Dr Dhananjaya Y Chandrachud, J
1 The appellant had earlier moved a petition under Article 32 of the
Constitution - Writ Petition No 529 of 2021 - to challenge: (i) the Stage-I
Forest Clearances dated 29 September 2020 and 24 December 2020 issued
by the Ministry of Environment, Forest and Climate Change1 in respect of the
stretches of road forming a part of 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 National Board for Wildlife. Noting
that the primary challenge was to the Stage-I Forest Clearances, this Court
by its order dated 7 September 2021 reserved the liberty of the appellants to
adopt appropriate proceedings by moving the National Green Tribunal2 to
Signature1 “MoEF&CC”Not Verified Chetan Kumar“the Tribunal”Date: 22021.11.18
challenge the Stage-I Forest Clearances. Directions were also issued,
granting permission to the appellant to challenge the Wildlife Clearance at
the appropriate stage.
2 Following the order of this Court, the appellant moved the Tribunal in Original
Application No 240 of 2021, invoking its jurisdiction under Section 14(1) of
the National Green Tribunal Act 20103. The Tribunal by its order dated 6
October 2021 declined to entertain the challenge, primarily on the ground
that the appellants had attempted to ‘circumvent’ its appellate jurisdiction
under section 16 by invoking its original jurisdiction under Section 14
instead. The reasons which have been adduced by the Tribunal are
contained in the following extract from its judgment:
“6. We have heard learned Counsel. We find no justification to
entertain the application, circumventing the remedy of
appeal. Further, the applicant itself has mentioned that as
far as linear projects are concerned, simplified procedure is
applicable. Stage-I approval itself is considered as working
permission for cutting of trees. Thus, if the approval has
been validly granted, the cutting of trees in the scope of
permission so granted will not be treated as violation of law.
In absence of challenge to the grant of EC, submission that
EC has been wrongly granted or that the reports on the basis
of which EC has been granted are factually incorrect cannot
be gone into. The project is for upgradation and expansion of
road, also involving some constructions. There is no reason
to presume that laid down standards and precautions for
road constructions will not be followed. There is no material
3 “NGT Act”
to show any such violation. If any such violations are found,
the same can always be challenged in accordance with law.
7. Undoubtedly, cutting of even a single tree is a matter of
concern. Having regard to ecological services of the trees, all
efforts have to be made to protect every tree. At the same
time, in certain situations, cutting of trees is permissible
under the law, with the requisite approval of the statutory
authorities, subject to compliance of the statutory
conditions, following all necessary safeguards, including
afforestation and translocation wherever possible. In the
present case, order granting FC lays down necessary
conditions. No violation thereof is alleged. In these
circumstances, no case is made out for interference by this
Tribunal. The application is dismissed.”
3 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;
(ii) The circular dated 28 August 2015 of the MoEF&CC stipulates that in-
principle approval granted under the FC Act by the Central Government
may be deemed to be the working permission for tree cutting and
commencement of work if the funds for compensatory afforestation, net
present value (NPV) and other conditions as stipulated in the in-
4 “FC Act”
principle approval are fulfilled by the user agency;
(iii) The above circular has been made in the context of projects involving
linear diversions of forests, such as laying of roads amongst other
activities;
(iv) The circular, however, provides that no non-forest activity in the forest
area covered under Section 2 of the FC Act would be permitted and
carried out in any manner, unless an order has been passed by the
competent authority of the State Government and placed in the public
domain; and
(v) In the present case, as a matter of fact, no order for the felling of trees
was stated to have been placed in the public domain and hence, the
grant of a Stage-I Forest Clearance in and of itself would not be
amenable to the appellate jurisdiction of the Tribunal.
4 Based on the above premises, it has been urged that the Tribunal was not
justified in dismissing the Original Application invoking the provisions of
Section 14 of the NGT Act, particularly when the view which has been taken
by the Tribunal in an earlier decision is that in the absence of an order of the
State Government under the provisions of Section 2 of the FC Act, no appeal
would be maintainable.
5 In support of the above submissions, it has also been urged that on 11
September 2021, an application was moved before the Divisional Forest
Officer5 under the Right to Information Act 20056, seeking a specific
disclosure of information on whether any permission for the felling of trees
had been granted. The response of the DFO to the query on 11 October 2021
was that no order for the felling of trees has been issued. Yet, in the
additional documents which have been filed in these proceedings on behalf
of the respondents, an order dated 27 August 2021 of the DFO, permitting
the felling of trees, has been placed on the record. In this backdrop, it has
been urged that it is inconceivable as to how the DFO, if he had granted the
permission for felling of trees on 27 August 2021, responded to the RTI query
on 11 October 2021 by stating that no permission has been granted. It has
been submitted 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.
6 On the other hand, Mr K K Venugopal, learned Attorney General for India
appearing on behalf of the respondents has drawn attention of the Court to
the following developments:
(i) Both, the Stage-I Clearance which was issued on 23 December 2020
and the Stage-II clearance which was issued on 20 July 2021, have been
placed on the website of the MoEF&CC;
5 “DFO” 6 “RTI Act”
(ii) On 27 August 2021, the permission for logging of trees was granted by
the DFO, which was annexed to the counter-affidavit filed in these
proceedings by National Highway Authority of India;
(iii) In the circumstances, the felling of trees has proceeded after the receipt
of requisite clearances, namely, the Stage-I as well as Stage-II
clearances and a specific permission for felling of trees, which was
granted on 27 August 2021 as contemplated in the circular dated 28
August 2015;
(iv) Of the twenty kilometres corridor on the segment of National Highway
No 72A between Ganeshpur and Dehradun, an elevated highway over
12 kilometres will be provided with underpasses for wildlife. Hence, far
from the project disturbing the wildlife in the area, the project as
conceived would, in fact, ensure the safety of wildlife against accidents
of the kind that took place in the past on the highway.
7 Hence, it has been urged by the Attorney General that a public project should
not be injuncted once the requisite clearances have been obtained.
8 At the outset, while dealing with the rival submissions, it becomes necessary
to conceptualize the nature of the jurisdiction of the Tribunal under Section
16 of the NGT Act. 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.
9 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. 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:
(i) With a view to facilitate speedy execution of projects
involving linear diversion of forest land such as laying of new
roads, widening of existing highways, transmission lines,
water supply lines, optic fiber cabling, railway lines etc., in-
principle 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
commencement of work, if the required funds for
compensatory afforesatation, net present value (NPV),
wildlife conservation plan, plantation of dwarf species of
medicinal plants, and all such other compensatory levies
specified in the in-principle approval are realised from the
user agency and where necessary, for compensatory
afforestation, transfer and mutation of non-forest/revenue
forest land in favour of State Forest Department is affected;
(ii) After the afore-mentioned compensatory levies specified in
the in-principle approval are realised from the user agency
and where necessary, for compensatory afforestation,
transfer and mutation of non-forest/revenue forest land in
favour of State Forest Department is affected, 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 authorized in this behalf
by the State Government shall pass an order for tree cutting
and commencement of work of a linear project in forest land
for a period of one year. The Central Government may
extend the permission for one more year subject to
submission of reasonable progress report from the State
Government as regards to the steps taken to comply with
the remaining conditions stipulated in the in-principle
approval.
(iii) No non-forest activity in the forest area that is covered under
Section 2 of the FC Act would be permitted and carried on in
any manner whatsoever unless an order specified in para (ii)
above has been passed by the competent authority of that
State government and is placed in the public domain by
putting it on its website and all other requirements in
accordance with law are complied with;
(iv) For the purpose 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 commencement of work of linear
project in forest land, specified in para (ii) above, shall be an
order under Section 2 of the FC Act;
(v) An appeal as per provisions of Section 2A of the FC Act
and/or Section 16(e) of the NGT Act can be filed against any
such order specified in para (ii) above for tree cutting and
commencement of work of linear project in forest land;
(vi) In the event of filing of such appeal, it would be open for the
person aggrieved, to assail the order/clearance granted by
the Central Government under Section 2 of the FC Act which
forms an integral part and sole basis of the order specified in
para (ii) above;
(vii) The State Government and the project proponent shall take
further action as has been stipulated by the Hon’ble National
Green Tribunal in their judgment dated November 2012 in
Appeal No 7/2012 to accord publicity and to ensure
availability in public domain of in-principle approval under
the FC Act accorded by the Central Government and the
order specified in para (iii) above. State Government and the
project proponent shall also ensure strict compliance of
other direction(s) contained in the said----.;
(viii) The State Governments, in such cases shall seek and obtain
from the Central Government final/formal approval under the
FC Act for diversion of such forest land at the earliest, and in
any case not later than five years from the date of grant of
the in-principle approval.
10 Clause (i) of paragraph 2 of the above 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.
11 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. In H.P. Bus-Stand Management &
Development Authority vs Central Empowered Committee7, a three
Judge Bench of this Court of which one of us was a part (DY Chandrachud, J)
described the “environmental rule of law” in the following terms:
“49. 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
7 (2021) 4 SCC 309
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 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 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.”
(emphasis supplied)
12 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, as noticed above. 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.
13 The request for the grant of an order of stay by this Court restraining the
felling of trees has been opposed on behalf of the respondent. Mr K K
Venugopal, learned Attorney General urged that any order of injunction at
this stage would cause serious obstruction in the implementation of the
project and it should not be granted, particularly when requisite permissions
have been obtained and necessary safeguards are in place to protect the
wildlife.
14 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.
15 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.
16 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. The Tribunal’s
decision in the case of Vimal Bhai vs Union of India8 has placed the
matter beyond doubt, by noting 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
8 2012 SCC OnLine NGT 77, paras 30-32
website of the concerned State Government or the MoEF, as the case may
be”. However, for the sake of clarity, we have set the legal position at rest in
the discussion in the earlier part of this judgment.
17 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.
18 For the above reason, we allow the appeals and set aside the impugned
judgment and order of the Tribunal dated 6 October 2021, and restore
Original Application No 240 of 2021 to the file of the Tribunal for a decision
afresh. In addition, we also grant liberty 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).
19 As regards the question of stay, we are inclined to grant some breathing
room to the appellant to move the Tribunal, so as to allow them to urge all
the submissions which are available to them to challenge the orders for the
felling of trees. We are at this stage desisting from making any observation
on the merits, so as not to preclude the rights and contentions of the parties.
However, in order to allow the appellant to file an appeal before the Tribunal,
in terms of the liberty granted above, there shall be an interim order
restraining the further felling of trees, which shall remain in operation until
26 November 2021. However, we specifically direct that the appellant shall,
in order to place the nature of their objections beyond doubt, file brief
written submissions before the Tribunal cataloguing their grounds of
challenge. The Tribunal is directed to pass a reasoned order on the merits,
with reference to each of the grounds of challenge which is raised before it
by the appellant in the course of their written submissions. In view of the fact
that the order dated 27 August 2021 has been placed on the record only
during the course of the proceedings in this Court, we also direct that if the
appeal is filed within a period of one week, the Tribunal shall entertain the
appeal on merits and shall not reject it on the ground of limitation. The
appeal shall be listed before the Tribunal on the next working day after the
filing of the appeal by the appellant. The appellant would be at liberty to
move the Tribunal for interim orders.
20 The appeals are disposed of in the above terms.
21 Pending applications, if any, stand disposed of.
[Dr Dhananjaya Y Chandrachud]
[Surya Kant]
[Vikram Nath]
New Delhi; November 16, 2021 CKB