JUDGMENT :

Dhananjaya Y Chandrachud, J.

1. The appellant had earlier moved a petition under Article 32 of the Constitution -Writ Petition No 529 of 2021 -to challenge: (i) the Stage-I Forest Clearances dated 29 September 2020 and 24 December 2020 issued by the Ministry of Environment, Forest and Climate Change¹[“MoEF&CC”] in respect of the stretches of road forming a part of National Highway No 72A in Uttarakhand and Uttar Pradesh; and (ii) the Wildlife Clearance dated 5 January 2021 issued by the Standing Committee of the National Board for Wildlife. Noting that the primary challenge was to the Stage-I Forest Clearances, this Court by its order dated 7 September 2021 reserved the liberty of the appellants to adopt appropriate proceedings by moving the National Green Tribunal²[“the Tribunal”] to challenge the Stage-I Forest Clearances. Directions were also issued, granting permission to the appellant to challenge the Wildlife Clearance at the appropriate stage.

2. Following the order of this Court, the appellant moved the Tribunal in Original Application No 240 of 2021, invoking its jurisdiction under Section 14(1) of the National Green Tribunal Act 2010³[“NGT Act”]. The Tribunal by its order dated 6 October 2021 declined to entertain the challenge, primarily on the ground that the appellants had attempted to ‘circumvent’ its appellate jurisdiction under section 16 by invoking its original jurisdiction under Section 14 instead. The reasons which have been adduced by the Tribunal are contained in the following extract from its judgment:

“6. 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.

7. 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.”

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

(i) An appeal lies to the Tribunal under Section 16(e) only against an order or decision made by the State Government or other authority under Section 2 of the Forest (Conservation) Act 1980⁴[“FC Act”];

(ii) The circular dated 28 August 2015 of the MoEF&CC stipulates that in- principle approval granted under the FC Act by the Central Government may be deemed to be the working permission for tree cutting and commencement of work if the funds for compensatory afforestation, net present value (NPV) and other conditions as stipulated in the in principle approval are fulfilled by the user agency;

(iii) The above circular has been made in the context