Supreme Court Asks DMRC To Apply Under Forest Conservation Act To Cut Trees For Delhi Metro Phase-IV Expansion

The Supreme Court on Monday directed the Delhi Metro Rail Corporation (DMRC) to file applications before the Chief Conservator of Forest OF the Government of National Capital Territory of Delhi (GNCTD) under the Forest Conservation Act seeking permission for felling of trees for the Phase -IV project.

The Central Empowered Committee set up by the Supreme Court did not take into consideration his objections. He further pointed out that CEC filed its report no 8 without taking into consideration the submissions/suggestions of the Forest Department as well.

Chief Wildlife Warden of Delhi was not invited by them (CEC) at all. There is a large amount of wildlife, birds, eco sensitive zone of the Asola Bhatti Wildlife Sanctuary

No construction is allowed until permission is sought under Delhi Preservation of Tree Act, 1994.

Further, the Court directed the Chief Conservator of Forests to forward the application with their recommendations within one month to the Ministry of Environment and Forests, Government of India. Further, the Government of India should consider the application in accordance with the relevant rules and regulations and also in accordance with the definition of forest given by the Court.

"..the crucial issue whether the areas through which the metro railway lines are to be constructed and pass through are forest areas or non-forest areas has to be determined by GNCTD", the Court observed.

The Court also issued a further direction to the DMRC and GNCTD to evolve a plan of action to plant tree saplings in the city. The plan has to be submitted before the Court within 12 weeks.

A bench comprising Justices L Nageswara Rao, BR Gavai and BV Nagarathna had reserved orders on the DMRC's application on November 11. The DMRC had argued that forest clearance was not required as the Central Empowered Committee's report stated that the trees proposed to be felled do not constitute forests.

DMRC had identified over 10000 trees for felling for the expansion work of the Janakpuri-RK Ashram, Maujpur-Majlis Park and Aerocity-Tughlaqabad corridors and had not got the requisite permission for chopping them. In some of the areas the DMRC had started construction in violation of the Forest Conservation Act, 1980 because of which a show cause notice was issued by the Ministry of Environment Forest & Climate Change against the CMP, DMRC.

Background of hearing

While the bench of Justices LN Rao, BR Gavai and BV Nagarathna was reserving orders in DMRC's application, Solicitor General of India Tushar Mehta appearing for DMRC submitted that, "Suppose I am to go for forest clearance under the Forest Conservation Act, it is going to take one and half years. There would be a price escalation of the project. If they (those opposing the project) really want to have the luxury let them deposit the escalated amount of the project."

You will have to get clearance Mr Solicitor General. We will give time to the Union of India to give clearance.We are not going to accept this submission made by CEC that all trees are not forests. 'We are not going to accept it. Just see the ramifications of this point being accepted. Who is going to find out whether the tree is natural or planted. It is going to create chaos," Justice Rao, the presiding judge of the bench remarked.

Corridor Proposed Is Found To Be The Most Feasible And Will Cover A Sizable Population :Solicitor General Tushar Mehta

Appearing for DMRC, the Solicitor General submitted that the report by the CEC observes that it is not a forest land.

Referring to the contents of the report dated August 10, 2021 submitted by the CEC, SG contended that the project was in public interest which had to cover a densely populated area of Aerocity.

He further submitted that orders granting permission to Centre and Delhi Government were issued from time to time for doing activities on Forest Lands, morphological reach areas and deemed forest for construction of metro tunnels.

SG also submitted that due to the proposed project, vehicular traffic from IG Airport to Delhi will reduce and compensatory planting will be located on open lands made by DDA. He further submitted that Dhulsiras village Dwarka shall be notified as protected forests.

"Compensatory plantation of indigenous proceedings will be undertaken by the Forest Dept of Delhi Government. Cost of raising 34000 saplings will be deposited in advance by the applicant (DMRC) with the Department of the Delhi Government," SG further added.

Metro Reducing Pollution And Catering To Large Number Of Commuters. You Reach Airport From New Delhi In 21 Minute: Advocate ADN Rao Amicus Curiae

Amicus Curiae submitted that if the DMRC gave an undertaking that let the court decide whether the stretch of road no 26 having length of 5.33 km was forest or non-forest and the court found that it was a forest area then forest clearance, compensatory afforestation and payment of money would be needed.

'Payment of this money cannot hold Delhi to ransom which is facing severe air pollution. Why metro? Metro is for need of a large number of commuters. It reduced traffic. In 21 minutes flat, your lordships can be at the airport. Even going by it, some people are still using it. At 3 signals you spend 21 minutes, whereas in 21 minutes you'll be at the airport," Rao submitted.

We're Not Against Metro But Want DMRC To Follow The Law : Delhi Govt

The Counsel appearing for Forest Department GNCTD stated that they were not tobjecting to the development of Metro, was not coming in the way of the metro but just wanted the DMRC to follow the law for the purpose of obtaining the requisite permission for construction on Forest Land and felling of trees.

Arguing that there was senior conflict of interest between Centre and DMRC, counsel submitted that DMRC should not be represented by Central Government counsel as the MoEF, Govt of India had issued show cause notice against DMRC for violating the Forest Conservation Act, 1980. He further submitted that DMRC had only pointed out the notices issued by Delhi Government and had concealed many documents.

"Order was passed on Dec 12, 1996 where directions were issued to appoint a committee and notify all the deemed forest. Affidavit was filed and in pursuance, some documents were filed. This stretch is part of deemed forest. They've followed the procedure and law and only this time as per my instructions, they've objected to the same," Shroff added in this regard.

It was also his submission that "CEC is going contrary to an affidavit filed in 1997 and the entire system that has remained in force cannot go away. This can't be upset today merely by a committee. In this manner they cannot interfere with what has been happening since 1997. To say that permission under Forest Preservation Act is necessary and not under Forest Conservation Act is not correct."

Plea By DMRC Is To Short Circuit The Legal Process That Has Been Followed In Past: Senior Advocate Rajiv Dutta

Appearing for Dr PC Prasad and Advocate Aditya Prasad, Senior Counsel commenced his arguments by submitting that the petition by DMRC was to short circuit the legal process of permission that is required to be followed with regards to carrying out non forestry activity on forest land. He further submitted that it is only now that they are preferring such routes and in the past they have followed the procedure established by law, under the Forest Conservation Act, 1980.

Adding that the applications by the DMRC with regards to the same was pending and is under consideration, Senior Advocate further submitted that,

"They're (DMRC) evolving new concepts against what the orders have been passed in TN Godavarman. When an affidavit was filed in 1997 by the Delhi Government, this was part of deemed forest. According to them the trees standing on the road side are planted trees and not forest. If the report is upheld, I fear what will happen in this country."

To counter DMRC's submission that the proposed project would reduce traffic, Senior Advocate while contending that the earlier 3 phases of the metro had reduced traffic but not pollution said that,

"Although this would be underground, this is an ecologically sensitive area of Delhi. Lot of wildlife will be disturbed."

While Senior Advocate to elaborate his submissions relied on precautionary principle and polluters pay principle, Justice BR Gavai at this juncture said,

"If you're not against the metro, can you please tell as to what can be done for the protection of the environment? We must take into consideration that development can't be stalled. We need to make a balance between the environment on one hand and development on the other hand."

Solicitor General for India appearing for DMRC at this juncture said, "It's a densely populated area and part where we want, flyover has been constructed by the Delhi Government. It would not impact wildlife but people's life."

During the course of hearing, Senior Advocate raised the following objections:

Pointing out that there were some areas in the phase that were critically polluted, the Senior Advocate submitted that Najafgarh drain is declared as critically polluted by the Central Pollution Control Board. Reference was also made to the NGT constituted CR Babu Committee. He had also submitted that the DMRC further did not take into consideration the ambient AIQ standards of the area.

"DMRC should take permission under Wildlife Act and Forest Conservation Act. Lordship has laid down parameters for the Central Empowered Committee. They have done a tremendous job. It's not just today that we oppose. We're not against the metro. Let them follow the law. DMRC has wrongly interpreted the meaning of forest in TN Godavarman and dynamic definition that I've pointed out," Senior Counsel added.

Case Title : In Re: T.N. Godavarman Thirumulpad vs Union of India

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