This article is written by Dharmender Pandey, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Introduction

This article pinpoints the most crucial and debatable issue of the world at present, that is, the impact of developmental work at the cost of its impact on the environment. In this present Special Leave Petition, the Petitioner ‘Rao CGHS Ltd (New Millennium CGHS) & Ors is made of two group housing societies comprising 280 families and 6 individual residents of Dwarka. They approached the Delhi High Court for seeking the direction to restrain the National Highway Authority of India (NHAI) from carrying out construction activities at DDA Road 226, which is a residential road, unless it places evidence of all the necessary approvals of the appropriate authorities in this regard before the Hon’ble Court. 

The Petitioner approached the Hon’ble Supreme Court against an order of the High Court in which the Hon’ble Delhi High Court refused to grant relief to the petitioner. The present case was listed before the Divisional Bench of the Supreme Court comprising Dr. Justice DY Chandrachud and Justice MR Shah. The Bench initially was not ready to take this case for hearing, since the matter was already pending before Delhi High Court. But Advocate Prashant Bhushan, appearing for the petitioner, apprised the court that the construction is still going on day and night despite the High Court order that respondent no. 1 shall not cut or remove any tree in the area in question without obtaining the appropriate permission from the competent authority. He also submitted that the construction work is continuing without obtaining the requisite permission from the competent authorities in the middle of a crowded residential area in which there are 12 (Twelve) schools. After listening to the argument of Advocate Prashant Bhushan the Divisional Bench issued the notice to the concerned parties.

Issue involved

The issue involved in the present case is that the NHAI and its allies are continuously involved in the construction work of DDA Road No. 226 in Sectors 22 and 23, Dwarka, not complying with the Delhi High Court’s order that said the respondent no.1 will not cut or remove any tree from the disputed area without taking the requisite permission from the appropriate authorities of Delhi Government in this regard. It is also alleged that the NHAI and its allies are constructing the flyover without seeking the requisite permission from the various departments which are mandatory before starting the construction work. The said construction work is going on throughout day and night which has been causing the residents in the vicinity great discomfort and inconvenience due to air and noise pollution. In addition to this, they are cutting trees in the said area, an action which would have a drastic impact on the environment. The said area is always congested with long traffic jams since the time when the construction work was initiated. The school children of the 12 schools in this area are affected due to the heavy traffic. The trees in the said area had been chopped off without obtaining the requisite permission from the competent authority under the Delhi Preservation of trees Act, 1994. 

Facts of the case

In this present case, the NHAI and its allies are constructing a Highway DDA Road No.226 in Sectors 22 and 23, Dwarka which is a very densely populated residential area along with six schools in the vicinity of this construction work, without obtaining the proper permission from the appropriate authorities. This work is going on throughout day and night which affects the residents and schools in the vicinity. The trees are being cut down by respondents without taking any permission from the appropriate authorities, which impacts the environment. The long traffic jams increase the air and noise pollution to a great extent, which impacts the life of the residents and makes their life miserable. The traffic jams have also affected the school children’s lives in this area.  

Plaintiff’s contentions

Plaintiff argued that there are already two (declared) Highways NH 248BB and NH 344M, which are available. In which case, what is the need for this present Highway that is also between a densely populated residential area. The environmental clearance has been only taken at the time of NH334M and not in the case of NH248BB. Even if this flyover is required then also the respondents must obtain all the prerequisites permission from the relevant authorities and strictly adhere to them. In the present case, the respondents have started the construction work without obtaining appropriate approvals from the appropriate authorities. The quality of air in this area became pathetic due to the unregulated construction work and traffic jams, which impacts the health of the residents in this area. The petitioner wants the court to intervene in the matter and restrain the respondents till the time they have not gotten the appropriate permission from the respective authorities. The Petitioner approached the Delhi High Court for a stay of the construction work till the respondents had not placed the requisite permission before the court. The petitioner argued that the Delhi High Court made an error while accepting that this Highway is not new and exempted the respondent from obtaining compulsory environmental clearance under the Environmental Impact Assessment notification, 2016. The plaintiff argued that the impugned order of the Delhi High Court is contrary to this court Judgment in the case “Project Director, Project implementation unit vs. P.V. Krishnamoorthy” where the court held that the environmental clearance is mandatorily required before commencing actual work and not before the Central Government expresses the intention to acquire it.

Defendant’s contentions

Defendants argued that the present Highway’s work is not the new project, but is being done on the existing road, therefore the requisite permissions are not required in this case. Hence the Defendants can continue the construction work and the stay of the construction work will go against the interest of the general public. The Delhi High Court permitted the respondents to continue with construction work but specifically mentioned in its order that they should not cut/remove any tree in the said area without obtaining the appropriate permission from the respective authority or place the already obtained permission before the court.

Delhi High Court observation

The Delhi High Court after hearing both the parties’ arguments has observed that the present Highway work is not the new one so that the respondents can continue the construction work but restrain respondent no. 1 from cutting or removing the trees without obtaining the appropriate permission from the appropriate authority.

Supreme Court observation

The Division Bench composed of Dr. Justice DY Chandrachud and Justice MR Shah initially was not interested to entertain this SLP because the case is pending in the Delhi High Court but after hearing the arguments of the Advocate Prashant Bhushan the trees are being cut down without obtaining the requisite permission from the respective department of Delhi Government. After hearing the argument from the Petitioner side the Division Bench had issued notice to the respondents in this matter. But at the next hearing, the Supreme Court Divisional Bench had reversed the plea back to the Delhi High Court as the Petitioner did not approach the Divisional Bench of Delhi High court against the order of a single Judge Bench.

Present status of the case

The case is sub-judice in the Delhi High Court. The petitioners filed this SLP because they are not satisfied with the impugned order of the Delhi High Court in which Delhi High Court gave free hand to respondent No.1 (NHAI) to continue its construction work of the flyover despite knowing that respondent No.1 (NHAI) never had any mandatory permission from the appropriate authorities, including permission for cutting trees and consent orders under the Water Act, 1974 and Air Act, 1981. The SLP has been declined by the divisional bench of the Supreme Court consisting of Dr. Justice DY Chandrachud, Mr. Justice Vikram Nath, and Ms. Justice Hima Kohli because the petitioner had not approached the Divisional Bench of the High Court against the order of the single bench judge. However, the Bench gave direction to the petitioner to pursue their remedies in accordance with the law.  

Conclusion

The present case has become more important in the present time as the subject matter of the case is about development at the cost of a negative impact on the environment. It also raises the question of why the Town planners/Governments are not able to develop the area. Developmental work is necessary for ease of living but pure air and environment are more important for healthy living. The different policies under which a list of permission is required are made for the welfare of the society at large and at no cost should these policies be overlooked by any of the agencies involved in the project. It is also necessary for the different departments of the respective government to clarify that if anyone is not in the possession of the required permission then carrying out construction work without obtaining the required permission must be disallowed. The development work should be done, but not at the cost of the health of the people who are residents of that area. The final call that the court will take is still uncertain, and only time will reveal it.

References

1. http://indiankanoon.org/doc/22466238/
2. https://news.lawfoyer.in/2021/08/24/supreme-court-issues-notice-in-plea-challenging-the-construction-of-dwarka-flyover/
3. https://www.indialegallive.com/constitutional-law-news/supreme-court-news/supreme-court-issues-notice-on-plea-seeking-stay-on-flyover-construction-over-residential-road-in-dwarka/
4. https://cpcb.nic.in/upload/home/water-pollution/WaterAct-1974.pdf
5. https://legislative.gov.in/sites/default/files/A1981-14.pdf
6. https://timesofindia.indiatimes.com/city/gurgaon/rapid-urbanisation-leave-residents-gasping-for-breathe/articleshow/81198047.cms

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