National Green TribunalPrem Mohan Gaur vs National Highways Authority Of India on 16 September, 2022Author:Adarsh Kumar GoelBench:Adarsh Kumar GoelItem No. 10                                                           Court No. 1\n\n                BEFORE THE NATIONAL GREEN TRIBUNAL\n                    PRINCIPAL BENCH, NEW DELHI\n\n                            (By Video Conferencing)\n\n\n                        Original Application No. 208/2022\n                     (I.A. No. 163/2022 & I.A. No. 177/2022)\n\nPrem Mohan Gaur                                                       Applicant\n\n                                      Versus\n\n\nNational Highway Authority of India & Ors.                         Respondent(s)\n\n\nDate of hearing:      16.09.2022\n\n\nCORAM:        HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON\n              HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER\n              HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER\n\n\nFor the Applicant:          Ms. Suruchi Mittal, Advocate\n\nFor the Respondent(s):      Mr. Pinaki Misra, Senior Advocate with Mr. Shreyansh\n                            Rathi, Advocate for NHAI (R - 1)\n                            Mr. Rahul Khurana, Advocate for the State of Haryana\n\n\n\n                                   ORDER1.      Grievance in this application is against alleged illegal and\n\nunauthorized excavation, demolition of a bundh (embankment) and\n\nconstruction over the submergence area of Ghamroj Bundh by the\n\nNational Highways Authority of India (NHAI) to build rest area/parking\n\nbay for the trucks and buses and for Toll Plaza on NH-248A at Sohna\n\nRoad,    Gurgaon      without   mandatory      approval     from    the   Irrigation\n\nDepartment under theCanal and Drainage Actand in violation of\n\nenvironmental norms and the Ministry of Road Transport and Highway\n\n(MoRTH) guidelines. According to the applicant, the construction of road\n\nwill result in demolition of Bundh, affecting a water body in violations of1law laid down inHinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. This\n\nwill further violate Sohna Master Plan, 2031 and also affect forest area in\n\nviolation ofForest (Conservation) Act, 1980as conditions in the Forest\n\nDepartment letter dated 09.08.2018 are not being followed. The applicant\n\nfiled representation dated 20.10.2020 to the Divisional Forest Officer,\n\nGurgaon,   District   Town   Planner   Gurgaon,   Deputy   Commissioner,\n\nGurgaon and State PCB but no action was taken.2.    The applicant earlier approached this Tribunal by way of OA\n\nNo.259/2020. Vide order dated 09.11.2020, the Tribunal directed the\n\njoint Committee of Deputy Commissioner Gurgaon, Haryana State PCB,\n\nDivisional Forest Officer, Gurgaon look into grievance and take\n\nappropriate decision in accordance with law within one month. In\n\npursuance of the said order, a joint Committee was constituted which\n\nundertook inspection and submitted a report dated 10.12.2020 to the\n\neffect that Ghamroj bund had been repaired and restored.3.    Later, fresh inspection was done on 18.08.2021 by Technical\n\nOfficer (Forestry), Grade-l from Integrated Regional Office, MoEF&CC,\n\nChandigarh which showed that the bund was continually being damaged\n\nand still being constructed upon by Respondent no.1, user agency.\n\nSubmergence area of the bund was being leveled by using heavy\n\nmachineries/JCBs etc. The user Agency completed the work of laying of\n\nunderground drainage pipeline from the proposed Rest Area. Passage to\n\nproposed rest area is being used by cutting about 7.5 meters wide area of\n\nGhamroj Bundh. Thus, Ghamroj bund protected forest area is being\n\nutilized by the user agency for the purpose of construction of proposed\n\nRest Area which violates the condition No. ((vi) i.e. "The forest land will\n\nnot be used for any other purpose than that mentioned in the proposal"2and condition No.(viii) i.e. "The forest land will not be used for any other\n\npurpose than that mentioned in the proposal" of the Government of India,\n\nMinistry of Environment, Forests and Climate Change's approval order\n\nNo.9-HRBI44/2017-CHA           dated     9th     August,     2018     and     No.9-\n\nHRB204/2018-CHA dated 22nd              November, 2019. Accordingly, the\n\nMoEF&CC directed the State Government through DFO concerned to\n\nretrieve the diverted forest land remaining unutilized after upgradation\n\nand strengthening of NH-248-A and save and restore protected forest\n\narea of Ghamroj Bundh. According to the applicant, protected forest\n\nincluding Ghamroj Bundh needs protection, as it helps in natural\n\nrecharge zones for underground water table.4.    Considering the above grievance, and particularly the report dated\n\n02.09.2021 of Shri Ravinder Singh, Technical Officer (Forestry) to the\n\nRegional   Officer,   Chandigarh       and     the   Under    Secretary     (ROHO),\n\nMoEF&CC, Indira Paryavaran Bhawan, Aliganj, Jor Bagh Road, New\n\nDelhi to the effect that unutilized forest land was required to be retrieved\n\nto restore protected forest area of Ghamroj Bundh, the Tribunal vide\n\norder dated 23.03.2022 sought response from NHAI, State of Haryana,\n\nMoEF&CC,       Deputy    Commissioner,         Gurugram      and    PCCF    (HoFF),\n\nHaryana. Operative part of the order is reproduced below:"1to3....xxx...........................xxx...........................................xxx4.     We have heard learned Counsel for the applicant. Our\n      attention has been particularly drawn to the report of Shri Ravinder\n      Singh, Technical Officer (Forestry), Grade - I dated 02.09.2021\n      submitted on 09.09.2021 through the Regional Officer, Chandigarh to\n      the Under Secretary (ROHO), MoEF&CC, Indira Paryavaran Bhawan,\n      Aliganj, Jor Bagh Road, New Delhi, after undertaking visit to the site,\n      with following findings:"18.    It is evident from the site visit that:(i)    User Agency as well as the State Government hid the\n                      facts while submitting both above referred project3proposals for diversion of 51.126 hectares and\n        supplementary proposal of 1.86 hectares of forest\n        land in favour of Manager (Tech) NHAI, PIU Gurugram\n        for upgradation and strengthening of NH-248-A from\n        Kms 2.740 (Design chainage 0.340) to Kms 24.400\n        (design chainage kms 22.000) under Forest Division\n        and District Gurugram seeking prior approval underSection 2of FCA, 1980 that the instant road project\n        proposals also involves the construction of Rest Area\n        over the protected area i.e. Ghamroj Band.(ii)    As per records available in this office, neither any\n        project proposal for diversion of forest land for\n        construction Rest Area at Ghamroj Bund on Rajasthan\n        border-Buh-Gurugram Section of NH-248-A from Kms\n        2.740 (Design chainage 0.340) to Kms 24.400 (design\n        chainage kms 22.000) under Forest Division and\n        District Gurugram has been received in this office nor\n        any approval underSection 2of FCA, 1980 has been\n        accorded for the same till date.(iii)   As per layout plan submitted by the user agency with\n        above mentioned diversion proposals, two rest areas\n        have been proposed on both side of the proposed road\n        over the non-forest land. No requirement of any type of\n        forest land for the construction of proposed Rest Areas\n        was made by the user agency through State\n        Government.(iv)    The project note on the above mentioned project\n        proposals submitted by the user agency also does not\n        mention about construction of proposed Rest Areas.(v)     Neither    any    NOC    from   the     land     owing\n        agencies/Irrigation Department/etc. for use of land for\n        construction of Rest Areas has been provided by the\n        user agency inspite of involvement of Bund area in\n        this case.(vi)    So far as the construction of the proposed Rest Area\n        by NHAI over submergence area or pond area of\n        Ghamroj Bund is concerned, only land owing\n        agencies/authorities of the State Government viz.Irrigation Department/etc. can better reply on this\n        subject. It is the prime responsibility of the Irrigation\n        Department to save and preserve the natural/public\n        water resources.(vii)   The Ministry of Environment, Forest and Climate\n        Change diverted the protected forest areas of Ghamroj\n        Bund for the widening of road under question but\n        never permitted the user agency to demolish the\n        Ghamroj Bund and construct the proposed Rest Area\n        over it. It is the prime responsibility of the local\n        government to protect and restore the Ghamroj Bund\n        area in its original form.4(viii)   I agreed with the applicant(s) that Hon'ble Supreme\n         Court vide its order dated 25th July, 2001 in Appeal\n         (Civil) No. 4787 of 2001 in the matter of "Hinch Lal\n         Tiwari v. Kamla Devi and Others" stated that no part\n         of any water body like pond, tanks, canals and water\n         pathways could have been allotted for any abadi sites\n         and there is need to protect all water bodies, channels\n         and drains. As the construction of Rest Area is being\n         done over private land (not forest land), it is the prime\n         responsibility of the concerned department of the State\n         Government to comply the Hon'ble Supreme Court's\n         above order in letter and spirit.(ix)     The Sohna Master Plan, 2031 also advocated that the\n         bundh has to be retained in its current state. An\n         explanatory note issued in this regard by the town\n         and country planning department on November 15,\n         2012, mentions, "Sohna Town is surrounded by\n         Aravali Ranges on eastern and western side. In the\n         rainy season, run-off from these ranges passes\n         through proposed urbanization through barsati\n         Nallahs namely Mahandwara Nadi. Three bundhs\n         namely Sohna bundh, Mohmmadpur bundh and\n         Ghamroj bundh exist on the western side of the town\n         to check the run-off and for recharging the\n         underground water level.(iv)     Both the above mentioned project proposals have been\n         approved for upgradation and strengthening of NH-\n         248-A from Kms 2.740 (Design chainage 0.340) to\n         Kms 24.400 (design chainage kms 22.000) whereas\n         on the ground, Ghamroj Bund protected forest area is\n         being utilized by the user agency for the purpose of\n         construction of proposed Rest Area which violates the\n         condition No. (vi) i.e., "The forest land will not be used\n         for any other purpose than that mentioned in the\n         proposal" and condition No. (viii) i.e., "the forest land\n         will not be used for any other purpose than that\n         mentioned in the proposal", of the Government of\n         India, Ministry of Environment, Forest and Climate\n         Change's forest clearance under Section - 2 of the\n         FCA, 1980 vide approval order No. 9-HRB144/2017-\n         CHA dated 9th August, 2018 and No. 9-\n         HRB204/2018-CHA dated 22nd November, 2019\n         respectively. Hence, user agency violates the\n         provisions of FCA, 1980 in this case.(x)      The State Government through DFO concerned may\n         kindly be directed to retrieve the diverted forest\n         land remaining unutilized after upgradation\n         and strengthening of NH-248-A from Kms 2.740\n         (Design chainage 0.340) to Kms 24.400 (design\n         chainage kms 22.000) and save and restore\n         protected forest area of Ghamroj Band."55.     In view of above, the applicant filed representation on\n      03.12.2021 with the Deputy Commissioner, Gurgaon with a request\n      to stay further construction at the site. The representation dated\n      06.12.2021 was also made to the Project Director, PIU Rewari, NHAI\n      but no action has been taken as required. It is accordingly, submitted\n      that intervention of this Tribunal undersection 15of the NGT Act is\n      warranted.6.     Considering the above, we direct Respondents No. 1, 3, 4, 5\n      and 6 - NHAI, State of Haryana, MoEF&CC, Deputy Commissioner,\n      Gurugram and PCCF (HoFF), Haryana to file their respective\n      responses in the matter within one month by e-mail which may\n      indicate status of follow up action in respect of the report dated\n      02.09.2021, submitted on 09.09.2021."5.    Accordingly, replies have been filed by the MoEF&CC, NHAI and\n\nForest Department, Haryana.6.    Stand of the NHAI is that no damage has been caused to Ghamroj\n\nBundh. Conditions for forest clearance for diversion of 1.866 ha of forest\n\nland have not been violated. The proposal of the NHAI and the drawings\n\nclearly provided for Toll Plaza and Rest Area in the forest land allowed to\n\nbe diverted. The same are part of right of way as held in (2021) 6 SCC\n\n693, NHAI v. Pandarinathan Govindarajulu & Ors. On 18.07.2017, Stage- I clearance for diversion of 51.1260 ha of protected forest land was\n\ngranted and thereafter further clearance was granted on 14.05.2018 for\n\ndiversion of 1.866 ha of the protected forest land, including the Bundhs.\n\nNPV for cutting of trees was deposited on 22.10.2019. NOC was sought\n\nfrom the Irrigation Department with a proposal for exit of flood water of\n\ninner side of Bundh and but no response has been received. In fact, no\n\nsuch permission is required from the Irrigation Department once\n\npermission has been granted for diversion of forest land.7.    The stand of the MoEF&CC is that approval for diversion of 51.126\n\nha of forest land was granted on 24.10.2017 and further permission for\n\ndiversion of 1.866 ha of acres forest land was granted on 31.05.2019.6With regard to the stand of the IRO, Chandigarh in letter dated\n\n08.09.2021 asking the State Government to retrieve the forest land\n\nremaining unutilized after upgradation NH-248-A and also to restore the\n\narea of Ghamroj Bundh, the response of the State is awaited. Relevant\n\nextracts from the affidavit of MoEF & CC are:"7.   It is humbly submitted that the IRO Chandigarh inspected the\n      site on 18.08.2021 and submitted its report dated 02.09.2021,\n      wherein violation ofForest (Conservation) Act, 1980was reported.8.     That based on the said report, the IRO Chandigarh vide letter\n      dated 08.09.2021 requested the State Government to retrieve the\n      diverted forest land remaining unutilized after upgradation and\n      strengthening of NH-248-A from Kms 2+740 (to Kms 24+400 and\n      preserve and restore protected forest area of Ghamroj Bundh.9.    Thereafter, the IRO vide letter dated 17.03.2022 requested the\n      State Government to submit the action taken report."8.    The Forest Department, Haryana in its reply dated 13.09.2022\n\nthrough the DFO, Gurugram has stated that notice was issued to the\n\nNHAI on 13.01.2022 and 29.03.2022 that construction in Ghamroj\n\nBundh areas was not permissible and the said land was required to be\n\nrestored to pre-existing condition. NHAI has contested the stand and\n\nsubmitted that the Rest Area is being done on private land acquired by\n\nNHAI and not on Ghamroj Bundh. This report was furnished to Shri\n\nRavinder Singh, Technical Officer (Forestry) by DFO, Gurugram on\n\n09.08.2022. However, the Ghamroj Bundh and protected forest land has\n\nnot been restored. The said area is being partly utilized for construction\n\nof Rest Area and for Toll Plaza. On 01.07.2022, DFO again wrote to the\n\nNHAI to vacate the Ghamroj Budh area but the same has not been done.\n\nRelevant extract from the said reply is as follows:"9.    Notices was issued to NHAI by Range Forest Officer, Sohna\n      vide letter no. 1738-S dated 13-01-2022 and letter no 1876-S dated\n      29-03-2022 (Annexure 5A & 58) that the toll plaza and rest areas\n      are not permitted to be constructed in Ghamroj Bund area and\n      therefore NHAI is required to return the diverted forest land (Ghamroj7Bund) to Forest Department restored in pre-existing condition. NHAI,\n      vide letter no. PIU/EC/NH-248A/06/01/2022-23/30 dated 07-04-2022 (Annexure 5C) has contested that they are not in any violation\n      of FCA, 1980 and has submitted that NHAI has not carried out any\n      work of rest areas on Ghamroj Bund and the work of rest areas is\n      being done on the private land acquired by NHAI.10. The action taken on the report submitted by Sh. Ravinder\n      Singh, Technical Officer (Forestry), Grade -I was duly informed by\n      the DFO, Gurugram vide letter no. 598G dated 30.05.2022 and letter\n      no 553-c dated 09-08-2022.11. However, from the KML file and satellite imagery on Google\n      Earth, it is very much clear that entire protected forest land of\n      Ghamroj Bund had not been fully restored by NHAI. Forest Area of\n      Bundh had been utilized partially for the construction of Rest Area\n      and utilized fully for the construction of Toll plaza (Annexure-6A). In\n      this regard, NHAI was again instructed by DFO office vide letter no.\n      3013 dated 0l-07-2022 (Annexure- 6B) to vacate the Ghamroj Bund\n      Area and return it to the Forest Department.12. NHAI in their letter no. PIU/EC/NH-248A/06/01/2022/613\n      dated 18-07-2022 (Annexure 7) has again reiterated that for the\n      purpose of construction of Rest Area, NHAI has acquired private land\n      and is constructing the same on said private land. Further, NHAI has\n      submitted that the issue is already pending adjudication at Hon'ble\n      National Green Tribunal and therefore no coercive action may be\n      taken by forest department with regard to sub-judice matter and\n      status quo is to be maintained.At Present, partial width of Ghamroj bund has been utilized for the\n      Rest Area construction and the entire width of the Ghamroj bund had\n      been utilized for the construction of Toll Plaza. Forest Department\n      had issued notices to NHAI to vacate the forest land and return it to\n      the forest land in the preexisting condition. The direction passed by\n      this Hon'ble Tribunal shall be complied with by the Forest\n      Department."9.    We have heard learned counsel for the parties. Question for\n\nconsideration is whether the embankment area can be utilized for\n\nconstruction of Toll Plaza and Rest Area merely on the ground that such\n\nactivities are part of the project and forest clearance has been granted.10.   Stand of the applicant and the Forest Department, Haryana is that\n\neven if diversion of forest land is permitted for non-forest area and even if\n\nToll Plaza and Rest Area are part of the right of way, the Bundh site\n\ncannot be used for construction. This will adversely affect the flow of the8river, drainage of water into the Bundh area, and recharge of ground\n\n           water.11.     We have considered rival submissions. We find merit in the\n\n           contention of learned counsel for the applicant that mere compliance ofForest Actand area being covered by EC as held in Pandarinathan\n\n           Govindarajulu, supra cannot allow obstructing drainage of water into the\n\n           Bundh area, flow of the river and recharge of ground water.In such\n\n           situation, 'Public Trust' doctrine as laid down inM.C. Mehta v. UOI &\n\n           Ors.1applies to the effect that natural characteristics of natural\n\n           resources cannot be allowed to be damaged even by the State without\n\n           express legislative provision to that effect. Protection of embankments,\n\n           water channels and water bodies has to be ensured. Relevant extract\n\n           fromthe said judgmentis reproduced below:"35.   ...........But in the absence of any legislation, the executive\n                          acting under the doctrine of public trust cannot\n                          abdicate the natural resources and convert them into\n                          private ownership, or for commercial use. The aesthetic\n                          use and the pristine glory of the natural resources, the\n                          environment and the ecosystems of our country cannot\n                          be permitted to be eroded for private, commercial or\n                          any other use unless the courts find it necessary, in\n                          good faith, for the public good and in public interest to\n                          encroach upon the said resources.36.    Coming to the facts of the present case, large area of the\n                          bank of River Beas which is part of protected forest has been\n                          given on a lease purely for commercial purposes to the Motels.\n                          We have no hesitation in holding that the Himachal\n                          Pradesh Government committed patent breach of public\n                          trust by leasing the ecologically fragile land to the\n                          Motel management. Both the lease transactions are in\n                          patent breach of the trust held by the State\n                          Government. The second lease granted in the year 1994\n                          was virtually of the land which is a part of the\n                          riverbed. Even the Board in its report has recommended de-\n                          leasing of the said area."11997 (1) SCC 388912.   Thus, approval for diversion of forest land for the project cannot\n\ninclude damage to embankments or to the water channel/water body, as\n\nshown by the report of the Forest Department and the MoEF,referred to\n\nabove.13.   Accordingly, no further use of the said embankment will be allowed\n\nby the PP and the same must be protected and preserved to enable\n\ndrainage of water into the Bundh area, flow of the river and recharge of\n\nground water. The said embankment with necessary buffer area may be\n\nappropriately demarcated and left unused for the project.14.   To     enforce   the   above      direction,   the   Additional   Chief\n\nSecretary/Principal Secretary, Irrigation Department, Haryana may hold\n\nonline/offline meeting with the District Magistrate, SSP, DFO and\n\nExecutive Engineer, Irrigation Department Gurugram within one month.\n\nAny other officer who may be found relevant for the purpose may also be\n\nassociated. Further course of action for execution of this order may be\n\nworked out. NHAI will also be free to send its representative to attend the\n\nsaid meeting. DFO may ensure strict compliance of the conditions subject\n\nto which diversion of forest land has been allowed. The PP may ensure\n\nthat there is no littering and violation of environmental norms due to\n\noperation of the Rest Area and Toll Plaza, which may be overseen by the\n\nState PCB.The application is disposed of.A copy of this order be forwarded to the Additional Chief\n\nSecretary/Principal Secretary, Irrigation Department, Haryana, District\n\nMagistrate, SSP, DFO, and Executive Engineer, Irrigation Department,\n\nGurgaon and the State PCB by email for compliance.10I.A. Nos. 163/2022 & 177/2022 also stand disposed of.Adarsh Kumar Goel, CP\n\n\n\n                                                  Sudhir Agarwal, JM\n\n\n\n                                               Prof. A. Senthil Vel, EM\nSeptember 16, 2022\nOriginal Application No.208/2022\n(I.A. No. 163/2022 & I.A. No. 177/2022)\nA11