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Uttarakhand High Court · body

2018 DIGILAW 316 (UTT)

Satish Chandra Ghildiyal v. State of Uttarakhand

2018-06-15

LOK PAL SINGH, RAJIV SHARMA

body2018
JUDGMENT : Rajiv Sharma, J. Petitioner has challenged the G.O. dated 19.11.2008 along with G.O. dated 28.11.2013 whereby the Master Plan was approved and subsequently notified for Mussoorrie & Dehradun in violation of Notifications dated 6.10.1988 and 1.12.2009. 2. The Department of Environment, Forest and Wildlife, Govt. of India has issued the official notification on 6th October, 1988. The text of the notification reads as under:- “DEPARTMENT OF ENVIRONMENT FORESTS AND WILDLIFE New Delhi, the 6th October, 1988 NOTIFICATION UNDER SECTION 5 (2) (V) of Environment (Protection) Act, 1986 and Rule 5 (3) (a) of Environment (Protection) Rule, 1986, restricting location of industries, mining operations and other developmental activities in the Doon Valley in Uttar Pradesh. S.O. 923 (E) whereas considerably environmental degradation has taken place ion the Doon Valley in Uttar Pradesh on account of industrialization, mining operation, deforestation, unrestricted tourism activities, excessive grazing etc. Whereas to lay down guidelines for environmental man management and to ensure that economic development of the Doon Valley is achieved with minimum ecological disturbances, the Central Government had constituted Doon Valley Board in August 1981, and whereas the board in its meeting had recommended that Doon Valley should be declared as ecologically fragile area and consideration of issue Notification under section 3 (2) (v) of Environment (Protection) Act, 1986, for prohibiting restricting certain activities which have detrimental effect on the environment. Now, therefore, considering the fragile eco-systems of the Doon Valley and to ensure that development activities are consistent with principles of environmental conservation, it appears to the Central Government that it is expedient to impose restriction under clause (v), sub-section (2) of Section 3 of Environment (Protection) Act, 1986 on the following activities in the De3en Valley, bounded on the north by Mussoorie ridge line, in the North-East by lesser Himalayan ranges, on the South-West by Shivalik Ranges, river Ganga in the Sought-East and river Yamuna in the North-West: (i) Location: Setting up of industrial units- It has to be as per guidelines given in the annexure of guidelines as may be issued from time to time by the Ministry of Environment & Forests, Government of India. (ii) Mining–Approval of the Union Ministry of Environment and Forests must be bounded before starting any mining activities. (ii) Mining–Approval of the Union Ministry of Environment and Forests must be bounded before starting any mining activities. (iii) Tourism – It should be as per Tourism Development Plan (TDP to be prepared by the State department of tourism and duly approved by the Union Ministry of Environment and Forests. (iv) Land use-as per Master Plan of development and Land use Plan of the Entire area, to be prepared by the State Government and approved by the Union Ministry of Environment & Forests. It is notified under clause (b), sub-rule (3) of rule 5 of Environment (Protection) Rules, 1986, that any person interested in filing an objection against the imposition of such restriction may do son in writing to the Secretary, Department of Environment, Forests and Wildlife, New Delhi, within sixty days from the date of publication of the notification in the official Gazette.” 3. Thus, considering the fragile eco-system of Doon Valley and to ensure that development activities are consistent with the principles of environmental conservation, the Master Plan/Land Use Plan of the entire area was to be prepared by the State Government and it was to be approved by the Union Ministry of Environment & Forests. This was required to save the Doon Valley which had recently noticed environmental degradation on account of industrialization, mining operation, deforestation, unrestricted tourism activities, excessive grazing etc. 4. The State Government has prepared the Development Plan under the U.P. Urban Planning & Development Act of 1973. The Master Plan was sent for approval of the Central Government on 16.6.2005 vide Annexure No.CA3. Since no action was taken by the Department of Environment & Forest, the State Government, in its own wisdom, has approved the Master Plan vide Government Order dated 19.11.2008. The Master Plan, notified on 19.11.2008, has been subsequently amended/modified on 28.11.2013. 5. It is intriguing to note that the State Government, instead of vigorously pursuing the matter to get the approval/sanction from the Central Government as per Notification dated 6.10.1988, has notified the Master Plan on 19.11.2008 and further amended it on 28.11.2013. 6. It is in gross violation of notification dated 6.10.1988. The State Government has not shown due sensitivity to the environmental degradation in Doon Valley. There is degradation of environment and ecology. All of us are affected adversely. The climate change has already taken place. 6. It is in gross violation of notification dated 6.10.1988. The State Government has not shown due sensitivity to the environmental degradation in Doon Valley. There is degradation of environment and ecology. All of us are affected adversely. The climate change has already taken place. It is not understandable why the State Government has notified the Master Plan which is the magna carta for the urbanization on scientific lines by adopting the zoning principles without seeking approval from the Central Government. The entire exercise undertaken by the respondent-State of not getting sanction/approval from the Central Government, as per Notification dated 6.10.1988, is illegal. The State Government has violated the provisions of Section 5(2)(V) of the Environment Protection Act and Rule 5(3)(a) of Environment (Protection) Rule, 1986 under which the restriction was imposed for location of industries, mining operations and other development activities in Doon Valley. 7. The respondents have also willfully flouted the Notification dated 1st December, 2009 while notifying the Master Plan in a very whimsical manner. The action of the respondents in notifying the Master Plan is an arbitrary exercise of power. The respondents instead of saving the environment and ecology have gone against the spirit of notifications dated 6.10.1988 and 1.12.2009. The text of the Notification dated 1st December, 2009 reads as under:- MINISTRY OF ENVIRONMENT AND FORESTS NOTIFICATION New Delhi. The 1st December. 2009 S.O. 3067(E)'- Whereas, in exercise of the powers conferred by sub-section (1), and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986), a draft notification for making certain amendments in the Environment Impact Assessment Notification, 2006 issued vide no.S.O.1533(E), dated the 14th September, 2006, was published under sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1996, vide number S.O. , vide number S.O. 195(E), dated the 19th January, 2009, inviting objections and suggestions from all the persons likely to be affected thereby, within a period of 60 days from the date of publication of the said notification in the Gazette of India. And whereas, all objections and suggestions received in response to the above mentioned 'draft notification have been duly considered by the Central Government; Now, therefore, in exercise of the powers conferred by sub-section (I) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986, read with the clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1996, the Central Government hereby makes the following amendments in the said notification, namely:- In the said notification, I. In para 3, for sub-para (7), the following shall be substituted, namely:- "(7) All decisions of the SEIAA shall be taken in a meeting and shall ordinarily be unanimous: Provided that, in case a decision is taken by majority, the details of views, for and against it, shall be clearly recorded in the minutes and a copy thereof sent to MoEF." II. In para 4, in sub-para (iii), for the words and letters "In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be treated as a Category 'A' project", the words and letters "In the absence of a duly constituted SEIAA or SEAC, a Category 'B' project shall be considered at the central Level as a category 'B' project" shall be substituted. (I) All project located at altitude of 1,000 meters and above. (II) All project located in notified ecologically sensitive area. (I) All project located at altitude of 1,000 meters and above. (II) All project located in notified ecologically sensitive area. (b) in column (4), for the entry, the following entry shall be substituted, namely; “All Projects except those covered in column (3)” (xvii) After the schedule in the ‘Notes’ for sub-heading relating to General Condition (GC), the following shall be substituted namely:- "General Condition (GC): Any project or activity specified in Category 'B' will be treated as Category 'A', if located in whole or in part within 10 km from the boundary of:- (i) Protected areas as identified by the Central Pollution Control Board from time to time, (ii) Eco-sensitive areas as notified under section 3 of the Environment (Protection) Act, 1986, such as, Mahabaleshwar Panchgani, Matheran, Pachmarhi, Dahanu, Doon Valley, and (iv) inter-State boundaries and international boundaries: Provided that the requirement regarding distance of 10 km of the inter-State boundaries can be reduced or completely done away with by an agreement between the respective States or U.Ts sharing the common boundary in case the activity does not fall within 10 kilometres of the areas mentioned at item (i), (ii) and (iii) above." VI. in the Appendix I, in Form I,- (a) for item (I) relating to the Basic Information, the following shall be substituted, namely:- "(I) Basic Information S. No. Item Details 1. Name of the project/s 2. S. No. in the schedule ………………” 8. The Court can take judicial notice of the fact about the degradation of environment and ecology made after the promulgation of the First Master Plan, since the year 2008 till 2018 is irreparable and the same cannot be compensated in terms of money. 9. It is a very sensitive matter. There is callousness, insensitivity in the approach adopted by the respondents. 10. It is a case where exemplary damages are to be imposed upon the functioning of the State which has failed to protect the environment and ecology of the Doon Valley by enforcing the Notifications dated 6.10.1988 and 1.12.2009. We deem it fit and proper to impose cost of Rs.5.00 lakh on the respondents to be recovered from the erring officers/officials. 11. We deem it fit and proper to impose cost of Rs.5.00 lakh on the respondents to be recovered from the erring officers/officials. 11. Their Lordships of Hon’ble Supreme Court in AIR 1987 SC 359 in the matter of ‘Rural Litigation & Entitlement Kendra & others v. State of U.P. & others’ have held that the consequences of interference with the ecology and environment have now come to be realized. It is necessary that the Himalayas and the forest growth on the mountain range should be left un-interfered with so that there may be sufficient quantity of rain. Further held that the Himalayan range on the Northern Boundary of India is the most recent mountain range and yet it is the tallest. Himalayas are the source of perennial rivers the Ganges, Yamuna and Brahmaputra. Their Lordships have held as under:- 11. The Himalayan range on the Northern Boundary of India is the most recent mountain range and yet it is the tallest. It has formed the Northern boundary of the country and until recent times provided an impregnable protection to the Indian sub-continent from the Northern direction. This mountain range has been responsible to regulate the monsoons and consequently the rainfall in the Indo-gangetic belt. The Himalayas are the source for perennial rivers-the Ganges, Yamuna and Brahmputra as also several other tributaries which have joined these main rivers. For thousands of years nature has displaced its splendor through the lush green trees, innumerable springs and beautiful flowers. The Himalayas has been the store house of herbs, shurbs and plants. Deep forests on the lower hills have helped to generate congenial conditions for good rain. 12. The Doon Valley has been an exquisite region bounded by the Himalayan and the Shivalik ranges and the Ganga and Yamuna rivers. The perennial water streams and the fertile soil have contributed not only to the growth of dense lush green forests but have helped the yield of basmati rice and leechis. Mussoorie, known as the queen of Indian hill stations situated at a height of 5000 ft. above sea level and Dehra Doon located below the heights have turned out to be important places of tourist attraction, centers of education, research and defence complex. 13. At present the Valley is in danger because of erratic, irrational and uncontrolled quarrying of limestone. The landscape has been stripped bare of its verdant cover. above sea level and Dehra Doon located below the heights have turned out to be important places of tourist attraction, centers of education, research and defence complex. 13. At present the Valley is in danger because of erratic, irrational and uncontrolled quarrying of limestone. The landscape has been stripped bare of its verdant cover. Green cover today is about 10 per cent of the area while from decades ago it was almost 70 per cent. 18. Governments-both at the center and in the State-must realize and remain cognizant of the fact that the stake involved in the matter is large and far-reaching. The evil consequences would last long. Once that unwanted situation sets in, amends or repairs would not be possible. The greenery of India, as some doubt, may perish and the that desert may expand its limits.” 12. Accordingly, the petition is allowed and the following mandatory directions are issued:- A. Government order dated 19th November, 2008 notifying the master plan as well as the Government Order dated 28.11.2013 modifying the Master Plan, are quashed and set aside. B. The State Government is directed to take up the matter with the Central Government for the approval of Master Plan as per Notification dated 6.10.1988 read in conjunction with notification dated 1.12.2009 issued by the Ministry of Environment & Forest, Govt. of India within eight weeks. The Central Government shall consider the same in accordance with law. C. It is also made clear that while preparing the new Master Plan, the land under the “Tea Garden” at Dehradun shall not be converted to any other use and its status shall be maintained. D. Cost of Rs.5.00 lakh is imposed upon the respondents for not complying with the mandatory Notifications dated 6.10.1988 and 1.12.2009 while issuing the G.O. dated 19.11.2008 and 28.11.2013. All pending applications stands disposed of.