Citizens for Green Doon vs Union of India & Ors

Prayer in this application is to quash Stage-I Forest Clearances (FC) dated 29.09.2020 issued by the Ministry of Environment Forest and Climate Change (MoEF&CC), Regional Office, Dehradun and dated 23/24.12.2020 issued by the MoEF&CC, Regional Office, Lucknow. Such clearances have been granted in respect of project for expansion of the existing 20 km stretch of NH72A between Ganeshpur and Dehradun. The proposal also involves upgradation from 2 lane to 4 lane configurations with a 25 metre carriageway by the National Highway Authority of India (NHAI). There is also a prayer to follow norms laid down in circular dated 23.03.2018 issued by the Ministry of Road Transport and Highways (MoRTH) titled "Standards for Lane width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous terrains - Reg" during construction of road in hilly areas.

It is stated by the applicant that for the said project, felling of the trees is involved to the extent of diversion of 57.3278 ha of forest land, out of which 9.6224 ha falls under very high density category forest. The number of trees which may be felled may be around 11,000. NHAI has divided the road project into two segments, one falling within the State of Uttar Pradesh (around 16km) and the rest falling within the State of Uttarakhand. It is further stated that the approval process required to be followed is as follows:

"i. The user agency submits proposal i.e. Part I of Form A to the nodal officer which is any office not below the rank of Conservator of Forests authorized by the State Government to deal with the forest conservation matters under the Act.

ii. Site inspections are conducted by the Divisional Forest Officer ("DFO") and the Conservator of Forests ("CF") to ascertain factual details and feasibility of the proposal, certify the maps, and conduct an enumeration of the trees. Upon such inspections, Part II and III of Form A is filled along with the findings and recommendation of the DFO and the CF respectively. The Nodal officer, through the PCCF forwards the proposal to the State Govt/UT administration along with his recommendations i.e. Part IV of Form A.

iii. The State Government then has to take a decision on the proposal of diversion/ lease/ dereservation. If it agrees in principle, the same has to be forwarded to the Regional Office, i.e. Part V of Form A.

iv. The REC examines the proposals and after such further enquiry as it may consider necessary, grant in- principle approval i.e. Stage I forest clearance to the proposals subject to fulfilment of stipulated conditions, or reject the same and the Regional Office shall communicate the decision of the Regional Empowered Committee to the concerned State Government or the Union Territory Administration.

v. If the REC is satisfied, it grants final approval, i.e. Stage II Clearance. Thereafter, conditions of the Stage II clearance have to be satisfied, and the State Government has to pass a final order under Section 2 of the Forest (Conservation) Act, 1980 which is the order which is appealable to the National Green Tribunal."

Further averment in the application is that under Rule 7 of the Forest (Conservation) Rules, 2014 (FC Rules), impact on wildlife is to be studied. However, for linear projects, as the project in question, a simplified procedure has been laid down. After Stage I approval, as against requirement of Stage II approval, Stage I approval itself is considered as the working permission for cutting of trees and commencement of work. As per applicable guidelines, cost benefit analysis is also required to be undertaken to determine if the project is viable. In respect of the stretch in State of UP, presence of wildlife has been noted in the application for grant of FC. But in a latter report in November 2020 by the Divisional Forest Officer, it is mentioned that there is no wildlife. On that basis, FC has been granted on 15.12.2020 without considering implications of widening of the road on the wildlife. In Uttarakhand, there is also provision for tunnel in the project. The DFO wrongly stated that there is no wildlife affected vide inspection report dated 24.07.2020. On the basis of that report, clearance has been granted on 02.09.2020. No assessment has been made as per Section 36 of the Biological Diversity Act, 2002 about impact on biodiversity as a result of the project in question.

We find that remedy to challenge FC is by way of an Appeal under Section 16 of the NGT Act, as also noticed in the order of the Hon'ble Supreme Court dated 07.09.2021 in W.P. No. 529/2021, Citizens for Green Doon v. Union of India & Ors. filed by the applicant:

"xxx ..................................xxx ................................xxx

The primary challenge in these proceedings is to the Stage I Forest Clearance which is amenable to the jurisdiction of the NGT under Section 16 of the NGT Act. If the petitioners were to succeed on that part of the challenge, the challenge to the Wildlife clearance (for the construction of the road) will in any event have no practical significance. That challenge will, however, survive if the petitioners fail on the challenge to the Stage 1 Forest clearance."

No appeal has been filed in above terms. Only reason given by the applicant for not preferring an appeal and filing an application under Sections 14 and 15 of the NGT Act is that after Stage-I clearance, cutting of trees has commenced and photograph of one tree so cut has been annexed.

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 to show any such violation. If any such violations are found, the same can always be challenged in accordance with law.

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.

In view of order in main application, IA No. 180/2021 also stands disposed of.