Calcutta High Court (Appellete Side)
Association For Protection Of ... vs The State Of West Bengal & Ors on 31 August, 2018
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 5181(W) of 2017
Association for Protection of Democratic Rights & Anr.
-Vs.-
The State of West Bengal & Ors.
With
WP 12788(W) of 2017
Arpita Saha & Anr.
-Vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble The Chief Justice Jyotirmay Bhattacharya
&
The Hon'ble Justice Arijit Banerjee
For the petitioners : Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
(In WP 12788(W) of 2017)Mr. Samim Ahammed, Adv.
Ms. Nandini Mitra, Adv.
Mr. Arka Maiti, Adv.
For the petitioners : Mr. Raghunath Chakraborty, Adv.
(In WP 5181(W) of 2017) Mr. Mahaboob Ahmed, Adv.
For the State : Mr. Kishore Dutta, Ld. A.G.,
Mr. Joytosh Majumdar, Ld. G.P.
Mr. Pinaki Dhole, Adv.
Mr. Abhishek Prasad, Adv.
Mr. Rajat Dutta, Adv.
For the respondent no. 4 : Mr. Tapan Kumar Mukherjee, Adv.
(In WP 5181(W) of 2017) Mr. Nilotpal Chatterjee, Adv. For the MOEF : Mr. Partha Ghosh, Adv. For the respondent no. 5 : Mr. Nilendra Narayan Roy, Adv.
(In WP 12788(W) of 2017)Mr. Manujendra Narayan Roy, Adv. For the NHAI : Mr. Dipankar Das, Adv. Heard On : 17.11.2017, 22.11.2017, 01.02.2018 CAV On : 27.06.2018 Judgment On : 31.08.2018 Arijit Banerjee, J.:-
(1) These two Public Interest Litigations (in short 'PIL') have been filed essentially to restrain the respondent authorities from felling trees for construction of Railway Over Bridge (in short 'ROB') at Kazipara, Ashoknagar, Habra-I, Habra-II and Bongaon and for expansion of National Highway 112 i.e. Jessore Road. The main prayers in WP 12788(W) of 2017 are as follows:-
"(a)Issue a writ of or in the nature of mandamus commanding the respondents to set aside all purported permits dated July 22, 2016 by which permission was granted for felling trees for construction of Road Over Bridge at Kazipara, Ashoknagar, Habra-I, Habra-II and Bongaon;
(b) Issue writ of in the nature of Mandamus by directing the respondents to conduct Environmental Impact Assessment (EIA) in terms of the EIA notification of September 14, 2006 and its amendment dated December 1, 2009 before initiating the expansion work of National Highway 112 i.e. Jessore Road;
(c) Issue a writ of or in the nature of prohibition restraining the respondents from felling trees standing on the both side of National Highway No. 112 in between Barasat to Petrapole, North 24 Parganas;
(d) Issue a writ of or in the nature of mandamus commanding the respondents to carry on the expansion and/or widening of National Highway No. 112 in Between Barasat to Petrapole, North 24 Parganas in such a manner that trees standing thereon are not cut down illegally;"
Contention of the petitioners:-
(2) Both the learned Counsel appearing for the petitioners in the two writ petitions mainly argued that permission has been obtained by the State respondents for felling trees for the purpose of constructing ROBs and expanding Jessore Road from the competent authority without complying with the relevant provisions of law. No Environment Impact Assessment has been carried out. The provisions of the West Bengal Trees (Protection and Conservation in Non Forest Areas) Act, 2006 (in short 'the 2006 Act') are being flouted. Mr. Bikash Ranjan Bhattacharyya, Ld. Sr. Counsel, referred to a letter dated 11 January, 2017 written by the Divisional Forest Officer, 24 Parganas (N) Division who is the competent authority under the 2006 Act, to the Executive Engineer, NH Division, No.-V, PW (Road), Directorate, Barasat informing that felling permission in respect of 4036 number of trees for widening NH-35 was extended by three months from the date of the said letter. The competent authority granted such permission without ensuring that the provisions of the 2006 Act are complied with. Mr. Raghunath Chakraborty, Learned Adv., appearing in support of the other writ petition referred to Rule 5(2) of the West Bengal Trees (Protection and Conservation in Non Forest Areas) Rules, 2007 (in short 'the 2007 Rules') and submitted that no certificate of clearance was obtained by the respondent authorities from the competent authority prior to the said authorities granting permission to fell huge number of trees as is mandatorily required under the 2007 Rules. Both the learned Counsel extensively referred to the Special Officer's report dated 17 August, 2017 filed in this Court pursuant to this Court's order dated 25 July, 2017. By the said order Joint Special Officers were appointed for holding local inspection of the area in question and for filing a report in this Court indicating whether:
(a) the trees which have been identified for felling are in accordance with the species mentioned in the affidavit filed by Vinod Kumar Singh on behalf of the State on 12th June, 2017 at pages 19 to 28;
(b) the number marked on the trees to be felled are in accordance with the list annexed to the affidavit;
(c) the site for the compensatory plantation tallies with the site indicated in the affidavit of Vinod Kumar Singh;
(d) the distance between the trees is in accordance with the concerned guidelines;
(e) the number of trees to be planted will be in accordance with the 2006 Act and the 2007 Rules framed thereunder;
(f) the trees to be felled belong to endangered species or have been given the status of heritage.
(3) Referring to the said report, Mr. Raghunath Chakraborty, learned Advocate, submitted that it would appear that a large number of Mehogini trees were proposed to be felled. However, Sec. 21(2) of the 2006 Act provides that without the permission of the competent authority no trees specified in the schedule to the said Act would be cut down notwithstanding that under sub-Sec. (1) of Sec. 21, the State Government may, in public interest, by notification in the Official Gazette, exempt any area or any species of tree or a specified number of trees of any species from the protection of the provisions of the said Act. He submitted that the schedule to the said Act specifically mentions Mehogini trees but no permission has been obtained for felling such trees. He further submitted that the expansion of Jessore Road could be undertaken by preserving the age-old trees standing on the said road. He further referred to the decision of the Apex Court in Chairman, Railway Board & Ors.-
vs.-Chandrima Das (Mrs) & Ors., (2000) 2 SCC 465, in support of his submission that there are several international covenants and declarations adopted by the United Nations which prescribe the conservation of green environment which necessarily means preservation of trees. India is a signatory to some of such Conventions and Treaties and it is a prima facie presumption that neither the legislature nor the executive intends to act in breach of international law including specific treaty obligations.
(4) Mr. Bikash Ranjan Bhattacharyya referred to the Division Bench decision of this Court in Sriram Saha-vs.-State of West Bengal & Ors., AIR 1999 Cal 90. In that case, the writ petitioner had prayed for a direction upon the respondent authorities not to prevent the petitioner from felling some of the existing trees standing on his raiyati land. At the end of the judgment the Division Bench observed as follows:-
"........The State Government should consider the desirability of having enacted a comprehensive law as early as possible regarding felling of trees in non-forest areas with a view to taking care of the environmental necessities of the time. In this connection mention may be made of the UP Protection of Trees in Rural and Hilly Areas Act, 1976 which is applicable in Uttar Pradesh. The desirability of having such a law in West Bengal with such modification as may be considered necessary cannot perhaps be overemphasised...."
Learned Sr. Counsel submitted that this judgment prompted the State Legislature to promulgate the 2006 Act. He referred to the object of the 2006 Act which is to encourage and promote plantation of trees and to protect and conserve trees, particularly those looked upon as sacred groves or identified as belonging to an endangered species or have been given the status of heritage bearing in mind that trees have great environmental value and are renewable resources. He then referred to some specimen Forms pertaining to enquiry for certificate of clearance for felling of trees in non-forest areas as contemplated under Rules 4(3)(f) and 7(4) of the 2007 Rules and submitted that material particulars are missing in the said Forms. No list of trees to be felled is there. No reason for recommending felling has been mentioned. No one was present when the alleged inspection took place. He submitted that the entire process was carried out in a perfunctory manner. Learned Sr. Counsel referred to a letter dated 22 April, 2017 written by the Divisional Forest Officer, 24 Parganas (N) Division to the Joint Director, Sundarban Biosphere Reserve, West Bengal regarding compensatory afforestation along different roads under North 24 Parganas District viz-a-viz felling of road side trees on both sides of NH-34 and NH-35. He submitted that it would appear from the said letter that no importance was given to the issue and the decisions were being taken on the basis of alleged telephonic discussions. He then referred to a letter dated 19 January, 2017 written by the Executive Engineer, National Highway Division to the Divisional Forest Officer, 24 Parganas (N) Division wherein it was stated that there would be no requirement of land for compensatory afforestation and only the cost of raising plants will have to be deposited. Learned Counsel submitted that this was a totally irresponsible statement as sufficient land is in fact not available in the area in question for planting trees to compensate for the felled trees. (5) Mr. Bhattacharyya submitted that the entire process of obtaining permission for felling trees in question was stage managed and was an eye wash. The requirements of law were given a complete go-bye. He referred to the draft plan report for Compensatory Afforestation along different roads of 24 Parganas (N), District for felling of the trees along NH-34 and 35. He submitted that this draft plan has nothing to do and has no relation with the permission sought for much earlier to fell trees in question. He drew out attention to a chart showing the proposed site for compensatory afforestation which is an annexure to the said draft report wherein in the remarks column it is stated that 'plantation will be done as per availability of space.' He submitted that this does not meet the requirement of law. (6) Mr. Bhattacharyya then referred to various sections of the 2006 Act and various rules of the 2007 Rules to which we will revert back later in this judgment. He submitted that Sec. 22 of the 2006 Act makes it clear that the provisions of the said Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force prohibiting or regulating the felling of trees. Learned Counsel also referred to Arts. 48A and 51A(g) of the Constitution of India. Article 48A which is in part-IV of the Constitution laying down the Directive Principles of State Policy states that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51A(g) is in Part IV-A which lays down the fundamental duties and the said Article states that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Learned Counsel then submitted that apart from the fact that the trees have lives, trees are important for birds to survive. Plants and trees are protectors of human and other animal species.
(7) Mr. Bhattacharyya next referred to the decision of the Apex Court in Intellectuals Forum, Tirupathi-vs.-State of A.P & Ors., (2006) 3 SCC 549, and in particular he relied on paragraphs 67 to 75, 82, 83, 92 to 95 of the reported judgment. The judgment is on the duty of the State respondents to protect the environment and the concept of sustainable development. We shall revert back to this judgment later. (8) Learned Sr. Counsel then relied on an article captioned "Revaluation of Services of a Tree in 2012" written by Prof. T. M. Das of Calcutta University and published in Indian Biologist, Vol. 44(1). According to Prof. Das, a tree living for 50 years will generate $31,250 worth of oxygen, provide $62,000 worth of air pollution control, control soil erosion and increase soil fertility to the tune of $31,250, recycle $37,500 worth of water and provide home for animals worth $31,250. Hence, the total value comes to $196,250 which does not include the value of the fruits, timber or beauty derived from trees.
(9) Learned Sr. Counsel then referred to an article on compensatory afforestation, authored by Soumitra Ghosh, social activist and independent researcher. The Author concludes as follows:-
"There can be a few simple conclusions. One like all other offsets elsewhere, compensatory afforestation in India has given government enough money in the last 15-odd years. According to an estimate, the CAMPA fund at present contains Rs. 38.000 crore (PIB 2015). Two, like all offsets, compensatory afforestation (here we mean the entire chain of compensatory afforestation-NPV-CAMPA) is a pseudo-environmental excuse for neo-liberal land grab and enclosure. Three, like all offsets, compensatory afforestation encroaches upon forest commons and other common lands, and deprives communities of their legal and constitutional rights. Four, the conservation in compensatory afforestation not only gives a greenwash to corporate projects that destroy forests and cause irreparable damage to environment, but also directly hurts communities by erecting new enclosures, and extending and deepening the process of rights denial. Five, no amount of structural changes and monitoring can set the process right-all available records, including our own field investigations suggest that compensatory afforestation plantations are at best a green mirage, most of which were never meant to be raised in the first place.
This apart, the new Compensatory Afforestation Fund Act proposes to allot huge amounts of CAMPA money to the states. This will hit forest and other ecosystem communities in two ways. One, the money in CAMPA going to state governments means that it will go to state forest departments, which will then be free to use the money to strengthen departmental hold over forests, at the cost of people's right. Two, such huge amounts of money in the hands of state governments will in fact provide a kind of perverse incentive to speed up the forest clearance process. This, in turn, will escalate the neo-liberal corporate invasion of forests and forest communities and, as demand for compensatory afforestation land increases, will affect agricultural land and the remaining village commons outside recorded forests. Also, in a corruption-riddled country like India, huge amounts of easy, unaccountable money will drive still more corruption."
(10) Learned Sr. Counsel finally referred to the decision of the Bombay High Court in Nagrik Chetna Manch-vs.-State of Maharashtra & Anr., (2016) 2 Mh. L. J
215. In that case a road was proposed to be constructed through the hills for which a large number of trees were required to be cut down. This decision of the Government was challenged by way of a writ petition. The Division Bench discussed Articles 48A and 51A(g) of the Constitution of India and at paragraph 17 of the judgment observed as follows:-
"17. The Municipal Commissioner realised the necessity of constituting a Committee of Experts. Unless the Committee is allowed to submit its final report and the same is considered by the Pune Municipal Corporation, surely, the Municipal Corporation cannot proceed with the construction of the proposed road. This is so in the light of the fact that before passing the impugned Resolution, the Environment Impact Assessment was not made and the attention of the General Body was not invited to the fact that the man made forest will be destroyed by the construction of the proposed road. In fact this Court has recorded a finding that non-consideration of several factors including the provisions of the Constitution and statutory mandatory duties of the Corporation has resulted in vitiating the decision making process. When the Municipal Commissioner on his own appointed the Committee or Experts, the Municipal Corporation cannot proceed further with the decision to construct the proposed road without allowing the Committee to submit its final recommendations."
Contention of the State Respondents:-
(11) Appearing for the State, Learned Adv. General, at the very outset submitted that there is no doubt that environment must be protected. However, there is a statute governing the field being the 2006 Act which was enacted keeping in mind Art. 48A of the Constitution. Learned Adv. General referred to Secs. 4, 5, 6, 8 and 9 of the 2006 Act, which for the sake of convenience, are set out hereinunder.
"S. 4. Except as provided in this Act or the rules made thereunder, no person shall-
(a) Fell any tree in the Non-Forest Areas; and
(b) Cut, remove or otherwise dispose of any tree other than a tree which has felled without the aid of human agency.
5. (1) A competent authority may, on receipt of an application from a person to fell a tree or otherwise dispose of any tree, for such purposes as may be prescribed, and on being satisfied with regard to the legality of documents towards the proof of ownership or lease of the land on which such tree stands and after making an enquiry, in such manner as may be prescribed, grant permission, in writing, to fell tree:
Provided that no such permission shall be granted, if it is found on enquiry that the nature or character of the land may change or the mode of use of the land may alter, unless the person concerned produces the conversion certificate obtained from the collector concerned under the provisions of section 4C of the West Bengal Land Reforms Act, 1955:
Provided further that in the Sadar sub-division, Kalimpong sub- division and Kurseong sub-division of the district Darjeeling, no such permission shall be required, if a raiyat obtains permission under provisions of section 4A of the West Bengal Land Reforms Act, 1955, read with rule 474 of the West Bengal Land and Land Reforms Mannual, 1991:
Provided also that the competent authority shall, within three days from the date of receipt of application, give permission of felling of trees, if it constitute such immediate danger, as may be prescribed to any person or property.
(2) Notwithstanding anything contained in sub-section (1), no permission shall be required if felling of trees is undertaken for not more than three trees at a time in rural areas:
Provided that felling of trees shall not be undertaken in a particular plot of land more than once in a year.
Explanation I._For the purposes of this section, 'rural area' shall include all areas under Gram Panchayat and exclude the areas under Municipality, Notified Area Authority or Municipal Corporation.
Explanation II._For the purposes of this section 'Municipality' and 'Notified Area Authority' shall have the same meaning as defined in the West Bengal Municipal Act, 1993.
6. (1) Every application under section 5 shall be in writing giving particulars of the tree, the details of the plot of land on which the tree is located and the reason for felling the tree and shall be accompanied with such fee, may be prescribed.
(2) The competent authority shall, on receipt of an application in respect of any tree, issue an acknowledgement to the applicant, and after making inquiry, shall dispose of the application, within forty-five days of the receipt of such application, either giving permission to fell such tree or rejecting the application giving reasons therefor.
(3) Every permission to fell tree shall, granted under this Act, be in such form and subject to such conditions, including taking of security for undertaking plantation for trees, as may be prescribed:
Provided that in the case of tea garden such permission shall be subject to the condition that the sale proceeds be utilized strictly for the purpose of welfare of the labourers of tea garden on the basis of a specific scheme framed under the provisions of the Plantations Labour Act, 1951.
8. Every person, who fells any tree, shall undertake plantation of such number of trees as may be prescribed, in place of every tree felled, in the same plot of land and tend such plantation for trees in accordance with the directions of the competent authority:
Provided that the competent authority may, for such reasons, as may be prescribed, to be recorded in writing, permit a lesser number of plantation for trees to be undertaken in a different plot or plots, or exempt any person from the obligation of such plantation:
Provided further that any person, unable to undertake plantations of trees, may deposit such amount of money, as may be prescribed considering the importance of trees, to the competent authority, facilitating the designated agency of the State Government to undertake plantation of trees for the trees felled.
9. (1) Every person or development agency or the benevolent activist or the entrepreneur or the promoter (hereinafter in this section called 'developer') shall, as the case may be, intending to carry out development in the form of erection of highrise multi-unit building or otherwise construction for the purposes of residential or commercial or industrial or institutional uses, as the case may be, on any plot or plots of land, undertake plantation for trees, in the prescribed manner and to the prescribed extent having regard to the total area of such plot or plots of land, in the same plot or plots of land as subject to such development.
Explanation I._For the purposes of this sub-section, 'development agency' includes any of the Government Department or any other body created under any statute for the purpose of carrying out development works.
Explanation II._For the purposes of this sub-section, 'promoter' means a person who constructs or erects or cause to be constructed or erected a building or otherwise construction on a plot or plots of land for the purpose of transfer of such building by sale or gift or otherwise to any other person or to a company, co-operative society or association or persons and includes his assignee.
(2) The development, under sub-section (1), shall subject to sub- section 95), be carried out after obtaining the certificate of clearance, on an application in the prescribed form and the prescribed manner accompanied by such fee, as may be prescribed, from the competent authority:
Provided that the plantation shall be implemented within such period as may be specified in the certificate of clearance, before the development project is initiated.
(3) The application, under sub-section (2), shall be accompanied by such plan (in quadruplicate) (hrereinafter called the 'plantation plan') drawn on the prescribed scale as showing the proposed plantation in the prescribed manner and to the prescribed extent as well as the location of the proposed plantation within the area of the proposed building or otherwise construction on the same plot or plots of land.
(4) The competent authority may, after being satisfied on proper scrutiny of the plantation plan and completing the field enquiry, if necessary, that the proposed plantation of trees as shown in the plantation plan is in accordance with the provisions of this Act and the rules made thereunder, approve the plantation plan (in quadruplicate) under this signature with proper stamp and seal and shall issue the certificate of clearance in the prescribed Form:
Provided that the competent authority shall, before issuing the certificate of clearance under this sub-section, obtain the occurrence of the West Bengal Pollution Control Board.
(5) The authority, sanctioning the building or otherwise construction plan under the relevant Act, shall, before approving such plan, require the developer to produce before him both the certificate of clearance as issued and the plantation plan as approved under this Act and verify whether the proposed plantation as shown in the plantation plan is properly incorporated in the building or otherwise construction plan as submitted before him for approval. After being satisfied on verification, the sanctioning authority shall certify under his signature with stamp and seal on each copy of the building or otherwise construction plan as approved by him under the relevant Act, stating that this plan is compatible with the plantation plan so far as the proposed plantation is concerned.
(6) No building or otherwise construction plan, even if sanctioned under the relevant Act, shall be treated as valid if the same is not found compatible with the said plantation plan."
(12) Learned Adv. General submitted that under Sec. 8 a person felling a tree may be exempted from the obligation of planting trees as a compensatory measure. He submitted that Sec. 9 has no application to the facts of the present case because there is no erection being made for the purposes mentioned in that section. He also referred to Sec. 21 which empowers the State to exempt any area from all or any of the provisions of the 2006 Act and submitted that the State has not exercised such power only in the interest of preserving the environment. He submitted that the State has not flouted any law or any judicial decision. The State is ready, willing and prepared to go for compensatory afforestation as contemplated by the 2006 Act by planting five saplings for every felled tree. The Special Officer's report does not say that fresh plantation in 5:1 ratio is not possible.
(13) Ld. Adv. General submitted that the State in the present case is not a 'developer' within the meaning of Sec. 9 of the 2006 Act. Rule 7 of the 2007 Rules requires a developer to plant at least five times the number of trees to be felled.
However, though the State is not a developer in the present case and erroneously applied for permission in Form-I (B) which applies to developers only, the State undertakes to plant at least five times the number of trees that will be needed to be cut down for implementing the project of constructing ROBs. (14) Learned Adv. General then referred to the Green Highways (Plantation and Maintenance) Policy, 2015 and submitted that this applies to only construction of new highways or where highways are being widened. In the present case, the proposal for widening NH 35 has been shelved. The said policy does not apply to construction of ROBs. He also referred to Clause 4.2 of the said policy which indicates that trees can be planted on water logged land, Nayanjuli etc.. (15) Learned Adv. General next referred to the decision of the Apex Court in the case of Sri Ram Saha-vs.-The State of West Bengal & Ors., AIR 2004 SC 5080, which was an appeal from the decision of the Division Bench of this Court in the case of Sriram Saha (supra). Learned Adv. General pointed out that the appeal was allowed and this Court's judgment was set aside. In our opinion, neither the earlier decision of this Court in Sriram Saha (supra) nor the Apex Court's decision in the appeal preferred from this court's decision are relevant for the present purpose since Sriram Saha's case involved interpretation of Secs. 4A, 4B and 4C of the of the West Bengal Land Reforms Act, 1956. As regards the Bombay High Court's decision, Learned Adv. General submitted that there, construction of a new road was under challenge on the ground that 1000 grown up trees in a 'man made forest' would have to be felled. Protection of 'forest area' was in issue. The said case would have no relevance for felling of some trees in 'non-forest areas'. (16) Learned Adv. General then referred to an unreported judgment of the Gujarat High Court in the case of Vikram Trivedi-vs.-Union of India (Secial Civil Application No. 8173 of 2013), wherein a Division Bench of the Gujarat High Court noted the cost of transplantation of trees which was estimated at Rs. 10,000/- per tree. It was also noted that transplantation was only possible in case of a tree whose width is not more than 65 cms.
(17) Learned Adv. General referred to a notification dated 14 September, 2006 issued by the Ministry of Environment and Forests and submitted that Environmental Impact Assessment and prior environmental clearance from the competent authority is required only in cases mentioned in the schedule to the said notification. Construction of ROB does not find mention in the schedule and hence, Environmental Impact Assessment will not be necessary before construction of ROB. (18) Reference was then made to Green Highways (Plantation, Transportation, Beautification and Maintenance) Policy, 2015. Ld. Adv. General submitted that this policy pertains to only plantation of trees. There is no restriction on felling of trees. Further, this policy applies only to construction of new highways. (19) Regarding violation of procedure with regard to enquiry prior to grant of permission by the competent authority for felling of trees, learned Adv. General submitted that it would appear from Form-I(c) which is contemplated under Rule 4(3)(e) of the 2007 Rules that only when an application for permission to fell trees is not recommended by the competent authority, reasons need to be given. Where such application is recommended, reasons were not required to be given. Hence, the grievance of the petitioners that no reasons were recorded in respect of the permission granted for felling of trees does not have any merit. (20) Learned Adv. General then referred to the decision of the Apex Court in N. D. Jayal & Anr.-vs.-Union of India, (2004) 9 SCC, 362, and submitted that the State is fully conscious of the concept of sustainable development which is discussed in the said Apex Court judgment and felling of 356 number of trees for the purpose of construction of ROBs will not be in any way contrary to the concept of sustainable development.
(21) Learned Adv. General then submitted that Rule 4 of the 2007 Rules, which enumerates the purposes for which permission to fell trees may be granted, cannot be read as exhaustive. Otherwise the 2006 Act will become unworkable. A purposive construction has to be given to the provisions of the 2006 Act and the Rules framed thereunder. On the point of purposive construction he relied on the decision of the Apex Court in the case of Central Bureau of Investigation, Bank Securities and Fraud Cell-vs.-Ramesh Gelli & Ors., (2016) 3 SCC 788.
(22) Learned Adv. General finally submitted that the present writ application is not maintainable as a PIL. No public interest is involved. Felling of the trees in question for the purpose of construction of ROBs would not entail any legal injury to the public. He also submitted that the project can be undertaken under the supervision of the Court.
Petitioners in reply:-
(23) In reply, Mr. Bhattacharyya submitted that the present generation must ensure that a clean environment is left behind for the sake of posterity. He referred to a note prepared by the Divisional Forest Officer, 24 Parnagas (N), Division (page 105 of the A/O of Vinod Kumar Singh affirmed on 12 June, 2017) to which, we shall revert back later, if necessary. He also referred to the Special Officer's report and submitted that as per the said report the site in question is not suitable for compensatory plantation. He also referred to newspaper articles and environmental research letters in support of his contention that medical practitioners are alarmed as the rush hour air quality turns fowl in the city of Kolkata and its suburbs. He submitted that people in our country should learn from Bhutan how to preserve trees.
Bhutan has come to be known as the 'green country'. There are certain areas in Bhutan which are without electricity as supply of electricity to such areas would entail felling of huge number of trees. He submitted that the Greenhouse gas produced in India makes it the hottest country in the world.
(24) Referring to Sec. 9(2) of the 2006 Act, Mr. Bhattacharyya submitted that no plantation plan which is a sine qua non for obtaining clearance for felling of trees, was ever prepared. Referring to Rule 4(3) of the 2007 Rules, he submitted that the enquiry contemplated therein was never conducted. He submitted that compensatory afforestation is only an eye-wash. It adds to environmental damage instead of mitigating it. In this connection he referred to an Article by Sri Soumitra Ghosh which has been noted above. He also handed up a chart showing a project study and submitted that lack of ROBs is not the cause for the accidents which were the subject matter of the project study. Hence, the State's contention that ROBs are necessary to prevent accidents and save lives is baseless.
(25) Mr. Raghunath Chakraborty, learned Adv., in reply referred to paragraph 7 of the A/O affirmed on 30 March, 2017 by Indevar Pandey, on behalf of the State wherein it is stated that the proposal for felling of 356 number of trees was thoroughly and independently examined at all levels by the various regulatory and statutory authorities and only after full satisfaction that the impact of the project on biological environment would be minimum, permission for felling of trees was granted. Learned Advocate submitted that these are incorrect statements. No independent or meaningful examination was conducted. There was no proper application of mind. He referred to various letters written by the Divisional Forest Officer to the Executive Engineer, NH Division, and submitted that the permission to fell trees was granted on the same day when application for permission was made. This undue haste indicates that there was no application of mind or examination of the impact of the project on the environment. He referred to pages 69 and 70 of the A/O of Indevar Pandey and submitted that it is strange that though application for permission was made on 22 July, 2016, inquiry was made on 13 July, 2016. All these discrepancies point towards gross irregularity in the process of granting permission for felling of trees.
Mr. Chakraborty then referred to the decision of the Division Bench of this Court in Asian Leather Limited & Anr.-vs.-Kolkata Municipal Corporation & Ors., (2007) 3 CHN 476, in support of his submission that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some Rule of Law and that in case of a statutory corporation it is just the other way round. A corporation has no power to do anything unless those powers are conferred on it by the statute which creates it. He submitted that the respondent authorities being creatures of statute cannot act beyond the four corners of the parent statute or in breach of any provision thereof.
As regards the sanctity of the Special Officer's report, Mr. Chakraborty referred to the decision of the Apex Court in Bandhua Mukti Morcha-vs.-Union of India, AIR 1984 SC 802.
State in rejoinder:-
(26) In rejoinder, Learned Adv. General submitted that Sec. 21 of the 2006 Act indicates that the statute need not be mandatorily applied. Sec. 21(1) contemplates exemption. He further submitted that Sec. 9(1) of the said Act would not be applicable to construction of ROB. The word 'otherwise construction' will have to be read ejusdem generis with 'high rise multi-unit building'. He submitted that in the present case Sec. 9 does not apply to State but Sec. 8 applies. The corresponding Rule is Rule 6 of the 2007 Rules under which the obligation of the State is to plant two trees in place of every tree felled. However, the competent authority is empowered to exempt a developer even from this obligation in certain cases as indicated in Rule 6(2). It is only if Sec. 9 applies that prior compensatory plantation is necessary, i.e., before implementation of the project for which trees have to be felled, compensatory afforestation will have to be undertaken. There is no such obligation of prior plantation when Sec. 8 applies. He referred to Sec. 10 of the 2006 Act and submitted that when Sec. 8 applies there is no time fixed for plantation. Sec.
10 reads as follows:-
"S.10. Every person who is to undertake plantation of trees under section 8, shall start preparatory work for plantation within sixty days from the date of permission or the date of receipt of direction, as the case may be, and shall undertake plantation of trees, in accordance with directions."
Learned Adv. General then submitted that the 2006 Act should not be construed too strictly against a developer. The statute itself makes several exemptions. Answering our query as to under which of the purposes enumerated in Rule 4(1) of the 2007 Rules, construction of ROBs would fall, learned Adv. General submitted that it would be covered by Rule 4(1)(a). He submitted that if trees impede planned public service, that is also a case of disruption of public service (transportation system) and hence, such trees can be cut down.
Referring to the report of the Special Officer, Learned Adv. General submitted that the report does not show that there has been any infraction of the 2006 Act or the 2007 Rules. As regards the articles in the journals referred to by Mr. Bhattacharyya, he submitted that personal opinions of the authors are expressed in such articles which are not relevant since there is a specific legislation in the field and the Court should be guided by such legislation. He finally submitted that the application for permission to fell trees should have been made in Form-IA since in this case the Government is not a 'developer' within the meaning of the 2006 Act. By mistake the application was made in Form-IB. Such a mistake cannot confer any right on the petitioner. In this connection he referred to the decision of the Apex Court in Anandji Haridas & Co. (P) Ltd.-vs.-S. P. Kushare, S.T.O. Nagpur & Ors., AIR 1968 SC 565.
Court's View:-
(27) It cannot possibly be disputed that preservation of trees is essential for survival of life in our planet. Indiscriminate felling of trees would destroy the ecological balance which is likely to ultimately lead to the destruction of life in this world.
There is voluminous literature pertaining to the importance of preservation of trees and scientists have advanced compelling theories to the effect that random destruction of trees wold be fatal to all kinds of living creatures in our mother world. One need not be an expert in the science of ecology to realise this. Trees are essential for ensuring a clean environment in our planet.
(28) In the case of N. D. Jayal (supra), a three Judges bench of the Apex Court observed that the right to clean environment is a guaranteed fundamental right. So is the right to development. To strike a balance between these fundamental rights the concept of 'sustainable development' evolved. It was observed that the balance between environmental protection and development activities could only be maintained by strictly following the principle of sustainable development. This is a development strategy that caters to the needs of the present without compromising the ability of future generations to satisfy their needs. Adherence to the principle of sustainable development will ensure development while protecting the environment, which is a path that would work for people for all generations. It is a guarantee to the present and a bequest to the future. Without adherence to sustainable development, life of the future generations will be in jeopardy. The right to development cannot be treated as a mere right to economic betterment. It encompasses much more than economic well-being and includes within its definition the guarantee of fundamental human rights. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of people's well-being and realization of their full potential. The adherence to the principle of sustainable development is a sine qua non for the maintenance of symbiotic balance between the rights to environment and development. Both rights are fundamental rights. Hence, the concept of 'sustainable development' is to be treated as an integral part of 'life' under Art. 21 of the Constitution of India. The important concepts like inter-generational equity, public trust doctrine and protectionary principles which have been declared by the Apex Court as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.
(29) In the case of People United for Better Living in Calcutta-Public & Anr.- vs.-State of West Bengal & Ors., AIR 1993 CAL 215, a learned Judge of this Court at paragraph 2 of the judgment, observed, inter alia as follows:-
".........while it is true that in a developing country there shall have to be developments, that development shall have to be in closest possible harmony with the environment, as otherwise there would be development but no environment, which would result in total devastation; though, however, may not be felt in presenti but at some future point of time, but then it would be too late in the day, however, to control and improve the environment. Nature will not tolerate us after a certain degree of its destruction and it will in any event, have its toll on the lives of the people. Can the present-day society afford to have such a state and allow the nature to have its toll in future - the answer shall have to be in the negative. The present-day society has a responsibility towards the posterity for their proper growth and development so as to allow the posterity to breathe normally and live in a cleaner environment and have a consequent fuller development..............but does that mean and imply stoppage of every developing programme - the answer is again 'no'. There have to be a proper balance between the development and the environment so that both can co-exist without affecting the other. On the wake of 21st century, in my view, it is neither feasible not practicable to have a negative approach to the development process of the country or of the society, but that does not mean, without any consideration for the environment. As noted above, there should be a proper balance between the protection of environment and the development process. The society shall have to prosper, but not at the cost of the environment and in the similar vein the environment shall have to be protected but not at the cost of the development of the society - there shall be both development and proper environment and as such, a balance has to be found out and administrative actions ought to proceed in accordance therewith and not d'hors the same."
We have quoted the above passage since in our view the observations made therein by the Learned Judge are extremely apt and relevant to the point in hand. (30) In our view, to promote and ensure sustainable development is one of the objects of the 2006 Act. The Act envisages that felling of trees may be essential for economic development and infrastructural improvement. However, the said statute stipulates certain pre-conditions for felling of trees so that ecological balance can be maintained. This is important as economic development will be of no use to anybody if it causes ecological imbalance which in turn results in destruction of life in our Planet.
(31) The 2006 Act applies to non-forest areas i.e., areas other than forests and the areas declared as community reserve under the Wildlife (Protection) Act, 1972. The explanation to section 2 of the 2006 Act provides that the word 'forest' has the same meaning as is assigned to it in the West Bengal Private Forests Act, 1948. 'Felling of tree' has been defined as cutting, girdling, pollarding, uprooting or damaging a tree in any manner but shall not include lopping off of a limb of tree for such purposes as may be prescribed. 'Tree' will have the same meaning as in the Indian Forest Act, 1927 and would include any woody plant whose branches spring from an area supporting upon a trunk or body and whose trunk or body is not less than 10 cm in diameter at breast height from the ground level. Sec. 4 of the Act prohibits felling of trees in non-forest areas excepting as provided in the following sections of the Act. (32) Permission has to be obtained from the competent authority for felling of trees. Such permission would be granted, if at all, after a proper enquiry by the competent authority. The procedure for obtaining permission for cutting down trees is provided in Sec. 6 of the Act. Sec. 8 of the Act provides for compensatory plantation of trees. It provides that a person felling trees shall be obliged to plant such number of trees as may be prescribed in place of every tree felled in the same plot of land. Rule 6 of the 2007 Rules stipulates that as provided under Sec. 8 of the Act every person who after obtaining permission from the competent authority, fells any tree, shall undertake plantation of two trees, in place of every tree felled, in the same plot of land. Sec. 9 of the Act provides for compulsory plantation of trees where trees are felled by a 'developer' as defined in the said section. Rule 7(1) of the 2007 Rules provides that for the purpose of Sec. 9(1) of the 2006 Act, a developer shall undertake plantation of trees over at least 20 per cent of the total area in the same plot or plots of land which is subject to such development in accordance with plantation plan approved by the competent authority under Sec. 9(4); provided that the total number of trees to be planted shall be at least five times the number of trees to be felled. The 2007 Rules prescribe that a developer shall submit application for permission to fell tree in Form-I(B) and a person other than a developer will submit such application in Form- I(A).
(33) Rule 4(1) of the 2007 Rules enumerates the purposes for which permission to fell trees may be granted. Rule 4(3) indicates as to how the competent authority or a suitable officer deputed by him shall conduct an enquiry prior to granting permission to fell trees.
(34) Sec. 9(2) of the 2006 Act imposes an obligation on a developer to carry out compensatory plantation within such period as may be specified in the certificate of clearance before the developing project is initiated (emphasis is ours). The Act or the Rules do not impose any such obligation on a non-developer. In fact, Sec. 8 of the Act read with rule 6(1) of the Rules provide that a non-developer may be permitted to plant a lesser number of trees than is required under the said legislation in a plot or plots different from where felling of trees is carried out or even may be exempted from the obligation of such plantation. Sec. 10 provides that a person who is to undertake plantation of trees under Sec. 8 (i.e., non-developer) shall start preparatory work for plantation within sixty days from the date of permission or the date of receipt of direction, as the case may be, and shall undertake plantation of trees in accordance with such directions. No time period is stipulated for a non-developer within which such plantation must be completed.
(35) On an analysis of the provisions of the 2006 Act and the provisions of the 2007 Rules what emerges is that there is a significant difference in the obligations imposed on a 'developer' and 'a person other than a developer' as regards compensatory plantation. A developer must plant at least five trees for every tree felled in the same plot. Such plantation must be completed before the development project is initiated. No power has been granted to the competent authority to relax such requirement in case of a developer. However, in case of a person other than a developer, permission may be granted to carry out compensatory plantation on a different plot and for a lesser number of trees than is required or even to exempt the person concerned from the obligation of compensatory plantation. (36) Learned Counsel for the petitioners has drawn our attention to different articles authored by ecologists to buttress their argument that felling of trees must be stopped at all costs. We are of the opinion that such articles may be of academic interest but cannot be the basis for us to decide whether or not felling of trees by the State Government should be permitted in the present case for implementation of the project of building ROBs. Since a legislation has been brought into effect by the state legislature governing the field, we have to be guided by such legislation i.e., the 2006 Act read with the Rules framed thereunder. The vires of the 2006 Act or the Rules framed thereunder is not under challenge in these proceedings. (37) A question arises as to whether or not the State is a 'developer' within the meaning of Sec. 9 of the 2006 Act. In our considered view, the answer must be in the negative. Sec. 9, which has been extracted above, postulates that a developer is one who intends to carry out development in the form of erection of high-rise multi- unit building or other construction for the purposes of residential or commercial or industrial or institutional uses (emphasis is ours). The proposed construction of the ROBs is for none of these purposes. The proposed construction is for improving social infrastructure and for advancing public utility. The proposed ROBs, once constructed, would improve the flow of traffic by obviating the delays occasioned at railway level crossings. It will also eliminate the risk of accidents that occur at railway level crossings. It would be for public benefit. No element of commerce is involved in such a project and the project is definitely not for residential or industrial or institutional purposes. Hence, in the present case the State cannot be said to be a developer within the meaning of Sec. 9 of the 2006 Act. No doubt, the State can be a developer within the meaning of Sec. 9 as is clarified by explanation-I to Sec. 9(1) of the said Act, but in the facts of this case the State is not a developer. Consequently, Sec. 9 and the restrictions contained therein would not apply to the State. (38) What would apply to the State in the present case is Sec. 8 of the said Act. Although the obligation that the said section imposes is plantation of two trees for every tree felled, learned Adv. General representing the State has clearly submitted that at least five trees will be planted for every tree felled. Further, the requirement of carrying out the compensatory plantation on the same plot where trees are felled can be relaxed in case of a non-developer. If such plantation is not possible on the plot or plots of land where the trees are proposed to be felled, such compensatory plantation may be done in other plots as close to the original plots as possible. Although, such compensatory plantation under Sec. 8 of the Act read with the Rules need not be undertaken prior to implementation of the project in question, we direct the State respondents to undertake such plantation simultaneously with felling of the trees in question.
(39) Learned Counsel for the petitioners argued that since the State has repeatedly applied in Form-I(B), the State must be deemed to be a developer within the meaning of Sec. 9 of the 2006 Act. We are unable to accept this contention. In our considered opinion, in the present case the State is not a developer. By erroneously applying in an incorrect form the State cannot be held to have become a developer. In this connection reference may be made to the decision in the case of Krishna Narayan Mukherjee-vs.-State of West Bengal & Ors., (1979) 1 CLJ 427. Reference may also be made to the decision of the Apex Court in Anandji Haridas & Co. (P) Ltd. (supra), wherein it was held that a mistake that had crept into the notices issued by the authorities by referring to a wrong provision of law could not be taken advantage of by the petitioner.
(40) Mr. Bhattacharyya, learned Sr. Counsel has relied on the decision of the Apex Court in the case of Intellectuals Forum, Tirupathi (supra). This case discussed the concept of sustainable development and the public trust doctrine. These are concepts with which nobody can have any quarrel. The said decision in our opinion does not have any manner of application to the facts of the present case. Felling of 356 trees which is essential for implementing an important public project, in our view, shall not cause such environmental degradation or deterioration that the public project must be stopped.
(41) The decision in the case of Nagrik Chetna Manch (supra), is also clearly distinguishable on facts. In that case under the concerned statute an Environment Impact Assessment was required before the Pune Municipal Corporation could grant permission for felling of trees. Such Assessment was not carried out prior to grant of permission. The Court found that there had been breach of statutory mandatory duties of the corporation which had resulted in vitiating the decision making process. In the present case, there is no such statutory requirement. (42) Coming to the report of the Special Officer, we are of the opinion that the same does not have much relevance to the issue involved in the present case. The report does not say that compensatory plantation is not possible. It may be indicating that such plantation is not possible on the plots where the trees are proposed to be felled. However, as we have noted above, the competent authority may permit the State to carry out such plantation on a different plot. Environmental protection and infrastructural development are equally important. When one is pitted against the other, a balanced decision has to be taken. In our opinion, the 2006 statute and the Rules framed thereunder endeavours to strike a balance between the two. The statute recognizes that it may be necessary to cut down trees and also recognizes the importance of environmental protection by preserving trees. Hence, restrictions having been imposed on felling of trees. Without permission from the competent authority trees cannot be cut down. The statute implicitly recognizes the importance of development projects and at the same time imposes the mandatory obligation of compensatory afforestation on the developers as also persons other than developers felling trees for implementing their proposed projects. (43) We have also considered the possibility of transplantation of the 356 trees in question. However, the same seems to be impractical and in fact impossible as noted in the Gujarat High Court Division Bench judgment in the case of Vikram Trivedi (supra). Such plantation of trees is only possible in case of trees whose width is not more than 65cms at breast height. From the Special Officer's report in the present case it would appear that width of all the trees in question at breast height which is much more than 65cms.
(44) In conclusion, we hold that felling of the 356 trees is necessary for implementing the important public project of constructing the five ROBs and the State respondents will be entitled to do so. However, this will be restricted only to the 356 trees and no other tree. Simultaneously, the State respondents shall carry out compensatory plantation of at least five trees for every tree felled in the same plot or in a plot as near to the plot as possible where the trees will be felled. New plantation will be of same genre of trees that will be felled. We trust and believe that the State respondents will act with due responsibility in the matter since it is important that we all thrive to make mother Earth a green planet. We should leave behind for posterity not only a world which is economically developed with necessary infrastructure but also a world where the future generations can breathe fresh air and live a healthy life.
(45) WP Nos. 5181 (W) of 2017 and 12788 (W) of 2017 are accordingly disposed of for all practical purposes. However, these petitions will be listed under the heading 'To Be Mentioned' 3 months hence only for the purpose of the State filing a compliance report as regards compensatory plantation of trees as indicated above. (46) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
I agree.
(Jyotirmay Bhattacharya, CJ.) (Arijit Banerjee, J.) Later:-
After the judgement is delivered, the petitioners' pray for stay of operation of the judgement and order. In view of the fact that the petitioners have enjoyed an order of stay for a long time and also to give them an opportunity of approaching the Hon'ble Supreme Court, we stay the operation of this judgement and order for a period of three weeks from date.
(Jyotirmay Bhattacharya, CJ.) (Arijit Banerjee, J.)