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Sustainable Development in question with the NGT Order on the Bijwasan Railway Station Project



The Principal Bench of the National Green Tribunal (“Tribunal”) through its Order dated 13.02.2024 (“Impugned Order”) dismissed an Original Application which had challenged the Bijwasan Railway Station Redevelopment Project (“Project”) undertaken by the Railway Land Development Authority (“RLDA”) on the ground that the said Project is planned to be built on over 120 acres of “forest” land without obtaining necessary permissions from the Central Government, as is required under section 2 of the Forest Conservation Act, 1980 (“FCA 1980”).

The Tribunal dismissed the said Application and found no reasons to interfere with the ongoing project primarily on the ground that the said land does not qualify as a forest or “deemed forest” as was propounded by the Apex Court in re T.N. Godavarman (1997) 2 SCC 267. It also found that the 2023 Amendment to the FCA 1980 anyway excludes the concept of deemed forest. It also found that adequate measures were being adopted by the RLDA to prevent illegal felling of trees..

The constitutional validity of the Amendment Act has been challenged before the Supreme Court and an Interim Order was passed (six days after the Tribunal dismissed the said Original Application) declaring that the definition adopted in T.N. Godavarman (1997) will continue to hold ground until such time as mentioned in the Interim Order. The matter is now listed in July 2024 for further hearing.

Reasoning adopted by the Tribunal alongwith Criticism



A. Exclusive Reliance on the submissions made before the Tribunal

While determining whether the project site was forest land or not, the Tribunal relied on the submissions made before it. The DCF, as the expert witness, had submitted in his Affidavit dated 02.02.2024 that he had been directed to clarify whether the disputed land was forest or not, however, was silent on the issue due to non-cooperation from the Railway Authorities as he could not obtain necessary permission to count the number of trees on the land.

As far as the Applicant and the RLDA are concerned, they both made their submissions without relying on any independent expert report which could have assisted the Tribunal to reach the right conclusion. Instead, an estimate of 1100 trees in 31 acres was submitted to the Tribunal which had been countered by the RLDA, stating that going by the submitted numbers, the land would still not qualify as forest as per the Affidavit of Conservator of Forest dated 15.09.1997 (“1997 Affidavit”) filed before Hon’ble Supreme Court in the compliance of a direction given in re T.N. Godavarman (1997).

Possibilities such as a planted applicant ought to have been considered and negated by the Tribunal by exercising its special powers given under section 19 of the National Green Tribunal Act, 2010, which states that it shall have all the powers of a civil court under the CPC and at the same time, shall not be bound by the procedure but be guided by the principles of natural justice. Section 75(e) of the CPC provides the power to civil courts to issue commissions to hold a scientific, technical, or expert investigation. In my opinion, the  The Tribunal ought to have looked beyond the submissions made before it and exercised its powers under the aforesaid two sections to investigate the actual number of trees on the disputed land and only then proceed with its judgement regarding the status of the land as a “forest.”

B. Exclusive Reliance on an Affidavit submitted to the Supreme Court

The Tribunal accepted the argument submitted by RLDA that on calculating the number of alleged trees standing on per acre of land even in terms of criteria adopted in the 1997 Affidavit, the land does not fall under the category of deemed forest. This essentially meant that the Ld. Tribunal bound itself by the criteria adopted in the 1997 Affidavit as if it were the law of the land.

In my opinion, the Tribunal erred in exclusively relying on the criteria adopted in an affidavit, which has not even been declared to be law by the Apex Court or, for that matter, by any other authority. The existence of varying definitions of the word “forest” makes it clear that different law-making authorities have defined it differently and therefore, an affidavit submitted to the Apex Court by the state authorities cannot be assumed to be law in itself in absence of any specific definition having been legislated or laid down for the NCT of Delhi.

The Hon’ble Supreme Court in Narinder Singh v. Divesh Bhutani (AIR 2022 SC 3479) has observed that the statements made on behalf of the State Government in the letters, affidavits, and pleadings cannot conclusively decide the issue of the status of the lands covered by under the concerned Forest Act.

C. Reliance on the Forest Conservation (Amendment) Act, 2023

Even if the Apex Court were to uphold the constitutional validity of the 2023 Amendment, the exclusion envisaged under the 2023 Amendment does not hit the facts of the present case. As discussed above, the newly introduced section 1A  contains two sub-sections. While sub-section 1 uses the words “The following land shall be covered under the provisions of this Act,” sub-section 2 uses the words “The following categories of land shall not be covered under the provisions of this Act.” From a plain reading of the two subsections, it becomes clear that certain lands will be covered under the act while certain others will not. Moreover, had it been the intention of the legislature to exclude all the lands that are not covered under sub-section 1 from the coverage of the act, then there might have been no need to insert sub-section 2. There is nothing to show that the sub-section 2 acts merely as an exception to the lands that are mentioned in sub-section 1. This leaves a legislative vacuum regarding lands that are not hit by either of the sub-sections. In Rattan Chand Hira Chand vs Askar Nawaz Jung (1991 SCC (3) 67) it was held that the legislature often fails to keep pace with the changing needs and values, and that it is unrealistic to expect that it will have provided for all contingencies and eventualities.  It is, therefore, not only necessary, but obligatory on the courts to step in to fill any lacuna.

In absence of any legislative mandate with regard to lands that are not hit by either of the two subsections of the section 1A, the law laid down under T.N. Godavarman (1997) should continue to hold the field. Therefore, in my opinion, the Ld. NGT erred in holding that the concept of “deemed forest” has been excluded vide the 2023 Amendment.

D. Overlooking Material Facts

It is settled law that any finding based on ignorance of material facts is bound to be erroneous and cause miscarriage of justice. The Ld. Tribunal in the instant case, overlooked several material facts such as:

a. RFP: The Court doubted the credibility of the news reports submitted to it by the Applicant on the ground that they pre-dated the Request For Proposal (“RFP”) that was under challenge before the Tribunal. The Court found that the news articles were from June 2022, while the RFP was from December 2022. However, the court overlooked the fact that a Request for Proposal had already been released in March 2018 for the construction of the said Project i.e. much before the second RFP in December 2022 that was under challenge.

b. Precautionary Measures: The Ld. Tribunal unilaterally accepted RLDA’s submission that necessary precautions were being taken to avoid illegal felling of trees. However, the same is blatantly false as , in June 2022, upon a complaint of illegal foresting, the Deputy Conservator of Forest, Delhi (West) (“DCF”), vide its Order dated 14.06.2022, imposed an exemplary penalty of around INR 5.93 crores on the RLDA under the DPT 1944 for unauthorised tree felling of 990 trees in the area. clearly showing that they had not taken any precaution to prevent illegal felling of trees.

c. Silent Expert Witness: The Tribunal overlooked the fact that the Affidavit dated 02.02.2024 submitted by the DCF, who was supposed to be the expert witness, to the Ld. Tribunal is silent on the issue of whether the disputed land is a forest. Instead, the Tribunal relied solely on the submissions made by the RLDA, which is an interested party.

Conclusion

The rapid urbanisation in Delhi since the 1980s has resulted in an excessive expansion of urban land cover at the cost of grasslands ploughed or razed, wetlands drained and croplands encroached upon. The net decrease in agricultural land, wasteland and water bodies together ac-counts for a total decrease of 258.20 sq.km against an increase of 251.18 sq.km of net built-up area. The increment in forest cover of 0.5 % is very small when considering the increment in built up category to 17%. The Impugned Order comes at a time when the National Capital is facing heat waves like never before. Given the circumstances, it would be catastrophic for the local residents if an area of almost 120 acres filled with trees is deforested for the development of a railway station.

The Impugned Order has further cleared the way for the RLDA and private contractors to proceed with the deforestation. The said Order has not only been passed in ignorance of several material facts, but by also ignoring several principles of law. In my opinion, the Impugned Order is per incuriam, and is warranted to be set aside by the Hon’ble Supreme Court, either in an Appeal under section 22 of the NGT Act or by taking suo-moto cognizance of the same.


Endnotes

 1. The Nagaland Jhumland Act 1970, s 2(3); The Maharashtra Private Forests (Acquisition) Act 1975, s 2(c-i); Janu Chandra Waghmare v The State of Maharashtra AIR 1978 Bombay 110, para 22; Government of Madhya Pradesh, “Circular” (13.01.1997);  The Kerala Forest (Vesting And Management Of Ecologically Fragile Lands) Act 2003, s 2(c); The Sikkim Forests, Water Courses And Road Reserve (Preservation And Protection) Act 2020 s 2(e).


 2. Re Illegal Cutting of Trees at Bijwasan Delhi (F.2(304)/DCF(W)/TO/D-81/2021-22-2396-97), The Deputy Conservator of Forest/Tree Officer, West Division, New Delhi


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Guest
Aug 01

Amazing read

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Jul 19
Rated 4 out of 5 stars.

Interesting Read

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Guest
Jul 18
Rated 5 out of 5 stars.

well written

Edited
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