Citizens for Green Doon vs Union of India and Others

2 of the circular indicates that in order to facilitate the expeditious execution of projects involving linear diversion of forest land, including laying of new roads, an in-principle approval of the Central Government under the FC Act would be deemed as working permission for tree cutting and commencement of work subject to certain conditions – The DFO misled the appellants by furnishing incorrect information in response to the RTI query – The purpose of placing the permission in the public domain is to ensure that persons aggrieved would have a right to challenge it – There is no rebuttal to this grievance of the appellant – This lack of transparency, leading to a lack of accountability, is in stark contrast to the “environmental rule of law”, which is crucial for good governance – In terms of the provisions contained in circular dated 28.08.2021, the order for tree cutting and commencement of work of linear projects is to be treated as an order under s.2 of the FC Act – Evidently, therefore, order dated 27.08.2021 is amenable to the remedy of an appeal, which would now lie before Tribunal under s.16(e) of the NGT Act – Since order dated 27.08.2021 is amenable to an appellate remedy under s.16(e) of the NGT Act, as well as under the provisions of s.2A of the FC Act, when read in the context of circular dated 28.08.2015, it would be appropriate to grant liberty to the appellant to do so – The Tribunal was moved by the appellant by invoking the jurisdiction under s.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 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 s.14 could have been invoked – Tribunal was not justified in rejecting the application filed by the appellants under s.14 by observing that the appellant was attempting to circumvent the remedy of an appeal under s.16 – Tribunal is directed to pass a reasoned order on merits – Appeal be listed before the Tribunal on the next working day after the filing of the appeal by the appellant – Appellant would be at liberty to move the Tribunal for interim orders – Forest (Conservation) Act, 1980 – s.2. Disposing of the appeals, the Court

HELD: 1. Section 16(e) stipulates that a person aggrieved by an order or decision made (after the commencement of the NGT Act) by the State Government or other authority under Section 2 of the FC Act, may prefer an appeal to the Tribunal within a period of thirty days. Hence, on a plain reading of the provisions of Section 16(e), it is evident that the right to an appellate remedy arises upon an order or decision being made by the State Government or any other authority under the provisions of Section 2 of the FC Act. Apart from the provisions of Section 16(e), Section 2A of the FC Act provides a remedy of an appeal to the Tribunal to a person aggrieved by an order or decision of the State Government or other authority under Section

2. Section 2A of the FC Act is pari materia with Section 16(e) of the NGT Act. Section 2(ii) of the FC Act stipulates that no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing, inter alia, that “any forest land or any portion thereof may be used for any non-forest purpose”. The provisions of Section 2, therefore, contemplate the passing of an order by the State Government with the prior approval of the Central Government so as to, inter alia, permit the conversion or use of forest land for non-forest purpose. Therefore, unless an order has been passed or a decision is made, the appellate remedy before the Tribunal would not be available. [Para 8][977-F-H; 978-A-C]

2. A circular dated 28 August 2015 was issued by the MoEF&CC to prescribe a simplified procedure for the grant of permissions for felling of trees standing on forest land to be diverted for the execution of linear projects. Clause (i) of paragraph 2 of the circular indicates that in order to facilitate the expeditious execution of projects involving linear diversion of forest land, including laying of new roads, an in-principle approval of the Central Government under the FC Act would be deemed as working permission for tree cutting and commencement of work subject to certain conditions. These conditions include: (i) the provision of fund for compensatory afforestation; (ii) net present value; (iii) a wildlife conservation plan; (iv) plantation of species and plants; (v) all such other compensatory levies specified in the in-principle approval being realized; and (vi) transfer and mutation of non-forest land in favour of the State Forest Department. The subsequent stipulation in the circular, however, indicates that no non-forest activity in a forest area (which is covered under Section 2 of the FC Act) would be “permitted and carried out” unless an order has been passed by the competent authority of the State Government, and is placed in the public domain by putting it on its website. [Paras 9, 10] [980-C-F; 978-C-D]

3. The grievance of the appellant before this Court is that the permission for tree felling dated 27 August 2021 was not placed in the public domain, as mandated by the circular dated 28 August 2015. On the contrary, when an application for disclosure of information was moved under the RTI Act to the DFO on 11 September 2021, the response on 11 October 2021 was that no order had been passed for permitting the felling of trees. Yet the same officer, namely, the DFO Dehradun, had passed an order on 27 August 2021 granting the permission for the felling of trees, which was annexed to an application for additional documents filed by the respondents for the first time in this Court. The DFO has misled the appellants by furnishing incorrect information in response to the RTI query. The permission for felling trees has to be placed in the public domain, which again, according to the appellant, was not done. The purpose of placing the permission in the public domain is to ensure that persons aggrieved would have a right to challenge it. There is no rebuttal to this grievance of the appellant. A veil of secrecy does not portend well for environmental clearances, since it takes away the right from individuals to challenge them using legal remedies. In the meantime, tree felling proceeded apace. This lack of transparency, leading to a lack of accountability, is in stark contrast to the “environmental rule of law”, which is crucial for good governance. [Para 4][980-F-H; 981-A-C]

H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee (2021) 4 SCC 309 – relied on.

4. The fact of the matter as it stands today is that the permission granted by the DFO for felling of trees has been placed on record in the form of a letter dated 27 August 2021. In terms of the provisions contained in the circular dated 28 August 2021, the order for tree cutting and commencement of work of linear projects is to be treated as an order under Section 2 of the FC Act. Evidently, therefore, the order dated 27 August 2021 is amenable to the remedy of an appeal, which would now lie before the Tribunal under Section 16(e) of the NGT Act. That an appeal lies before the Tribunal is clarified by the terms of the circular itself. In view of the availability of an appellate remedy, the appellant has stated that it would be willing to pursue the remedy of an appeal which lies before the Tribunal in terms of the provisions which have been noticed above. However, it has been urged that until the appeal is disposed of by the Tribunal, a stay of further activities of tree felling ought to be granted. [Para 12][982-A-D]

5. Since the order dated 27 August 2021 is amenable to an appellate remedy under Section 16(e) of the NGT Act, as well as under the provisions of Section 2A of the FC Act, when read in the context of circular dated 28 August 2015, it would be appropriate to grant liberty to the appellant to do so. [Para 14] [982-E-F]

6. 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 in regard to 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 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. The Tribunal was not justified in rejecting the application filed by the appellants under Section

14 by observing that the appellant was attempting to circumvent the remedy of an appeal under Section 16. [Paras 15, 16] [982-F-H; 983-A-B]

Vimal Bhai v. Union of India 2012 SCC OnLine NGT

77 – referred to.

7. 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 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. Original Application is restored to the file of the Tribunal for a decision afresh. In addition, liberty is granted to the appellant to challenge the permission which has been granted for the felling of trees by the DFO on 27 August 2021, in terms of the provisions of Section 16(e) of the NGT Act read with the provisions of Section 2A of the FC Act (together with the contents of the circular dated 28 August 2015). [Paras 17, 18] [983-D-H]