Rohit Choudhary v. Union of India and Ors. (Before The National Green Tribunal Eastern Zone Bench, Kolkata, Original Application No. 25/2014/EZ, Decided On: 07.03.2016)

Facts
The Applicant Rohit Choudhary, a social activist involved in Forest & Wildlife Conservation, of the village Garmur, challenged the work undertaken by the Government of Assam for “Training of river Beki on its left bank and activation of river Manas and Hakua at Mathanguri” within the Manas National Park, a UNESCO World Heritage Site, in violation of the provisions of the Section 2 of the Forest (Conservation) Act, 1980 (in short FC Act) as well the direction of the Hon’ble Supreme Court dated 14.02.2000 in the I.A. No. 548 in CWP No. 202/1995.

It was alleged that the Department of Water Resources, Government of Assam, commenced the work relating to the project which is within the limits of Manas National Park & Tiger Reserve in the State without obtaining Forest Clearance as required under FC Act and Forest (Conservation) Rules 2003 (in short FC Rules) as also no permission had been obtained from the National Board for Wildlife (in short NBWL) which were mandatorily required before the commencement of the Project. Manas National Park is a recognised UNESCO World Heritage Site. The Park holds great ecological importance as it harbours by far the greatest number of India’s Schedule I mammals of any protected area in the country and provides habitat for 22 of India’s endangered species of animals like Elephant, Tiger, One-horned Rhino, Clouded Leopard, Sloth Bear etc. and some endemic species like Pygmy Hog, Hispid Hare, Golden Langur. Even its wetlands provide habitat for around 310 bird species including the endangered Bengal Florican. Being a critical site with respect to the large biodiversity, the Applicant sought intervention of the Tribunal by directing the Department of Water Resources to stop all activities of the Project and restore the area to its original position.

The Respondents in their affidavit, while admitting the commencement of the project, submitted that the river Beki took the entire load of water rush during monsoon season due to collection of debris at the mouth of Manas and Hakua rivers which resulted in unprecedented floods and at the same time, drying up of many water holes along the stretch of the rivers in the Manas National Park due to its inability to replenish for the winter season. This posed a threat to wildlife as well as human beings, which had prompted the Government of Assam to undertake the Project. He further stated that the Park is presently undergoing an artificial change due to the man-made disaster caused in the year 2004 when Bhutan released water from the Kurichu Dam and completion of this Project would enable the Park to regain its natural and original status. It was contended that the completion of the Project would directly benefit the Park as the Manas and Hakua rivers would be activated which would reduce the flow and water current of Beki River resulting in reduction/stoppage of land erosion and felling of trees. They also stated that the Project was ancillary to conservation of forest and wildlife having the effect of providing relief to downstream settlements which doesn’t require approval of the Central Government. The Project had been examined by the Central Water Commission and recommended for acceptance by the Planning Commission (Water Resource Division) and administrative approval by the Government of Assam.

Issues

  • Whether the project was in violation to the Wildlife Protection Act and Section 2 sub section (ii) and (iv) of the Forest (Conservation) Act 1980? It reads as follows-
    2. Restriction on the dereservation of forests or use of forest land for non forest purpose-Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing, –
    (ii) that any forest land or any portion thereof may be used for any non-forest purpose;
    (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.
  • Whether the commencement of the project failed to follow the Supreme Court order dated 14.02.2002 which required prior approval/permission of the National Board for Wildlife?

Judgment
The Court observed that no proposal was received by the Wild Life Division of the Govt. of Assam for diversion work of Manas river at Mathanguri, Manas National Park and Tiger Reserve in Assam and that no site inspection was done by the Ministry to that effect and no correspondence/letter was received in the Wildlife Division of the Ministry from Govt. of Assam.
It observed that no approval was taken in writing from the competent authority of the Central Government as envisaged under Section 2 of the Forest (Conservation) Act 1980. Further no approval was taken from the National Board for Wildlife as stipulated in the order passed by the Supreme Court in the case of I.A. No. 548 in CWP No. 202/1995. As per S.2 of the said Act, it is mandatory to obtain prior approval of the Central Government and the National Board for Wildlife before proceeding with de-reservation of forests or use of forest land for non-forest purpose. The Court emphasized on the significance of the word ‘approval’ suffixed to the word ‘prior’ under Section 2 noting that any post facto approval was not permissible and no work would proceed without having any approval prior to the beginning of the job. The distinction of the two words ‘prior approval’ and ‘post approval’ as discussed in various cases such as Ashok Kumar Das and Ors. v. University of Burdwan and Ors., U.P. Avas Evam Vikas Parishad & Anr. v. Friends Co-operative Housing Society Limited & Anr., High Court of Judicature for Rajasthan v. P.P. Singh were referred. It was held that the statutory provision as couched under Section 2, “prior approval of the Central Government” was a mandatory one which is required to be obeyed and in the instant case, admittedly the respondent had not followed it. Hence, it was held that the job as had been undertaken by them was in contravention of Section 2 of the aforesaid act.

The respondents also raised a maintainability issue arguing that the Applicant does not fall under the category of persons authorised to maintain the petition under S. 16 of the NGT Act and the same is time-barred as it was not filed within the limitation period. The Court rejected the contention in view of the fact that the instant petition was not an appeal under S. 16 but under S. 18(1) read with S. 14 and 15 of the NGT Act. The Applicant belonged to Assam and was a social activist involved in the conservation of forest and wildlife. Reliance was placed upon judgments pronounced by the Apex Court as well as by the Principal Bench of NGT, vide Mumbai Kamgar Sabha v. Abulbhai Faizullabhai AIR 1976 SC 1455, Francis Coralier v. Delhi AIR 1981 SC 746, Intellectual Forum, Tirupati v. State of AP in 2004, 35 SCC 549 and Vimal Bhai v. MoEF, order by Principal Bench, NGT dated 14.12.2011 wherein the terms ‘Locus Standi’ & ‘aggrieved’ have been liberally interpreted in environmental jurisprudence. Regarding the other issue of limitation, the Court observed that the activity of the Project had a continuous cause of action in the absence of statutory clearance.

On the aforesaid observation and findings, the Court allowed the application and confirmed the interim order of stay directing the party respondents not to undertake any work related to the Project till the requisite prior approval was granted by the statutory agencies. Chief Secretary of Assam was directed to take steps in the matter and to mandate compliance of the order, and was also directed to submit the report accordingly on that issue on the next day. However, the Court did not impose any penalty on the Government of Assam as the project, prima facie, was intended for a good cause.

The Court also considered the fact that the applicant was a public spirited person and thus, imposed his litigation fees of Rs. 50, 000/- on the State of Assam, to be paid within 8 weeks. Liberty was granted to the Applicant to approach the Tribunal if he felt aggrieved against any approval granted to the project proponent on the issue.

– Case Note prepared by Anuj Jain

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