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2018 Supreme(Cal) 238
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
JYOTIRMAY BHATTACHARYA, ARIJIT BANERJEE, JJ.
Association for Protection of Democratic Rights & Anr. - Appellant
Versus
The State of West Bengal & Ors. - Respondent
WP 5181(W), 12788(W) of 2017
Decided on : 31-08-2018
Advocate Appeared:
For the Appellant : Mr. Bikash Ranjan Bhattacharyya, Sr. Adv. Mr. Samim Ahammed, Adv. Ms. Nandini Mitra, Adv. Mr. Arka Maiti, Adv. Mr. Raghunath Chakraborty, Adv. Mr. Mahaboob Ahmed, Adv.
For the State : Mr. Kishore Dutta, Ld. A.G., Mr. Joytosh Majumdar, Ld. G.P. Mr. Pinaki Dhole, Adv. Mr. Abhishek Prasad, Adv. Mr. Rajat Dutta, Adv.
For the Respondent: Mr. Tapan Kumar Mukherjee, Adv. Mr. Nilotpal Chatterjee, Adv. Mr. Nilendra Narayan Roy, Adv. Mr. Manujendra Narayan Roy, Adv.
For the MOEF : Mr. Partha Ghosh, Adv.
For the NHAI : Mr. Dipankar Das, Adv.
The main legal point established in the judgment is the need to balance environmental protection and infrastructural development, as well as the importance of compensatory plantation in cases of tree felling.
Headnote:
Trees - Construction of Railway Over Bridge - West Bengal Trees (Protection and Conservation in Non Forest Areas) Act, 2006 - Sec. 21(2) - Environmental Impact Assessment - Sustainable Development - Compensatory Afforestation
Fact of the Case:
The case involved two Public Interest Litigations filed to restrain the authorities from felling trees for construction of Railway Over Bridge and for expansion of National Highway 112. The petitioners argued that the State authorities obtained permission for felling trees without complying with relevant provisions of the West Bengal Trees (Protection and Conservation in Non Forest Areas) Act, 2006 (the 2006 Act) and flouted the Environmental Impact Assessment requirement. The State argued that the 2006 Act was enacted keeping in mind Art. 48A of the Constitution and that the project would not violate the concept of sustainable development.
Finding of the Court:
The Court held that felling of trees for the public project was necessary, restricted to the specified number of trees, and the State was entitled to do so. The State was directed to carry out compensatory plantation of at least five trees for every tree felled in the same or nearby plot. The Court emphasized the importance of striking a balance between environmental protection and infrastructural development.
Issues: The main issue was whether the felling of trees for the public project violated the 2006 Act and the concept of sustainable development.
Ratio Decidendi: The Court found that the felling of trees was necessary for the public project and that the State was entitled to do so. It emphasized the importance of compensatory plantation and the need to strike a balance between environmental protection and infrastructural development.
Final Decision: The petitions were disposed of, and the State was directed to carry out compensatory plantation of at least five trees for every tree felled in the same or nearby plot. The case was to be listed for the State to file a compliance report on compensatory plantation.
ARIJIT BANERJEE, J.
1. These two Public Interest Litigations (in short ‘PIL’) have been filed essentially to restrain the respondent authorities from felling trees for construction of Railway Over Bridge (in short ‘ROB’) at Kazipara, Ashoknagar, Habra-I, Habra-II and Bongaon and for expansion of National Highway 112 i.e. Jessore Road. The main prayers in WP 12788(W) of 2017 are as follows:-
“(a)Issue a writ of or in the nature of mandamus commanding the respondents to set aside all purported permits dated July 22, 2016 by which permission was granted for felling trees for construction of Road Over Bridge at Kazipara, Ashoknagar, Habra-I, Habra-II and Bongaon;
(b) Issue writ of in the nature of Mandamus by directing the respondents to conduct Environmental Impact Assessment (EIA) in terms of the EIA notification of September 14, 2006 and its amendment dated December 1, 2009 before initiating the expansion work of National Highway 112 i.e. Jessore Road;
(c) Issue a writ of or in the nature of prohibition restraining the respondents from felling trees standing on the both side of National Highway No. 112 in between Barasat to Petrapole, North 24 Parganas;
(d) Issue a writ of or in the nature of mandamus commanding the respondents to carry on the expansion and/or widening of National Highway No. 112 in Between Barasat to Petrapole, North 24 Parganas in such a manner that trees standing thereon are not cut down illegally;”
Contention of the petitioners:-
2. Both the learned Counsel appearing for the petitioners in the two writ petitions mainly argued that permission has been obtained by the State respondents for felling trees for the purpose of constructing ROBs and expanding Jessore Road from the competent authority without complying with the relevant provisions of law. No Environment Impact Assessment has been carried out. The provisions of the West Bengal Trees (Protection and Conservation in Non Forest Areas) Act, 2006 (in short ‘the 2006 Act’) are being flouted. Mr. Bikash Ranjan Bhattacharyya, Ld. Sr. Counsel, referred to a letter dated 11 January, 2017 written by the Divisional Forest Officer, 24 Parganas (N) Division who is the competent authority under the 2006 Act, to the Executive Engineer, NH Division, No.-V, PW (Road), Directorate, Barasat informing that felling permission in respect of 4036 number of trees for widening NH-35 was extended by three months from the date of the said letter. The competent authority granted such permission without ensuring that the provisions of the 2006 Act are complied with. Mr. Raghunath Chakraborty, Learned Adv., appearing in support of the other writ petition referred to Rule 5(2) of the West Bengal Trees (Protection and Conservation in Non Forest Areas) Rules, 2007 (in short ‘the 2007 Rules’) and submitted that no certificate of clearance was obtained by the respondent authorities from the competent authority prior to the said authorities granting permission to fell huge number of trees as is mandatorily required under the 2007 Rules. Both the learned Counsel extensively referred to the Special Officer’s report dated 17 August, 2017 filed in this Court pursuant to this Court’s order dated 25 July, 2017. By the said order Joint Special Officers were appointed for holding local inspection of the area in question and for filing a report in this Court indicating whether:
(a) the trees which have been identified for felling are in accordance with the species mentioned in the affidavit filed by Vinod Kumar Singh on behalf of the State on 12th June, 2017 at pages 19 to 28;
(b) the number marked on the trees to be felled are in accordance with the list annexed to the affidavit;
(c) the site for the compensatory plantation tallies with the site indicated in the affidavit of Vinod Kumar Singh;
(d) the distance between the trees is in accordance with the concerned guidelines;
(e) the number of trees to be planted will be in accordance with the 2006 Act and the 2007 Rules framed thereunder;
(f) the
