# CITIZENS FOR GREEN DOON & ORS v. UNION OF INDIA & ORS

- **Citation:** [2021] 14 S.C.R. 503
- **Court:** Supreme Court of India
- **Decided:** 2021-12-14
- **Case number:** Civil Appeal No. 10930 of 2018
- **Bench:** Dr. Dhananjaya Y Chandrachud, Surya Kant, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/citizens-for-green-doon-ors-v-union-of-india-ors-35365
- **Pages:** 70

## Headnote

Environmental law: National highways - Double lane
carriageway width with paved shoulder standard - Road-width for
the three strategic border roads, Rishikesh to Gangotri (NH-94 and
NH-108), Rishikesh to Mana (NH-58), and Tanakpur to Pithoragarh
(NH-125) - A program "The Chardham Mahamarg Vikas Pariyojna"
of the Ministry of Road Transport and Highways (MoRTH) was
announced which aimed to widen the roads of national highways
in order to ensure safer and faster traffic movement - An application
was filed before NGT, challenging the construction under the project
on the ground that the development activity has a negative impact
on the Himalayan ecosystem - NGT held that the project did not
require any environment clearance, however, directed the
constitution of an oversight committee to monitor the environmental
safeguards - Appeal filed before Supreme Court challenging the
NGT's order, in which order was modified and High Powered
Committee (HPC) constituted - Conclusions in the HPC Report were
unanimous except for the issue relating to the width of the road -
Court took the cognizance of report and accepted the view of the
minority - Miscellaneous applications were filed by appellants and
Union of India seeking their respective reliefs in regard to road
width - Court directed HPC to consider the issues in applications
and to submit a detailed report - Held: National highways provide
vital connections to the establishments of the Armed Forces -
Importance of the requirement of double-laned highways has been
emphasized for the movement of trucks, equipment and personnel
of the Armed forces - 2020 MoRTH circular states that roads in
hilly and mountainous terrain which act as feeder roads to the Indo-
[2021] 14 S.C.R.503
503
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SUPREME COURT REPORTS
[2021] 14 S.C.R.
China border should be of Double lane with paved shoulder
configuration (DL-PS) standard - Considerations for construction
of highways which are of strategic importance and used by armed
Forces cannot be same as those for other roads in hilly and
mountainous regions - Need for development of national highways
of a DL-PS standard is proportionate to the object of fulfilling the
security concerns of the nation as assessed by the Ministry of
Defence (MoD) - Moreover, majority of the members of the HPC
recommended the adoption of the DL-PS standard as road-width
for the project - However, more than 50 per cent of the hill cutting
and double-laning has been completed on national highways -
Therefore, partial development of the highway compliant with the
IW standard and the remaining in conformity with the DL-PS
standard would not be suitable for the needs of the Armed Forces -
Order of this court was modified to this extent - Hence, UOI and
MoD were permitted to apply a DL-PS configuration to the highways
- With respect to the environmental issues - Sustainable measures
must be adopted - Obligation imposed upon MoRTH and MoD to
implement recommendations made by HPC - There has to be an
assessment of the nature of the problem by obtaining actual data
for all individual projects - Mitigation measures should be
implemented for all projects.
Doctrines/principles: Principle of Sustainable development
- Environment Rule of Law - Multi-faceted principle, which does
not prohibit development, but structures it around what is sustainable
- It not only ensures equity between the present and the future
generations but also development which ensures equity between
different sections of society at present - There is lack of consensus
on how to ascertain whether a particular developmental project
abides by the principle - It not only creates uncertainty within the
law, but makes the application of the principle selective -
Environmental law.
National Highways: A combined reading of Art.246 along
with Entry 23 of List I of Schedule VII of the Constitution of India
indicates that national highways fall entirely within the ambit of the
Parliamentary domain - The executive p

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CITIZENS FOR GREEN DOON & ORS.
v.
 UNION OF INDIA & ORS.
Miscellaneous Application No. 1925 of 2020
In
(Civil Appeal No. 10930 of 2018)
DECEMBER 14, 2021
[DR. DHANANJAYA Y CHANDRACHUD,
SURYA KANT AND VIKRAM NATH, JJ.]
Environmental law: National highways - Double lane
carriageway width with paved shoulder standard - Road-width for
the three strategic border roads, Rishikesh to Gangotri (NH-94 and
NH-108), Rishikesh to Mana (NH-58), and Tanakpur to Pithoragarh
(NH-125) - A program "The Chardham Mahamarg Vikas Pariyojna"
of the Ministry of Road Transport and Highways (MoRTH) was
announced which aimed to widen the roads of national highways
in order to ensure safer and faster traffic movement - An application
was filed before NGT, challenging the construction under the project
on the ground that the development activity has a negative impact
on the Himalayan ecosystem - NGT held that the project did not
require any environment clearance, however, directed the
constitution of an oversight committee to monitor the environmental
safeguards - Appeal filed before Supreme Court challenging the
NGT's order, in which order was modified and High Powered
Committee (HPC) constituted - Conclusions in the HPC Report were
unanimous except for the issue relating to the width of the road -
Court took the cognizance of report and accepted the view of the
minority - Miscellaneous applications were filed by appellants and
Union of India seeking their respective reliefs in regard to road
width - Court directed HPC to consider the issues in applications
and to submit a detailed report - Held: National highways provide
vital connections to the establishments of the Armed Forces -
Importance of the requirement of double-laned highways has been
emphasized for the movement of trucks, equipment and personnel
of the Armed forces - 2020 MoRTH circular states that roads in
hilly and mountainous terrain which act as feeder roads to the Indo-
[2021] 14 S.C.R.503
503
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SUPREME COURT REPORTS
[2021] 14 S.C.R.
China border should be of Double lane with paved shoulder
configuration (DL-PS) standard - Considerations for construction
of highways which are of strategic importance and used by armed
Forces cannot be same as those for other roads in hilly and
mountainous regions - Need for development of national highways
of a DL-PS standard is proportionate to the object of fulfilling the
security concerns of the nation as assessed by the Ministry of
Defence (MoD) - Moreover, majority of the members of the HPC
recommended the adoption of the DL-PS standard as road-width
for the project - However, more than 50 per cent of the hill cutting
and double-laning has been completed on national highways -
Therefore, partial development of the highway compliant with the
IW standard and the remaining in conformity with the DL-PS
standard would not be suitable for the needs of the Armed Forces -
Order of this court was modified to this extent - Hence, UOI and
MoD were permitted to apply a DL-PS configuration to the highways
- With respect to the environmental issues - Sustainable measures
must be adopted - Obligation imposed upon MoRTH and MoD to
implement recommendations made by HPC - There has to be an
assessment of the nature of the problem by obtaining actual data
for all individual projects - Mitigation measures should be
implemented for all projects.
Doctrines/principles: Principle of Sustainable development
- Environment Rule of Law - Multi-faceted principle, which does
not prohibit development, but structures it around what is sustainable
- It not only ensures equity between the present and the future
generations but also development which ensures equity between
different sections of society at present - There is lack of consensus
on how to ascertain whether a particular developmental project
abides by the principle - It not only creates uncertainty within the
law, but makes the application of the principle selective -
Environmental law.
National Highways: A combined reading of Art.246 along
with Entry 23 of List I of Schedule VII of the Constitution of India
indicates that national highways fall entirely within the ambit of the
Parliamentary domain - The executive power of the Union is coextensive with the power of Parliament - In accordance with s.2(2)
of the National Highways Act 1956, the Union Government is
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empowered to declare any road as a national highway and issue
directions for its development and maintenance - Within the Union
Government, the specific responsibility lies with MoRTH -
Constitution of India - Art.246; Schedule VII, List I , Entry 23.
Disposing of the Miscellaneous application, the Court
HELD: 1. The principle of sustainable development is
deep-rooted in the jurisprudence of Indian environmental law. It
has emerged as a multi-faceted principle, which does not prohibit
development, but structures it around what is sustainable.
Sustainable development incorporates two related ideas -
development which not only ensures equity between the present
and the future generations but also development which ensures
equity between different sections of society at present. However,
while the principle has deep roots, there is a lack of consensus
on how to ascertain whether a particular developmental project
abides by the principle of sustainable development. Without a
common benchmark or standard being applied by the Court in
its analysis of the impact of development projects, the principle
of sustainable development may create differing and arbitrary
metrics (depending on the nature of individual projects). This
not only creates uncertainty within the law, but makes the
application of the principle of sustainable development selective,
taking away from its potential to drive sustained change. [Para
31][532-D-F]
Indian Council for Enviro-Legal Action v. Union of India
(1996) 5 SCC 281 : [1996] 1 Suppl. SCR 507; Essar
Oil Ltd. v. Halar Utkarsh Samiti (2004) 2 SCC 392 :
[2004] 1 SCR 808 ; N.D. Jayal & Anr v. Union of India
& Ors. (2004) 9 SCC 362 : [2003] 3 Suppl. SCR 152;
Rajeev Suri v. Delhi (2021) SCC OnLine SC 7;
Municipal Corporation of Greater Mumbai v. Ankita
Sinha (2021) SCC OnLine SC 897; Hanuman Laxman
Aroskar v. Union of India (2019) 15 SCC 401 : [2019]
5 SCR 916; Bengaluru Development Authority v.
Sudhakar Hegde (2020) 15 SCC 63; H.P. Bus-Stand
Management & Development Authority v. Central
Empowered Committee (2021) 4 SCC 309 - relied on.
CITIZENS FOR GREEN DOON v. UNION OF INDIA
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[2021] 14 S.C.R.
2. The Circular of 2020 states that roads in hilly and
mountainous terrain, which act as feeder roads to the Indo-China
border should be of DL-PS standard, with a 7m carriageway and
1.5m paved shoulder. Neither the 2012 nor the 2018 MoRTH
Circulars specifically addressed the issue of strategic border
roads. The considerations for development of national highways
in plains and in hilly and mountainous regions are not identical.
Similarly, the considerations governing the construction of
highways that are strategic roads from a defence perspective,
and may be used by the Armed Forces of the nation, cannot be
the same as those for other roads in hilly and mountainous regions.
This Court must arrived at a delicate balance of environmental
considerations such that they do not impede infrastructural
development, specifically in areas of strategic importance crucial
to the security of the nation. This Court found that the need for
the development of national highways of a DL-PS standard is
proportionate to the object of fulfilling the security concerns of
the nation as assessed by the MoD. [Paras 69-71][555-A-E]
3. A majority of the members of the HPC recommended
the adoption of the DL-PS standard as road-width for the Project.
This opinion was reiterated in HPC Report II, which considered
the MA No 2180 of 2020 filed by the MoD. This Court agreed
with the finding of the HPC. The court modified the order of this
Court dated 8 September 2020 to the extent that the national
highways from Rishikesh to Mana, Rishikesh to Gangotri, and
Tanakpur to Pithoragarh be developed according to the doublelane carriageway width with paved shoulder standard as provided
in the 2020 MoRTH Circular. However, liberty is granted to the
respondents to pursue appropriate legal proceedings and seek
reliefs in the event that it is necessary to implement the DL-PS
standard for the entire Project. [paras 75,76,79][558-B-C; 560C-E]
4. It is important that there must be a significant alteration
in the approach to this Project by adopting sustainable measures.
Piecemeal implementation of some mitigation measures for
protection of the environment, without any concrete strategy in
place, cannot pass muster. The Court made conditional upon
MoRTH and MoD implementing the recommendations made by
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the HPC which are unanimous. There has to be an assessment of
the nature of the problem by obtaining actual data through relevant
studies for all individual projects. Specific mitigation measures
then should be implemented for all projects, keeping in mind
their unique concerns. This requires a concerned shift in the
approach which has been adopted till date. Making the Project
environmentally compliant should not be seen a "checkbox" to
be obtained on the path to development, but rather as the path to
sustained development itself. Thus, the measures adopted have
to be well thought out and should actually address the specific
concerns associated with the Project. Understandably, this may
make the Project costlier, but that cannot be a valid justification
to not operate within the framework of the environmental rule of
law and sustainable development. Thus, this court directed that
the MoRTH and MoD can proceed with the Project subject to
the condition that it addresses all the concerns which have been
raised by the HPC and enumerated by this Court. [Paras 99, 100]
[569-E-H; 570-A-D]
Project Implementation Unit v. P.V. Krishnamoorthy,
(2021) 3 SCC 572 - relied on.
Case Law Reference
[1996] 1 Suppl. SCR 507
relied on
Para 26
[2004] 1 SCR 808
relied on
Para 27
[2003] 3 Suppl. SCR 152
relied on
Para 28
[2019] 5 SCR 916
relied on
Para 34
(2020) 15 SCC 63
relied on
Para 35
(2021) 4 SCC 309
relied on
Para 36
(2021) 3 SCC 572
relied on
Para 38
CIVIL APPELLATE JURISDICTION: Miscellaneous Application
No. 1925 of 2020 in Civil Appeal No. 10930 of 2018.
From the Judgment and Order dated 26.09.2018 of the National
Green Tribunal, Principal Bench, New Delhi in O.A. No. 99 of 2018.
With
CITIZENS FOR GREEN DOON v. UNION OF INDIA
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Miscellaneous Application No. 2180 of 2020 in Civil Appeal No.
10930 of 2018.
Colin Gonsalves, Sr. Adv. Siddharth Seem, Satya Mitra,
Pukhrambam Ramesh Kumar, Ms. Tanima Kishore, Advs. for the
Appellants.
K. K. Venugopal, AG, Ms. Aishwarya Bhati, ASG, Gurmeet Singh
Makker, Ms. Swati Ghildiyal, Ankur Talwar, Anmol Chandan,
Ms. Chinmayee Chandra, Rajesh Ranjan, Ms. Vanshaja Shukla, Sajal
Singhai, Advs. for the Respondents.
By Courts Motion
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into sections* to facilitate analysis.
They are:
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The Project ....................................................................... 3
B
Proceedings before the National Green Tribunal ............. 5
C
Proceedings before the Supreme Court ........................... 8
D
Submissions .................................................................... 15
E
Framework of Analysis .................................................. 23
E.1 Principles of Sustainable Development and
Environmental Rule of Law ........................................... 25
E.2 Circulars and Guidelines ................................................. 37
F
Issues and Analysis ........................................................ 45
F.1 Road-Width Issue ........................................................... 45
F.1.1 HPC Report dated 13 July 2020.................................. 45
F.1.2 HPC Report dated 31 December 2020 ....................... 51
F.1.3 Analysis on the width of road ...................................... 53
F.2 Environmental Issues ..................................................... 67
F.2.1 HPC Report dated 13 July 2020.................................. 67
F.2.2 Analysis of the Environmental Issues.......................... 76
G
Conclusion ...................................................................... 80
*Ed. Note : The Page Nos. mentioned alongside the respective sections are as per the
Original Judgment.
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A The Project
1. The present case has a history fraught with litigation, with multiple
proceedings before the National Green Tribunal1 and this Court. Before
going into the history of the litigation, it is important to provide context
for the public project in question in the case.
2. The Chardham Mahamarg Vikas Pariyojna2 is a program of
the Ministry of Road Transport and Highways3, which was announced
on 23 December 2016. The Project aims to widen the roads of
approximately 900 kms of national highways, in order to ensure safer,
smoother and faster traffic movement. As the name suggests, these
highways connect the holy shrines which have been labelled as the "Chote
Char Dham" in the State of Uttarakhand - Yamunotri (NH-94/134 up to
Janki Chatti), Gangotri (NH-108), Kedarnath (NH-109, up to Sonprayag),
Badrinath (NH-58) and the Tanakpur-Pithoragarh stretch of the Kailash
Mansarovar Yatra route (NH-125).
3. These shrines represent different traditions of the Hindu religion
- with Yamunotri and Gangotri being Shakti or goddess shrines, Kedarnath
being a Shaiva temple, and Badrinath a Vaishnava site. They are located
in an area called Kedarkhand (largely today's Garhwal) in the Skanda
Purana. The locations of these shrines were earlier considered to be
occupied by glaciers (named Champasar, Gangotri, Chorabari and
Satopanth) in their entirety, which have since started melting. Even today,
they are stated to be located in paraglacial zones, which are considered
to be ecologically sensitive.
4. Till the 1950s, access to these shrines was limited and they
could only be accessed on foot. Hence, worshippers often undertook
long and arduous journeys to reach the shrines. However, since the 1960s,
road connectivity to the shrines has improved, where vehicles now ply
up to the Badrinath and Gangotri temples while Yamunotri and Kedarnath
are 6 to 14 kms away from the nearest motorable road. The improved
connectivity has resulted in a greater influx of worshippers. The four
shrines typically open for worship in and around late April or early May,
and close in and around late October to early November.
5. The Project was conceptualized with the aim of improving
accessibility to these shrines by widening the existing roads, making travel
CITIZENS FOR GREEN DOON v. UNION OF INDIA
[DR DHANANJAYA Y CHANDRACHUD, J.]
1 "NGT"
2 "Project"
3 "MoRTH"
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safer, smoother and faster. The Project seeks to widen the existing
highways into a double lane with paved shoulder configuration4 with 16
bypasses, realignments and tunnels, 15 flyovers, 101 small bridges and
3516 culverts. The MoRTH has divided the Project into 53 individual
projects, the length of each project being less than 100 kms, traversing
the following national highways:
(i) NH-58 - Rishikesh to Rudraprayag - 141 kms;
(ii) NH-58 - Rudraprayag to Mana Village (Badrinath) - 140 kms;
(iii) NH-94 - Rishikesh to Dharasu - 120 kms;
(iv) NH-94 - Dharasu to Yamunotri - 75 kms;
(v) NH-108 - Dharasu to Gangotri - 110 kms;
(vi) NH-109 - Rudraprayag to Gaurikund (Kedarnath) - 77 kms;
and
(vii) NH-125 - Tanakpur to Pithoragarh - 161 kms.
A pictorial representation of the connecting routes of the Project
is provided below, as taken from the report of the High Powered
Committee5 dated 13 July 20206:
4 "DL-PS"
5 "HPC"
6 "HPC Report"
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B Proceedings before the National Green Tribunal
6. An Original Application7 was filed before the Principal Bench
of the NGT on 27 February 2018 in public interest, challenging the
construction under the Project on the ground that the development activity
has a negative impact on the Himalayan ecosystem. The applicants argued
that the Project will lead to deforestation, excavation of hills and dumping
of muck, which will lead to further landslides and soil erosion, in an
already sensitive environment. It was also alleged that an Environment
Impact Assessment8 under the Environment Impact Assessment
Notification 20069 had not been conducted and that to obviate the
requirement of conducting an EIA, the Project had been divided into
smaller stretches. The application alleged violations of the EIA
Notification, Forest (Conservation) Act 1980, Wildlife Protection Act
1972, Environment (Protection) Act 1986 and Articles 14, 21 and 48A of
the Constitution. Another Original Application10 was filed seeking
directions to take precautions for muck disposal and for ensuring the
stability of slopes.
7. In its order dated 26 September 2018, the NGT observed that
the bypasses and realignments to be made to the national highways,
which cumulatively fall under the Project, have been considered as standalone projects. The length of each of these projects is less than 100 kms
and thus, the NGT held that the projects did not require an EIA approval
or Environment Clearance11 under the EIA Notification. However, given
the fragile ecosystem within which the Project was to be developed, the
NGT directed the constitution of an 'Oversight Committee' to monitor
the environmental safeguards for the execution of the Project.
8. The Oversight Committee was to be headed by a former Judge
of the Uttarakhand High Court, and had representatives from the Wadia
Institute of Himalayan Geology; National Institute of Disaster
Management; Central Soil Conservation Research Institute; GB Pant
Institute of Himalayan Environment; Forest Research Institute; the
Secretary to the Forest Department, Uttarakhand; and District
Magistrates, who were to act as co-ordinators. The task of the Oversight
CITIZENS FOR GREEN DOON v. UNION OF INDIA
[DR DHANANJAYA Y CHANDRACHUD, J.]
7 OA No 99/2018
8 "EIA"
9 "EIA Notification"
10 OA No 431/2018
11 "EC"
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[2021] 14 S.C.R.
Committee, inter alia, was to oversee the implementation of the
Environment Management Plan to be prepared by an agency of the
Ministry of Environment, Forests and Climate Change12. The relevant
portion of the order of the NGT is produced below:
"54. Accordingly, we direct constitution of the following Oversight
Committee:-
1. Justice U.C. Dhyani, Former Judge, Uttarakhand High Court,
Chairman Public Service Tribunal, Dehradun.
2. Representative of Wadia Institute of Himalayan and Geology.
3. Representative of National Institute of Disaster Management.
4. Representative of Central Soil Conservation Research Institute
with expertise in Natural disasters, landslides, etc.
5. Representative of G.B. Pant Institute of Himalayan
Environment.
6. Representative of Forest Research Institute, Dehradun.
7. Secretary of Environment and Forest Department, Uttarakhand,
Dehradun to be Member Secretary/convener/coordinator of the
Committee.
8. Concerned District Magistrates of the Districts concerned will
act as co-coordinator and for arranging visits and meetings at
local level."
C Proceedings before the Supreme Court
9. An appeal13 was filed to challenge the NGT's order dated 26
September 2018 before this Court. By an order dated 8 August 2019, a
two-judge Bench, comprising of Justice Rohinton F Nariman and Justice
Surya Kant, modified the order of the NGT and instead constituted an
HPC to be chaired by Professor Ravi Chopra, who would replace Justice
UC Dhyani, and also added representatives from various other bodies.
The HPC was directed to make its decisions on the basis of majority
vote. The relevant portion of the order of this Court is as follows:
"We constitute a High Powered Committee (HPC) consisting of
the persons who are mentioned in para 54 of the said order.
12 "MoEF&CC"
13 CA No 10930/2018, CA Nos 8518-8520/2018 and MA No 2678-2680/2018
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However, the Committee is to be headed by Prof. Ravi Chopra,
who will replace Justice U.C. Dhyani, and will be the Chairman
of the Committee. In addition to this, we add a representative of
the Physical Research Laboratory, Department of Space,
Government of India, Ahmedabad; a representative of the Wildlife
Institute of India, Dehradun; a representative of MoEF&CC,
Regional Office, Dehradun; and a representative of the Ministry
of Defence dealing with Border roads, not below the rank of
Director. We direct MoEF&CC to constitute the High Powered
Committee within two weeks from the date of this order. The
HPC may co-opt member(s) for effective discharge of its
functions. The MoEF&CC shall provide venue and
secretarial assistance to the HPC, who will make decisions
by majority voting."
(emphasis supplied)
The terms of reference of the HPC were also revised in the
following terms:
"I. The Committee shall consider the cumulative and independent
impact of the Chardham [P]roject on the entire Himalayan valleys
and for that purpose, the HPC will give directions to conduct EIA/
rapid EIA by the Project Proponent/MoRTH.
II. The HPC, with the help of the technical body and
engineers of implementation agency (MoRTH) should
consider whether revision of the full Chardham [P]roject
(about 900 Kms) should at all take place with a view to
minimize the adverse impact of the project on environment
and social life.
III. The HPC shall identify the sites in which work (i.e. hill-cutting)
has started and the stretches in which the work has not yet started.
As far as the sites in which work has started, the High Powered
Committee should recommend the measures which are required
for stabilizing the area where hill-cutting has taken place, among
others, the environmentally safe disposal of muck which has been
generated so that it does not adversely affect the flora and fauna
of the catchment area of the river.
IV. As regards the stretches where work has not started, the
HPC will review the proposed project and recommend measures
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[DR DHANANJAYA Y CHANDRACHUD, J.]
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which will minimize the adverse impact on environment, social
life and bring the project in conformity with the steep valley terrain,
carrying capacity, thus avoiding any triggering of new landslides
and ensuring conservation and protection of sensitive Himalayan
valleys.
V. The HPC will assess the environmental degradation in terms
of loss of forest land, trees, green cover, water resources, dumping
of muck and impacts on the wildlife and will direct the mitigation
measures. Specific attention will be laid on protecting wildlife
corridors, and rare and endangered flora and fauna.
VI. The HPC will assess and quantify the impact on social
infrastructure/public-life due to triggering of fresh landslides, air
pollution, frequent road blocks etc. and will suggest necessary
measures for its redressal, including preparation of disaster
management plans prior to the monsoon season.
VII. In Bhagirathi Eco Sensitive Zone (Gangotri to Uttarkashi),
the HPC will make special provisions in its report keeping in mind
the guidelines given under the Notification of the Bhagirathi Eco
Sensitive Zone so as to avoid violations and any environmental
damage.
VIII. The HPC will also suggest the areas in which afforestation
measures should be taken. It will also suggest the kind of saplings
which have to be planted in different terrains of Himalayas. A
separate Committee be constituted by the Forest Department of
Uttarakhand to continuously monitor and report on the website
that the saplings which have been planted have survived and grown.
In case of non-survival of any sapling, further plantation should
be done. Compensatory afforestation should be ten times the
number of trees which have been cut. The HPC shall prepare an
effective afforestation plan ensuring its proper implementation.
IX. The HPC will invite experts from different fields and consult
local people or hold public meeting in the local areas to take
recommendations and suggestions, as it deems fit.
X. The HPC shall consider giving specific directions to the
concerned agencies to put in the public domain the landslide-prone
areas, and their treatment by the Project Proponent, the total muck
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generated, and the places where it has been disposed of in an
environmentally sound manner."
(emphasis supplied)
The HPC was directed to submit its report of recommendations
in four months. Following the submission of the report, the Court directed
MoRTH to implement its recommendations. For this purpose, the Court
observed:
"The reports prepared by the HPC with its recommendations shall
be given to the project Proponent i.e. MoRTH for implementation.
The HPC shall hold quarterly meetings thereafter to ensure timely
and proper compliance of its recommendations. The HPC may
suggest any further measure which may be required, in the interest
protection and conservation of environment, after each quarterly
review meeting."
10. Pursuant to the order of this Court, a report dated 13 July
2020 was submitted by the HPC to this Court. By an order dated 8
September 2020, a three-judge Bench of this Court comprising of Justice
Rohinton F Nariman, Justice Navin Sinha and Justice Indira Banerjee
took cognizance of the Report, and noted that the conclusions in the
HPC Report were unanimous, except for the issue relating to the width
of the road. A majority comprising thirteen members of the HPC was in
favour of applying a Circular dated 5 October 2012 issued by MoRTH14,
which stipulates that in all new projects of widening/bypass/realignment,
the width of the carriageway will be at least two-lane with paved shoulder
(DL-PS), irrespective of the traffic. According to the 2012 MoRTH
Circular, the road-way width would be 12m comprising of 7m for the
double-lane carriageway, a 1.5m paved shoulder on either side of the
highway, and a 1m earthen shoulder on either side of the highway. A
minority comprising of 5 members, including the Chairperson, was of
the view that a subsequent Circular dated 23 March 2018 issued by the
MoRTH15 should govern the Project. The 2018 MoRTH Circular provides
that in hills and mountainous terrains, where the traffic volumes range
from 3,000 to 8,000 Passenger Car Units16 a day, the carriageway width
should be of intermediate lane configurations (Intermediate Width17
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[DR DHANANJAYA Y CHANDRACHUD, J.]
14 "2012 MoRTH Circular" - No. NH-14019/6/2012-P&M
15 "2018 MoRTH Circular" - No. NH-15017/ 28/ 2018 - P&M
16 "PCU"
17 "IW"
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standard), i.e., of 5.5m width with two-lane structures. The order of the
Court accepted the view of the minority and observed:
"We have perused the conclusions and recommendations of the
report, in particular, from pages 90-93 in Part I. We are of the
view that it is correct that the 2018 MORTH circular should
apply for the reasons given at page 93 of the report.
Consequently, the 2018 circular alone will apply. The other
directions that were issued by us on 08.08.2019 must be strictly
complied with, including the holding of quarterly meetings to ensure
timely and proper compliance of the recommendations."
(emphasis supplied)
11. Following the above order, a letter dated 5 October 2020 was
received by the Registry of this Court from the Chairperson of the HPC.
Professor Chopra highlighted the steps he had taken to notify MoRTH
of the order of this Court. He stated that he had requested MoRTH to
submit a plan to bring the Project in conformity with the 2018 MoRTH
Circular and suspend all fresh hill-cutting activities. The letter also
highlighted that Professor Chopra had received reports of tree-felling
and fresh hill-cutting on various stretches on NH-58, NH-94, et al, which
was being carried out on the basis of the old road-width standard, i.e.,
DL-PS with a 10m tarred road. The Chairperson stated that on 27
September 2020, he had read a news report indicating that MoRTH had
informed the Government of Uttarakhand that the 2018 MoRTH Circular
would be applicable only to the proposed 13 projects where work had
not yet begun. Through this letter, Professor Chopra urged that the
directions in the order of this Court dated 8 September 2020 should be
strictly followed. The letter dated 5 October 2020 was converted into
MA No 1925 of 2020, which is the subject-matter of this judgment.
Further, another letter dated 2 November 2020 was received from
Professor Chopra, where he highlighted the non-compliance of the order
of this Court and raised issues regarding the functioning of the HPC.
12. An affidavit was filed by the seventh appellant (Swami
Samvidanand) seeking, inter alia, directions to MoRTH to:
(i)
stop hill-cutting, tree-felling and activities in violation of the
2018 MoRTH Circular;
(ii) compensate for hill-cutting beyond the IW standard with tree
plantations and footpath; and
(iii) render full secretarial assistance to the HPC.
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13. An interlocutory application, IA No 6097 of 2021, was later
filed by the sixth appellant (Deepak Chand Ramola) seeking the following
directions:
(i) that the amendment to the 2018 MoRTH Circular through the
Circular dated 15 December 202018, should be revoked;
(ii) that the IW standard be adhered to for the entire Project,
both prospectively and retrospectively, as mentioned in this
Court's order dated 8 September 2020;
(iii) that the Bhagirathi Eco Sensitive Zone19 be given special
protection;
(iv) that the HPC be strengthened to ensure proper implementation
of its functions; and
(v) on the basis of the findings of the HPC, a committee be set
up to direct an inquiry against the persons responsible for
wilful violations of the laws in force.
14. Another miscellaneous application, MA No 2180 of 2020, was
then filed by the Union of India20, through the Ministry of Defence21,
seeking modification of this Court's order dated 8 September 2020, which
is also the subject matter of this judgment. This application seeks
permission for the widening of the national highways from Rishikesh to
Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh to a twolane, DL-PS configuration. The application avers that a minority of the
members of the HPC, whose view was adopted by this Court in its
order dated 8 September 2020, relied on a statement of the then Chief of
Army Staff which confirmed that the requirements of the Indian Army
are fulfilled by the existing roads. However, according to the Union
Government, there has been a material change in circumstances,
necessitating an improvement of roads to enable movement of troops
and equipment to Army stations on the Indo-China border. Thus, the
application has urged that a double lane road having a carriageway width
of 7m (or 7.5m) is necessary to meet the Army's requirement. The
relief which has been sought in the application, is extracted below:
CITIZENS FOR GREEN DOON v. UNION OF INDIA
[DR DHANANJAYA Y CHANDRACHUD, J.]
18 "2020 MoRTH Circular" - No. NH-15017/28/2018-P&M
19 "BESZ"
20 "UOI"
21 "MoD"
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"Modify the Order dated 08.09.2020 and direct that the national
highways from Rishikesh to Mana, from Rishikesh to
Gangotri and from Tanakpur to Pithoragarh may be developed
to 2 lane configuration in the interest of the security of the nation
and for the defence of its borders".
(emphasis supplied)
15. By an order dated 2 December 2020, a three-judge Bench
comprising of Justice Rohinton F Nariman, Justice Navin Sinha and Justice
KM Joseph directed the HPC to consider the issues raised by its
Chairperson in his letters and applications, including the application by
the MoD, and to submit a detailed report. Pursuant to the order of this
Court, the 11th meeting of the HPC was held on 15 and 16 December
2020. The report22 of the deliberations and submissions of the HPC was
received by the Registry from the Secretary, Forest Department, State
of Uttarakhand through a letter dated 31 December 2020.
16. This is where the matter stands presently. We shall consider
the submissions urged by the parties.
D Submissions
17. Mr Colin Gonsalves, Senior Counsel appearing on behalf of
the appellants, urged the following submissions:
(i)
Issues concerning the functioning of the HPC: The HPC
was not allowed to function independently and was given
inadequate assistance by the UOI:
(a)
The HPC consisted of 8 District Magistrates, 5 State
Government officials, 2 Union Government officials and
5 representatives from institutions funded by the State
and Union Governments. The members of the HPC
linked to the government voted en bloc and toed the
'official line', rather than basing their judgment on a
scientific basis; and
(b)
The Chairperson of the HPC faced opposition from the
UOI, as they were unwilling to cooperate with the work
of the HPC. The Chairperson had repeatedly written to
MoRTH, regarding the plan of action for slope
22 "HPC Report II"
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stabilisation, muck disposal and restoration of damaged
slopes; to the State, pointing out that the original order
of the NGT did not stipulate District Magistrates to be
members of the HPC and that their role was limited to
coordination with the local population; to the UOI, to
provide inventory of vulnerable slopes and muck; and
to the MoEF&CC, regarding the continuing hill-cutting
activities. However, no concrete action was taken by
any of the parties;
(ii) Violations committed by MoRTH: MoRTH has been
constructing roads and widening the highways in violation of
the 2018 MoRTH Circular and the order of this Court dated
8 September 2020:
(a)
MoRTH started widening the highways according to
the DL-PS standard, in violation of the 2018 MoRTH
Circular which provided for adherence to the IW
standard;
(b)
During the deliberations of the HPC, massive hill-cutting
and deforestation activities were undertaken, which have
caused irreversible damage to the Himalayan
environment;
(c)
After the order of this Court dated 8 September 2020,
MoRTH has continued to undertake hill-cutting, treefelling, tarring and unrelated activities;
(d)
Despite the order of this Court, MoRTH has taken a
stand that the order will only be implemented for the 13
projects where the work has not yet started. However,
the order of 8 September 2020 stated that the 2018
MoRTH Circular alone has to be followed and will apply
retrospectively, i.e., it will be applicable to the entire
Project, even where the work had already been initiated;
(e)
MoRTH, in a recent notification dated 10 September
2020 which was advertised in the newspapers, proposed
the acquisition of land for a toll booth. The toll is only
applicable on roads of DL-PS standard;
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(iii) Road-width: The minority view, adopted by this Court in its
order dated 8 September 2020, to construct the highways
with an IW standard must be upheld as:
(a)
According to the Manual of Specifications and Standards
for Two Laning of Highways with Paved Shoulder23
published by the Indian Roads Congress24 in June 2015,
the vehicle size in India cannot exceed a width of more
than 2.4m. Thus, an intermediate lane of 5.5m on a linear
profile and 7m on curves, is sufficient for two large
vehicles to cross each other;
(b)
The fragile environment of the Himalayas will be
severely damaged if the DL-PS standard is adopted.
As opposed to this, the IW standard will ensure reduction
of green cover loss, reduce landslides, land loss, and
tree loss by 80-90 per cent;
(c)
The 2012 MoRTH Circular is inappropriate for mountain
roads as it can cause massive instability and
environmental damage. As opposed to this, the 2018
MoRTH Circular is specific to hilly and mountainous
areas, and should be adopted instead; and
(d)
The amendments made by the 2020 MoRTH Circular
are arbitrary as they reinstate the 2012 MoRTH Circular
without engaging with the rationale of having an IW
standard for mountainous areas;
(iv) Security concerns: The national security concerns regarding
the widening of the strategic roads are also met as:
(a)
The arguments raised by the MoD were considered by
the HPC Report. It was after consideration of these
views that the Court had passed the order dated 8
September 2020;
(b)
To meet the defence requirements, it is essential that
disaster-resilient roads be built, instead of disaster-prone
roads;
23 "2015 IRC Guidelines"
24 "IRC"
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(c)
The Project was not an initiative of the MoD, and was
a project to increase the tourist inflow to over 9,000
vehicles per day. The HPC Report has noted that this
projection is an exaggeration as Badrinath, which has
the maximum tourist inflow, has only 1000 vehicles per
day and has already reached its carrying capacity; and
(d)
The Chief of Army Staff in an interview had commented
on the all-weather road project and stated that the needs
of the Army are being met by the existing infrastructure.
18. In opposition to this, Mr KK Venugopal, Attorney General for
India, made submissions in support of the application filed by the UOI
and the MoD. The application seeks a modification of the order dated 8
September 2020 to allow the national highways from Rishikesh to Mana,
Rishikesh to Gangotri, and Tanakpur to Pithoragarh to be developed
with a DL-PS standard. The following submissions were urged:
(i) Requirement of DL-PS standard for strategic border
roads:
(a)
The national highways from Rishikesh to Mana,
Rishikesh to Gangotri, and Tanakpur to Pithoragarh act
as feeder roads to the Indo-China border and have
strategic importance;
(b)
The minority opinion in the HPC Report relied on the
statement of the Chief of the Army Staff, according to
which the present infrastructure was adequate for the
needs of the Army. However, there has been a change
in the circumstances since, and it is necessary that
personnel and equipment move swiftly to Army stations
at the Indo-China border points. The movement requires
that vehicles returning from the border are able to cross
vehicles going in the opposite direction without causing
road-blocks or coming to a dead halt. Thus, a
carriageway with a width of 7m is necessary to meet
the security concerns of the country;
(c)
These road-posts have been in use since the war with
China in 1962. With the increase in defence capability;
the nature of weapons, tanks and machinery; and the
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conditions at the border, wider roads with a DL-PS
standard are required;
(d)
Neither the 2012 MoRTH Circular nor the 2018 MoRTH
Circular deal with the security needs of the country.
The 2018 MoRTH Circular, which is general in nature,
is based on PCU traffic and is applicable to all the hilly
areas. However, it did not consider the strategic
requirement for movement of military vehicles in the
Himalayan regions, closer to the border areas;
(e)
The Armed Forces have sufficient human-power,
machinery and equipment to deal with landslides on any
of these roads and can clear the way for movement of
Army vehicles, machinery, tanks and artillery;
(f)
Prior to 2017, the development of these roads was under
the Border Roads Organization25.