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Judgment
This petition has been instituted under Section 14, 15 and 18 of the National Green Tribunal Act, 2010. M/s Akash Vashistha and Vikrant Tongad are the applicants and have impleaded an array of Respondents, mainly Ministry of Environment, Forest & Climate Change, Government of India (Respondent No. 1), State of U.P. (Respondent No. 2), Uttam Steel & Associates (Consortium) (Respondent No. 6) and Shiv Nadar University (Respondent No. 7).
There are a number of prayers, primarily seeking directions that the Government/Competent Authorities be directed to declare the Beel (Water Body) Akbarpur habitat as a protected area as well as for quashing the Environmental Clearance (EC) granted to the respondents herein. Interalia, it was also prayed that the wetlands and its surroundings should be protected and no construction should be permitted around those areas. According to the applicant, the private respondents who are, a University and a Builder, had destroyed rich wildlife habitat of the area as well as reclaimed and encroached upon the wetland and even raised constructions there upon. They finally pray for setting up a Monitoring Committee of permanent nature to ensure the compliance of the environmental norms at the Dadri/Beel Akbarpur Wildlife habitat.
In order to get to the bottom of the issue, a Special Committee was constituted vide our order dated 21st August, 2013. Shri V.N. Garg, Principal Secretary, Environment and Forests, UP, was the Nodal Officer and had among other members, Advisor MoEF&CC, Chief Wildlife Warden/Principal Chief Conservator of Forests (Wildlife) of U.P., representative of SEIAA and Wildlife Institute of India. The Committee submitted its report on 12th September 2013.
The Committee found that there has been no notification declaring these areas as wetland as no proposal in this regard had been received by MoEF&CC from the Government of U.P.
The Committee observed the following during its field visit:
a. That most of the areas in Village Beel Akbarpur and in village Chithera, are low lying and rain water from the adjoining areas accumulates during the rainy season. As per the local revenue officials, farmers do sustenance farming when these lands get dried up. The Hasanpur drain also sends water into this area.
b. This area has water bodies, stretch of grass lands and is placidly undulating.
c. There is a pond (as per revenue records) spanning over about 1,9470 hectares of land in the village: Beel Akbarpur.
d. At the time of field visit, the committee opined that the areas in both villages, Beel Akbarpur and in village Chithera, have significant conservation value, as it was found that these areas were a good breeding habitat for Black-buck (Schedule-1 animal) and several Blackbucks were spotted on the site. The committee also saw several species of water birds such as Sarus crane, lesser whistling teal and Spot billed ducks in this area.
e. Their discussions with the local people and naturalists revealed that these water bodies provide excellent habitat for migratory avifauna.
The Wildlife Institute of India (WII), Dehradun has been entrusted with the work of mapping, which can clearly demarcate the areas under water. Only after getting the report from WII, a definitive conclusion can be drawn whether, the private parties viz M/s Uttam Steel and Associates and Shiv Nadar University, have encroached upon the land or not.
According to the applicants:
i) The Beel Akbarpur Wet land falling between Dadri and Sikandrabad areas in Greater Noida Area of Gautam Budh Nagar District of U.P. is a rich habitat of blackbucks (Antelope cervicapra) and Neelgais (Boselaphus tragocamelus), apart from a very vast and diverse, native flora and fauna, photographs of which were attached with the pleadings. The Beel Akbarpur wetland provides habitat to over 230 species of migratory and resident birds. The nesting breeding of rare bird named 'Bristled Grassbird', has been recorded in Beel Akbarpur wetlands as per the media report dated 11.11.2010.
ii) Size of the catchment of wetlands has been reduced to 20 hectares, due to intensive builder activity, excessive human interference and reduced rainfall in past few years.
iii) Entire area of Beel Akbarpur wetlands, along with that in its surrounding, was sold off to private builder M/s Uttam Steel & Associates (Consortium), who are seeking to bring huge construction in the said area under the brand name of Ansals API Hi-Tech Township.
iv) That a majority of Beel Akbarpur wetlands habitat is on village community lands (popularly called as Gram Sabha land) while a part of it is owned by farmers.
v) The State Government of Haryana facilitated the sale of Dadri wetlands area to M/s Uttam Steel & Associates (Consortium) and granted environmental clearance to the builder for raising Hi-Tech township in about 2500 acres of land without undertaking any actual Environment Impact Assessment of the area, much less the impact of the said project upon the above wetlands.
vi) That M/s Uttam Steel & Associates (Consortium) had violated the terms of the EC dated 7.10.2009 granted to it by the SEIAA U.P. The condition is that "No wetland should be infringed during construction and operation phases. Any wetland coming in the project area should be suitably rejuvenated and conserved". EC was also granted to Shiv Nadar Foundation by the State Government, overlooking the environmental impacts it would have on the wetlands habitat wildlife.
vii) That Beel Akbarpur in Dadri was listed as a wetland in 4 hectares area in the State Government's list of wetlands. A copy of the list of wetlands in Dadri Tehsil area was acquired by the applicants to the RTI and annexed to the pleadings.
viii) That the State Government removed Beel Akbarpur from the revised list of wetlands in March 2009, to allegedly facilitate the gains to the builder. Revised list of wetlands has also been annexed. The applicants have contended that the removal of Akbarpur Beel from the list by the State Government in 2009 survey, despite its fulfilling the definition and criteria of the IUCN. It defined wetland as "All the submerged or water saturated lands, natural or man-made, inland or coastal, permanent or temporary, static or dynamic, vegetated or non-vegetated, which necessarily have a land-water interface" as mentioned in the letter dated 25.03.2009
ix) The Respondent No. 7, Shiv Nadar University has stated that the wetlands allegedly situated in Beel Akbarpur, Dadri, is very distant from where the University is located. The said University is located in Chithera. Further there is a vast intervening area between the two locations Beel Akbarpur and Chithera, where Shiv Nadar University has come up. Even the applicant themselves had stated that Beel Akbarpur is different and the address of the Shiv Nadar University is at Chithera. The land on which the said University is located was acquired by the Uttar Pradesh State Government in 2006-07 for the Uttar Pradesh State Industrial Development Corporation (UPSIDC). Thereafter, the land was allotted by UPSIDC to Shiv Nadar University in 2008-09.
Respondent No. 7 has further stated that the applicant has waited for over a period of 7 years since the alleged cause of action first arose, to raise their grievance against the University. During which period the land use and the nature of topography of land have irreversibly changed.
Respondent No. 7 has further stated that even though University has not created any wetland, however, with a view to maintain the natural bio-diversity of the area and to improve the harmony between the development and nature, the university has taken various initiatives such as
(a) Creating a bio-diversity park
(b) Converting the low lying areas on campus into permanent water bodies
(c) Undertaking initiatives to harvest
(d) Collect and preserve this water in order to create a permanent body of water.
(e) Monitoring the Environment and taking steps to reduce its carbon footprint.
(f) It has spread awareness amongst employees and students about simple measures that can be taken to reduce consumption of electricity and water, and segregating the waste generated between wet and dry waste.
Respondent No. 6, M/s Uttam Steel & Associates (Consortium) have stated that they were selected by the Government of U.P for the development of Hi-Tech Township at Dadri, District Gautam Budh Nagar, U.P. A Detailed Project Report (DPR) was submitted and approved by the Ghaziabad Development Authority (GDA) on 08.08.2008, the Competent Authority. Prior to it, they carried out topography survey of land and identified the land comprising 5 villages. In the DPR, due care and caution was taken to identify, accommodate and preserve water bodies and environmental features based on the said DPR and thereafter the layout plan was sent to the DPR Committee for approval of the proposed Hi-Tech Township.
The Environmental Clearance was granted by the SEIAA U.P, vide its letter dated 07.10.2009 to the project, subject to certain conditions. The NOC from UP Pollution control board was also issued for the project under the provisions of Water (Pollution Control) Act, 1974 and Air (Pollution Control) Act, 1981.
However, based on certain media reports, a site inspection of Village Beel Akbarpur was carried out by Dr. S. K. Khanduri of Wildlife Division of MoEF&CC, who submitted a report on 21.1.2012 resulting into issuance of show cause notice dated 2.2.2012 by the Ministry of Environment and Forests. The show cause notice proceeded on the basis that the inspection report indicated existence of a pond/pokhar in the project site and that some of the purported wetlands were reclaimed by Respondent No. 6 and thus caused alleged violation of condition no. 22 of the approval. It is the contention of Respondent No. 6 that no wetland was either specifically mentioned in the approval nor was identified by the SEIAA in the project area and the condition no. 22 was general in nature. An area of approximately 6.4 hectares was suggested to be left open around the pond/pokhar as per the layout plan of Respondent No. 6.
Thereafter, the MoEF&CC after reviewing the report of Dr. Khanduri dated 21.2.2012 and on verification of the Regional Officer of MoEF&CC, Lucknow, directed Respondent No. 6, "Not to take up any construction/earth filling/land reclamation work in the vicinity of wetlands or water bodies and lands having the characteristics of wetlands in the project area and particularly in the open expanses of wetlands frequented by several bird species spread over an area of approximately 8 hectares" as mentioned in the field report of Wildlife Division of Ministry of Environment & Forests dated 23.01.2012;
"not to carry out any beautification work of the ponds/water bodies/wetlands till the mapping of the area is completed by the State Government";
"and required to environmentally restore the wetlands/water bodies, if damaged, as a result of work at any stage of the project implementation/operation".
Respondent No. 6 maintains that they have immediately complied with the directions issued by MoEF&CC. In order to help and assist SEIAA, U.P to map the area as suggested by MoEF&CC, Respondent No. 6 submitted its input based on the satellite images and ground facts. Further they submitted a plan superimposing the existing pond/pokhar on the sajra map and also the additional area totalling 8 hectares, as suggested by MoEF. According to them, it is of essence to note that in accordance with the revenue record, the pond is approximately 1.9 hectare and the purported wetland as identified by the Wildlife Division of the MoEF&CC was approximately 8 hectares, including the pond of 1.9 hectares. In view of this, Respondent No. 6 identified another area of 6.1 hectare for protection and termed the same as additional pond/pokhar and green belt. He undertook not to carry out any construction, earth filling in the identified 6.1 hectares area and conservation of core wetland of 1.9 hectare. The SEIAA, U.P. thereafter directed Respondent No. 6 to take action in compliance to the direction of the MoEF&CC and send compliance report to the MoEF&CC and SEIAA. In short, Respondent No. 6 stated that they have fully complied with the direction of MoEF&CC and have not in any manner violated the condition. Respondent No. 6 further stated that pond/pokhar is not a wetland in accordance with the wetland (Conservation and Management) Rules, 2010 and it has also not been notified as such. Nonetheless, they categorically state that they have not carried out any construction on the purported wetland.
Following were the objections on behalf of Respondent No. 6 to the report of Monitoring Committee dated 22nd September 2013.
The monitoring committee at page 25 have stated that they have prepared a proposal for consideration to notify Beel Akbarpur land as a wetland, as a special case. Further, it was not under the scope of monitoring committee to give a proposal to notify the land as wetland. The respondent no. 6 (Uttam Steel) stated that therefore in the given circumstances no weightage may be given to this aspect of the monitoring committee report and is liable to be rejected.
Respondent No. 7, Shiv Nadar University while replying to NGT notice dated 26th Aug 2013, mentioned that the institutional land in Greater Noida Master Plan has been leased to Shiv Nadar foundation by UPSIDC on 90 year lease, free from all encumbrances or restrictions (including any environmental encumbrances or restrictions) which would prohibit the construction and establishment of Shiv Nadar University on the whole of the leased land. Copies of lease deeds have been filed as Annexure R7-A and R7-B. It is submitted that the land on which Shiv Nadar University has been established has not been notified as Sanctuary or National Park under Wildlife Protection Act, 1972. The field report of Dr. Khanduri dated 23.1.2012, pursuant to which show cause notice 02.02.2012 was issued to M/s Uttam Steel & Associates, did not make any reference to Shiv Nadar University.
Counter Affidavit on behalf of Respondent No. 2, State of U.P. & Respondent No. 4, SEIAA, U.P. were filed on 31.10.2013. In the compliances of the environmental clearances issued to both proponents i.e. Hi-Tech Township and Shiv Nadar University, they denied existence of any wetland within the project boundary or vicinity. In the light of report submitted by the special committee appointed by the NGT, the matter regarding EC issued to Respondent No. 6 and Respondent No. 7 was to be put up before SEIAA/SEAC for re-examination.
The applicants also raised some objections on the report of the special committee constituted by the Hon'ble NGT vide order dated 21.8.2013, filed on 27.11.2013. The applicant prays to direct the committee to produce all revenue records, of at least 20 years with respect to the concerned area, quash the EC granted to Respondent No. 6 and Respondent No. 7, further direct Central and State Government to notify the whole area as wetland under Wetlands (conservation & management) Rules, 2010: Direct WII to submit report on wetlands in 6 months and initiate a research study by a reputed group of bird watchers like Anand Arya, so as to get the complete picture, and direct Respondent No. 2 to prepare satellite imagery of wetlands in every 15 days.
The affidavit of Respondent No. 1, MOEF&CC filed on 6.1.2014 states that monitoring the project and examining the compliances of the EC conditions lies with the State Government, and SEIAA UP as they have given EC to Respondent No. 6 & 7, and mapping of the area is their responsibility.
The U.P State Government, Respondent No. 2, in compliance of the Hon'ble Tribunal's order dated 21st Feb 2014 submitted that as per revenue records the "U" shaped body depicted as tanks, dry area in Survey of India map , falls in the villages Beel Akbarpur and Chithera in Tehsil: Dadri , District: Gautam Budh Nagar.
On behalf of UPSIDC to the OA No.121/2013 under Section 19 of NGT Act, 2010 read with Rule 16 of the NGT (Practice and Procedure) Rules, 2011, they stated that none of the land acquired/transferred by the corporation in village Chithera Tehsil in Gautam Budh Nagar is a wetland.
22 . The critical question that needs to be answered at this stage is whether it is a wetland as per the Wetlands (Conservation and Management) Rules, 2010 and whether there has been a deliberate flouting of the same?
We find from the pleadings that the land in question was allocated by the UPSIDC for the Hi-Tech Township and the Shiv Nadar University in these two villages, Chithera and Beel Akbarpur. Clearly there is no mention anywhere that the said area is a wetland as per the rules (V) of the Wetlands (Conservation and Management) Rules, 2010. A wetland in order to be protected needs to be first recommended by the State Government and the same should be notified by MoEF&CC. In this case no such procedure has been followed. Therefore, it is difficult to agree with the contention of the applicant that the said area is a wetland.
Further the Shiv Nadar University has come up in Village Chithera which is nowhere counted as a part of the wetland even as per the contention of the applicant. Both these institutions have come up on a premise that these are not wetlands as per rules. However, we find that about 8 hectares that is (1.9 and 6.1) are being earmarked for preservation by Respondent No. 6.
In this regard, we find that the Hon'ble Tribunal has applied the Principle of Sustainable Development in the case of M/s. Sterlite Industries (India) Ltd. Vs. Tamil Nadu Pollution Control Board and Ors1. MANU/GT/0070/201314.
The earlier school of thought was that development and ecology are opposed to each other but with the passage of time and development of law, this concept has undergone tremendous change and is no longer acceptable. Now operates the principle of sustainable development. It takes within its ambit the application of 'principle of proportionality' and the 'precautionary principle'. In other words, one must, while promoting development, not only ensure that no substantial damage is caused to the environment but also take such preventive measures which would ensure that no irretrievable damage to the environment, even in future, is caused. All these principles have to be examined and applied on the touch stone of "reasonable person's test", as afore-stated. Where the principle of proportionality introduces prudent mind's reasonableness in relation to development vis-a-vis environment, there the precautionary principle can be explained to say that it contemplates that an activity which poses danger and threat to the environment is to be prevented since prevention is better than cure.
While applying the concept of sustainable development, one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which courts or tribunals have to balance the priorities of development on the one hand and environmental protection on the other. So sustainable development should also mean the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's test'.
The above judgment refers to the Principle of Sustainable Development, the Principle of proportionality and the test of reasonableness. In the present case, we find that the wetland as stated by the applicants is certainly not declared as a wetland as per the rules by the MoEF&CC. The U.P Government has acquired this land in 2006-07 and allocated the same through UPIDC for construction of the Hi-Tech University and Shiv Nadar University. There is no justification to seek withdrawal of the EC granted to these entities.
Under the circumstances, we direct that the area which are low lying, should be protected by Respondent No. 5, 6 and 7. The State Government of U.P. should also give an undertaking for preservation of the habitat of the aquatic flora and fauna. It should be strictly ensured that no encroachment takes place. Both these institutions need to be saddled with the responsibility of preserving the low lying area in perpetuity, while running their institutions, so that the avian habitat is preserved for good.
We therefore cannot agree with the contentions of the applicant that it is a wetland where the M/s Hi-Tech Township and the Shiv Nadar University are coming up and that the EC should be cancelled. However, all steps may be taken to preserve the existing low lying land as a habitat of the aquatic flora and fauna.
We, however, agree with the limited prayer (d) & (i) of the applicant and direct U.P. State Forest Department to carry out suitable afforestation for marshy areas.
We also direct that a monitoring committee be set up by the Government of U.P to ensure compliance of environmental norms in the Dadri area to prevent any further encroachment by human beings and constructions. To prevent further encroachment thereon, there should be proper boundary pillars so that the same act as a deterrent against any further illegal encroachments.
No domestic sewage should be permitted to flow into the water bodies and any domestic sewage flowing into the Beels should be diverted into the sewerage network or trapped by constructing individual septic tanks by the households, the township and the University, as the case may be. This shall be enforced in consultation with the UP Jal Nigam. Both M/s Hi-Tech Township and Shiv Nadar University will give an undertaking to this effect.
With these directions, we dispose of the application with no order as to costs. As original application is disposed of, Miscellaneous Application no. 1221/2016 does not survive for consideration.