Citizens for Green Doon Vs. Union of India and Ors.
[Civil Appeal Nos. 6497-6498 of 2021]
Dr Dhananjaya Y Chandrachud, J
‘Waste not even the smallest thing that nature has created, for grains of sand make mountains and atomies infinity’
HAVING QUOTED THE ABOVE LINES LET US FIRST UNDERSTAND THE FACTS ABOUT THE ABOVE CASE ;
The appellant had previously filed Writ Petition No. 529 of 2021, a petition under Article 32 of the Constitution, to contest: (i) the Stage-I Forest Clearances dated 29 September 2020 and 24 December 2020 issued by the Ministry of Environment, Forest and Climate Change in respect of the sections of road constituting National Highway No. 72A in Uttarakhand and Uttar Pradesh; and (ii) the Wildlife Clearance dated 5 January 2021 issued by the Standing Committee of the Uttarakhand State Legislature By its ruling dated September 7, 2021, this Court reserved the right for the appellants to take proper action by bringing a challenge against the Stage-I Forest Clearances before the National Green Tribunal to challenge the Stage-I Forest Clearances. Directions were also issued, granting permission to the appellant to challenge the Wildlife Clearance at the appropriate stage.
In response to this Court’s directive, the appellant filed Original Application No. 240 of 2021 with the Tribunal, using its authority under Section 14(1) of the National Green Tribunal Act 20103. By its ruling dated 6 October 2021, the Tribunal rejected to consider the appeal, in large part due to the appellants’ attempt to “circumvent” its appellate authority under Section 16 by using Section 14 as a substitute. The following excerpt from the Tribunal’s judgement summarises the arguments it has made:
“We have listened to wise Counsel. We don’t see any reason to accept the application and forgo the appeals process. Additionally, the applicant has stated that the streamlined approach is applicable to linear developments. The approval of Stage I alone is regarded as working authorization for tree cutting. Therefore, cutting trees within the parameters of the authorization so issued will not be regarded as a legal infraction if the licence has been lawfully granted. The argument that EC was wrongfully given or that the reports on which EC was issued were factually erroneous cannot be discussed in the absence of a challenge to the EC grant. The project involves some building as well as the upgrading and enlarging of roadways. “
“Cutting down even one tree raises concerns, without a question. Regarding the ecological benefits provided by trees, every effort must be taken to save each one. Nevertheless, there are some circumstances in which it is legal to chop down trees, provided that you have the required authority’s consent, fulfil all legal requirements, replant them wherever feasible, and adhere to other safety precautions. In this instance, the order awarding FC spells forth the prerequisites. No claimed violation of this is made. There is no basis for this Tribunal to intervene in these circumstances. The application has been rejected.”
NOW, LET US DIVE DEEPER INTO THE ARGUMENTS SUBMITTED BY THE APPELLANT
Ms Anitha Shenoy, senior counsel appearing on behalf of the appellant, submitted that: (i) an appeal lies to the Tribunal under Section 16(e) only against an order or decision made by the State Government or other authority under Section 2 of the Forest (Conservation) Act 19804; and (ii) the circular dated 28 August 2015 of the MoEF&CC stipulates that, in principle, approval granted by the Central Government under the FC Act may be deemed to be the working permission for the tree.
(iii) The above circular was issued in the context of projects involving linear diversions of forests, such as road laying and other activities; (iv) The circular, however, states that no non-forest activity in the forest area covered by Section 2 of the FC Act would be permitted or carried out in any way unless the order was issued by the competent authority of the State Government and placed in the public domain; and (v) In the instant instance, no order for the destruction of trees was claimed to have been put in the public domain, and so the issuance of a Stage-I Forest Clearance would not be subject to the Tribunal’s appellate jurisdiction.
Based on the foregoing, it has been argued that the Tribunal was not justified in dismissing the Original Application under Section 14 of the NGT Act, especially given the Tribunal’s earlier decision holding that in the absence of an order from the State Government under Section 2 of the FC Act, no appeal would be maintainable.
In light of this, it has been argued that it is impossible for the DFO if he had granted permission for tree felling on 27 August 2021, to answer to the RTI enquiry on 11 October 2021 by declaring that no authorization had been issued. It has been proposed that an extensive exercise of tree cutting has been carried out without placing the order dated 27 August 2021 in the public domain, despite the mandate of the circular dated 28 August 2015. Hence, it was urged that as a result, not only the appellant but the other parties have been precluded from moving the Tribunal in the exercise of its appellate jurisdiction.
NOW LET US ALSO TAKE A QUICK GLANCE AT THE ARGUMENTS SUBMITTED BY THE DEFENDANT;
Mr K K Venugopal, learned Attorney General for India, arguing on behalf of the defendants, has called the Court’s attention to the following developments:
(i) The Stage-I Clearance, granted on December 23, 2020, and the Stage-II Clearance, issued on July 20, 2021, have both been posted on the MoEF&CC website.
(ii) On August 27, 2021, the DFO issued clearance for tree logging, which was added to the counter-affidavit submitted in these proceedings by the National Highway Authority of India.
(iii) In the circumstances, tree felling has begun upon receipt of the necessary clearances, namely, Stage-I and Stage-II clearances, as well as a special licence for tree felling, which was given on August 27, 2021, as specified in the circular dated August 28, 2015.
(iv) A 12-kilometre elevated roadway with wildlife underpasses would be built along a 20-kilometre stretch of National Roadway 72A between Ganeshpur and Dehradun. As a result, rather than harming the wildlife in the region, the project as planned would protect species from accidents like those that occurred on the highway in the past.
As a result, the Attorney General has encouraged it.
HAVING DISCUSSED THE ARGUMENTS FROM BOTH ENDS LET US ALSO TALK ABOUT THE FACTS OF THE CASE TO ENRICH OURSELVES MORE ABOUT THE CASE ;
A circular dated 28 August 2015 was issued by the MoEF&CC to prescribe a simplified procedure for the grant of permissions for the felling of trees standing on forest land to be diverted for the execution of linear projects. Paragraph 2 of the circular, insofar as it is material, is extracted below:
“2. Accordingly, in supersession of this Ministry’s, said letter/guidelines of even number dated 7th May 2015, I am directed, to say as below:
- To expedite the execution of projects involving linear diversion of forest land, such as the laying of new roads, widening of existing highways, transmission lines, water supply lines, optic fibre cabling, railway lines, and so on, approval under the Forest (Conservation) Act 1980 (FC Act) issued by the Central government may be deemed as the working permission for tree cutting and the commencement of work if the required funds for compensatory afforestation are available.
- After the aforementioned compensatory levies specified in the in-principle approval are released from the user agency, and where necessary, for compensatory afforestation, the State government or a Senior Officer not below the Rank of a Divisional Forest Officer, having jurisdiction over the forest land proposed to be diverted, duly authorised in this behalf by t The Central Government may extend the authorization for another year if the State Government submits an acceptable progress report.
(iii) No non-forest activity in the forest area covered by Section 2 of the FC Act would be permitted or carried out in any way unless an order specified in para (ii) above is passed by the competent authority of that State government and made public by posting it on its website, and all other legal requirements are met;
For the purposes of Section 2A of the FC Act and Section 16 (e) of the National Green Tribunal Act, 2010 (NGT Act), the Order for tree cutting and the initiation of work on a linear project in forest land stated in paragraph (ii) above must be deemed to be an order under Section 2 of the FC Act.
(vii) The State Government and the project proponent must take additional steps, as specified by the Hon’ble National Green Tribunal in their November 2012 judgement in Appeal No 7/2012, to publicise and make available in the public domain the Central Government’s in-principle approval under the FC Act and the order specified in para (iii) above. The State Government and the project proponent must also guarantee full adherence to the other directive(s) specified in the aforementioned directive.
(viii) In such situations, the State Governments shall seek and receive from the Central Government final/formal authorisation under the FC Act for the diversion of such forest land as soon as possible, but no later than five years from the date of the award.
NOW LET US ALSO CONSIDER AND READ ABOUT THE GRIEVANCES KEPT BEFORE THE COURT ;
The appellant’s complaint before this Court is that the licence for tree felling dated 27 August 2021 was not made public, as required by the circular of 28 August 2015. On the contrary, when an application for information disclosure was submitted to the DFO under the RTI Act on 11 September 2021, the response on 11 October 2021 stated that no order for enabling tree felling had been issued. However, on August 27, 2021, the same official, namely the DFO Dehradun, issued an order giving authorization for tree removal, which was appended to an application for additional documents submitted by the defendants for the first time before this Court. The DFO has defrauded the public.
The permit to fell trees must be put in the public domain, which the appellant claims was not done. The goal of making the authorization public is to guarantee that anyone who feels wronged has the right to question it. There is no counter to the appellant’s complaint. A cloak of secrecy does not bode well for environmental approvals since it denies individuals the chance to dispute them through legal means. Meanwhile, tree felling continued apace. This lack of openness, which leads to a lack of accountability, contrasts sharply with the “environmental rule of law,” which is essential for effective governance. A three-judge panel heard H.P. Bus-Stand Management & Development Authority versus Central Empowered Committee7.
The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools – conceptual, procedural and institutional to bring structure to the discourse on environmental protection…Significantly, it brings attention to the rules, processes and norms followed by institutions that provide regulatory governance on the environment.
As a result, it encourages an environment-related decision-making system that is open, responsible, and transparent. It promotes the value of participatory governance – of providing people who are most affected by environmental policies and public projects a voice. The environmental rule of law’s structural design includes substantive, procedural, and institutional features. Analytical tools extend beyond legal notions. The framework’s end product is more than the sum of its components. The components that it symbolises work together to protect nature’s bounty from existential dangers. Because it is based on the common awareness that how we conserve, protect, and regenerate the environment now determines the future of human life.”
The current state of affairs is that the DFO’s approval to down trees has been recorded in the form of a letter dated August 27, 2021, as mentioned above. The circular dated 28 August 2021 states that the order for tree cutting and the start of work on linear projects is to be considered as an order under Section 2 of the FC Act. As a result, the ruling of August 27, 2021, is subject to the remedy of an appeal, which would now lay before the Tribunal under Section 16(e) of the NGT Act. The wording of the circular makes it clear that an appeal has been filed with the Tribunal.
The respondent has objected to the Court’s issuance of an order of stay preventing the destruction of trees. Mr K K Venugopal, learned Attorney General, urged that any injunction at this stage would seriously impede project implementation and should not be granted, especially since all necessary permissions have been obtained and safeguards have been put in place to protect wildlife.
Because the order dated 27 August 2021 is subject to an appellate remedy under Section 16(e) of the NGT Act, as well as Section 2A of the FC Act, when read in the context of the circular dated 28 August 2015, it would be reasonable to approve the appeal.
While the remedy of filing an appeal to the appellant has become available as a result of the supervening developments which have taken place during the pendency of the present proceedings, namely the order dated 27 August 2021 being placed on the record of this Court, we must express our view regarding the reasons which weighed with the Tribunal in rejecting the original application. The Tribunal was moved by the appellant by invoking the jurisdiction under Section 14, under which it has jurisdiction to entertain civil cases where a substantial question relating to the environment, including enforcement of any legal right relating to the environment, is involved and the such question arises out of the implementation of the enactments specified in Schedule I. The enactments which are specified in Schedule I include the FC Act. Thus, where a substantial question relating to the environment is raised involving the implementation of the FC Act, even the original jurisdiction of the Tribunal under Section 14 could have been invoked.
LASTLY, LET US ALSO HAVE A CLOSE LOOK AT THE JUDGEMENT OF THE CASE ;
The Tribunal was not justified in dismissing the appellants’ Section 14 application by remarking that the appellant was aiming to avoid the remedy of an appeal under Section 16. The decision of the Tribunal in the case of Vimal Bhai vs Union of India has put the matter beyond doubt, stating that “[t]he cause of action for filing an Appeal would commence only from the date when such publication is made in the newspapers, as well as from the date when the forest clearance and permission to use the Forest land for non-forest purpose is displayed in the website of the concerned State Government or the MoEF, as the case may be.”
The Tribunal rejected the application filed by the appellants also on the ground that as far as linear projects are concerned, a simplified procedure is applicable and a Stage-I approval itself is considered as working permission for the cutting of trees. Hence, the Tribunal held that if the approval has been validly granted, this would not be treated as a violation of the law. At that stage before the Tribunal, the order for permitting the felling of trees, which was passed on 27 August 2021 by the DFO, had not been placed on the record nor was it in the public domain. Hence, consistent with the provisions of the law as they stand, we are of the view that the Tribunal was in error in rejecting the challenge to the Stage-I clearance by the invocation of the remedy under Section 14.
It was particularly requested that the appellant make concise written representations before the Tribunal cataloguing their grounds of challenge to put the nature of their complaints beyond dispute. The Tribunal is ordered to issue a reasoned ruling on the merits, taking into account each of the grounds of challenge placed before it by the appellant in their written submissions. Given that the order dated August 27, 2021, was only entered on the record during the proceedings in this Court, we also direct that if the appeal is lodged within one week, the Tribunal shall examine the appeal on merits and shall not reject it on procedural grounds.