Abhijeet Dutta Roy vs Union Of India and Ors

By means of filing this application, the applicant has prayed as follows:-

"a) Direct the respondent no 1 and 7 to call off the road widening project in the forest area, in the interest of Environment or;

b) Direct the authorities to comply with the Environmental Legislations under the supervision of this Hon'ble Tribunal for completion of the project and;

c) Direct the respondents to explain as to why the notified reserved forest was not de-notified before grant of permission to such big project of road widening which has put the environment at stake and impose exemplary cost on the responsible officers.

d) Direct imposing of exemplary cost on respondent no 6 and 7 and further direct restoration of the loss cause to the environment.

e) Direct, penal action against the ailing officers of the State and the Union for undertaking such grave illegal activities.

f) Direct, the State Government and the Central Government to conduct public hearing and de-notify the reserve forest for any such projects in the future".

Heard the Learned Counsels for the parties and perused the records.

The Learned Counsel for the applicant has argued that Kanker District is located in the southern region of the state Chhattisgarh, India within the longitudes 20.6-20.24 and latitudes 80.48-81.48. The total area of the district is 5285.01 square kilometers. The population is 651,333. The Gadiya Mountain came into light at the time of Kandra dynasty. When the Kandra king Dharma Dev won the Kanker. He declared his capital on Gadiya Mountain, Which is a natural form of a fort. On the mountain there is a tank which never dries and fulfill by water throughout the year. One part of this tank is called as Sonai and the other part of this tank is called as Rupai. Actually Sonai and Rupai were the two daughters of Kandra king Dharma Dev. On the southern part of this tank there is a cave named Churi pagar. The entry of this cave is very much narrow. On any outer attack the King and his family lived safe in this cave. The space of the cave is sufficient to accommodate 500 people inside. The exit door of this cave is towards west direction. In the south east part of Gadiya mountain there is another cave Called Jogi cave. The length of this cave is 50 meters. In ancient time lot of monks lives here alone for their meditation, There is a small pond in this cave. The water of this cave flows on the rock like a water fall. On the bottom of Gadiya Mountain the Doodh river flows.

That, the State Government has declared the forest of the Gadiya Mountain as a reserved forest as the said area is rich in both flora and fauna, the ecological balance of the area is maintained by the same and the said mountain area is of local tourist importance to the temples which exists on the hill top. It is pertinent to mention over here that, the approach to the said temple is by way of ancient stairs present at the area in question and the local residents visiting the spot in question use the same due to its mythological importance.

That, the respondent no 7 is constructing a concrete road on the hill in question through its user agency respondent no 6 by violating the provisions of the Forest (Conservation) Act 1980 thereby causing huge irreparable loss to the forest and ecology of the said area in question. It is pertinent to mention over here that the respondent no 6 and 7, blatantly violating the conditions imposed under the forest conservation act 1980 and dumping the huge boulders and debris on the slopes of the mountain, destructing the forest area of the area in question and the respondent no 6 and 7 in collusion had started the said construction in question on 25/07/2013 without obtaining the due forest clearance in accordance with law and blatantly fell the trees in unscientific manner. It is also pertinent to mention over here that the said user agency and the respondent no 7 has not obtained any clearance from the Pollution Control Board, Mining Department and the disaster management authorities, because of which there was a land slide in the area and the debris which was thrown on the slopes of the hills fell in the Kankaleen Lake thereby obstructing the natural flow of water in the lake and reducing the tank volume of the same.

That, section 20 of the Indian Forest Act 1927 provides that the state government shall publish a notification in the official gazette definitely specifying the boundary marks erected otherwise, the limits of the forest which is to be reserved and declaring the same to be reserved/De-reserved.

Section 3: of the Indian Forest Act, 1927 states as under: Power to Reserve Forest-The State Government may constitute any forest land or waste land which is the property of the government, or over which the government has proprietary rights, or to the whole or any part of the forest produced of which the government is entitled a reserve forest in the manner hereinafter provided.

That, section 26 (a) provides for the act prohibited in reserve forests which includes making any fresh clearing prohibited by section 5 Section 5 of the Act provides that. "No fresh clearing for cultivation or any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.

That, section 27 of the Indian Forest Act 1927 provides for the power to the State Government to declare forests to be no longer reserved, it provides that "the state government by notification in the official gazette direct that from a date fixed by such notification, any forest or any portion thereof reserved under the act shall cease to be a reserved forest from the aforesaid, it is amply clear that a notified reserved forest could only be de-reserved by a notification to that effect made by the state government.

That, questioned land is a reserved forest notified by the State Government under the provision of Section 4 of the Indian Forest Act 1927 and the same has not been de-notified under section 27 of the act of 1927.

That, Section 2 of the Forest (Conservation) Act 1980 provides for restriction on the de-reservation of forest or use of forest land for non-forest purposes, it states that "notwithstanding anything contained in any other law for the time being in force in 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 non forest purpose;

iii. That any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization 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.

Explanation - For the purpose of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-

a) the cultivation of tea, coffee, spices rubber, palms, oil-bearing plants, horticultural crops or 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.

That, actions under the Indian Forest Act 1927 or any other law require forest clearance under the Forest (Conservation) Act 1980 but this does not mean that Forest Clearance (FC) under the act of 1980 can be considered as a suo motto operation of the rest of the procedure laid down under the act of 1927 or other laws. Had this been the intention of the legislation while including section 2 in the act of 1980, the word approval has not been used in the dictum of the said section 2.

By filing the reply respondent no.-1 MoEF & CC has submitted as follows:-

"1. That, to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto, the Parliament of India enacted the Forest (Conservation) Act, 1980 ("FC Act", for short).

That, the section-2 of the FC Act provides that notwithstanding anything contained in any other raw 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 purpose;

(iii) That any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government; and

(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 reafforestation.

That the Ministry of Environment, Forest and climate change issued guidelines dated 13.05.2011 with a view to accelerate infrastructure development in the Left Wing Extremism District of the country. Relevant portion of the guidelines are stated as follows:

"Accordingly, I am directed to say that in partial modification of this Ministry's said letter of even number dated 03.11.2010, to facilitate expeditious creation of the critical public utility infrastructure in 60 Left Wing Extremism affected districts, the existing general approval under section 2 of the Forest (conservation) Act, 1980 for diversion of forest land for creation of critical public utility infrastructure by Government Department is further relaxed to diversion of not more than 5.00 ha. of forest land in each case, in these districts. The activities covered under the General approval area as below:

Schools,

Dispensaries/Hospitals,

Electrical and Telecommunication Lines,

Drinking Water,

Water/Rain Water Harvesting Structures,

Minor Irrigation Canal,

Non Conventional Sources of Energy,

Skill up Gradation/Vocational Training Center,

Power Sub-stations,

Rural roads/all categories of public roads and quarrying of materials used in construction of public roads,

Communication posts; and

Police establishments like police stations/outposts/Border Outposts/Watch Towers in sensitive area (identified by Ministry of Home Affairs); and

Underground laying of optical fibre cables, telephone lines & drinking water supply lines.

That it is submitted that the protection and management of Forest and Forest resources are primarily the responsibility of the concerned state Government. The role of Government of India is limited to policy making, issue of advisories, update directions from time to time".

By filing the reply respondent nos. 2, 3, 4 and 5 has submitted that work of construction of CC road is being carried out only after obtaining all the requisite permissions under the Forest (Conservation) Act, 1980.

The allegation made by the Petitioner that Respondent No. 6 and 7 are dumping huge boulders and debris on the slopes of the mountain and destructing the Forest area is denied and it is argued that it is the burden of the applicant to prove this fact and applicant by way of any evidence has not proved this fact. It is further argued that the area in question has been notified as a reserve forest falling under the reserve forest of Kanker Division compartment no. 69. In order to protect the area of reserve forest, Boundary Pillars (Munaars) have been embedded on all four sides of the Forest area. The entire forest produce from the area is in the possession of the Forest Department.

It is further argued that under the provisions of Forest (Conversation) Act, 1980, the non-forest activity is permitted in the forest without changing the legal form of the forest and as alleged by the Petitioner, the forest area is not transferred to the Project Proponent and thus, there exists no reason for de-notification of the forest as mentioned under Section 27 of the Indian Forest Act, 1927. That the construction of a road at Gadiya Pahad was started after obtaining due permission from the department of the Forest.

That in pursuance of the order issued by the Government of India, due to the Geographical area of Kanker District being more than 50%, the State of CG, Revenue and Disaster Management Department, Mahanadi Bhawan, Raipur vide its letter dated 30.01.2015 on basis of unavailability of revenue land certificate, instead of diffracted forest land, double spoiled forest area O.A. Bardevri (c) Compartment No. 333 has been marked. The matter was prepared and sent to senior office, due to which vide letter dated 07.02.2015 the Government of CG, granted the permission for non-forest use of the first phase to the Executive Engineer, Public Works Department, Kanker and it is further submitted that appropriate provision for movement of wildlife across the road shall be taken care of. Though there is not much movement of wildlife animal at the area in question. Copy of the letter dated 08.06.2018, 06.05.2018, Gram Panchayat Proposal, letter issued by PWD in favour of Forest Department and reply by the Forest Department has been attached with the submission made by the respondent.

It is further submitted that for soil conservation measures, slop stabilisation, avenue purpose and planation of trees Rs. 37 lakhs and alternate cost of Rs. 20,11,983/- has been deposited to the relevant head. Further, vide letter dated 11.03.2015 an amount of Rs. 36,40,467/- has been deposited in the account of the Forest Department for production of forest tools.

By way of filling the reply the respondent no. 8 has argued that the Gadhiya Pahad together with an ancient Shiv Mandir and Sheetla Mata Mandir are situated in Kanker town and are places of immense spiritual significance. It is imperative to develop these locations as tourist spots so as to provide the fruits of development to both Kanker and Northern Bastar, and on inspection it was found that the construction of a metalled approach road to the Gadhiya Pahad and the temples of length 2 kilometers was in progress, of which 1 kilometer had been completed. The width of the road is 8 meters. It is pertinent to note that the PWD has cut no trees in this regard. Reliance shall be placed on a letter dated 03/02/2018 issued by the executive engineer, PWD.

It is submitted that, matters relating to cutting of trees are not subject matters of the Board. It is submitted that, no consent under the provisions of the Water Act, 1974 and the Air Act, 1981 is required to be obtained from the Board in matters of road construction. As per the notification dated 14/09/2006 issued by the Ministry of Environment and Forest, Government of India, matters related to construction & widening of roads have been included in the amended schedule of 01/12/2009. The under construction road at Gadhiya Pahad does not come under the purview of the aforementioned notification. Therefore, no environmental clearance under the environment protection act is required in this regard.

The Learned Counsel for MoEF & CC has submitted that Ministry of Environment, Forest and climate change issued guidelines dated 13.05.2011 which is able to accelerate infrastructure development in the Left Wing Extremism District of the country which has been quoted above and in light of the above provisions the construction of road has been permitted by the MoEF & CC.

Accordingly, there is no violation of any rules and the relief prayed is not maintainable. The application has no merit at all and construction of road was in accordance with the rules, guidelines and notification issued by the MoEF & CC. The application deserves to be dismissed and accordingly dismissed.

The application is disposed of accordingly.