Uttarakhand High Court Vacates Stay On Cutting Of Trees For Construction Of Sahastradhara Road; Directs Govt To Transplant Trees

"As to which road should be developed or expanded, is a matter of policy decision. Neither the petitioner has a vested right to claim that the respondent should formulate a policy which he thinks proper, nor is it for this Court to lay down the policy for the State Government. We are only concerned with the examination of the issue, whether the impugned actions of the State are illegal or unconstitutional, and, on that ground, whether they call for interference."

Petitioner's Contentions:

Mr. Abhijay Negi, counsel for the petitioner, argued vehemently against the proposed removal of the Eucalyptus trees. He placed reliance on an order passed by the National Green Tribunal (NGT) in Safal Bharat Guru Parampara v. State of Punjab & Ors., [Original Application No. 09 of 2014] dated 20.07.2015, to submit that the Tribunal has recognised the fact that Eucalyptus is not a harmful tree, and the myths about Eucalyptus tree consuming too much water, and causing dryness in the soil, have been shattered.

He also contended that while claiming that the road in question is congested, the respondents have actually not undertaken any traffic assessment study before sanctioning, or starting the work under the project. He suggested that the respondents should construct elevated footpath, which should be 10-12 feet wide, on either side of the road. If this were to be done, about 70-80% of the trees proposed to be cut could be saved.

He further submitted that the respondents are exceeding the norm of 3.5 metre width for each lane, by proposing the width of the lanes as 4.5 metre, just to axe the trees on either side of the road. He further submits that the respondents are unnecessarily proposing to create a median of 02 metre, which is not required, and, if its width is reduced, many of the trees proposed to be cut could be saved. He relied on the order of the Supreme Court in Association For Protection of Democratic Rights and another v. State of West Bengal & Ors., (2021) 5 SCC 466, to submit that it is essential to strike a balance between environmental conservation with right to development.

He also argued that the manner in which the respondents are undertaking the process of transplantation, is completely unscientific. The petitioner has placed on record photographs of the trees, which the respondents have uprooted for the purpose of transplantation. He stated that all the branches and leaves of such trees have been cut, and only the trunks of the trees have been transported for translocation.

Respondent's Contentions:

Mr. S.N. Babulkar, Advocate General for the State, submitted that it is necessary to upgrade the road from the present two lanes to four lanes. He stated that in any four-lane project, as per the guidelines of the Indian Road Congress, the Central Verge (Divider) is necessary to be constructed for safer traffic movement. He highlighted, as per the Indian Road Congress – 73, 1980, the maximum traffic carrying capacity of a two-lane road is 10,000 Passenger Car Unit (PCU) per day.

However, he pointed it out, the traffic census conducted on the Sahastradhara Road in the year 2019 shows that the total traffic count on the said road was 11,359 PCU per day, which is already higher than the traffic carrying capacity of the two-lane road. Assuming a 6% annual growth of traffic count over three years, the estimated PCU per day would be 13,500 PCU per day. Thus, the upgradation of four lanes from two lanes is needed.

He vehemently contended that failure to upgrade the existing two lanes to four lanes would result in traffic congestion on the already busy road, which, in turn, would lead to higher consumption of petrol and diesel by vehicles, leading to emissions of highly polluting Green House Gases.

He further submitted that sustainable development requires the balancing of the rights of the people to neat and clean environment, with the right of the people to reap the fruits of development. Neither of these two rights can be overlooked, and it is necessary to balance the two rights. To that effect, he placed reliance on observations made by the Apex Court in Jindal Stainless Limited and another v. State of Haryana & Ors., (2017) 12 SCC 1 and N.D. Jayal and another v. Union of India & Ors., (2004) 9 SCC 362.

Mr. Babulkar also relied upon Vikram Trivedi v. Union of India, 2013 SCC OnLine Guj 5792, wherein the Gujarat High Court observed,

"19. No development is possible without some adverse effect on the ecology and the environment but the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. The balance has to be struck between the two interests and this exercise must be left best to the persons who are familiar and who have specialized in the field."

Court's Observations:

After giving due consideration to the arguments advanced on behalf of both the parties, the Court observed,

"There is no denying the fact that the entire world is facing the threat of environmental and climatic change due to Global warming. This is happening due to rapid industrialization, cutting of forests, burning of fossil fuel, which is leading to carbon emissions in the environment. However, that cannot be cited as a general reason to stop all developmental activities. Certain developmental activities may, in fact, contribute to reduction of carbon emissions. Widening of a busy and congested road would, in fact, help the environment, as it would lead to smooth running of traffic and lesser carbon emissions. It is well known that busy roads, with slow moving traffic, contribute greatly to air pollution, as a result of unproductive and inefficient burning of fuel."

The Court also perused the detailed order passed by the National Green Tribunal dated 20.07.2015, which was relied on by the petitioner. The Bench observed that the Tribunal also referred to its earlier order of 16.04.2015, wherein it noted its earlier observations that the Eucalyptus trees consume more water, but are water efficient plants, and that the Government was encouraging growing of the said plants in water logged areas, and where the ground water levels are safe.

"Though, there is no denying the fact that the cutting of the 1006 Eucalyptus trees would, at least for some time, adversely impact the environment, and also affect the birds and insects which nest in such trees, looking to the extent of forest cover in the Doon Valley itself, and the State of Uttarakhand as a whole, we cannot accept the submission that the species of birds and insects, which nest on trees, including Eucalyptus trees, would be rendered vulnerable. This is so, because the Doon Valley specifically, and the State of Uttarakhand generally, have a large forest cover, and it is not that all the trees, or all Eucalyptus trees, are being destroyed."

The Court held that so far as the aspect of transplantation of 972 trees is concerned, though, it appears that the trees, which have been transplanted, have been substantially cut down before transplantation – leaving only the bare trunk, at the same time, the respondents have stated, on affidavit, that the success rate of the transplanted trees is nearly 100%. The Court also had a glance on the photographs of the transplanted trees which were placed on record, which show that new branches have germinated, which would be possible only if they have taken roots at the relocated place.

Therefore, the Bench directed the State to buy the necessary equipment, for transplantation of the fully grown trees, positively within the next four months. However, since the work of expansion of the road in question has already commenced, and as it appeared to the Court to be necessary to meet the urgent needs of smooth flow of traffic, it permitted the transplantation of the trees, though under the supervision of the experts of the Forest Research Institute (F.R.I.), Dehradun.

It also directed the F.R.I., Dehradun to nominate at least two experts, who shall be involved at every stage of transplantation of the fully grown trees. It asked the authorities to provide necessary treatment to the transplanted trees for the injury caused to them in the process of relocation, to prevent them getting infected. The respondents were also directed to ensure compliance with the instructions and advice rendered by the experts from F.R.I. in all such matters of transplantation/ treatment of trees.

The Court also found merit in the submission of Mr. Babulkar that, while environmental concerns have to be kept in mind, the State of Uttarakhand – which is relatively a new and upcoming State, also needs development and infrastructure to meet the aspirations of the people, and to achieve the economic upliftment and developments.

Consequently, the Court directed the State to comply with the conditions imposed upon it through its order dated 22.06.2022, as well as the directions issued by it in this order. Accordingly, the stay application filed by the petitioner was dismissed.

Case Title: Ashish Kumar Garg v. State of Uttarakhand & Anr.

Case No.: Writ Petition (PIL) No. 68 of 2022

Order Dated: 16^th September 2022

Coram: Vipin Sanghi, CJ. & R.C. Khulbe, J.

Order Authored By: Vipin Sanghi, CJ.

Counsel for the Petitioner: Mr. Abhijay Negi and Ms. Snigdha Tiwari, Advocates

Counsel for the Respondents: Mr. S.N. Babulkar, Advocate General assisted by Mr. C.S. Rawat, Chief Standing Counsel for the State of Uttarakhand

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