Aftab Alam, J. - (1.) AT the centre of the controversy is a very large project of the Uttar Pradesh government at NOIDA. Objecting to the project are the two applicants who are residents of Sector 15A, NOIDA, U.P. They claim to be public spirited people, committed to the cause of environment. According to them, the project, undertaken at the instance of Uttar Pradesh Government is a "huge unauthorized construction". The applicants state that a very large number of trees were cut down for clearing the ground for the project. The trees that were felled down for the project formed a "forest" as the term was construed by this Court in its order dated December 12, 1996 in Writ Petition (C) No. 202 of 1995; T.N. Godavarman Thirumulkpad v. Union of India and Ors. : (1997) 2 SCC 267 and the action of the Uttar Pradesh Government in cutting down a veritable forest without the prior permission of the Central Government and this Court, was in gross violation of Section of the Forest (Conservation) Act, 1980 (hereafter "the FC Act"). The project involved massive constructions that were made without any prior environmental clearance from the Central Government based on Environment Impact Assessment. The constructions were, therefore, in complete breach of the provisions of the Environment Protection Act, 1986 (hereafter "the EP Act") and the notification issued under the Act. More importantly, the project was causing great harm, and was bound to further devastate the delicate and sensitive ecological balance of the Okhla Bird Sanctuary to which the site of the project lay adjacent. The project was, thus, in complete disregard of this Court's directions concerning 'buffer zones'.
(2.) THE State of Uttar Pradesh, of course denies, equally strongly, all the allegations made by the applicants. According to the State, it was setting up a park that would develop and beautify the area in a unique way. The park was conceived as a fine blend of hard and soft landscaping with memorial structures and commemoration pieces. The construction of the park did not violate any law or the order of the Court. There was no infringement of the provisions of the FC Act or the EP Act or the notification made under it. Further, the setting up of the park caused no harm to the bird sanctuary. The applicants' objections to the construction of the park were fanciful and imaginary and actuated by oblique motives. THE PROJECT: Before proceeding to examine the arguments of the two sides in greater detail it would be useful to take a look at the project and to put at one place the basic facts concerning it that are admitted or at any rate undeniable. i. The project is sited at sector 95, Noida. According to the applicants, at the site of the project previously there used to be five parks on the Yamuna front, namely, Mansarovar, Nandan Kanan, Children's Park, Smriti Van and Navagraha, opposite Sectors 14A, 15A and 16A, Noida. ii. The project site, on its western side, lies in very close proximity to the Okhla Bird Sanctuary. The bird sanctuary was formed as a large water body with the adjoining land -mass of the embankment as a result of the construction of the Okhla Barrage. It falls partly in Delhi and partly (400 hectares in area) in the district of Gautam Budh Nagar, U.P. The administrative control of the area of the Sanctuary is under the Uttar Pradesh Irrigation Department and its management is with the Uttar Pradesh Forest Department. The Sanctuary is home to about 302 species of birds. According to the Bombay Natural History Society, out of the bird species found here, 2 are critically endangered, 11 are vulnerable and 7 are nearly threatened. About 50 species are migratory in nature and come here mainly during the winter months. The annual population/visit is estimated as under: 2006 - 2007 - 24166 2007 -2008 - 17111 2008 -2009 - 21272 This haven for birds was declared a bird sanctuary ("the Okhla Bird Sanctuary") vide notification dated May 8, 1990 issued by the State of Uttar Pradesh under Section of the Wildlife (Protection) Act, 1972. The project, subject of the present controversy, is sited in very close proximity to the Okhla Bird Sanctuary on its eastern side. The applicants refer to it as adjoining the left afflux bund of the Okhla Bird Sanctuary but to be accurate it lies about 35 -50 metres away from the outer limit of the Sanctuary. According to the applicants, the boundary of the project site is as under: North - Delhi -UP DND Toll Road South - Not clearly stated East - Dadri Road West - Okhla Bird Sanctuary, left afflux bund i. The project is spread over an area of 33.43 hectares, equal to 334334.00 square metres of land surrounded by a boundary wall made of stone, 2 metres in height and 0.3 metres in thickness. The estimated cost of the project is Rupees 685 crores. ii. At the site of the project there used to be a tree cover, thin to high - moderate in density and for clearing the ground for the project six thousand one hundred and eighty six (6186) trees were cut down and one hundred and seventy nine (179) were "shifted". These trees were of Subabul, Bottle Brush, Bottle Palm, Morepankhi, Ficus benjamina, Cassia siamia, Eucalyptus, Fishtail palm, Rubber plant, Silver oak, etc. iii. The project, though insisted upon by the Uttar Pradesh Government is nothing but a 'recreational park', involves the construction of dedicatory columns, commemorative plaza, national memorial, plinth with sculptures, larger than life -size statues on tall pedestals, large stone tablets with tributary engravings, pedestrian pathways, service block, boundary wall, hard landscape, soft landscape, etc. As initially planned the breakup of the area under different uses was as under: i. According to the State Government, the work on the project commenced in January 2008. The applicants filed IA No. 1179 before the Central Empowered Committee (hereafter "CEC") constituted by this Court on March 5, 2009. They filed IA Nos. 2609 -2610 of 2010 (presently in hand) before this Court on April 22, 2009. According to the State Government, by that time 50% of the construction work of the project was complete. The report from the CEC was received in this Court on September 4, 2009 and on October 9, 2009, this Court by an interim order restrained the State Government from carrying on any further constructions till further orders. By that time, according to the government, 70 -75% of the construction work of the project was completed. i. In course of hearing of the matter, on a suggestion made by the Court, the State Government modified the layout plan increasing the soft/green area from 47% to 65.28% of the total area of the project. The revised layout plan is as under: Under the amended plan, around 7300 trees, more than 4 years of age and measuring 8 -12 feet in height, belonging to the native species such as Neem, Peepal, Pilkhan, Maulsari, Imli, Shisham, Mango, Litchi and Belpatra will be planted in the project area.
(3.) ACCORDING to the State Government, the revised plan that includes planting of trees in such large numbers would not only restore the tree cover that was in existence at the site earlier but would make the whole area far better, more beautiful and environment friendly. The applicants however, would have none of it. On their behalf it is contended that the whole project is bad and illegal from every conceivable point of view; its construction was started and sought to be completed at a breakneck speed in flagrant violation of the laws. According to the applicants therefore, all the structures at the project site, complete, semi -complete or under construction must be pulled down and the project site be restored to its original state. THE PROJECT AND SECTION OF THE FC ACT:;