The Bombay High Court asked the Petitioners to approach the State Expert Appraisal Committee-III (SEAC-III) / State Environment Impact Assessment Authority (SEIAA) wherever the matter relating the amendment in the Environmental Clearance (EC) in relation to the River Front Development Project in question is pending.
The Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S. Doctor disposed a Public Interest Litigation (PIL) filed with the following prayers:-
“a. That this Hon’ble Court be pleased to issue a Writ of Declaration or any other appropriate writ, order or direction declaring the Maharashtra Act No. XLIII of 2023 which received the assent of the Governor on 25th August 2023 as ultra vires Article 14 and 21 of the Constitution of India and the Maharashtra (Urban Areas) Protection and Preservation of Tress Act, 1975;
b. This Hon’ble Court be pleased to issue a Writ of Mandamus or any other writ, order or direction in the nature of Mandamus, directing the Respondent No.1 to cancel the project which requires the felling/ transplanting of trees.
c. That this Hon’ble Court may be pleased to issue a Writ of Mandamus or any other writ, order or direction in the nature of a Mandamus restraining the Respondent No.2 from giving any permission for the cutting/transplanting of trees for the River Front Development Project and from taking any action on the proposal dated 6th June 2023 sent by the Project Department;
d. This Hon’ble Court be pleased to issue a Writ of Mandamus or any other writ, order or direction in the nature of Mandamus, directing the Respondent No.1 and 2 to forthwith cease and recall any process it has undertaken for applying for permission for cutting and transplanting trees under the Maharashtra (Urban Areas) Protection and Preservation of Tress Act, 1975 for the River Front Development Project in Pune City;
e. Pending hearing and final disposal of the Petition to stay the operation and implementation of Maharashtra Act No. XLIII of 2023;
f. Pending hearing and final disposal of the Petition restraining the Respondent No.2 from giving any permission for the cutting/transplanting of trees for the River Front Development Project and from taking any action on the proposal dated 6th June 2023 sent by the Project Department;
g. Pending hearing and final disposal of the Petition direct the Respondent No.1 and 2 to forthwith cease and recall any process it has undertaken for applying for permission for cutting and transplanting trees under the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 for the River Front Development Project in Pune City”.
A challenge has been made to Section 2 of the Maharashtra (Urban Areas) Protection and Preservation of Trees (Amendment) Act, 2023 (Mah. Act. No. XLIII of 2023) , whereby Clauses (iii) and (iv) in Section 6A of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 have been deleted.
Section 6A of the Principal Act which was inserted by Maharashtra (Urban Areas) Protection and Preservation of Trees (Amendment) Act, 2021 (Mah. Act No. IX of 2021) (hereinafter referred to as “Amending Act 2021”), which reads as follows: –
“6A. Notwithstanding anything contained in the relevant Act or in any other law for the time being in force, and subject to any special or general directions given by the State Government, the Maharashtra State Tree Authority shall be responsible for, –
(i) monitoring the functioning of the Tree Authority;
(ii) protection and conservation of heritage trees across the State;
(iii) decide applications referred to it by the Tree Authority, regarding felling of more than two hundred trees of age five years or more;
(iv) decide applications referred to it by the Tree Authority, regarding felling of heritage trees;
(v) any other functions related to protection and conservation of trees.”
Section 2 of the Amending Act, 2023, reads as follows: –
“2. In section 6A of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975, (hereinafter referred to as “principal Act”), clauses (iii) and (iv) shall be deleted.”
The Bench have considered the rival submissions made by the counsel representing the respective parties. An act of legislature can be challenged primarily on two grounds; firstly, on the ground of legislative competence and secondly, if the alleged offending provisions of any piece of legislation violates any of the fundamental rights enshrined in part III of the Constitution of India or any other constitutional provisions. So far as the legislative competence of Maharashtra Legislative Assembly in enacting the Amending Act 2023 is concerned, no such foundation has been laid in the PIL petition. As far as the infringement of any fundamental rights or any constitutional provisions is concerned, the counsel for the petitioners submits that since divesting the State Authority of its powers to consider applications regarding felling of more than two hundred trees of age five years or more and also regarding felling of heritage trees will result in indiscriminate felling of trees, such provisions violate the fundamental right to life under Article 21 of the Constitution of India.
“We are afraid, we cannot agree with the said submission made by the learned counsel for the petitioners. What all has been done by the Amending Act 2023 is that the power to decide applications regarding felling of more than two hundred trees of age five years or more and the applications regarding felling of heritage trees has been divested from the State Authority, however, as a result of the said enactment now such functions shall be exercised by the Local Tree Authority in terms of the provisions contained in Section 8 of the Principal Act.
From a perusal of the scheme as contained in Section 8 of the Principal Act, the Bench noted that no one can fell trees unless he applies in writing to the Tree Authority for permission in that behalf. ‘Tree Authority’ in the Principal Act has been established by virtue of Section 3, according to which every urban local body is under a mandate to constitute a Tree Authority, consisting of the Chairman and other not less than five and not more than fifteen persons from amongst the members of the local authority, to be appointed in such manner and for such period as that authority may determine.
Thus, what was done by enacting the Amending Act 2021 was that certain functions which under the Principal Act were assigned to be performed by the Local Tree Authority were entrusted to the State level Tree Authority. As a result of the impugned provisions contained in Amending Act 2023, nothing substantial has changed except that the power to grant permission to fell trees has been re-conferred on the Local Tree Authority divesting the State Tree Authority of such powers. Accordingly, so far as the regulation of felling the tree is concerned, even after Amending Act 2023 the same remains intact.
For the aforesaid reasons, the apprehension in the mind of the petitioners that there is no regulatory mechanism to check cutting of trees, is unfounded. It is only that earlier this power was vested in the State Tree Authority, which is now vested in the Local Tree Authority. No other ground has been urged by the learned counsel for the petitioners for challenging the impugned provisions of the Amending Act 2023, the Bench observed.
It has been brought to our notice that certain proceedings were taken up before the National Green Tribunal, Western Zone Bench at Pune in respect of the same project and the Environmental Clearance (EC) granted to the project proponent was challenged. The said challenge resulted in the judgment by the NGT, dated 29th November, 2022. The execution proceedings of the said judgment are pending before the NGT and in the meantime the matter was taken up before the Supreme Court by filing Civil Appeal (Civil Appeal Diary No(s). 9039 of 2023), however, the said appeal was dismissed by the Supreme Court by means of order dated 27th March, 2023 observing therein that no good ground or reason to interfere with the judgment of the NGT was found.
While dismissing the said appeal, Supreme Court has observed that it will, however, be open to the appellants (before the Supreme Court) to raise such pleas and contentions as available, in case it is found that the project proponent is not acting in terms of the order passed or if there is any violation of the directions given by the NGT. An order dated 31st July, 2023 passed by the NGT has been brought to our notice, wherein it has been observed that a statement was made on behalf of the Pune Municipal Corporation that no trees shall be removed or cut without obtaining necessary permission of the Competent Authority.
It is also stated that the project proponent of the River Front Development Project has sought certain amendments in the EC which is under consideration before the State Expert Appraisal Committee-III (SEAC-III) and decision shall be taken soon. The order dated 31st July, 2023 passed by the NGT further records a statement made on behalf of the State Environment Impact Assessment Authority (SEIAA), State of Maharashtra that an application for amendment in the EC has been moved before them which is under consideration.
Having regard to the aforesaid facts and the nature of concern raised in the PIL petition, the High Court opined that while considering the prayer for amendment in the EC, the SEAC/SEIAA shall take into consideration the submissions of the petitioners as well regarding felling of the trees for the project in question. The SEAC/SEIAA while processing and considering any application seeking amendment in the EC, has to necessarily consider various aspects impacting the environment, which will include the impact of any project requiring felling of trees as well.