Delhi Metro Phase-IV Expansion : Won't Accept Report That Trees Aren't Forests; Clearance Needed, Says Supreme Court

The Supreme Court on Thursday (November 11) while hearing Delhi Metro Rail Corporation ("DMRC") interim application on felling of trees for phase IV expansion plan orally observed that although development could not be stalled but there was a need to balance the environment on one hand and development on the other hand.

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.

"Government of India has not opposed the metro the way GNCTD has opposed," Solicitor General Tushar Mehta added.

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. It had alleged that its ongoing construction work had been halted due to lack of requisite permission for felling trees.

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 had said that it was 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 Tulsidas 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 submitted that if the DMRC gave an undertaking that let the court decide whether the area 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 : Advocate Chirag M Shroff

Appearing for GNCTD that although it was not objecting 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 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. 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. Only to say that permission under Forest Preservation Act is necessary and not under Forest Conservation Act is necessary 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 felling of trees under various statutes. He further submitted that the same was followed in the past by the DMRC.

Adding that the applications by the DMRC with regards to the same was pending and is under consideration, Senior Counsel 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 Counsel 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 economically sensitive area of Delhi. Lot of wildlife will be disturbed."

While Senior Counsel 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 balance 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 Counsel raised the following objections:

• The Central Empowered Committee set up by the Supreme Court did not take into consideration his objections. He further pointed out that although objections filed by the Forest Department were dated May 29, 2021 and the report filed by the CEC was dated May 13, 2021.
• Chief Wildlife Warden of Delhi was not invited by them (CEC) at all. There is a large amount of wildlife, birds, eco sensitive zones which still exist.
• No construction is allowed until permission is sought under Delhi Preservation of Tree Act, 1994.

Pointing out that there were some areas in the phase that were critically polluted, the Senior Counsel 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 TN Godavarman Thirumulpad v Union of India| WP(C) 202/1995

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