Case BriefsHigh Courts

“Without adherence to sustainable development, life of future generations will be in jeopardy”

Calcutta High Court: A Division Bench comprising of CJ Jyotirmay Bhattacharya and Arijit Banerjee, J., addressed PILs concerning the felling of trees due to the construction of ‘Railway Over-Bridgealong with expansion of ‘National Highway 112’.

The present petition was filed against the State to obtain restraining orders against them for felling of trees for the purpose of constructing ROBs and expanding National Highway 112. The contentions submitted by the petitioner was that the required permissions which have been obtained by the respondents were granted to them without the compliance of provisions of law along with no Environment Impact Assessment being carried out.

It has been alleged that the provisions of West Bengal Trees (Protection and Conservation in Non-Forest Areas) Act, 2006 have been flouted too. Further, it was stated large number of Mehogini trees were proposed to be felled, but no permission was obtained for the same. While referring to Sriram Saha v. State of W.B., 1998 SCC OnLine Cal 404, it was observed that the decision called for State legislature to promulgate the 2006 Act. Further, the counsel submitted that the “entire process was carried out in a perfunctory manner” and the requirements of law were given a complete go-bye.  Intellectuals Forum, Tirupathi v. State of A.P., (2006) 3 SCC 549, it was cited in regard to “Duty of the State Respondents to protect the environment and the concept of sustainable development”.

The High Court while concluding its decision on intensive consideration of the contentions of the parties along with the facts of the case and primarily focussing on the importance of sustainable development in its true sense stated that to promote and ensure sustainable development is one of the objects of the 2006 Act. Necessary permission has to be obtained from the competent authority and such permission needs to be granted only after proper enquiry. The Court stated that Section 9(2) of the above mentioned Act imposes an obligation on a developer to carry out compensatory plantation within such period as may be specified in the certificate of clearance before the developing project is initiated and in the present matter it has been analyzed through the provisions that State is not a developer within the meaning of Section 9 of the Act.

Therefore, Section 8 of the Act being applied in the matter would require the State to plant two trees for every felled one, for which the State has stated that it would plant 5 for every tree felled. Felling of 356 trees is necessary for implementing important public project of constructing ROBs and simultaneously respondent shall carry compensatory plantation. The Judgment and order have been stayed as it was challenged by the petitioners for a period of 3 weeks. [Assn. for Protection of Democratic Rights v. State of W.B.,2018 SCC OnLine Cal 5898, decided on 31-08-2018]

Case BriefsHigh Courts

Bombay High Court: In an highly structured and ornate decision concerning the deficiencies of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 placed in the form of a PIL, the Division Bench comprising of A.S. Oka and Riyaz.I.Chagla, JJ., have remarkably given the explanation on the objects of enacting the Trees Act, which clearly is a leading path towards the growth of trees rather than the destruction in urban areas.

The focal point of addressing the present PIL was the challenge placed by the petitioners on the validity of the amendment to the Trees Act. The talked about PIL in this case constitutes two petitions and the authorities involved in them are “Municipal Corporation of Greater Mumbai” and “Municipal Corporation of City of Thane”. The challenge in both the petitions is to the sub-section (6) added in Section 8 of the Trees Act and there is a challenge to the constitutional validity of the said provision on the ground of violation of Articles 14 and 21 of the Constitution of India.

The first and foremost submission posed by the petitioners was that in regard to the constitution of the Tree Authority and the kind of mindless decision making process they have adopted towards granting the felling of trees. Her contention is that the entire process is vitiated by illegality due to which they cannot be allowed to function. The next submission was made in regard to the primary challenge of the PIL which concerns sub-section (6) of Section 8, in which she states that, the said provision is arbitrary in nature and has no nexus with the purpose or object sought to be achieved and it certainly violates Article 14 of the Constitution of India. Along with the mentioned contentions, the other concern was that of the violation of a Fundamental Right of citizen under Article 21 of the Constitution of India due to the manner of exercise of power by the Municipal Commissioner under the above mentioned sub-section.

Further, even in the other writ, petitioner posed a similar issue by challenging his submission to sub-section (6) of Section 8 by stating that intelligible differentia is not present for the classification under the said sub-section which clearly carves the vagueness and ambiguity due to complete absence of guidelines.

Noting all the contentions posed by the petitioners and prioritising the issue by issuing various directions towards the alarming issue of decisions being taken for felling of trees by the authorities acting in an arbitrary manner, the Hon’ble High Court of Bombay has taken care of the issues by limiting the powers of the Municipal Commissioner by making the authorities a little more diligent towards the issue of felling of trees and therefore, allowing the citizens to appeal against such decisions. [Rohit Manohar Joshi v. Tree Authority, Thane; PIL No. 119 of 2017, dated 23.04.2018]