CITIZENS FOR GREEN DOON versus UNION OF INDIA AND OTHERS on 16 November 2021

968

SUPREME COURT REPORTS

[2021] 11 S.C.R.

ACITIZENS FOR GREEN DOON

v.

UNION OF INDIA AND OTHERS

(Civil Appeal Nos. 6497-6498 of 2021)

BNOVEMBER 16, 2021

[DR. DHANANJAYA Y CHANDRACHUD, SURYA KANTAND VIKRAM NATH, JJ.]

National Green Tribunal Act 2010: s.14, s.16 – Appellant hadearlier moved a petition under Art.32 of the Constitution to challengeCthe Stage-I Forest Clearances (FC) – This Court had by its orderreserved the liberty of the appellants to adopt appropriateproceedings by moving the National Green Tribunal to challengethe Stage-I Forest Clearances – Appellant filed O.A. before theTribunal invoking its jurisdiction under s.14(1) of the NGT Act –DTribunal declined to entertain challenge, primarily on the groundthat the appellants had attempted to ‘circumvent’ its appellatejurisdiction under s.16 by invoking its original jurisdiction unders.14 instead – In the instant appeal, contention of appellant wasthat on 11.09.2021, an application was moved before the DivisionalForest Officer (DFO) under the RTI Act seeking a specific disclosureEof information on whether any permission for the felling of treeshad been granted – Response of the DFO to the query was thatthere was no order for the felling of trees – However, in theadditional documents filed on behalf of the respondents, order dated27.08.2021 of the DFO, permitting the felling of trees, was placedFon the record – Thus, an extensive exercise of tree cutting was carriedout without placing order dated 27.08.2021 in the public domain,despite the mandate of the circular dated 28.08.2015 and as a result,not only the appellant but the other parties were precluded frommoving the Tribunal in exercise of its appellate jurisdiction – Held:The provisions of s.2 of FC Act contemplate passing of an order byGthe State Government with the prior approval of the CentralGovernment so as to, inter alia, permit the conversion or use offorest land for non-forest purpose – Therefore, unless an order hasbeen passed or a decision is made, the appellate remedy before theTribunal would not be available – Circular dated 28.08.2015 wasHissued by MoEF&CC to prescribe a simplified procedure for the

grant of permissions for felling of trees standing on forest land tobe diverted for execution of linear projects – Clause (i) of paragraph2 of the circular indicates that in order to facilitate the expeditiousexecution of projects involving linear diversion of forest land,including laying of new roads, an in-principle approval of theCentral Government under the FC Act would be deemed as workingpermission for tree cutting and commencement of work subject tocertain conditions – The DFO misled the appellants by furnishingincorrect information in response to the RTI query – The purposeof placing the permission in the public domain is to ensure thatpersons aggrieved would have a right to challenge it – There is norebuttal to this grievance of the appellant – 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 terms of the provisions contained in circular dated 28.08.2021,the order for tree cutting and commencement of work of linearprojects is to be treated as an order under s.2 of the FC Act –Evidently, therefore, order dated 27.08.2021 is amenable to theremedy of an appeal, which would now lie before Tribunal unders.16(e) of the NGT Act – Since order dated 27.08.2021 is amenableto an appellate remedy under s.16(e) of the NGT Act, as well asunder the provisions of s.2A of the FC Act, when read in the contextof circular dated 28.08.2015, it would be appropriate to grant libertyto the appellant to do so – The Tribunal was moved by the appellantby invoking the jurisdiction under s.14, under which it hasjurisdiction to entertain civil cases where a substantial questionrelating to the environment, including enforcement of any legal rightrelating to the environment, is involved and such question arisesout of the implementation of the enactments specified in Schedule I– The enactments which are specified in Schedule I include the FCAct – Thus, where a substantial question relating to the environmentis raised involving the implementation of the FC Act, even the originaljurisdiction of the Tribunal under s.14 could have been invoked –Tribunal was not justified in rejecting the application filed by theappellants under s.14 by observing that the appellant was attemptingto circumvent the remedy of an appeal under s.16 – Tribunal isdirected to pass a reasoned order on merits – Appeal be listed beforethe Tribunal on the next working day after the filing of the appealby the appellant – Appellant would be at liberty to move the Tribunalfor interim orders – Forest (Conservation) Act, 1980 – s.2.

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970SUPREME COURT REPORTS

ADisposing of the appeals, the Court

HELD: 1. Section 16(e) stipulates that a person aggrievedby an order or decision made (after the commencement of theNGT Act) by the State Government or other authority underSection 2 of the FC Act, may prefer an appeal to the TribunalBwithin a period of thirty days. Hence, on a plain reading of theprovisions of Section 16(e), it is evident that the right to anappellate remedy arises upon an order or decision being madeby the State Government or any other authority under theprovisions of Section 2 of the FC Act. Apart from the provisionsof Section 16(e), Section 2A of the FC Act provides a remedy ofCan appeal to the Tribunal to a person aggrieved by an order ordecision of the State Government or other authority under Section2. Section 2A of the FC Act is pari materia with Section 16(e) ofthe NGT Act. Section 2(ii) of the FC Act stipulates that no StateGovernment or other authority shall make, except with the prior

Dapproval of the Central Government, any order directing, interalia, that “any forest land or any portion thereof may be used forany non-forest purpose”. The provisions of Section 2, therefore,contemplate the passing of an order by the State Governmentwith the prior approval of the Central Government so as to, interalia, permit the conversion or use of forest land for non-forestEpurpose. Therefore, unless an order has been passed or a decisionis made, the appellate remedy before the Tribunal would not beavailable. [Para 8][977-F-H; 978-A-C]

2. A circular dated 28 August 2015 was issued by theMoEF&CC to prescribe a simplified procedure for the grant ofFpermissions for felling of trees standing on forest land to bediverted for the execution of linear projects. Clause (i) ofparagraph 2 of the circular indicates that in order to facilitate theexpeditious execution of projects involving linear diversion offorest land, including laying of new roads, an in-principle approvalGof the Central Government under the FC Act would be deemedas working permission for tree cutting and commencement ofwork subject to certain conditions. These conditions include: (i)the provision of fund for compensatory afforestation; (ii) netpresent value; (iii) a wildlife conservation plan; (iv) plantation of H

species and plants; (v) all such other compensatory leviesspecified in the in-principle approval being realized; and (vi)transfer and mutation of non-forest land in favour of the StateForest Department. The subsequent stipulation in the circular,however, indicates that no non-forest activity in a forest area (whichis covered under Section 2 of the FC Act) would be “permittedand carried out” unless an order has been passed by thecompetent authority of the State Government, and is placed inthe public domain by putting it on its website. [Paras 9, 10][980-C-F; 978-C-D]

3. The grievance of the appellant before this Court is thatthe permission for tree felling dated 27 August 2021 was notplaced in the public domain, as mandated by the circular dated 28August 2015. On the contrary, when an application for disclosureof information was moved under the RTI Act to the DFO on 11September 2021, the response on 11 October 2021 was that noorder had been passed for permitting the felling of trees. Yet thesame officer, namely, the DFO Dehradun, had passed an orderon 27 August 2021 granting the permission for the felling of trees,which was annexed to an application for additional documentsfiled by the respondents for the first time in this Court. The DFOhas misled the appellants by furnishing incorrect information inresponse to the RTI query. The permission for felling trees hasto be placed in the public domain, which again, according to theappellant, was not done. The purpose of placing the permissionin the public domain is to ensure that persons aggrieved wouldhave a right to challenge it. There is no rebuttal to this grievanceof the appellant. A veil of secrecy does not portend well forenvironmental clearances, since it takes away the right fromindividuals to challenge them using legal remedies. In themeantime, 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.[Para 4][980-F-H; 981-A-C]

H.P. Bus-Stand Management & Development Authorityv. Central Empowered Committee (2021) 4 SCC 309 –relied on.

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A4. The fact of the matter as it stands today is that thepermission granted by the DFO for felling of trees has been placedon record in the form of a letter dated 27 August 2021. In termsof the provisions contained in the circular dated 28 August 2021,the order for tree cutting and commencement of work of linearprojects is to be treated as an order under Section 2 of the FCBAct. Evidently, therefore, the order dated 27 August 2021 isamenable to the remedy of an appeal, which would now lie beforethe Tribunal under Section 16(e) of the NGT Act. That an appeallies before the Tribunal is clarified by the terms of the circularitself. In view of the availability of an appellate remedy, theCappellant has stated that it would be willing to pursue the remedyof an appeal which lies before the Tribunal in terms of theprovisions which have been noticed above. However, it has beenurged that until the appeal is disposed of by the Tribunal, a stayof further activities of tree felling ought to be granted.[Para 12][982-A-D]D

5. Since the order dated 27 August 2021 is amenable to anappellate remedy under Section 16(e) of the NGT Act, as well asunder the provisions of Section 2A of the FC Act, when read inthe context of circular dated 28 August 2015, it would beappropriate to grant liberty to the appellant to do so. [Para 14]E[982-E-F]

6. While the remedy of filing an appeal to the appellant hasbecome available as a result of the supervening developmentswhich have taken place during the pendency of the presentproceedings, namely the order dated 27 August 2021 being placedFon the record of this Court, we must express our view in regardto the reasons which weighed with the Tribunal in rejecting theoriginal application. The Tribunal was moved by the appellant byinvoking the jurisdiction under Section 14, under which it hasjurisdiction to entertain civil cases where a substantial questionGrelating to the environment, including enforcement of any legalright relating to the environment, is involved and such questionarises out of the implementation of the enactments specified inSchedule I. The enactments which are specified in Schedule Iinclude the FC Act. Thus, where a substantial question relatingto the environment is raised involving the implementation of theHFC Act, even the original jurisdiction of the Tribunal under Section 14 could have been invoked. The Tribunal was not justified inrejecting the application filed by the appellants under Section14 by observing that the appellant was attempting to circumventthe remedy of an appeal under Section 16. [Paras 15, 16][982-F-H; 983-A-B]

Vimal Bhai v. Union of India 2012 SCC OnLine NGT77 – referred to.

7. The Tribunal rejected the application filed by theappellants also on the ground that as far as linear projects areconcerned, a simplified procedure is applicable and a Stage-Iapproval itself is considered as working permission for the cuttingof trees. Hence, the Tribunal held that if the approval has beenvalidly granted, this would not be treated as a violation of law. Atthat stage before the Tribunal, the order for permitting the fellingof trees, which was passed on 27 August 2021 by the DFO, hadnot 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 thechallenge to the Stage-I clearance by the invocation of the remedyunder Section 14. Original Application is restored to the file ofthe Tribunal for a decision afresh. In addition, liberty is grantedto the appellant to challenge the permission which has beengranted for the felling of trees by the DFO on 27 August 2021, interms of the provisions of Section 16(e) of the NGT Act read withthe provisions of Section 2A of the FC Act (together with thecontents of the circular dated 28 August 2015). [Paras 17, 18][983-D-H]

Case Law Reference

Case Law Reference

(2021) 4 SCC 309relied onPara 11

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.6497-6498 of 2021.

From the Judgment and Order dated 06.10.2021 of the NationalGreen Tribunal, Principal Bench, New Delhi in Original ApplicationNo.240 of 2021 with IA No.180 of 2021.

Ms. Anitha Shenoy, Sr. Adv., Ritwick Dutta, Ms. Srishti Agnihotri,Ms. Aarti Krupa Kumar, Ms. Sanjana Grace Thomas, Advs. for theAppellant.

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AK. K. Venugopal, AG, Ms. Aishwarya Bhati, ASG, AnmolChandan, Ms. Chinmayee Chandra, Ankur Talwar, Ms. Swati Ghildiyal,Gurmeet Singh Makker, Ms. Madhu Sweta, Ms. Raveena Dewan, Ms.Astha Tyagi, Dinesh Chander Trehan, Advs. for the Respondents.

The Judgment of the Court was delivered byBDR. DHANANJAYA Y CHANDRACHUD, J.

1. The appellant had earlier moved a petition under Article 32 ofthe Constitution - Writ Petition No 529 of 2021 - to challenge: (i) theStage-I Forest Clearances dated 29 September 2020 and 24 December2020 issued by the Ministry of Environment, Forest and Climate Change[1]Cin respect of the stretches of road forming a part of National HighwayNo 72A in Uttarakhand and Uttar Pradesh; and (ii) the Wildlife Clearancedated 5 January 2021 issued by the Standing Committee of the NationalBoard for Wildlife. Noting that the primary challenge was to the Stage-I Forest Clearances, this Court by its order dated 7 September 2021reserved the liberty of the appellants to adopt appropriate proceedingsDby moving the National Green Tribunal[2] to challenge the Stage-I ForestClearances. Directions were also issued, granting permission to theappellant to challenge the Wildlife Clearance at the appropriate stage.

2. Following the order of this Court, the appellant moved theTribunal in Original Application No 240 of 2021, invoking its jurisdictionEunder Section 14(1) of the National Green Tribunal Act 2010[3]. TheTribunal by its order dated 6 October 2021 declined to entertain thechallenge, primarily on the ground that the appellants had attempted to‘circumvent’ its appellate jurisdiction under section 16 by invoking itsoriginal jurisdiction under Section 14 instead. The reasons which havebeen adduced by the Tribunal are contained in the following extractFfrom its judgment:

“6. We have heard learned Counsel. We find no justification toentertain the application, circumventing the remedy of appeal.Further, the applicant itself has mentioned that as far as linearprojects are concerned, simplified procedure is applicable. Stage-GI approval itself is considered as working permission for cuttingof trees. Thus, if the approval has been validly granted, the cuttingof trees in the scope of permission so granted will not be treated 1 “MoEF&CC”2 “the Tribunal”“the Tribunal”H3 “NGT Act”

2 “the Tribunal”“the Tribunal”

as violation of law. In absence of challenge to the grant of EC,submission that EC has been wrongly granted or that the reportson the basis of which EC has been granted are factually incorrectcannot be gone into. The project is for upgradation and expansionof road, also involving some constructions. There is no reason topresume that laid down standards and precautions for roadconstructions will not be followed. There is no material to showany such violation. If any such violations are found, the same canalways be challenged in accordance with law.

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7. Undoubtedly, cutting of even a single tree is a matter of concern.Having regard to ecological services of the trees, all efforts haveto be made to protect every tree. At the same time, in certainsituations, cutting of trees is permissible under the law, with therequisite approval of the statutory authorities, subject to complianceof the statutory conditions, following all necessary safeguards,including afforestation and translocation wherever possible. In thepresent case, order granting FC lays down necessary conditions.No violation thereof is alleged. In these circumstances, no case ismade out for interference by this Tribunal. The application isdismissed.”

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3. Ms Anitha Shenoy, senior counsel appearing on behalf of theappellant submitted that:

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(i) An appeal lies to the Tribunal under Section 16(e) onlyagainst an order or decision made by the State Governmentor other authority under Section 2 of the Forest(Conservation) Act 1980[4]; F

(ii) The circular dated 28 August 2015 of the MoEF&CCFstipulates that in-principle approval granted under the FCAct by the Central Government may be deemed to be theworking permission for tree cutting and commencement ofwork if the funds for compensatory afforestation, netpresent value (NPV) and other conditions as stipulated inGthe in-principle approval are fulfilled by the user agency;

(iii) The above circular has been made in the context of projectsinvolving linear diversions of forests, such as laying of roadsamongst other activities; H

4 “FC Act”

A(iv)The circular, however, provides that no non-forest activityin the forest area covered under Section 2 of the FC Actwould be permitted and carried out in any manner, unlessan order has been passed by the competent authority of theState Government and placed in the public domain; and B(v)In the present case, as a matter of fact, no order for thefelling of trees was stated to have been placed in the publicdomain and hence, the grant of a Stage-I Forest Clearancein and of itself would not be amenable to the appellatejurisdiction of the Tribunal.

C4. Based on the above premises, it has been urged that the Tribunalwas not justified in dismissing the Original Application invoking theprovisions of Section 14 of the NGT Act, particularly when the viewwhich has been taken by the Tribunal in an earlier decision is that in theabsence of an order of the State Government under the provisions ofDSection 2 of the FC Act, no appeal would be maintainable.

5. In support of the above submissions, it has also been urged thaton 11 September 2021, an application was moved before the DivisionalForest Officer[5] under the Right to Information Act 2005[6], seeking aspecific disclosure of information on whether any permission for theEfelling of trees had been granted. The response of the DFO to the queryon 11 October 2021 was that no order for the felling of trees has beenissued. Yet, in the additional documents which have been filed in theseproceedings on behalf of the respondents, an order dated 27 August2021 of the DFO, permitting the felling of trees, has been placed on therecord. In this backdrop, it has been urged that it is inconceivable as toFhow the DFO, if he had granted the permission for felling of trees on 27August 2021, responded to the RTI query on 11 October 2021 by statingthat no permission has been granted. It has been submitted that anextensive exercise of tree cutting has been carried out without placingthe order dated 27 August 2021 in the public domain, despite the mandateGof the circular dated 28 August 2015. Hence, it was urged that as aresult, not only the appellant but the other parties have been precludedfrom moving the Tribunal in the exercise of its appellate jurisdiction.

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6. On the other hand, Mr K K Venugopal, learned Attorney Generalfor India appearing on behalf of the respondents has drawn attention ofthe Court to the following developments:

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(i) Both, the Stage-I Clearance which was issued on 23December 2020 and the Stage-II clearance which wasissued on 20 July 2021, have been placed on the website ofBthe MoEF&CC;

(ii) On 27 August 2021, the permission for logging of trees wasgranted by the DFO, which was annexed to the counter-affidavit filed in these proceedings by National HighwayAuthority of India; C

(iii) In the circumstances, the felling of trees has proceededafter the receipt of requisite clearances, namely, the Stage-I as well as Stage-II clearances and a specific permissionfor felling of trees, which was granted on 27 August 2021as contemplated in the circular dated 28 August 2015; D

(iv) Of the twenty kilometres corridor on the segment of NationalHighway No 72A between Ganeshpur and Dehradun, anelevated highway over 12 kilometres will be provided withunderpasses for wildlife. Hence, far from the projectdisturbing the wildlife in the area, the project as conceivedwould, in fact, ensure the safety of wildlife against accidentsof the kind that took place in the past on the highway.

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7. Hence, it has been urged by the Attorney General that a publicproject should not be injuncted once the requisite clearances have beenobtained.

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8. At the outset, while dealing with the rival submissions, it becomesnecessary to conceptualize the nature of the jurisdiction of the Tribunalunder Section 16 of the NGT Act. Section 16(e) stipulates that a personaggrieved by an order or decision made (after the commencement ofthe NGT Act) by the State Government or other authority under Section2 of the FC Act, may prefer an appeal to the Tribunal within a period ofthirty 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 ordecision being made by the State Government or any other authorityunder the provisions of Section 2 of the FC Act. Apart from the provisionsof Section 16(e), Section 2A of the FC Act provides a remedy of an G

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Aappeal to the Tribunal to a person aggrieved by an order or decision ofthe State Government or other authority under Section 2. Section 2A ofthe FC Act is pari materia with Section 16(e) of the NGT Act. Section2(ii) of the FC Act stipulates that no State Government or other authorityshall make, except with the prior approval of the Central Government,any order directing, inter alia, that “any forest land or any portion thereofBmay be used for any non-forest purpose”. The provisions of Section 2,therefore, contemplate the passing of an order by the State Governmentwith 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, theCappellate remedy before the Tribunal would not be available.

9. A circular dated 28 August 2015 was issued by the MoEF&CCto prescribe a simplified procedure for the grant of permissions for fellingof trees standing on forest land to be diverted for the execution of linearprojects. Paragraph 2 of the circular, insofar as it is material, is extractedDbelow:

“2. Accordingly, in supersession of this Ministry’s, said letter/guidelines of even number dated 7[th] May 2015, I am directed, tosay as below:

(i) With a view to facilitate speedy execution of projectsEinvolving linear diversion of forest land such as laying ofnew 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 deemedFas the working permission for tree cutting andcommencement of work, if the required funds forcompensatory afforesatation, net present value (NPV),wildlife conservation plan, plantation of dwarf species ofmedicinal plants, and all such other compensatory leviesspecified in the in-principle approval are realised from theGuser agency and where necessary, for compensatoryafforestation, transfer and mutation of non-forest/revenueforest land in favour of State Forest Department is affected;

(ii) After the afore-mentioned compensatory levies specifiedin the in-principle approval are realised from the user agencyHand where necessary, for compensatory afforestation, transfer and mutation of non-forest/revenue forest land infavour of State Forest Department is affected, the Stategovernment or a Senior Officer not below the Rank of aDivisional Forest Officer, having jurisdiction over the forestland proposed to be diverted, duly authorized in this behalfby the State Government shall pass an order for tree cuttingand commencement of work of a linear project in forestland for a period of one year. The Central Government mayextend the permission for one more year subject tosubmission of reasonable progress report from the StateGovernment as regards to the steps taken to comply withthe remaining conditions stipulated in the in-principleapproval.

(iii) No non-forest activity in the forest area that is coveredunder Section 2 of the FC Act would be permitted and carriedon in any manner whatsoever unless an order specified inpara (ii) above has been passed by the competent authorityof that State government and is placed in the public domainby putting it on its website and all other requirements inaccordance with law are complied with;

(iv) For the purpose of Section 2A of the FC Act and Section16 (e) of the National Green Tribunal Act, 2010 (NGT Act)the Order for tree cutting and commencement of work oflinear 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 Actand/or Section 16(e) of the NGT Act can be filed againstany such order specified in para (ii) above for tree cuttingand commencement of work of linear project in forest land;

(vi) In the event of filing of such appeal, it would be open forthe person aggrieved, to assail the order/clearance grantedby the Central Government under Section 2 of the FC Actwhich forms an integral part and sole basis of the orderspecified in para (ii) above;

(vii) The State Government and the project proponent shall takefurther action as has been stipulated by the Hon’bleNational Green Tribunal in their judgment dated November AB

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2012 in Appeal No 7/2012 to accord publicity and to ensureavailability in public domain of in-principle approval underthe FC Act accorded by the Central Government and theorder specified in para (iii) above. State Government andthe project proponent shall also ensure strict compliance ofother direction(s) contained in the said----.; A

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(viii) The State Governments, in such cases shall seek and obtainfrom the Central Government final/formal approval underthe FC Act for diversion of such forest land at the earliest,and in any case not later than five years from the date ofgrant of the in-principle approval.

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10. Clause (i) of paragraph 2 of the above circular indicates thatin order to facilitate the expeditious execution of projects involving lineardiversion of forest land, including laying of new roads, an in-principleapproval of the Central Government under the FC Act would be deemedas working permission for tree cutting and commencement of workDsubject to certain conditions. These conditions include: (i) the provisionof fund for compensatory afforestation; (ii) net present value; (iii) awildlife conservation plan; (iv) plantation of species and plants; (v) allsuch other compensatory levies specified in the in-principle approvalbeing realized; and (vi) transfer and mutation of non-forest land in favourEof the State Forest Department. The subsequent stipulation in the circular,however, indicates that no non-forest activity in a forest area (which iscovered under Section 2 of the FC Act) would be “permitted and carriedout” unless an order has been passed by the competent authority of theState Government, and is placed in the public domain by putting it on itswebsite.F

11. The grievance of the appellant before this Court is that thepermission for tree felling dated 27 August 2021 was not placed in thepublic domain, as mandated by the circular dated 28 August 2015. Onthe contrary, when an application for disclosure of information was movedunder the RTI Act to the DFO on 11 September 2021, the response onG11 October 2021 was that no order had been passed for permitting thefelling of trees. Yet the same officer, namely, the DFO Dehradun, hadpassed an order on 27 August 2021 granting the permission for the fellingof trees, which was annexed to an application for additional documentsfiled by the respondents for the first time in this Court. The DFO hasHmisled the appellants by furnishing incorrect information in response to the RTI query. The permission for felling trees has to be placed in thepublic domain, which again, according to the appellant, was not done.The purpose of placing the permission in the public domain is to ensurethat persons aggrieved would have a right to challenge it. There is norebuttal to this grievance of the appellant. A veil of secrecy does notportend well for environmental clearances, since it takes away the rightfrom individuals to challenge them using legal remedies. In the meantime,tree felling proceeded apace. This lack of transparency, leading to alack of accountability, is in stark contrast to the “environmental rule oflaw”, which is crucial for good governance. In H.P. Bus-StandManagement & Development Authority vs Central EmpoweredCommittee[7], a three Judge Bench of this Court of which one of us wasa 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 ofthe concept of the rule of law. But it includes specific featuresthat are unique to environmental governance, features which aresui generis. The environmental rule of law seeks to create essentialtools — conceptual, procedural and institutional to bring structureto the discourse on environmental protection…Significantly, itbrings attention to the rules, processes and norms followedby institutions which provide regulatory governance on theenvironment. In doing so, it fosters a regime of open,accountable and transparent decision making on concernsof the environment. It fosters the importance ofparticipatory governance — of the value in giving a voiceto those who are most affected by environmental policiesand public projects. The structural design of the environmentalrule of law composes of substantive, procedural and institutionalelements. The tools of analysis go beyond legal concepts. Theresult of the framework is more than just the sum total of itsparts. Together, the elements which it embodies aspire to safeguardthe bounties of nature against existential threats. For it is foundedon the universal recognition that the future of human existencedepends on how we conserve, protect and regenerate theenvironment today.”

(emphasis supplied)

7 (2021) 4 SCC 309

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A12. The fact of the matter as it stands today is that the permissiongranted by the DFO for felling of trees has been placed on record in theform of a letter dated 27 August 2021, as noticed above. In terms of theprovisions contained in the circular dated 28 August 2021, the order fortree cutting and commencement of work of linear projects is to be treatedas an order under Section 2 of the FC Act. Evidently, therefore, theBorder dated 27 August 2021 is amenable to the remedy of an appeal,which would now lie before the Tribunal under Section 16(e) of theNGT Act. That an appeal lies before the Tribunal is clarified by theterms of the circular itself. In view of the availability of an appellateremedy, the appellant has stated that it would be willing to pursue theCremedy of an appeal which lies before the Tribunal in terms of theprovisions which have been noticed above. However, it has been urgedthat until the appeal is disposed of by the Tribunal, a stay of furtheractivities of tree felling ought to be granted.

13. The request for the grant of an order of stay by this CourtDrestraining the felling of trees has been opposed on behalf of therespondent. Mr K K Venugopal, learned Attorney General urged thatany order of injunction at this stage would cause serious obstruction inthe implementation of the project and it should not be granted, particularlywhen requisite permissions have been obtained and necessary safeguardsare in place to protect the wildlife.E

14. Since the order dated 27 August 2021 is amenable to an appellateremedy under Section 16(e) of the NGT Act, as well as under theprovisions of Section 2A of the FC Act, when read in the context ofcircular dated 28 August 2015, it would be appropriate to grant liberty toFthe appellant to do so.

15. While the remedy of filing an appeal to the appellant has becomeavailable as a result of the supervening developments which have takenplace during the pendency of the present proceedings, namely the orderdated 27 August 2021 being placed on the record of this Court, we mustGexpress our view in regard to the reasons which weighed with the Tribunalin rejecting the original application. The Tribunal was moved by theappellant by invoking the jurisdiction under Section 14, under which ithas jurisdiction to entertain civil cases where a substantial question relatingto the environment, including enforcement of any legal right relating tothe environment, is involved and such question arises out of theH

implementation of the enactments specified in Schedule I. Theenactments which are specified in Schedule I include the FC Act. Thus,where a substantial question relating to the environment is raised involvingthe implementation of the FC Act, even the original jurisdiction of theTribunal under Section 14 could have been invoked.

16. The Tribunal was not justified in rejecting the application filedby the appellants under Section 14 by observing that the appellant wasattempting to circumvent the remedy of an appeal under Section 16.The Tribunal’s decision in the case of Vimal Bhai vs Union of India[8]has placed the matter beyond doubt, by noting that “[t]he cause of actionfor filing an Appeal would commence only from the date when suchpublication is made in the newspapers, as well as from the datewhen the forest clearance and permission to use the Forest land fornon-forest purpose is displayed in the website of the concernedState Government or the MoEF, as the case may be”. However, forthe sake of clarity, we have set the legal position at rest in the discussionin the earlier part of this judgment.

17. The Tribunal rejected the application filed by the appellantsalso on the ground that as far as linear projects are concerned, a simplifiedprocedure is applicable and a Stage-I approval itself is considered asworking permission for the cutting of trees. Hence, the Tribunal heldthat if the approval has been validly granted, this would not be treated asa violation of law. At that stage before the Tribunal, the order for permittingthe 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 theview 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 theimpugned judgment and order of the Tribunal dated 6 October 2021, andrestore Original Application No 240 of 2021 to the file of the Tribunal fora decision afresh. In addition, we also grant liberty to the appellant tochallenge the permission which has been granted for the felling of treesby the DFO on 27 August 2021, in terms of the provisions of Section16(e) of the NGT Act read with the provisions of Section 2A of the FCAct (together with the contents of the circular dated 28 August 2015).

8 2012 SCC OnLine NGT 77, paras 30-32

A

BC

D

E

F

G

H

A19. As regards the question of stay, we are inclined to grant somebreathing room to the appellant to move the Tribunal, so as to allow themto urge all the submissions which are available to them to challenge theorders for the felling of trees. We are at this stage desisting from makingany observation on the merits, so as not to preclude the rights andcontentions of the parties. However, in order to allow the appellant toBfile 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, wespecifically direct that the appellant shall, in order to place the nature oftheir objections beyond doubt, file brief written submissions before theCTribunal cataloguing their grounds of challenge. The Tribunal is directedto pass a reasoned order on the merits, with reference to each of thegrounds of challenge which is raised before it by the appellant in thecourse of their written submissions. In view of the fact that the orderdated 27 August 2021 has been placed on the record only during thecourse of the proceedings in this Court, we also direct that if the appealDis filed within a period of one week, the Tribunal shall entertain the appealon merits and shall not reject it on the ground of limitation. The appealshall be listed before the Tribunal on the next working day after the filingof the appeal by the appellant. The appellant would be at liberty to movethe Tribunal for interim orders.