National Green Tribunal
Amit Sethi vs State Of Madhya Pradesh on 23 April, 2024
Item No. 08
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 184/2023(CZ)
Amit Sethi Applicant(s)
Vs.
State of Madhya Pradesh & Ors. Respondent(s)
Date of Hearing: 23.04.2024
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s): None.
For Respondent(s) : Mr. Prashant M. Harne, Adv.
(Mr. Mehul Bhardwaj, Adv.)
Mr. Pranjal Pandey, Adv.
(for Ms. Parul Bhadoria, Adv.)
ORDER
1. The issue raised in this application is cutting of more than 98 green trees for the construction of Khachrod‟s Government Higher Secondary School as a new C.M. Rise School Building without the permission of the Forest Department. The submission of the applicant is that the construction can be raised without the cutting of the trees or minimum damage to the trees and green belt of the area which may be useful in future for the school also and that the authority must have to take requisite permission from the Forest Department with condition of minimum ten times of plantation of trees which are being damaged by the school authorities for construction of the school.
2. This Tribunal took the cognizance of the matter on 21.12.2023 and a joint committee consisting representative of the District Magistrate, Ujjain, DFO, Ujjain and one representative from the State Pollution Control 1 Board, Madhya Pradesh was constituted with direction to submit the factual and action taken report.
3. The members of the committee visited the site and submitted the report with the following facts :-
"The committee visited to get factual status regarding the issues mentioned in the petition and collected information as under:
i. Principal Govt. C.M. Rise Excellence Higher Secondary School, Khachrod, has written letter to S.D.O Revenue (अनुविभागीय अधिकारी) Khachrod to get permission to cut several trees of the proposed site of Govt. C.M. Rise Excellence Higher Secondary School, Khachrod, vide their letter no. 134 dated 06th October 2023.
ii. Similarly Principal Govt. C.M. Rise Excellence Higher Secondary School, Khachrod, has written letter to C.M.O, Nagar Pallika Parishad, Khachrod to get permission to cut several trees of the proposed site of Govt. C.M. Rise Excellence Higher Secondary School, Khachrod, vide letter no 151 dated 01st November 2023.
iii. On dated 28th November 2023 a joint inspection was done by Kasba Patwari, Gram Kotwar and villagers of Gram Kasba Khachrod to comply the order of Tehsildar vide their order dated 25th October 2023 regarding cutting of total 98 trees of different species as demanded by Principal Govt. C.M. Rise Excellence Higher Secondary School, Khachrod for the proposed site of CM Rise School. The Panchnama proposed to get permission from Forest department in this regard.
iv. On dated 21st December 2023, Principal Govt. C.M. Rise Excellence Higher Secondary School, Khachrod again wrote letter to B.D.O Revenue (अनुविभागीय अधिकारी) Khachrod to get permission for cutting of 42 Trees from the proposed site and to transplant 28 trees from the proposed site to elsewhere.2
v. S.D.O Revenue (अनुविभागीय अधिकारी राजस्ि) Khachrod wrote to Deputy Ranger, Forest Department, Khachrod vide their letter no. 958 dated 12-12-2023 to major the length and diameter of 98 green trees of proposed C.M. Rise School Site.
vi. Team of Forest department inspected the proposed site on dated 22nd December 2023 and marked 73 green trees and measure length diameter & cost species wise & report submitted to S.D.O Revenue (अनुविभागीय अधिकारी राजस्ि) Khachrod vide Forest Department letter no. 7124 dated 25 December, 2023. During inspection Panchnama has also been prepared separately by C.M. Rise School, Khachrod.
vii. A order has been issued by Upper Collector, District- Ujjain vide their order no. 380 dated 09.01.2024 on basis of recommendation of S.D.O Revenue (अनुविभागीय अधिकारी राजस्ि) Tehsildar, Tehsil- Khfachrod for cutting of 79 trees for the proposed site Govt. C.M. Rise Excellence Higher Secondary School with conditions.
viii. In compliance of letter ne 110 dated 09.01.2004 of Van Parikshetra Adhikari, Van Parikshetra, Ujjain visited the site on dated 19th January, 2024 and given instruction to Principal Govt. CM. Rise Excellence Higher Secondary School, Khachrod not to cut the trees without prior permission. The Panchnama of the visit along with site inspection report submitted vide their letter no. 300 dated 23rd January 2004 to DFO Ujjain.
ix. On the basis of permission obtained from Upper Collector, Ujjain for cutting of 70 trees for the proposed are Govt CM. Rise Excellence Higher Secondary School with conditions, a letter has been written by Principal Govt. CM Rise Excellence Higher Secondary School, Khachrod vide their letter no. 191 dated 23 January 2024 to Project Engineer, M.P. Police 3 Housing and Infrastructure Development Corporation, Ujjain to comply the order.
x. With respect to order passed by Upper Collector Ujjain vide their letter no. 380 dated 09 January 2024 S.D.O Revenue (अनुविभागीय अधियिरी राजन) Khachrod has written to Deputy Ranger Forest Department, Khachrod for the compliance.
During inspection of the proposed site of Govt. C.M. Rise Excellence Higher Secondary School it was found that 79 trees had been cut and wood of these trees was kept behind the school in stadium premises. As per information received during visit the cutting of trees was started from dated 01st February 2024. The Panchnama prepared during visit in which statement of applicant is mentioned.
The Joint inspection report by ADM, Ujjain, Regional Officer, M.P. Pollution Control Board, Ujjain, SDO Forest Ujjain & Revenue Official of Khachrod, District- Ujjain is submitted to the Collector, Ujjain on dated 22.02.2024. Photographs taken during inspection is enclosed.
Recommendation:
Ten times of trees cut from proposed site should be planted in and around the C.M. Rise School.
Action Taken Reports The disciplinary action against in-charge, Principal, Govt. C.M. Rise Excellence Higher Secondary School, Khachrod is proposed to District Collector, Ujjain The proposed action is under process. It is directed to the concerning agencies to strictly comply the conditions laid down in Upper Collector Ujjain letter no. 380 Dated 09-01- 2024."
4. The contention of the respondent and the State are that for running of the educational institution and opening of a school or in maintenance of a school or in renovation of the school is in the interest of public. The construction is required to be done and the school authorities has taken 4 due permission from the authorities concerned and intimated to the authorities.
5. It is further submitted that on the request of the school authorities the office of the Upper Collector, District - Ujjain vide letter no. 380 dated 09.01.2024 on the basis of the recommendation of SDO, Revenue and Tehsildar has permitted the cutting of the tree in the interest of the school. It is further submitted that on the principle of sustainable development the things are required to be done but according to rules.
6. Section 3 of the Environment (Protection) Act, 1986 empowers the Central Government to take all such measures for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. One of the measures provided in Section 3 (2) (v) is restriction of areas in which any industries, operations or processes or class of industries shall not be carried out or shall be carried out subject to certain safeguards. The Environment (Protection) Rules, 1986 were made in exercise of power conferred by Sections 6 and 25 of the Environment (Protection) Act, 1986. According to Rule 5, the Central Government may prohibit or restrict the location of industries and the carrying on of processes and operations in different areas. In exercise of the power conferred on the Central Government by Sub-Clause (i) and Clause (v) of Sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Clause (b) of Sub rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, the Ministry of Environment and Forests, Government of India issued a Notification on 14.09.2006 directing construction of new projects or activities or the expansion or modernization of existing projects or activities listed under the Schedule to the Notification shall be undertaken only after prior environmental clearance from the Central Government or the State Level Environment Impact Assessment Authority.
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7. While economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand. In other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment [Indian council for enviro-legal action v union of India [1996] 5 SCC 281]. The traditional concept that development and ecology are opposed to each other is no longer acceptable [Vellore citizens welfare forum v. union of India [1996] 5 SCC 647].
8. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations. A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focusing on the structural norms which guide institutional decision making, rule of law frameworks recognize the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, 6 composed and governed. A modern rule of law framework is hence comprehensive in its sweep and ambit. It recognizes that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance.
9. 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. It does so to enhance our understanding of environmental challenges - of how they have been shaped by humanity‟s interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity‟s actions have charted. The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognizes that the „law‟ element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between 7 concepts such as sustainable development the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connects which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco- system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognizes the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance - of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes 8 of substantive, procedural and institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today.
10. In its decision in Hanuman Laxman Aroskar vs Union of India,[2019] 15 SCC 401 the Court, recognized the importance of protecting the environmental rule of law. The court observed : -
"142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem.
"143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement -- both in developed and developing countries alike ...
"156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the 9 Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution."
11. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship". This indicates that while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand.
12. In view of the above facts and on the principle of sustainable development we direct the Collector to ensure that there should not be any further cutting of the trees without the permission of the notified authority and in the present case there must be plantation at least 10 times around the area and in the premises of the school and it should be maintained properly minimum up to 5 years.
13. For construction of the school the Collector has to examine the necessary permissions and as to whether without cutting of the trees construction is feasible or not. There should be minimum damage to the trees. The trees which have been collected in the premises of the school must be auctioned according to rules in the presence of one representative of the Collector and the amount so recovered should be utilized for the 10 plantation in and around the school campus. The DFO, Ujjain is further directed to periodically monitor the incidence of cutting of trees within the area and to take necessary action according to rules.
14. With these observations Original Application No. 184/2023 stands disposed of.
Sheo Kumar Singh, JM Dr. Afroz Ahmad, EM 23rd April, 2024 O.A No. 184/2023(CZ) PN 11