Supreme Court clarifies the appellate jurisdiction of the National Green Tribunal in forest clearance cases: Citizens for Green Doon vs. Union of India (2021) INSC 709 (16 November 2021)

Introduction

Date of the Judgment: 16 November 2021

Citation: (2021) INSC 709

Judges: Dr Dhananjaya Y Chandrachud, J, Surya Kant, J, and Vikram Nath, J

Can a forest clearance be challenged directly before the National Green Tribunal (NGT), or must an appeal be filed first? The Supreme Court of India recently addressed this critical question in a case concerning the felling of trees for a highway project. The court clarified the appellate jurisdiction of the NGT in matters related to forest clearances, emphasizing the importance of transparency and adherence to the “environmental rule of law”. This judgment was authored by Dr. Dhananjaya Y Chandrachud, J, with a bench comprising of Surya Kant, J, and Vikram Nath, J.

Case Background

The case originated from a challenge by the appellant, “Citizens for Green Doon,” against the Stage-I Forest Clearances granted by the Ministry of Environment, Forest and Climate Change (MoEF&CC) for a road project on National Highway No 72A in Uttarakhand and Uttar Pradesh. The appellant also challenged the Wildlife Clearance issued by the National Board for Wildlife. Initially, the appellant had filed a writ petition before the Supreme Court, which directed them to approach the National Green Tribunal (NGT) regarding the Stage-I Forest Clearances. The appellant then filed an Original Application before the NGT under Section 14(1) of the National Green Tribunal Act 2010.

Timeline:

Course of Proceedings

The National Green Tribunal (NGT) declined to entertain the challenge, stating that the appellant was trying to circumvent its appellate jurisdiction under Section 16 of the National Green Tribunal Act 2010 by invoking its original jurisdiction under Section 14. The NGT reasoned that Stage-I approval is considered working permission for cutting trees, and if validly granted, cutting trees within the scope of the permission is not a violation of law. The NGT also noted that no violation of the conditions of the forest clearance was alleged. The appellant then appealed to the Supreme Court.

Legal Framework

The Supreme Court considered the following legal provisions:

• Section 14(1) of the National Green Tribunal Act 2010: This section grants the NGT original jurisdiction to hear cases involving a substantial question relating to the environment arising out of the implementation of the enactments specified in Schedule I, which includes the Forest (Conservation) Act 1980.
• Section 16(e) of the National Green Tribunal Act 2010: This section provides for an appeal to the NGT against an order or decision made by the State Government or other authority under Section 2 of the Forest (Conservation) Act 1980.
• Section 2 of the Forest (Conservation) Act 1980: This section stipulates that no State Government or other authority shall make any order directing that any forest land or any portion thereof may be used for any non-forest purpose, except with the prior approval of the Central Government.
• Section 2A of the Forest (Conservation) Act 1980: This section provides a remedy of an appeal to the Tribunal to a person aggrieved by an order or decision of the State Government or other authority under Section 2 of the FC Act.

The court noted that the appellate remedy under Section 16(e) of the NGT Act and Section 2A of the FC Act arises only when an order or decision is made by the State Government or other authority under Section 2 of the FC Act. The Court also discussed the circular dated 28 August 2015 issued by the MoEF&CC, which provides a simplified procedure for granting permissions for felling trees for linear projects.

According to the circular, in-principle approval under the FC Act may be deemed as working permission for tree cutting if certain conditions are met. However, no non-forest activity is permitted unless an order is passed by the State Government and placed in the public domain. The circular specifies that the order for tree cutting is considered an order under Section 2 of the FC Act, against which an appeal can be filed under Section 2A of the FC Act and/or Section 16(e) of the NGT Act.

Arguments

Appellant’s Submissions:

• The appellant argued that an appeal under Section 16(e) of the NGT Act lies only against an order or decision made by the State Government or other authority under Section 2 of the Forest (Conservation) Act 1980.
• They contended that the circular dated 28 August 2015 of the MoEF&CC stipulates that in-principle approval granted by the Central Government may be deemed as working permission for tree cutting, but only if an order for felling of trees is passed by the State Government and placed in the public domain.
• The appellant submitted that in this case, no order for the felling of trees was placed in the public domain. Therefore, the grant of Stage-I Forest Clearance was not amenable to the appellate jurisdiction of the NGT.
• The appellant also highlighted that the Divisional Forest Officer (DFO) had initially denied granting permission for felling of trees in response to an RTI query, while an order dated 27 August 2021 permitting the felling of trees was later produced by the respondents.

Respondents’ Submissions:

• The respondents argued that both the Stage-I and Stage-II clearances were placed on the website of the MoEF&CC.
• They submitted that the permission for logging of trees was granted by the DFO on 27 August 2021, which was annexed to their counter-affidavit.
• The respondents contended that the felling of trees proceeded after the receipt of requisite clearances and a specific permission for felling of trees as contemplated in the circular dated 28 August 2015.
• They also argued that the project includes an elevated highway with underpasses for wildlife, ensuring the safety of wildlife.
• The Attorney General argued that a public project should not be injuncted once the requisite clearances have been obtained.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issues that the court addressed were:

1. Whether the National Green Tribunal (NGT) was correct in dismissing the original application filed by the appellant under Section 14 of the National Green Tribunal Act 2010.
2. Whether the Stage-I forest clearance can be challenged directly before the NGT without an order from the State Government under Section 2 of the Forest (Conservation) Act 1980.
3. Whether the order for tree felling dated 27 August 2021, which was not placed in the public domain, is amenable to the appellate jurisdiction of the NGT.

Treatment of the Issue by the Court:

Authorities

The Court considered the following authorities:

• Vimal Bhai vs Union of India, 2012 SCC OnLine NGT 77: The NGT held that the cause of action for filing an appeal commences from the date of publication of the forest clearance and permission to use the forest land for non-forest purposes in the newspapers and on the website of the concerned State Government or the MoEF.
• H.P. Bus-Stand Management & Development Authority vs Central Empowered Committee, (2021) 4 SCC 309: The Supreme Court discussed the concept of the “environmental rule of law,” emphasizing transparency and accountability in environmental governance.

The Court also considered the following legal provisions:

• Section 14(1) of the National Green Tribunal Act 2010: Grants original jurisdiction to the NGT.
• Section 16(e) of the National Green Tribunal Act 2010: Provides for appeals to the NGT.
• Section 2 of the Forest (Conservation) Act 1980: Requires prior approval of the Central Government for using forest land for non-forest purposes.
• Section 2A of the Forest (Conservation) Act 1980: Provides a remedy of an appeal to the Tribunal to a person aggrieved by an order or decision of the State Government or other authority under Section 2 of the FC Act.

The Court also discussed the circular dated 28 August 2015 issued by the MoEF&CC, which provides a simplified procedure for granting permissions for felling trees for linear projects.

Authorities Table

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Vimal Bhai vs Union of India, 2012 SCC OnLine NGT 77: The Court cited this case to support the view that the cause of action for filing an appeal commences from the date of publication of the forest clearance.
• H.P. Bus-Stand Management & Development Authority vs Central Empowered Committee, (2021) 4 SCC 309: The Court relied on this case to emphasize the importance of transparency and accountability in environmental governance, highlighting the “environmental rule of law”.
• Section 14(1) of the National Green Tribunal Act 2010: The Court used this provision to highlight the original jurisdiction of the NGT and stated that the NGT was wrong in rejecting the application under this provision.
• Section 16(e) of the National Green Tribunal Act 2010: The Court used this provision to define the appellate jurisdiction of the NGT.
• Section 2 of the Forest (Conservation) Act 1980: The Court used this provision to highlight the requirement of prior approval for using forest land for non-forest purposes.
• Section 2A of the Forest (Conservation) Act 1980: The Court used this provision to highlight the remedy of an appeal to the Tribunal to a person aggrieved by an order or decision of the State Government or other authority under Section 2 of the FC Act.
• Circular dated 28 August 2015: The Court relied on this circular to explain the simplified procedure for granting permissions for felling trees for linear projects and the requirement of public disclosure.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Transparency and Public Disclosure: The Court emphasized the importance of transparency in environmental clearances and the need for orders permitting tree felling to be placed in the public domain, as mandated by the circular dated 28 August 2015. The DFO’s failure to disclose the order dated 27 August 2021 and the misleading response to the RTI query were significant factors.
• Environmental Rule of Law: The Court reiterated the principles of the “environmental rule of law,” which requires open, accountable, and transparent decision-making on environmental concerns. This principle was crucial in the Court’s assessment of the case.
• Accessibility of Legal Remedies: The Court noted that the purpose of placing the permission in the public domain is to ensure that persons aggrieved would have a right to challenge it. The lack of transparency had precluded the appellant from moving the Tribunal in the exercise of its appellate jurisdiction.
• Correct Interpretation of Legal Provisions: The Court clarified the scope of appellate jurisdiction of the NGT under Section 16(e) of the NGT Act and Section 2A of the FC Act, stating that it arises only when an order or decision is made by the State Government or other authority under Section 2 of the FC Act.
• Original Jurisdiction of NGT: The Court also clarified that the NGT has original jurisdiction under Section 14 of the NGT Act, which could have been invoked in this case, and that the NGT was wrong in rejecting the application on the ground that the appellant was attempting to circumvent the appellate jurisdiction.

The court’s reasoning was a blend of factual considerations related to the lack of transparency and legal interpretations of the relevant statutes and circulars.

Logical Reasoning

Judgment

The Supreme Court allowed the appeals and set aside the impugned judgment and order of the Tribunal dated 6 October 2021. The Court restored Original Application No 240 of 2021 to the file of the Tribunal for a decision afresh. The Court also granted liberty to the appellant to challenge the permission for the felling of trees granted by the DFO on 27 August 2021, in terms of the provisions of Section 16(e) of the NGT Act read with the provisions of Section 2A of the FC Act.

The Court also issued an interim order restraining further felling of trees until 26 November 2021, to allow the appellant to file an appeal before the Tribunal. The Court directed the appellant to file brief written submissions before the Tribunal cataloguing their grounds of challenge. The Tribunal was directed to pass a reasoned order on the merits, with reference to each of the grounds of challenge raised by the appellant. The Court also directed that if the appeal is filed within a period of one week, the Tribunal shall entertain the appeal on merits and shall not reject it on the ground of limitation.

The Court emphasized the importance of transparency and accountability in environmental clearances, stating that “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.” The Court also highlighted the need for adherence to the “environmental rule of law,” which “seeks to create essential tools — conceptual, procedural and institutional to bring structure to the discourse on environmental protection.” The Court further noted that “the future of human existence depends on how we conserve, protect and regenerate the environment today.”

The Court clarified that the appellate remedy before the Tribunal would be available only when an order has been passed or a decision is made under Section 2 of the FC Act. The Court also clarified that the NGT was wrong in rejecting the application under Section 14 of the NGT Act.

Key Takeaways

• Transparency in Environmental Clearances: Orders for tree felling must be placed in the public domain to ensure transparency and accountability.
• Appellate Jurisdiction of NGT: An appeal to the NGT under Section 16(e) of the NGT Act and Section 2A of the FC Act lies only against an order or decision made by the State Government or other authority under Section 2 of the FC Act.
• Original Jurisdiction of NGT: The NGT has original jurisdiction under Section 14 of the NGT Act to hear cases involving a substantial question relating to the environment.
• Environmental Rule of Law: The “environmental rule of law” requires open, accountable, and transparent decision-making on environmental concerns.
• Interim Relief: The Supreme Court can grant interim relief to protect environmental interests while legal proceedings are ongoing.

Directions

The Supreme Court issued the following directions:

• The impugned judgment and order of the Tribunal dated 6 October 2021 was set aside, and Original Application No 240 of 2021 was restored to the file of the Tribunal.
• The appellant was granted liberty to challenge the permission for the felling of trees granted by the DFO on 27 August 2021, in terms of the provisions of Section 16(e) of the NGT Act read with the provisions of Section 2A of the FC Act.
• An interim order was issued restraining further felling of trees until 26 November 2021.
• The appellant was directed to file brief written submissions before the Tribunal cataloguing their grounds of challenge.
• The Tribunal was directed to pass a reasoned order on the merits, with reference to each of the grounds of challenge raised by the appellant.
• If the appeal is filed within a period of one week, the Tribunal shall entertain the appeal on merits and shall not reject it on the ground of limitation.

Development of Law

The ratio decidendi of this case is that an order for tree cutting and commencement of work of linear projects, as specified in the circular dated 28 August 2015, is to be treated as an order under Section 2 of the Forest (Conservation) Act 1980, and is thus amenable to the appellate jurisdiction of the National Green Tribunal (NGT) under Section 16(e) of the NGT Act and Section 2A of the FC Act. The Court also clarified that the NGT has original jurisdiction under Section 14 of the NGT Act to hear cases involving a substantial question relating to the environment, and that the NGT was wrong in rejecting the application on the ground that the appellant was attempting to circumvent the appellate jurisdiction.

This judgment clarifies the appellate jurisdiction of the NGT in cases involving forest clearances and emphasizes the importance of transparency and adherence to the “environmental rule of law.” It also highlights the need for public disclosure of orders related to tree felling and provides clarity on the interpretation of the circular dated 28 August 2015.

Conclusion

The Supreme Court’s judgment in Citizens for Green Doon vs. Union of India clarifies the appellate jurisdiction of the National Green Tribunal (NGT) in cases involving forest clearances. The Court emphasized the importance of transparency and adherence to the “environmental rule of law,” holding that orders for tree felling must be placed in the public domain. The Court clarified that the appellate remedy before the NGT is available only when an order has been passed or a decision is made under Section 2 of the Forest (Conservation) Act 1980. The Court also clarified that the NGT was wrong in rejecting the application under Section 14 of the NGT Act. This judgment underscores the significance of transparency and accountability in environmental governance and provides a clear framework for challenging forest clearances.