A three-judge Bench of Justice Dr. DY Chandrachud, Justice Surya Kant, and Justice Vikram Nath has stayed the felling of trees on the Delhi-Dehradun National Highway by passing an interim order which would remain in operation until 26th November 2021.
Senior Advocate Ms. Anita Shenoy appeared for the Appellants while Attorney General of India Mr. K K Venugopal appeared for the Respondents during the proceedings before the Court.
Further, the Court has directed the NGT to decide upon the case afresh by restoring the Appellant's Original Application to the file of the Tribunal.
In this case, the Appellant had challenged the Stage-I Forest Clearances dated 29th September 2020 and 24th December 2020 issued by the Ministry of Environment, Forest, and Climate Change concerning a road forming a part of the National Highway No. 72A in Uttarakhand and Uttar Pradesh.
Following the directions of the Supreme Court, the Appellant had moved the National Green Tribunal under Section 14(1) of the NGT Act. However, the Tribunal had declined to entertain to challenge on the ground that the Appellants attempted to circumvent its Appellate jurisdiction under Section 16 by invoking original jurisdiction under Section 14 instead.
It was contended by the Appellant before the Apex Court that an appeal under Section 16(e) can be made only against an order or decision of the State Government or other authority under Section 2 of the Forest (Conservation) Act.
It was further argued that in the circular issued by the MoEF & CC it was provided that no non-forest activity in the forest area would be allowed unless an order was passed by the competent authority of the State Government and placed in the public domain.
Also, it was contended that no order of felling of trees was placed in the public domain due to which the grant of Stage-I forest clearance in and of itself would not be amenable to the Appellate jurisdiction of the Tribunal.
Ms. Shenoy further pleaded that an application was also moved before the Divisional Forest Officer (DFO) under RTI where disclosure of information on whether any permission for the felling of trees was granted was sought. The response of the DFO was that no order for the felling of trees was issued, where he had granted the permission on 27th August 2021. Without placing the order in the public domain, the tree cutting exercise was carried out, argued the Appellant.
While the Respondent contended that a public project should not be injuncted when requisite clearances were already obtained.
The Apex Court noted that the DFO Dehradun had misled the Appellants by furnishing incorrect information in response to their 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 Court held.
Further, the Bench opined, "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," the Court added.
Additionally, the Court asserted, "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."
The Court also held that 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.
To enable filing of an appeal before the Tribunal, the Court passed an interim order restraining the further felling of trees which would remain in operation till 26.11.2021.
The Court while allowing the appeal directed the Tribunal to decide the matter afresh. Further, the Court granted liberty to the Appellants to challenge the permission which was granted for the felling of trees by the DFO.
In the light of these observations, the Court set aside the impugned order of the NGT and restored the Original Application filed by the Appellant.