Uttarakhand- UP Highway Project: Supreme Court Refuses To Entertain Plea Against Forest & Wildlife Clearances, Grants Liberty To Approach NGT

While stressing that the reliefs sought are amenable to jurisdiction of the National Green Tribunal, Supreme Court on Tuesday refused to entertain a plea challenging the forest clearances and wildlife clearances granted for the improvement, upgradation and expansion of the Highway Project in Uttarakhand and UP which would allegedly result in the felling of around 11,000 trees in a wildlife rich area.

A Bench comprising Justice DY Chandrachud, Justice Vikram Nath and Justice Hima Kohli granted liberty to the petitioner 'Citizens for Green Doon' to approach the National Green Tribunal.

"When there's a remedy available under the statute we must defer to the expert body. Then you can come here of course we are here, including on interim orders." the Bench orally observed.

The Bench recorded that "The primary challenge in these proceedings is to Stage-I forest clearance which is amenable to jurisdiction of NGT under Section 16 of the NGT Act. In the circumstances, we are of the view that it would be appropriate to grant liberty to petitioner to move NGT to seek such reliefs as are open in law."

The Bench added that "As regards the Wildlife clearance we grant liberty to petitioner, if they are so advised, to adopt appropriate proceedings once the issue pertaining to Stage I forest clearance is resolved. They may do so by adopting appropriate proceedings in accordance with law at that stage. With the above liberty and clarification the petition is accordingly disposed of."

During the hearing, the Bench, at the outset asked Advocate Ritwick Dutta appearing for the petitioner why the petitioner has not moved the National Green Tribunal with the issue.

Mr Dutta responded to Court's query saying that the petition is challenging wildlife clearance which is not under section 16 of NGT Act.

"If I was challenging forest clearance I would come under NGT's purview. I have a substantive issue with regard to how National Board for Wildlife has approved the project" Mr Dutta said.

"You are challenging primarily the Stage I forest clearance. That's your first prayer. Once you succeed in that there's no question of wildlife clearance." the Bench said.

Mr Dutta informed the Court that in addition to the forest issue the main substantive issue in the present case is the impact on wildlife.

"If forest clearance is not granted or set aside, the wildlife clearance as no meaning at all, and forest clearness is amenable to NGT. Go there and get matter resolved by the NGT." Justice Chandrachud said.

Mr Dutta further explained that "This is next to a National Park. As per composition is considered, I'm not arguing only on issuing of tree feeling but also that the Wildlife Institute of India prepared mitigation plan before the clearances were even processed. There's also issue of conflict of interest and the entire mitigation has been done by non application of mind."

"Suppose you succeed and stage I forest clearance is set aside, then this becomes inconsequential. You can go to NGT against stage I forest clearance and can keep issue of Wildlife clearance open" the Bench suggested.

Details of the Petition:
The petitioner has challenged the project arguing that if allowed it would result in the felling of around 11,000 trees in an area which is not only a wildlife rich area, but also a tiger and elephant corridor.

The petitioner has submitted that the landscape in question is an important wildlife habitat and corridor and one stretch of the road clearly bisects the contiguous forested tract between rivers Ganga and Yamuna

Further, the petitioner has stated that the area is extraordinarily rich in wildlife and hosts a wide variety of species including the Asian elephants, leopards, Himalayan goral, barking deer, etc. The area has been identified as a key conservation landscape in several studies  by the Wildlife Institute of India.

Erroneous submissions and baseless recommendations by the Forest Department

The petitioner has argued that since the entire Forest Clearance process under the Forest (Conservation) Act, 1980 is based on the information provided by the Forest Department, a high degree of fiduciary duty is bestowed upon each officer who conducts a site inspection of the area and gives his observations and recommendations as to whether the diversion of forest land must be permitted or not. The present case is illustrative of how the Forest Department went against its mandate by giving false information regarding the area in question, in both Uttar Pradesh and Uttarakhand.

Contradictory conduct of the Wildlife Institute of India: The petitioner has argued that in the present case, the Wildlife Institute of India's conduct and recommendations are illegal and invalid as they have failed to consider their own reports and findings, and further because there is a conflict of interest.

According to the petitioner, WII is both a consultant in the present matter as well as the regulator granting clearance. It acted as NHAI's consultant by conducting a "Rapid Assessment of Wildlife and suggested mitigation measures of Delhi Dehradun Highway in the Shivalik Hills" and it acted as a regulator/ decision maker as the Director of the WII as part of the Standing Committee of the National Board for Wildlife which recommended the project for grant of Wildlife clearance.

The petition filed through Advocate Srishti Agnihotri sought the following reliefs:

• Wildlife Clearance dated 05.01.2021 issued by the Standing Committee of the National Board for Wildlife to the both segments of the road in Uttar Pradesh and Uttarakhand, as ultra-vires Article 21 of the Constitution of India.

• Quashing the Stage-I Forest Clearance issued in relation to the Uttarakhand and UP stretch of the road, issued by the Regional Office of Ministry of Environment Forest and Climate Change in the States

• Quashing the Wildlife Clearance dated 05.01.2021 issued by the Standing Committee of the National Board for Wildlife to the both segments of the road in Uttar Pradesh and Uttarakhand, as ultra-vires Article 21 of the Constitution of India.

• Direction to the State of Uttar Pradesh to take effective measures to protect the highly eco-sensitive area of Reserved Forest, Shivalik Forest Division, Saharanpur;

• Directions that any road in hilly areas must conform to the specifications mentioned in the circular dated 23.03.2018 issued by the Ministry of Road Transport and Highways titled "Standards for Lane width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous terrains - Reg."

(Case Title: Citizens For Green Doon vs Union of India & Ors, WP(c) No. 529/2021)

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