used to cross the forest and go to the area where
human habitat is situated and there used to be some
human-elephant conflict. They also admitted that some
elephants died due to electrocution. There was no case of
any elephant died due to the accident in the area covered by
the present project.
44. It is also an admitted fact that the work of preparation of
Wild Life Management Plan was entrusted to Tropical Forest
Research Institute, Jabalpur known as TFRI and they
prepared Wildlife Management Plan considering all aspects
and it was submitted for approval of the Chief Wildlife
Warden and on the basis of the directions given, certain
modification were made and it was sent for approval and
42
later it was approved. The suggestions given by the Forest
Department have been considered and incorporated in the
management plan. It is not in dispute that the organisation
which prepared the Wildlife Management Plan namely TFRI
is an autonomous body under the MoEF&CC and they have
the expertise in preparing the plan. There is no case for the
appellant/applicant in this case that no management plan
was prepared but their case was that it was not available
for consideration before the Forest Appraisal Committee to
consider as to whether the mitigation measures mentioned
therein are sufficient or not. It may be mentioned here that
even at the time it was mentioned that the plan is under
preparation and it is also mentioned in the subsequent
report also that it was submitted for approval and there
were certain modification required and that was
incorporated and revised Wildlife Management Plan was
prepared and submitted for approval and it was undertaken
by the State Government through the Project Proponent
that the plan will be prepared, got approved and will be
implemented and only thereafter the Stage-I and Stage-II
approvals were granted by the MoEF&CC and the final
approval granted by the State Government under Section 2
of the Forest Conservation Act. So under such
circumstances it cannot be said that the interest of the
forest protection, preservation and conservation were not
43
taken into consideration by the authorities before granting
the same.
45. The other grievance was that only a piecemeal appraisal
was done and it ought to have been done in respect of the
entire area. It may be mentioned here that all the 03
corridors of the entire project was submitted and
permission was sought in respect of the area for which work
was awarded to CERL on the first occasion. So it is on that
basis CERL had submitted permission for conversion of
76.099 ha of forest land for this purpose and even in that
the entire project was mentioned and integrated Wildlife
Management Plan was directed to be prepared for this
purpose and only thereafter the implementation of the
project can be proceeded with. It is seen from the reply
statement submitted by the State officials that considering
the linear project like railway line, roads, etc, the in
principle approval given can be taken as working permit
and the work can be started after depositing of the present
net value and afforestation was done and they have
produced circular issued by MoEF & CC in this regard as
well.
46. It is thereafter, that the other portion of the project for a
distance between 0 to 10 with a spur area of 0-28 was also
granted to CERL and they applied for permission for
conversion of 26.52 ha of forest land and Stage-I clearance
was granted on 27.06.2017 and Stage-II clearance was
44
granted on 07.09.2017 and final forest clearance was
granted on 06.12.2017 which is a subject matter of Appeal
No 01/2018. In this, it has been categorically stated that
the Regional Empowered Committee had made certain
observations and it was returned and thereafter,
compliance report was submitted by the project proponent
and in the subsequent meeting, the officials of the project
proponent explained the circumstances and only after
satisfying with the same that the Regional Empowered
Committee had recommended the project for this portion
with certain conditions. The perusal of the minutes of the
Regional Empowered Committee on two occasions referred
to by the appellant himself in his appeal memorandum and
produced as Annexure will go to show that there was
application of mind by the REC before recommending the
project and it cannot be said that they had simply accepted
the proposal and forwarded the same to the Government
with their recommendations without application of mind.
47. The shortcomings found by the REC were rectified to
their satisfaction and only thereafter it had recommended
the project and that was also incorporated as conditions for
granting the approval which the Project Proponent is
expected to comply with.
48. Further the documents produced by both the sides
namely the correspondence between the TFRI, CERL and
the Forest department will go to show that Wildlife
45
department had conducted a study about the impact of the
project on forest and made recommendation regarding
construction of underprocess and over passes, the number
of such passes and other conditions to be incorporated
taking it account the conservation, protection and
preservation of forest and wild life of that area. Merely
because elephants are likely to or expected to pass through
the area which was not treated as a regular corridor of
elephant movement, it cannot be treated as a regular
elephant corridor for the purpose for appraising the project.
However, passing of elephants through these area and some
incident occurred involving human-elephant conflict and
death of elephants and human beings have been considered
and necessary conditions have been imposed by the forest
department to mitigate the circumstances to make the
movement of animal in that area easier through which, the
project was allowed to be implemented in that forest area.
49. It is an acceptable principle that country cannot survive
without development and Sustainable development with
application of precautionary principle has to be applied
while evolving the principle of sustainable development.
While considering the approval granted by the Government
for conversion of forest area, the Tribunal has only to
consider whether the above principles have been considered
by the concerned departments before granting the
permission. It cannot be said that for providing
46
connectivity by constructing railway line is not a public
project. Further there is no private involvement in this case
and entire project is undertaken by a public sector
undertaking namely CERL. So there is no necessity to
doubt the genuineness of this project and the profit aspect
of the project need not be considered when public interest
demand such a project to be implemented to provide easy
connectivity from one region to another for the public and
also for transport of goods. So under such circumstance, all
the documents produced and the appreciation made by the
concerned departments before granting the approval show
that the Government has taken all necessary precautions to
protect the forest before granting the approval.
50. Though the approval were granted in piecemeal, it will be
seen from the documents produced that an integrated
wildlife management plan of the entire area was prepared
and it was considered by the Forest department and
approved by the Chief Wildlife Warden and the Conservator
of Forest.
51. So under such circumstances we do not find any reason
to set aside the approvals granted by the MoEF & CC and
the State Government to CERL for construction of railway
project through the forest area and granting permission for
conversion for 76.099 ha and 26.52 ha respectively of forest
land for non-forest purpose.
47
52. The apprehension of the appellant/applicant is that the
present Wildlife Management Plan is not sufficient and did
not take care of the entire mitigating circumstances
required for protecting the Wildlife. Some more conditions
should have been imposed which according to the applicant
or even for the court considered to be necessary is not a
ground for setting aside the approval already granted, once
the Tribunal is satisfied that all reasonable precautions
have been taken applying the principles of precautionary
principle for maintaining sustainable development and in
spite of the conditions, imposed the impact of the project on
forest is more which is irreversible in nature is not
established.
53. As per order dated 07.12.2018 in M.A. No. 906/2017,
this Tribunal has modified the order of injunction
restraining the project proponent from proceeding with the
work of the project and after apprising all the approval
granted by the Government in this regard modified the
order and granted permission to the project proponent to
proceed with the project, after getting necessary final
approval from the State Government under Section 2 of the
Forest (Conservation) Act, 1980. It is true that it was
mentioned that it will be subject to validity of the approval
will be considered at the time of hearing the appeals. That
also will go to show that Tribunal had prima-facie come to
the conclusion that the department have applied their mind
48
while granting the approval and on the basis of the circular
issued, the "in principle" approval can be taken as a
permission subject to further approval granted by the forest
department with conditions, the project proponent is
entitled to proceed with once such approvals are granted. It
is also seen from the reply that work was in progress and
huge amount has been spent for the project so far.
54. So under such circumstances we feel that without setting
aside the forest clearance granted by the government for
this project, an expert committee can be appointed for the
purpose of exploring the possibility as to whether any
further conditions have to imposed for the purpose of
providing more mitigating measures to be taken to meet the
human-elephant conflict and also protect the wildlife and
flora and fauna in that area. So for that purpose we
constitute an Expert Committee consisting of Senior
representative of MoEF & CC, National Wildlife Board,
Wildlife Institute of India, Chief Wildlife Warden of the State
and Principle Conservator of Forest of the State to make an
assessment of additional mitigation measures for the
project and to ascertain as to whether any further
conditions are to be incorporated to mitigate the probable or
possible impact of the project on wildlife and also to avoid
the human-elephant and other wild animals conflict, which
is expected to happen or which is likely to be anticipated in
view of the random movement of elephants and other wild
49
animals found in these areas and submit a report to MoEF
& CC and MoEF & CC, in consultation with Forest Advisory
Committee, consider that report as well and impose further
conditions if any required to be complied with by the project
proponent in implementing the project.
55. So under such circumstances, we do not feel it
necessary to set aside the approval already granted. Further
condition if any necessary that can be considered as an
additional precautionary measures as part of precautionary
principle in permitting sustainable development vis a vis
protection of environment, on the basis of report to be
submitted by the Committee and can be imposed by the
Government in this regard as directed by this Tribunal in
the preceding paragraphs.
56. With the above directions and observations the appeals
as well as Original Application are disposed off.
.....................................
Adarsh Kumar Goel, CP .................................... K. Ramakrishnan, JM ............................... Dr. Nagin Nanda, EM Original Application No. 470/2015 PU 50