14 Jan 2022 2:00 PM GMT
On Monday (10th January), the Sikkim High Court issued directions to the Forest, Environment and Wildlife Management Department, Government of Sikkim to prevent indiscriminate felling of trees in order to implement the Gangtok Smart City proposal. A letter petition from Kailash Pradhan, an Architect from Sikkim concerned about the erratic and rampant felling of trees in...
On Monday (10th January), the Sikkim High Court issued directions to the Forest, Environment and Wildlife Management Department, Government of Sikkim to prevent indiscriminate felling of trees in order to implement the Gangtok Smart City proposal.
A letter petition from Kailash Pradhan, an Architect from Sikkim concerned about the erratic and rampant felling of trees in Gangtok, especially for widening National Highway under the Smart City Project was taken up by the bench comprising Justices Meenakshi Madan Rai and Bhaskar Raj Pradhan as a Writ petition filed in Public Interest.
Apart from State of Sikkim (Respondent No. 1) and Forest Environment and Wildlife Management Department, Government of Sikkim (Respondent No. 2), Union of India through Ministry of Road, Transport and Highways (Respondent No. 3), National Highways and Infrastructure Development Corporation Limited (Respondent No. 4), Ministry of Environment, Forest and Climate Change (Respondent No. 5) were also made party to the public interest litigation. Later, Urban Development and Housing Department (Respondent No. 6) and Gangtok Smart City Development Limited (Respondent No. 7) were also impleaded for a holistic consideration of the matter.
The trees in the city of Gangtok, which are intrinsic to a healthy urban life for more than one reason, were being felled in a callous manner. Being fully aware that essential human activities required felling of trees, the Petitioner urged that it ought to be carried out only in furtherance of public interest. The felling of such a large number of trees for widening the National Highway under the Smart City Project was a cause of concern for the city dwellers who were not aware of the blueprint of such the project. The Petitioner was of the view that though the Government seems to have pledged to plant 10 trees for every felled tree in a different part of the city, the lack of trees in a particular area cannot be compensated for.
Opinion by the Amicus Curiae
Consulting experts and stakeholders, the Amicus Curiae had placed their suggestions before the Court. The High Court was apprised that the Forest, Environment and Wildlife Management Department, Government of Sikkim ("Forest Department"), the authority bestowed with the responsibility to protect indiscriminate felling of young and healthy trees, had bypassed its duty to seek clearance for felling of trees from the Central Government. The Amicus referred to the Royal Park charity, which supports and manages 5000 acres of Royal Park land across London and emphasised on the worldwide efforts to protect trees to assert the importance of the same.
Submissions made by the Respondents
The Counsel appearing on behalf of the Forest Department submitted that Gangtok Smart City Development Limited sent application under Rule 4 of the Sikkim Private and Other Non-Forest Lands Tree Felling Rules, 2006 ("2006 Rule") requesting felling of trees to improve nine junctions in line with the Gangtok Smart City proposal. It was argued that 121 trees were felled and 64 poles and 147 plants were removed after permission was granted by the concerned Minister. Immediately, auction notice was issued for 121 trees and 64 poles at the offset price of Rs. 7,66,183, which was eventually handed over to the highest bidder. The Counsel submitted that on application of mind, the Department ensured that felling of trees were minimised. It was pointed out that out of the nine junctions two though initially notified as Green Belt Area were later de-notified on 29.01.2018. The Counsel also averred that the area where the trees were felled was not 'forest' area as defined by the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India And Ors. (1997) 2 SCC 267. Moreover, the trees to be removed were Dhupi and Uttis and Dhupi has adverse effects on biodiversity. Since there is no statutory process to auction the trees felled, the trees were disposed of through open auction. Assurances of planting trees in three identified junctions were also provided. Later, Gangtok Smart City Development Limited had again applied for felling of trees in the remaining 6 junctions, which was pending consideration.
The Counsel appearing on behalf of the Gangtok Smart City Development Limited informed the Court that the Smart City Mission project was being implemented upon consultation with experts and to specifically address the concerns raised by the stakeholders, without compromising on environmental issues.
The Counsel appearing on behalf of the Urban Development and Housing Department adopted the above-mentioned submissions.
The Counsel appearing for the Ministry of Environment, Forest and Climate Change apprised the Court that the Government of Sikkim had informed the Ministry that no permission was sought for felling of trees as the land where trees were felled was "government land" and not "forest land". However, referring to Article 48A of the Constitution of India it was asserted that the State Government ought to protect the environment and uphold the doctrine of sustainable development set out by the Supreme Court in a catena of judgments.
Analysis by the High Court
In the judgment that opens with the wise words of Kahlil Gibran - 'Trees are poems that the Earth writes upon the Sky', one finds mention of Gieve Patel's poem "On Killing a Tree", Maya Angelou's "When Great Trees Fall" and Joyce Kilmer's "Planting a Tree" befitting the occasion.
At the outset the Court noted that it is the bounden duty of the citizens to protect the trees planted by the visionary planters and foresters of the erstwhile kingdom of Sikkim. Considering the argument that the land was not 'forest', and on perusal of the 2006 Rules and allied statutes, the Court opined that the said land was indeed not forest land. Even if it is so, the Court noted that it cannot be ignored that haphazard deforestation is a grave environmental concern. The Court opined that the Forest Department had sufficiently complied with the 2006 Rules and had followed the precedent set out for the auction of felled trees and the Government had satisfactorily carried out the consulting process. However, the Court was displeased that the auction notice was put up only in the Notice Board of the Forest Department making it inaccessible and restricting participation. Obliterating the argument of the Ministry of Environment, Forest and Climate Change that the forest clearance was not sought by the State Government, the Court was perturbed to note that it had turned a blind eye to the issue of felling of trees until it was impleaded as a party.
Referring to N.D. Jayal And Anr. v. Union of India And Ors. (2004) 9 SCC 362, the Court observed that a balance has to be struck between environmental protection and development activities by following the principles of sustainable development, which falls within the ambit of Article 21 of the Constitution. Appreciating Gangtok Smart City Development Ltd.'s endeavour to minimise felling of trees, on the issue of compensatory plantation, the Court was unable to appreciate the Forest Department's efforts to replace fallen trees with shrubs and bushes.
Acknowledging that it is the bounden duty of the Court to see to it that a policy decision is not implemented in violation of law and in derogation of the fundamental rights as envisaged by the Constitution of India, the Court issued directions to the Forest Department with respect to felling of trees and their subsequent auction.
(i) immediately develop policy guidelines which shall govern decision making with respect to the Auction of felled trees. This shall not be later than 3 (three) months from today.
(ii) Eco-sensitive areas shall be given due consideration when felling of trees are unavoidable, imperative and are proposed.
(iii) No tree or pole shall be unnecessarily felled for the personal enrichment of any person.
(iv) Need based felling of identified trees in the 6 (six) remaining Junctions under the Gangtok Smart City Project may be carried out subject to strict and meticulous compliance of the relevant Rules. Due application of mind by the concerned Officers indicating compliance to the letter of the Rules by the concerned Officers must be reflected in their notes and orders.
(v) Once the trees have been felled in the 9 (nine) Junctions, so far as safety allows there shall be avenue plantation of trees. In the event of impossibility of tree plantation in any area, keeping in mind the geographical terrain, then shrubs are necessarily to be planted.
(vi) The construction of the footpaths shall be made around the trees wherever possible duly bearing in mind the decision of the Hon'ble Supreme Court in Rajive Raturi vs. Union of India and Others (2018) 2 SCC 413 and taking into consideration the movement of physically challenged persons in Wheelchairs and of the visually challenged, on the footpaths.
(vii) Afforestation in these areas shall be carried out as undertaken immediately on completion of the civil works in the Gangtok Smart City Project, viz., in Zero Point Junction, Development Area Junction and High Court Junction.
(viii) The Respondent No.2 in its Report dated 22-06-2020 has stated that a plan with detailed estimates for Compensatory Afforestation has been prepared and the location for Compensatory Plantation identified. The locations have not been disclosed. The Respondent No.2 shall disclose the location to the Petitioner and the Learned Amicus Curiae within a month from today and carry out Compensatory Plantation within a period of 1 (one) year from today.
(ix) Wherever trees have been felled Compensatory Plantation shall be done by planting of trees, viz.; Rani Champ (Michelia excelsa), Pipli (Symingtonia populnea), Buk (Quercus lamellosa), Badrasay (Elaeocarpus sikkimensis), Tooni (Toona ciliata), Pumsi(Machilus edulis), Arupatay (Prunus nepalensis), Kawlo (Machilus spp.) and Katus (Castonopsis spp.) [these trees are reflected in the Report of the Respondent No.2].
(x) A Committee comprising of 3 (three) senior department Officers of the rank of Conservator of Forest and above shall overlook the Project of Compensatory Afforestation. The composition of the Committee shall be informed to the Petitioner and the Learned Amicus Curiae within a month from today. The Committee shall ensure that every tree felled is compensated by 10 (ten) saplings as undertaken by the Respondent No.2.
(xi) We make it clear that should the Compensatory re- plantation not be completed within the period specified above, the Petitioner is at liberty to approach this Court.
(xii) Strict compliance be made by all the Respondents to the observations of the Supreme Court in M. C. Mehta vs. Union of India and Others (2002) 4 SCC 356, in that, the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of ―sustainable development‖. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environment-related developmental activities should benefit more people while maintaining the environmental balance."
The stay order preventing the felling of further trees granted during the course of the proceeding was vacated by the Court upon the assurance that the authorities would not indulge in unnecessary felling of trees under the Smart City project.
Case Title: In Re: Recent Felling of Trees in Gangtok, WP (PIL) No. 4 of 2020
Citation: 2022 LiveLaw (Sik) 1
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